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THE 


LAW   OF   THE   FAEM. 


THE 


LAW    OF    THE    FARM: 


A  DIGEST   OF   CASES, 


AND    INCLUDING    THE 


AGEICULTURAL  CUSTOMS  OF    ENGLAND  AND  WALES. 


By     henry     hall     DIXON, 

BARRISTER-AT-LAW,   OF  THE  MIDLAND  CIRCUIT. 


dFbuvti)    edition 
By    henry    PERKINS, 

BARRISTER-AT-LAW,     OF     THE     MIDLAND     CIRCUIT. 


LONDON : 

STEVENS  AND   SONS,   119,   CHANCERY  LANE, 

1879. 


LONDON  : 
r.R.U)nURY,    AC.NKW,    &    CO.,    IRINTERS,    WHITEFRIARS. 


4- 


PEEFACE  TO  THE  FOURTH  EDITION. 


I  HAVE  omitted  from  this  Edition  the  Coursing  Eules,  the 
Smithfiekl  CUih  and  Agricultural  Society's  Laws,  S^c,  as  not 
being  necessary  to  a  work  of  this  kind. 

All  cases  interesting  to  Agriculturalists  which  have  been 
decided  up  to  the  present  time  have  been  added,  and  the 
whole  work  has  been  revised. 


HENRY   PERKINS. 

1,  New  Court,  Temple, 
December,  1878. 


778813 


PEEFACE  TO  THE  FIEST  EDITION. 


The  present  work  is  an  attempt  to  draw  together  fur  the  first  time 
the  principal  legal  decisions  which  bear  upon  the  everyday  incidents  of 
a  farmer's  life.  In  writing  it,  I  have  endeavoured,  as  much  as  possible, 
to  preserve  the  connection  between  the  cases  in  each  of  the  branches  of 
the  subject,  and  to  shoAV  how  one  governed  or  modified  the  other.  The 
facts  of  the  leading  ones  have  been  fully  sketched  out ;  and  I  have  also 
quoted  pretty  diffusely  from  the  judgments  of  the  Bench.  By  reference 
to  the  Addenda,  it  will  be  found  that  the  cases  have  been  brought 
down  to  the  end  of  Trinity  Term  ;  and  it  was  for  this  purpose  that 
the  publication  of  the  book  was  delayed  to  a  very  late  period  of  the 
legal  year. 

In  order  to  meet  the  requirements  of  general  readers,  the  cum1)ersome 
case  references  have  been  kept  out  of  the  text,  and  confined  solely  to  the 
conventional  table  at  the  beginning  of  the  work. 

The  chapter  on  Agricultural  Customs,  perhaps,  calls  for  some  slight 
notice.  I  had  originally  intended  to  have  based  it  almost  solely  on  the 
Parhamentary  Report  of  1848  ;  but  on  putting  myself  into  communica- 
tion with  the  gentlemen  who  went  before  the  Committee  of  the  House 
of  Commons,  they  ahnost  universally  replied,  tliat  the  principle  they 
then  advocated  had  made  so  great  an  advance  in  ten  years,  that  it 
would  be  absolutely  necessary  to  recast  tlie  abstract  of  their  evidence. 
The  customs  of  Wales,  and  the  other  English  counties  which  were  not 


vi  PREFACE   TO   THE   FIEST   EDITION. 

examined  into  by  that  Committee,  have  been  collected  from  the  best 
practical  som'ces  at  my  command  ;  and  to  the  tiX'iitlemen  who  have  so 
nngiiidgingly  lent  me  their  assistance  in  the  getting  up  of  this  very 
arduous  chapter,  I  beg  to  tender  my  most  liearty  thanks.  The  opening 
of  it  was  adopted  almost  word  for  word  from  the  Keport  itself,  as  I  felt 
it  impossible  to  state  the  general  principle  in  more  concise  or  fairer 
terms. 

1  have  thus  endeavoured  to  supply  what  always  struck  me  as  a  want 
both  in  legal  and  country  lil^raries,  and  I  trust  that  I  shall  not  be  found 
to  have  laboured  in  vain. 

HENRY  UALL  DIXON. 
Eldon  CHAMKiiiis.  Temple, 
^Itt'j.  7(h,  1858. 


CONTENTS. 

CHAPTER  I. 

AGRICULTURAL  CUSTOMS. 

PAGE 

Definition  of  Tenant  right ^ 

Agricultural  customs  in  Bedfordshire 2 

—  Berkshire,  Bucks,  and  Cambridgeshire '5 

—  Cornwall,  Cumberland,  and  Westmoreland i — 5 

—  Derbyshire ....(' 

—  Derbyshire  (North) '^ 

—  Devonshire  and  Dorsetshire 8 

—  Durham  and  Northumberland ^ 

—  Essex  and  Gloucestershire 10 

—  Hampshire  and  Hertfordshire ^  1 

—  Hereford  and  Monmouthshires 12 

—  Huntingdonshire 1*^ 


Kent 


li— Ic 


Lancashire  and  Cheshire 1^ 

Leicestershire 1' 

Lincolnshire  (North) 1^ 

Lincolnshire  (South) 1" 

Middlesex "^ 

Norfolk 21 

Northamptonshire 21 — 22 

Northumberland,  sec  Durham — 

Nottinghamshire 23 

Nottinghamshire  (South) 2-t 

Oxfordshire 2o 

Rutland  and  Shropshire 2G 

Somersetshire 27 

Staffordshire,  Suffolk 28 

Surrey 21)  30 

Sussex '^l 

Warwickshire 32 

Westmoreland,  sec  Cuniljcrland — 

Isle  of  Wight,  Wiltshire 33 

Worcestershire 34 

Yorkshire,  East  Hiding 34 — 35 

North     „    ^ 36 


X  CONTENTS. 

PAGE 

Agricultural  customs  in  Yorkshire,  West  Eiding 37 

—  North  "WVJ.es 38 

—  South 30—43 

The  Agi-icultural  Uoldings  Act,  1875 43—49 

CHAPTER  11. 

INTERESTS   IN   LAND. 

Definition  of  interest  in  land I  50 

Agreement  for  sale  of  root  crops id. 

—  growing  hops id' 

—  growing  potatoes ol — 53 

—  growing  fruit  and  vegetables 54 

—  growing  timber 55 

—  growing  imderwood          .         .        .         .         .        .         .         .         .         .  5G 

—  mowing  grass id. 

Agreement  to  give  moiety  of  crops  in  lieu  of  rent 57 

—  for  sale  of  groAving  crop  of  grass 58 

—  —    growing  corn  and  profit  of  stubble 59 

—  —    growing  crops,  when  it  confers  interest  in  land       .         .        .     .  CO 

—  —    growing  crops  distinct  from  letting  of  land          ....  id, 

—  —    crops  and  tillages 61 

—  with  landlord  to  accept  new  tenant id. 

—  to  suffer  another  to  become  tenant  for  residue  of  term      .         .         .     .  02 

—  to  surrender  interest  in  land id 

—  to  occupy  lodgings  at  a  yearly  rent 64 

—  to  purchase  milk-walk,  with  possession  of  premises        ....  id. 

—  by  parol  to  give  up  possession  of  premises 65 

—  by  tenant  to  pay  landlord  for  consent  to  assignment  of  term         .        .  66 

Right  to  take  water  from  well  as  tenant id. 

Agreement  by  landlord  to  supply  complete  furniture id. 

—  by  outgoing  tenant  to  leave  fixtm'cs G6 

Payment  of  legacies  out  of  sale  of  growing  crops (17 

Easement  of  "  grass  for  a  cow  "  creates  no  interest  in  land id. 

Indivisible  contract  for  interest  in  land id. 

Contract  by  parol  to  live  at  boarding-house 68 

Mortgagee  of  tenant's  fixtures  has  an  interest  in  hui<l id. 


CHAPTER  III. 

EASEMENTS. 

Definition 70 

Presumption  of  grant  of,  how  established id. 

Ilight  of  way,  definition  of id. 

—    pas.sagc  of  water       . id. 

Claim  of  right  to  make  drain  over  land  of  another irf. 

License  to  stack  hay 71 


CONTENTS. 


XI 


land  of  anothtT 


License  to  stack  coals    it 

—  irrevocable,  though  granted  by  parol 

—  —    to  enter  upon  land 

—  definition  as  to  how  determined      .... 

—  by  parol  to  put  in  a  light  cannot  be  recalled  at  pleasure 

—  to  divert  water 

Claim  to  spring  of  water 

Verbal  license  not  sufficient  to  convey  easement  of  drain  over 
Exclusive  right  to  sewer  made  under  power  reserved 
License  to  make  reservoir  for  dye-water  and  soke         .         , 
Unity  of  ownership  destroys  prescriptive  right 

—  of  possession 

Stopping  up  windows ^;7'i?)ia/«cw  abandonment 

Obstruction  of  ancient  lights 

Right  to  use  running  water 

—  to  dig  sand,  clay,  or  turves 

—  to  take  water  from  well 

Easement  may  be  claimed  by  custom    .         .         .'       . 
Right  to  take  pot  water 

—  water  cattle 

Custom  to  take  pvoflt  in  alieno  solo  bad     .... 
Right  of  free  miners 

—  owner  of  surface  to  support  of  underground  strata 

—  to  work  mines  is  an  incident  to  grant  of  mines 
Jlaim  of  prescription  stat.  2  &  3  Will.  IV.,  c.  71 

—  of  right  to  easements 

Plea  of  forty  years'  user 

Continuous  enjoyment  to  easement 

Enjoyment  of  easement  as  of  right 

Right  to  dig  clay  for  forty  years 

Proof  of  user  of  right  of  common  of  pasture 

Right  of  common  of  pasture  for  pigs 

Privilege  of  washing  sand,  &c.,  dislodged  from  tin  mine  . 

Immemorial  right  of  way  not  lost  by  non-user      .... 

Presumption  of  abandonment  not  to  be  made  from  mere  non-user 

Parol  agreement  for  substitution  of  new  way  no  evidence  of  abandonment 

Annexation  by  vendor  of  rights  connected  with  land   . 

Way  of  necessity 

—  cannot  be  pleaded  without  showing  its  character 

—  effect  of  unity  of  possession     ,         .         ,         . 

—  law  as  to      . 

—  definition  of     ......         • 

—  limited  by  necessity  which  created  it 

—  arises  from  presumed  grant     .... 

—  right  of,  can  only  arise  by  grant 
Limited  dedication  of  way  to  the  pul/lic    . 
Valid  dedication  to  the  public  now  made 
Right  of  way  for  agricultural  purposes 

—  to  cart  awav  timber 


xii  CONTENTS. 

PACK 

PrcscriptiTC  right  of  way  for  all  manner  of  carriages !)2 

Claim  of  way  for  cattle  and  carts  how  proved 93 

riea  of  rig!it  of  way  for  horses,  waggons,  &c id. 

Kight  of  way  for  farming  purposes  does  not  include  all  purposes         .         .     .  id. 

—  of  road  for  tithes id. 

—  grantee  of  an  occupation  way id. 

Obstruction  of  public  footwa.y 'Ji 

Ploughing  up  public  foot[)ath id. 

Erecting  gate  across  public  footpath id. 

Kercrsiouer  cannot  bring  action  for  simple  trespass id. 

Injury  must  be  permanent  to  enable  reversioner  to  maiutaiu  action         .        .  95 

Action  by  reversioner  for  chaining  gate id. 

Chaining  and  locking  gate  might  damage  reversionary  estate  .        .        .        .id. 

Free  passage  of  air  to  windmill id. 

Prescriptive  right  to  light  for  windows 96 

Twenty  years'  enjoyment  of  light 97 

Ancient  lights  may  be  altered  Imt  not  enlarged id. 

New  lights  not  corresponding  with  old 98 

Eight  to  dig  brick  earth id. 

Custom  to  dig  clay  in  a  copyhold  not  unreasonable id. 

Definition  of  surface  damage 99 

Support  to  land  from  drowned  mine 100 

Eight  of  owner  to  dig  minerals  on  lauds  adjoining  railway       ....  id. 

Owner  of  ancient  house  entitled  to  lateral  support  of  neighbour's  land       .    .  id. 

Damage  to  surface  of  land id-. 

Compensation  for  damage  by  subsidence  of  soil 101 

Eight  acquired  by  house   after  twenty  years'   uninterrupted  enjoyment  to 

lateral  support  of  soil id. 

Prescriptive  right  to  three-fourths  of  a  right  of  common id. 

Evidence  of  existence  of  highway id, 

—  of  user  and  dedication id. 

Free  right  of  public  to  enjoyment  of  highway 102 

Right  of  owners  to  enclose  part  of  highway id- 

—  justices  to  determine  highway id,. 

Distinction  between  private  and  public  w;iy 103 

Duty  of  surveyor  to  protect  footways id'. 

•Surveyor  of  highways,  liability  of,  for  accident  for  iiuii-rcpair  of         ...  id. 

Presumption  of  property  in  private  way id. 

Eight  of  way  appurtenant  to  plot 101 

Implied  grant  of  way  of  necessity i'^- 

When  close  of  land  adjoins  highway,  half  the  highway  presumably  passes  with 

the  close vL 

ilap  when  inadmissible "^• 

Order  of  justices  to  stop  highway  implied  by  non  user  of  iiighway       .        .     .  105 

Power  of  Inclosure  Commissioners  to  set  out  private  road         ....  id. 

Appropriation  of  private  way id- 

Eight  of  way  under  deed  uf  paitition id. 

Dedication  of  private  road  to  i)ublic,  evidence  of 106 

Merc  tracks  no  proof  of  highway id. 


CONTENTS.  xiii 

PAGE 

Selling  one  part  of  settled  estate  to  pay  for  making  roads  through  another 

pai't lOG 

Ploughing  up  foot-paths,  penalty  for /,/_ 

Discharging  eaves  water  on  reversioner's  land ]07 

llulc  as  to  going  100  yards  through  turnpike-gate /,/. 

CompositloQ  of  tolls  by  lessees /,/. 

Construction  of  "  other  thing  ■' in  Turnpike  lloads  Act 7,/. 

CHAPTER   IV. 

TREES    AND    FENCES. 

General  property  in  trees  and  bushes        .         .         .         ,        .        .         .         .  109 

Exception  of  trees  in  lease jV^, 

Meaning  of  "  woods  and  underwoods  " ^•f/. 

General  demise  of  land  with  timber  trees id^ 

Covenant  not  to  lop  or  top  trees        •■•'.....  id. 

Property  in  timber \\q 

Eight  to  timber  when  severed /j_ 

—  of  lord  to  fallen  rocks /,;_ 

Action  of  waste  for  felling  timber 7^_ 

Plight  of  tenant  for  life  to  sell  growing  timber  without  impeachment  of  waste  111 

—  of  tenant  for  life  to  cut  ripe  timber ,-,;_ 

Tenant  for  life  barred  by  lapse  of  time  from  receiving  proceeds  of  timber  cut 

by  previous  tenant        ••••.....,  id 

—  permissive  waste  by    .         .        .         .        .        .        ,         ,        _         .     .  112 

Prohibition  against  cutting  timber jYZ. 

Definition  of  timber ^Y^ 

Plight  to  repair  fences  in  churchyards II3 

—  to  trees  in  churchyards ^^^^ 

Cutting  down  ornamental  trees  by  devisee  in  fee 2W, 

Claim  of  right  to  enter  a  close  and  cut  down  trees ,V?, 

P.ovTghs  overhanging  land  a  nuisance \\^ 

Taking  timber  for  house-bote ^j 

Conversion  of  timber  trees " ^Y/ 

Custom  of  copyholders  to  fell  timber ,7^ 

Cutting  down  trees  in  order  to  work  quarries Ij-, 

Trespasser  cutting  timber  by  collusion  with  tenant ./(/_ 

Trustees  cannot  bring  trover  for  trees  felled ^7; 

Lessor  may  bring  trover  for  bark  of  trees  cut ^^^ 

Interest  of  lessor  and  lessee  in  trees ^^Z 

Lessee  has  general  property  in  trees  not  timber Ug 

—  may  claim  dotards  if  thrown  down  by  tempest i^ 

Exception  of  bushes  and  thorns  necessary  for  repair  of  fences     .        ...  id. 

Tenants  in  common  of  a  tree,  their  rights ^^i 

Rule  as  to  property  in  a  tree 227 

Definition  of  timber  trees 2is 

Saleable  underwoods,  larch  not 2iq 

Hating  of  salealile  underwoods ,^-^^ 


.;iv  CONTENTS. 

PACE 

Ratins;  of  copvolitcs 1-0 

lujimction  against  tenant  for  life  for  ciiUini:;  uiulorwuod  of  au  insiinicicnt 

growth 121 

Applc-faim  lease id. 

Right  of  nurseryman  to  remove  trees 122 

Definition  of  "waste"  as  applied  to  trees id. 

Cutting  down  willow  trees  to  the  butt ?'rf. 

Pollard  willows  not  timber 123 

Cutting  ash  poles id. 

Tenants' rights  to  dotards ...  124 

Covenant  not  to  grub  trees 125 

Tenant  jio  right  to  remove  box  edging  though  planted  by  liimself       .        .     .  id. 

Cutting  down  avenues id. 

Ornamental  timber .         .     .  1 26 

Proceeds  of  timber  which  required  felling  on  life  estate id. 

Timber  cut  for  necessary  repairs 127 

Entry  by  landlord  to  cut  timber id. 

Aggravated  trespass  by  such  entry        .        .        . id. 

Measure  of  such  damages id. 

Rule  of  standing  trees id. 

Entire  timber  contract 129 

Delivery  and  acceptance  of  timber  under  Statute  of  Frauds         .        ..       .     .  130 

Property  in  hedge  and  ditch 131 

Presumption  of  ownership  of  ditch id. 

Ditch  considered  a  fence  under  general  Enclosure  Act 132 

Law  of  ditches id. 

Duty  of  occupier  to  repair  fences id. 

No  obligation  to  fence,  when 133 

Repairing  private  road id. 

Liability  to  repair  highway 134 

Obligation  to  fence id. 

Escape  of  cattle  into  field  for  want  of  fences 135 

Clipping  hedge  by  one  tenant  in  common          .        .         .  •       .        .         .         ,  id. 

Ride  as  to  hedge-cuttings 136 

Stealing  or  injuring  trees,  &c id. 

Malicious  injuiy  to  vegetaVjles,  kc 137 

Obligation  on  occupier  to  fence  dangerous  places -.id. 

Liability  of  canal  company  to  fence  otf  canal  near  public  footway       .         .     .  138 

Injury  to  horse  through  bad  fence .        .        .  id. 

Horses  killed  by  fall  of  haystack 139 

Liability  to  maintain  fences  generally id. 

—    by  railway  companies 140 

Planting  trees  adjacent  to  highways 141 

Penalty  for  riding  on  footpath id. 

Cutting  hedges  by  surveyors 142 

Power  of  fc-urveyor  to  take  down  fence id. 

Properly  in  waste  land  adjoining  road 143 

Cattle  straying  on  highway 144 

Railway  fences id, 


CONTENTS.  XV 

PACK 

Obligation  of  ra,il\vay  companies  as  to  gates 145 

—    of  company  to  fence 146 

Their  liability  as  to  level  crossings 147 

Cattle  straying  on  raliway  througli  station  yard 148 

Liability  to  maintain  fence  between  railway  and  highway        .         .         .         .140 

Occupation  road  across  railway ITtO 

Railway  companies  not  bound  to  fence  one  part  of  premises  from  another  .     .  152 

Neglect  to  fasten  railway  gate id. 

Company  bound  to  leave  gate  on  their  line  shut id. 

Sheep  killed  on  railway 153 

Horse  grazing  on  roadside .  154 


CHAPTER  V. 

DANGEROUS  ANIMALS. 

Scienter 155 

Keeping  savage  boar icl. 

Ferocious  dog 156 

Railway  company  not  liable  for  acts  of  stray  dog  on  their  premises    .        .     .  id. 

Habits  of  dogs  dangerous  to  defendant's  knowledge id. 

Evidence  of  dogs  being  wont  to  attack  men  not  sufficient  to  support  scienter 

as  to  sheep 157 

Sheep  worrying 158 

What  is  evidence  of  scienter  for  jury     . 159 

Bull  running  at  "  something  red  " 160 

Caution  from  owner  of  dog  ..,.,.,.,,.  id. 

Evidence  that  dog  had  been  bitten  by  a  mad  dog id. 

Shooting  dog  when  justifiable 161 

Right  to  keep  dogs  loose  for  protection  of  property id. 

Keeping  ferocious  bull 162 

Obligation  of  owner  of  vicious  animal 163 

Injury  by  dog  chained  up  to  person  lawfully  on  premises  .         ....  id. 

Keeping  watch-dog  in  walled  garden        ........  164 

Bear  tied  up  by  too  long  chain id. 

Lack  of  caution  in  person  bitten 165 

Dogs  frightening  horses id. 

Scienter  put  in  issue  by  plea  "  not  guilty  " 166 

Putting  scienter  in  issue         .        .         .         .        .        .        .        .        .         .     .  167 

Depasturing  a  vicious  horse id. 

CHAPTER  YI. 

WATER. 

Lands  formed  by  alluvion  on  sea-shore 16S 

—    gained  from  the  sea id. 

Incidents  of  the  sea-shore 169 

Property  in  accretions  fi'om  a  non-navigable  river       , id. 


XVI 


CONTENTS. 


Grant  to  pass  coal  under  fovc-shorc  . 

VvoYtorty  ad  im-dium  fhim  aqucc    .... 

Ki<rht  of  fishing  passes  by  t,n-ant  of  water 

Sliirlit  (livei-sion  of  stream 

Ikight  of  riparian  owners  to  water 
Water  tiowins  in  a  stream  is  publu-i  jiirix 
Appropriation  of  running  water 
liijrht  to  water  not  in  a  llowinpc  stream 
Law  of  rii^ht  to  a  spring  of  water 

—    as  to  llowing  water 

Plight  to  sink  wells 

Abstraction  of  subterranean  water 

Uights  of  riparian  owners 

Cutting  oil  spring  at  source  .... 

L.aw  as  to  ai'tificial  water-courses 

Flow  of  water  from  and  into  collieries 

Presumptive  right  to  pollute  water   , 

Plight  of  pollution  subject  of  grant 

Pollution  of  stream  to  the  injury  of  cattle 

Difference  between  di-ain  and  water-course  . 

Flow  of  water  from  drain  for  agricultural  improvements 

Ilight  to  artilicial  water-com'se 

Flow  of  liquid  manure  into  neighbour's  field    . 
Unqualified  right  of  owner  to  drain 

Eights  as  to  rain-water 

Surface  water 

Irrigation  or  riparian  right        .... 
Diversion  of  water  for  irrigation   .... 

Plights  derived  from  deed 

Irrigation  by  artificial  dam 

Crossing  another's  land  for  purposes  of  irrigation 

Irrigation  by  artificial  cut 

Injury  to  reversion  by  diverting  stream     . 
Water  escaping  from  railway-cuttings  into  mine 
Working  mines  under  water-course   . 
Supplying  horses  from  public  fountain 
Conveyance  of  right  to  culvert  .... 
Compensation  to  tenant  for  life  for  loss  of  pond  . 


CHAPTER  VII. 

SERVANTS. 

Hiring  on  Sunday 199 

Contract  may  be  qualified id. 

Temporaiy  illness  of  servant id. 

Express  or  implied  bargain  for  service id. 

Forfeiture  of  ways  by  misconduct     ,..,,,.,,  200 


CO:^  TENTS.  XV  ii 

I'AaE 

CJcneral  luring  of  agricultural  labourer 200 

Jurisdiction  of  magistrates  to  discharge 201 

iVfaster  and  Servants  Act,  conviction  under id. 

Huntsman  a  servant id. 

Contract  for  year's  service 202 

Dismissal  of  servant 203 

Contract  for  service  for  more  than  a  year id. 

Hiring  by  parol .  204 

Jurisdiction  of  justices  as  to  bailitfs 205 

Bight  of  servant  to  quit     ...........  200 

Contract  of  service  not  necessarily  fur  specific  time      ......  id. 

jMonthly  servants •.         .         .  id. 

Gardener,  a  menial  servant   .        .        .        .         .         .         .         .         .         .     .  '  id. 

TriTckAet 207 

Settlement  by  hiring  and  service 208 

Breach  of  contract  with  shepherd id. 

Bailiff  entitled  to  notice id. 

Bailiff  not  a  partner 209 

Bailiff  not  authorised  to  draw  bills  or  plcdgQ  credit  of  master      .         .         .     .  id. 

Bailiff's  power  to  bind  master  by  contracts 210 

Master's  liability  for  act  of  servant 211 

Veterinary  surgeon  liable  for  negligence  of  servant 213 

Liability  for  letting  out  bad  thatchcr id. 

Master  liable  where  servant  drives  his  own  horse  in  master's  service        .         .  21-1 

One  man  may  drive  two  carts id. 

Servant  killed  by  negligence  of  another id. 

No  contract  by  master  not  to  expose  servant  to  risk 215 

Master  liable  for  injury  to  servant id. 

Injury  to  stranger  by  negligence  of  fellow  servant 217 

Injury  to  servant  helping  servant id. 

Proof  of  well-defined  negligence  required id. 

Master  liable  for  wilful  conduct  of  servant id. 

Injury  to  servant  by  negligence  of  fellow  servant 218 

Injury  to  servant  using  machine /(/. 

Injury  to  servant  from  unsafe  ladder 219 

Servant  going  indirect  road       ..........  id. 

Servant  using  master's  cart  without  leave id. 

Liability  of  master  defined 220 

General  rule  of  law  respecting  negligence 221 

Liability  of  master  for  debts  contracted  by  servant 222 

Cheating  by  dairymaid          . .     .  223 

Milk-carriers'  agreement id. 

Larceny  by  farming  servants         ..........  ?'(7. 

Fraudulent  drover 22J: 

Larceny  by  drover _ .         .         .     .  225 

Embezzlement  by  servant id. 

Fraudulent  drover 22G 

Larceny  by  pig-jobbers •        ....  id. 

Pig-jobber,  servant,  or  bailee        .        .        •        •        • 227 

b 


xvi;i  CONTEXTS. 

PAGE 

Employment  of  licen*C(l  drover 228 

Drover's  presumed  authority  to  f^ell 229 

Liability  of  salesman's  book-keeper 230 

CIIArTEll  Vlll. 

CO^'VEYAXCE  OF  HORSES  AND  CATTLE. 

Loss  on  board  bbip 231 

Mortality,  meaning  of  . id. 

Xccligencc  of  owners  of  ferry 232 

Eailway  Clanscs  Consolidation  Act id. 

Liabibilty  of  railways  at  eommon  law id. 

Lialiility,  restriction  of,  by  bookin.ff-ticket 2H3 

Injiny  to  horses  on  railway 234 

Injuiy  to  cattle .'     .  235 

—  truck  taking  fire 237 

—  through  gross  negligence 238 

—  through  collision 2-tO 

Construction  of  conditions  on  ticket     ^ 211 

1  Jail  way  and  Canal  Traffic  Act 242 

Just  and  reasonable  contract id. 

—  what  is  for  the  court 244 

Horse  left  in  siding  all  night .  245 

Cattle  suffocated  in  van 24(5 

Injury  to  horses  placed  in  cattle-truck  ■ 247 

Dogs  within  traffic  act 249 

Contract  with  first  railway  does  not  make  second  railway  liable          .        ,     ,  2al 

Crowding  cattle  without  leave  in  truck  by  another id. 

Hallway  must  Vjc  sued  within  county  court  disdict  fif  ]iriHcipal  |)l:ice  of 

business  .                 . id. 

Estoppel  by  false  statement  of  owner id. 

Conditions  by  railways  must  be  reasonable 252 

Injury  to  cow  on  railway id. 

—  horse  saddled  and  bridled id. 

Cattle  dealers  travel  at  their  own  risk 253 

Detention  of  horse  by  livery-stable  keeper id. 

Unreasonable  conditions 254 

Injury  to  race-horse,  damage  limited  to  £50 -id. 

—  valuable  greyhound id. 

Delay  in  forwarding  pigs 255 

—  cheese 257 

I'ig  case id. 

Delay  Ijy  fall  of  snow 259 

Hire  of  sacks 2G0 

Great  Northern  Railway  conditions 2GJ 

Private  sack  companies 203 

Giving  notice  to  consignor  of  consignee's  refusal  to  receive      ....  id. 

Delivery  of  goods  within  reasonable  time 204 

Improperly  securing  dog   .        .         , id. 


CONTENTS. 


XIX 


CHAPTER   IX. 


DISTRESS. 


General  principles  of  distress     .... 
Leaving  sheep  in  highway     ..... 
Things  in  manual  use  not  distrainablc 
Distraining  cattle  not  in  locus  in  quo     . 
Uemise  of  a  dairy        ...... 

Escape  of  a  distress 

Duties  of  pound-keejier       .        .        ... 

—  hayward 

Treatment  of  animals  in  pound  .... 
Conviction  of  persons  releasing  impounded  animals 
Tender  of  amends  when  not  too  late  .        . 

—  of  rent,  proper  person  to  receive 

—  —    sufficient  amends  .... 
Onus  of  estimating  amount  of  damage  . 
Detaining  cattle  after  tender      .... 

—  goods  .after  tender  of  rent 
Distraining  cattle  of  stranger  for  rcut-charge    . 

—  agisting 

Sale  of  tenant's  goods  under  bill  of  sale     . 
Implied  promise  by  landlord  not  to  stop  sale 
Agreement  to  take  interest  on  rent  in  arrear     . 
Bill  of  exchange  by  tenant  to  agent 
Authority  by  landlord  to  distrain 

Bailiff  distraining  wrong  sheep     .        .        .        . 
Payment  of  rent  under  distress  not  admission  of  title 
Trespass  maintainable  after  tender    . 

Statute  of  Uses 

Recovery  of  rent-charge  by  distress   . 

Distress  not  an  inseparable  incident  to  rent-service 

—  by  law 

—  illegal  at  improper  time      .... 

—  improper  working  of        ...        . 

—  after  death  of  tenant 

—  open  field  sufficient  pound  for 
Inventory  taken  an  impounding    .... 

Distress,  time  for  making 

Fraudulent  removal  of  goods  by  tenant 

Duty  of  distrainer  as  to  goods  unsold 

What  goods  may  be  distrained       .        .        .        • 

Distraining  implements  of  husdandry 

—  beasts  of  plough 

—  sheep  of  third  person       .... 
Tithes  can  only  pass  by  deed  .... 
Distress  illegal  after  determiaation  of  tenancy  . 


PAGE 

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id. 
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id. 
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272 
273 
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id. 
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id. 
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id. 
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id. 
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id. 
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id. 
286 

id. 
287 
288 

id. 


XX  CONTENTS, 

PAGE 

Broach  of  covenant  not  to  underlet 2SS 

Distress  by  joint-tenant  of  reversion i'l. 

Action  for  rent  by  tenants  in  common 289 

Unilerlessce's  power  to  distrain id. 

Demise  by  a  tenant  from  year  to  year  .        .        . id. 

Increase  of  rent  does  not  create  new  tenancy 290 

Distress  on  away-going  crops id. 

Operation  of  statute  of  8  Anuc id. 

Distrain  of  growing  crops 291 

—    Lay,  corn,  in  stacks          ,  .         .        .         .  id. 

Distress  by  grantee  of  rent-charge 292 

Seizure  of  crops  under  ^fi.fa id. 

I^aw  as  to  scii^nre  of  growing  crops 293 

l^imagcs  nominal  where  crops  sold  for  full  \aluc 29-1 

Goods  sold  without  ajipraisoniont id. 

Goods  in  cuslodid  Icgis    .        .        . id. 

Construction  of  statute  8  Anne ...  295 

Irregular  distress 29G 

Distrain  of  privileged  goods 297 

Ecmedy  for  excessive  distress id. 

llcplevin  when  maintainable 298 

Sale  of  farming  stock  taken  in  execution id. 

Sale  of  hay  and  straw  to  be  consumed  on  premises id. 

Custom  of  country  as  to  consumption  of  hay  and  straw 2_99 

Unreasonable  distress -        .        .        .  300 

Excessive  distress 301 

Implied  warranty  of  title id. 

Non-delivery  of  goods  sold  at  sheriff's  sale 302 

Second  distress  when  unlawful id. 

Unregistered  transfer  of  growing  crop  good  against  execution  creditor        .     .  303 

No  interpleader  where  claim  is  for  rent id. 

Distress  an  affirmation  of  tenancy id. 

Sheriff  not  entitled  to  poundage  when  proceedings  set  aside     ....  804 

Trespassers  at  i;'/u7/o id. 

Distress  no  waiver  of  breaches  of  covenant 305 


CHAPTER  X. 

HUSBANDRY  COVENANTS— CUSTOM   OF  THE   COUNTEY. 

Promise  to  farm  in  a  husband-like  manui-v  imiilicd 306 

Torts  which  die  Viith  the  jierson 307 

Acts  of  waste id. 

Breaking  up  ancient  meadow 308 

Covenant  to  manage  pasture id. 

Conversion  of  pasture  into  arable id. 

Sowing  clover  or  common  grass  seed  does  not  make  permanent  meadow          .  id. 

Bight  of  lessor  to  sue  for  waste 309 

Bight  of  reversioner. to  prevent  waste id. 


CONTENTS. 


XXI 


Injunction  to  prevent  mustard  seed  or  flax  from  bein 

Plor.gbiug  up  ancient  meadow  . 

Kights  of  incumbent  as  to  glebe  land    , 

Breaking  up  rabbit  warren 

Covenant  to  repair  hedges 

Cutting  poles  for  fencing    .... 

I'arol  agreement  for  lease 

Encouraging  improvements  under  bad  lease 

Penalties  for  ploughing  up  pasture 

—  sowing  noxious  plants 
Claim  for  additional  rent 
Penalty  for  underletting     . 

—  cross-cropping     .... 
Covenant  to  fallow  a  certain  quantity 

—  spend  a  certain  sum  in  mauiu'e  . 

—  keep  buildings  in  repair  . 
Overcropping  not  waste 
Custom  of  the  country 
Removing  hay  from  farm 
Allowance  for  lasting  improvements 
Claim  for  thatching        .... 
Paying  for  tillages     .... 

—  custom  of  the  country  as  to 
Ecmedy  against  assignees  of  reversion 
Plight  of  tenant  to  away-going  crop 

—  to  compensation  for  tillages,  &c. 
Outgoing  tenant  must  give  up  possession 

—  's  corn  may  be  distrained  after  exp 
llight  of  outgoing  tenant  to  away-going  c 
Sowing  odd  mark       .... 
Award  when  evidence    .... 
Assignment  of  tenant  right 
Custom  of  country  excluded  by  lease    . 

—  let  in  by  omission  in  lease 

—  to  leave  manure  .... 
Compensation  for  seeds  and  labour    . 
Stipulations  in  lease  as  to  mode  of  quittin 
Covenant  to  consume  hay  and  straw  . 

—  not  to  sell  hay      .... 
Consumption  of  straw  by  incoming  tenant 
Covenant  not  to  carry  away  hay  under  jJCULdty 
Play,  deiinition  of       .....         • 
Construction  of  draining  covenant 
Compensation  to  outgoing  tenant 

—  for  drainage 

—  for  maniu'c       ...... 

Payment  by  landlord  for  manure  and  tillages 

Valuation  of  tillages 

Appraisement  stamp  when  sufficient     . 


.0  landlord  . 
ration  of  term  . 
op 


PAGE 

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/(/. 
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id. 


xxn 


CONTENTS. 


^'alucr  of  ccclcsiivstical  property        i        .        . 

—  when  fundus  ojficio      .         .         .         .       .. 

Fair  valuation  or  consuming  price 

FotUlcr  price  oj*  consuming  price  .         .        .         . 

I'riuging  value  of  straw  back  in  manure    . 

Cleaning  of  "  value "  of  straw        .        .         .        . 

Soiling  straw  without  written  licence 

Manure  assignable  by  the  tenant  .        .         .        . 

•'  Manme  made  on  form,"  definition  of 

Right  of  outgoing  tenant  to  outstand  for  manure 

Covenant  to  bring  manure  for  liny  gold     . 

Agreement  to  sell  manure 

t>trcet  sweepings  exempt  from  toll 

Uucmshcd  bones 

Toll  exemptions 

Thrashing  machines  irajjlemcnts  of  husbandry 

—  not  liable  to  pay  toll        .... 

—  may  be  liable  by  local  act   .         .        .         . 


CHAPTER  XL 


TRESPASS   AND    GAME. 

r.ight  to  bring  trespass 

Possessory  right  sufficient  to  maintain  trespass 

Eight  of  churchwardens  and  overseers  to  maintain  trespass 

—  to  dig  turf  and  peat 

Plea  of  not  guilty  to  trespass      .... 

Plight  to  glean 

Trespass  for  working  an  cstray 

—  breaking  a  dovecote 

Pigeons  subjects  of  larceny         .... 
Larceny  of  bees  and  swans    .        .        .        .        , 
I'osscssion,  legal  possession  against  trespassers 
Entiy  l)y  lord  of  manor  .... 

Inclosure  part  of  holding 

Incroachmcnts  by  tenants  on  waste 

Plight  of  Inclosure  Commissioners  to  enter  land 

Right  to  waste  land 

Trespass  maintainable  liy  pnrchafer  of  growing  crop 

—  on  subsoil     ....... 

—  docs  not  lie  for  entering  a  close  to  retake  goods  wrongfully  brought 

there     

—  action  by  reversioner  for     .... 

—  (fc  bonis  0Ji2KrUdiii  by  auctioneer 

—  plea  of  leave  and  licence  in         .        . 

—  for  liorsc-racing 

Trespasser's  right  of  action  for  injury    . 
Excavation  near  foot-wav  .        .         . 


id. 
3-18 

id. 
M^ 

id. 

id. 
.",.-)0 


CONTENTS. 


Accident  tbrough  superior  agcnc}'  . 

Tre.s2Dass  against  surveyor  of  highways 
Waterwork  company's  rights  to  dig  footway 
Rights  of  public  company  ,        . 

Plea  of  Ubcrum  tcncmcntum    .... 
Trespass  for  continuing  building  on  land 

—  after  notice  ..... 

—  certificate  of  costs  in  action  for 
Remedy  for  continuance  of  nuisance 
Nuisance  by  burning  bricks  near  house 
Reasonable  use  of  right  to  carry  on  trade 
Placing  materials  on  a  prirate  road  . 
IMeasure  of  damages  for  removing  soil  . 
Reasonable  use  of  right  of  v^^ay 
Trespass  by  breaking  locks  and  chains 
Estoppel  of  tenant  from  denying  landlord's  title 
Rights  of  permissive  tenant   .... 
Forcible  entry  on  common  of  pasture 
Construction  of  malicious  trespass 

Damages  for  trespass 

Unlawful  entry  to  remove  crops    , 

Herbage  set  on  fire  by  sparks  from  engine 

Fire  caused  by  sparks  from  railway  engine  . 

P'ire  by  spontaneous  ignition  of  hay-rick   . 

Careless  burning  of  weeds      .... 

Laying  poisoned  corn  for  poultry 

Horses  frightened  by  traction-engine    .         .        .        • 

*  Proof  of  negligence  necessary  to  entitle  plaintilf  to  recover 
Negligent  riding  on  highway         .         . 

Nuisance  by  brick-burning 

Carrying  on  trade  in  reasonable  manner 

Brickmaking  not  a  noxious  trade 

No  notice  necessary  to  trespassers  ..... 

Provisions  against  trespassers  do  not  apply  to  fresh  pursuit  of  g 
Reversioner  cannot  apprehend  trespasser       .... 

Mesh,  definition  of 

Right  to  follow  fox 

Law  as  to  hunting  trespass        .        .        .         • 
Inciting  friends  to  commit  trespass 
Trespass  in  defiance  of  notice     .... 
Right  of  property  in  "  Hare  "... 
No  action  lies  for  involuntary  trcspasii 
Trespass  by  dog  against  master's  will   . 
Shooting  dog  chasing  deer  .... 

Taking  dog  damage  feasant 

Deputation  by  stat.  1  &  2  Will.  lY.  to  teize  dogs 
Poacher  cannot  give  e\-idence  for  himself     . 
Conviction  under  'J  Geo.  IV.  c.  ('>D 
Non-entry  of  some  of  poachers  on  lantl 


XXIV 


CONTEJvTS. 


Sending  dog  vn  land  an  entering 
Trespass  by  shooting  from  highway  . 
Eight  to  kill  game  exercised  for  seven  years 
Servant  no  authority  to  apprehend  poachers 
rrosecutions   under   1  .*c  2  WiU.   IV.,  s.  ;52,  must  be 

year 

Eights  of  gamekeepers  to  apprehend  poachers 
Owner  of  hind  need  not  prove  non-permission 

Apprehending  trespasser 

I'oaehcr  damaging  fence        ..... 
Forcible  rescue  from  unlawful  custody 
Liability  for  costs  of  persons  jointly  convicted 
Taking  hares  or  rabbits  l>y  night 
Occupier's  right  to  kill  hares 
Form  of  authority  to  kill  hares 
Taking  game  on  Sunday  or  Christmas  Day  . 
Eeasouablc  time  for  keeping  game  after  season 
Eight  to  deal  in  live  pheasants 
Tame  pheasants  subjects  of  larceny  . 
Tame  deer  in  park  personal  property    . 
Trespass  for  entering  fishery       .... 
Conviction  for  using  a  trap  for  game     . 

Setting  net  on  waste 

Shooting  hare  in  turaipike  road 
Shooting  pheasant  on  another's  land 
Frightening  grouse  with  fireworks 
I'oachcrs  found  with  rabbits  on  highway 

Claim  of  right  to  kill  game    .... 

ricking  up  pheasant  on  another's  land 

Conviction  for  trespass 

Ee-taking  rabbits  from  poachers 

Property  in  rabbits 

Eight  of  tenant  to  kill  rabbits    .... 

Labourer  taking  rabbit  by  order  of  farmer    . 

Bond  fide  assertion  of  right         .... 

!Mcre  vague  belief  of  right     .... 

Ousting  justices  jurisdiction       .... 

Young  pheasants  in  coop  under  hens  not  game 

Tame  deer  in  park  personal  property 

Lord  of  manor's  exclusive  right  to  f-port 
—    not  entitled  to  shoot  over  commons 

Assessment  of  land  without  game 

Orant  of  liberty  to  sport 

Ecservalion  of  game  by  lessor 

Grant  of  free  liberty  to  spoit  a  license  of  pnlit 

Franchise  of  free  warren        .... 

EcKjks. /c/Yc  natuno 

Shooting  near  decoy 

Liberty  to  kill  rabbits  with  ferrets  only    . 


commenced  w 


ithiu  a 


CONTENTS. 


XXV 


Ivcservatiou  of  all  royalties    .        .        .'       .        •        . 

Iviglit  of  gporting  over  cattlcgatcs 

Trespassing  on  land  wlicre  game  reserved  to  lord  of  llic  manor 

Eight  of  burgesses  to  sport  under  charter  .... 

Demise  of  sporting  not  under  seal 

Sale  of  right  of  shooting    . 

Lease  of  exclusive  rights  of  sporting     .    , 

Compensation  for  damage  by  game    . 

Bequest  of  money  to  liberate  poachers 

Laying  traps  for  dogs 

Dog  running  against  spear    . 

Spring-guns  in  wood  with  notice 

—  in  walled  garden 

—  definition  of 

Action  for  damage  by  dog  hunting  game 

Damage  by  game  to  crops 

Shooting  rabbits  where  exclusive  right  of  shooting  and  sporting  let 

Pursuit  of  game  .... 

Persons  taken  with  game  on  highway   . 

Apprehension  under  game  act   . 


CHAPTER   XII. 


TITHES. 


Value  of  rent-chai'ge 

Acits  relating  to  tithe 

Twenty  years'  perception  of  tithes     . 

Bequest  of  pure  personalty  to  restore  tithes  void 

Land  only  liable  for  tithe  rent-charge 

Intention  of  Tithe  Commutation  Act    .         .         . 

Bight  of  vicar  to  small  tithes     .... 

Tithes  of  bea,ns  and  peas 

Apportionment  of  rent-charge  by  commissioners 

Distress  under  Tithe  Act 

Brineiple  of  apporliumucnt         .... 
Onus  of  proving  land  liarrcn  .... 

Test  of  barrenness      ...... 

Exemption  from  tithes 

Instrument  purporting  to  merge  tithes 

Award  by  Tithe  Commissioner       .... 

Confirmed  award 

Dispirte  as  to  parish  boundary        .... 

IMode  of  proceeding  to  ascertain  boundaries 

Appeal  against  Commissioner's  award 

Actions  against  Tithe  Commissioners 

Amount  of  yearly  value  which  entitles  an  ap})ellan 

Proper  farm  modus     ...... 

Death  of  incumbent  within  three  months  of  award 


to  a 


)pca 


XXVI 


CONTENTS. 


Modus  dccim  yndi         , 

Action  for  tioljlc  value  of  tithes    .... 
Expenses  incident  to  apportionment 
Disqualification  by  interest  in  valuer     . 
Assessment  of  tithes  to  poor  rate       .        •  ■     . 
Annexation  of  portion  of  tithes  to  district  church 
Ecnt-chargc  on  heps 

—  of  district  church  not  rateable     . 

—  not  liable  to  sewers  rate 

—  grantee  of,  liable  to  income  tax 
Jurisdiction  of  Commissioner  of  Tithes 
Outgoings  include  land-tax  and  rent-cliargc 
Occupier  of  tithe  rent-charge  to  deduct  curate's  salary  from  rateable  value 
Perpetual  payment  to  incumbent  of  new  district  not  to  be  deducted 
Lessee  of  tithe  rent-charge  not  entitled  to  deduct  curate's  stipend 
Assessment  of  occupier  of  tithe  rent-charge       .        .        .        .        . 


PAGE 

402 
403 
404 

id. 
405 

id. 

id. 
406 

id. 

id. 

id. 
407 

id. 
408 

id. 
409 


CHAPTER  XIII. 

LANDLORD  A^'D  TENANT. 

Lessee  for  half-year  tenant  for  years 410 

Operative  words  in  lease ■  .     .  id. 

Agreement  when  operates  as  lease id. 

Meaning  of  words  "  agree  to  let " id. 

Evidence  of  title  on  a  writ  of  cicrjit 411 

Eight  to  distrain  without  attornment id. 

Receipt  for  rent  last  due id. 

Agreement  to  let  agreement  to  give  possession id. 

Contract  for  sale  of  agreement  for  lease  docs  not  imply  lessor's  power  to  lease  /(/. 

Demise  at  yearly  rent -112 

New.  tenancy  not  created  by  increase  of  rent id. 

Agreement  not  under  seal 413 

Right  to  enter  for  condition  broken id. 

Instrument  void  as  lease  good  as  agreement id. 

Intention  of  parties  as  declared  by  instrument 414 

Right  of  tenant  to  specific  performance id. 

I'arol  agreement  for  lease -115 

Covenant  respecting  rotation  of  crops  engrailed  on  yearly  tenancy          .        .  id. 

Not  giving  possession  no  breach  under  ;l  new  agicenicnt  for  a  lease    .         .     .  41(1 

Expired  lease "^• 

Stamp  on  agreement i'^- 

Ad,  valorem  stamp  duly ^•'• 

f^jtamp  when  not  necesfary 417 

Cleaning  of  "  subject  matter  "  in  Stamp  Act id. 

Estoppel  between  landlord  and  tenant 418 

Money  recoverable  from  inability  to  giant  ica-c 419 

Separate  orders  of  reference id. 

Arbitrators  between  outgoing  and  incoming  tenants id. 


CONTENTS. 


xxvn 


Authority  to  agent  to  execute  lease  must  Ijc  under  seal 
Authority  of  agent  to  give  notice  to  quit  .        .        .    • 

Binding  agreement  for  lease 

Letting  by  agent  without  authority 

Acknowledgment  of  title       ...;... 

Tenant  under-letting  by  false  rei)resentation     . 

Kefusal  of  entrance  by  lessor  to  new  tenant  .        .        . 

—  tenant  to  show  farm 

'•  Demise,"  meaning  of 

Land  to  be  reasonably  fit  for  purpose  for  which  it  is  taken 
No  implied  warranty  by  lessor  of  house  fit  for  habitation     . 
Interest  of  reversioner  in  repair  of  premises 

Lessee  must  seek  lessor  to  pay  rent 

C<3vcnant  to  repair      ........ 

—  yield  up  in  good  repair 

Rule  as  to  keeping  premises  in  repair 

Meaning  of  good  repair 

Right  of  lessor  to  enter  and  examine 

Tenant  from  year  to  year  not  bound  to  do  substantial  repairs 
Measure  of  damages  for  not  keeping  in  repair 
Destruction  of  jircmises  by  fire  ..... 
Liability  to  pay  rent  for  premises  burnt  down 
Landlord  not  compelled  to  spend  fire  insurance  money 

—  to  rebuild  farm-house 
Compensation  for  demolition  of  dwelling-house 
Allowance  by  Court  of  Chancery  for  repairs 
Action  for  dilapidations  subject  to  compulsory  reference 
Dilaptations  of  buildings  built  on  waste 
Right  of  rector  to  remove  hothouses  .... 
Notice  to  quit  by  one  joint-tenant         .... 

Who  may  give  notice  to  quit 

Cleaning  of  '-old  lady  day  " 

Diiierent  times  of  quitting 

Notice  to  quit  when  date  of  commencement  of  tenantry  not  known 

InsufScicnt  notice  to  quit 

Lessee  for  a  term  of  years 

Tenancy  of  glebe  lands  under  two  incumbents 

New  vicar  right  to  immediate  possession      .         , 

Two  years'  notice  to  quit   .         .        ... 

Action  in  county  court  by  landlord  to  evict  tenant 

Eviction  of  tenant  when  operating  as  suspension  of  rent 

Eviction  of  tenant  from  parcel  of  demised  premises,  no  answer 

breach  of  covenant 

Occupier's  liability  to  pay  rates         .... 
Occupier's  power  to  deduct  rates  from  rent  . 

Assessment  for  land-tax 

Special  agreement  l)y  tenant  to  pay  land-tax 
Demise  of  land  with  power  to  make  bricks,  kc. 
Right  of  tenant  to  deduct  income-tax   . 


to  action  for 


438 
iJ. 
/'/. 

4:!y 

vL 
id. 


XXVlll 


CONTENTS. 


Liability  of  occupier  to  pay  poor-rate 

Iliglit  of  occv,|ier  to  recover  property-tax  paid  uu  bchall"  of  landlord 

—  to  deduct  property-tax  from  rent 

Parish  officers  need  not  set  out  boundaries  of  property  rated  by  tlicui 
Emblements,  definition  of  ... 

—  executor's  right  to       .        .        .        . 

—  devisee's  right  to     . 

—  part  of  stock  on  farm  .... 
Ileriots  not  rateable 

—  custom  of  copyholders,  as  to 

—  landlord's  right  to   . 

—  payment  in  lieu  of      ...         . 
Action  for  use  and  occupation 

—  will  not  lie  without  agreement  express  or  implied     . 

—  —    when  it  will  lie 

—  —    may  lie  where  action  for  rent  not  maintainable 

—  —    will  not  lie  when  title  in  dispute  .... 
Owner.-hip  and  tenancy,  ^/;-i'//i«/rtCi'c  evidence  of  contract     . 
Agreement  void  by  fraud  ........ 

Delivery  of  instrument  as  an  escrow 

Receiving  rents  from  under-tenant,  proof  of  use  and  occupation 
Use  and  occupation  does  not  exclude  under-lotting 
.Vctiou  for  double  value  under  statute 

—  rent     ....... 

Holding  over  by  co-tenant 

—  after  expiration  of  lease 
Ke-cntry  on  non-payment  of  rent 
Permission  to  hold  over  after  notice  to  quit 
Actions  by  tenants  in  common  .        . 
Eeservation  of  rent  in  com    .... 
Average  price  of  corn  for  seven  years 
Reversioner  liable  for  permanent  nuisance   . 
Cleaning  of  one  day's  team-work 
Covenant  not  to  assign  or  under-let 

—  to  repair 

—  to  leave  land  stocked  with  game        • 
Payment  of  increased  rent  sufficient  to  take  case  out  of  Statute  of  1 
Farm  fixtures 

—  leading  case  on 

Plight  to  remove  barn 

—  stavel  barn 

—  water  fender 

—  staddlcs,  thi-ashing -machine,  and  granaiy  . 

—  barn  on  blocks  and  patterns    .... 

—  building  where  landlord  finds  part  of  tinibtr 

—  tenant's  fixtures  after  determination  of  tenancy 

—  pillars  of  brick 

Fixtures,  not  chattels  until  .severed  .... 
Trover  by  tenant  for  fixtures 


and.- 


PAGE 

440 

id. 
441 

id. 
442 

id. 

id. 
443 

id. 

id. 
444 
445 

id. 
446 

id. 

id. 

id. 
447 
448 

id. 

id. 
449 

id. 
4.30 

id. 

id. 
451 

id, 
452 

id. 
453 

id. 

id. 

id. 
154 

id. 

id. 

id. 

id. 
455 

id. 
450 
457 
458 
459 
4G0 

id. 

id. 
461 


CONTENTS. 


XXIX 


PACK 

Removal  of  Iniiklings  by  tenant  after  ejectment  brought          ....  4(;i 

Leaving  fixtures  in  same  condition 4(;2 

Law  of  fixtures ij^ 

Contract  for  quiet  enjoyment 463 

Implied  agreement  for .         .        .        .id. 

Meaning  of  premises     .        .         .        , uJ, 

Demise  of  three  years  certain {^^ 

Action  on  agreement  for  lease       .        .         .        .- .;,^. 

Agreement  requiring  stamp        ..........  4(J4 

Tenant  not  bound  to  take  house  which  is  seriously  defective        .         .         .     .  id. 

Evidence  of  oral  agreement ,y_ 

Valuation  agreement     ...#..,.,...  405 

Costs  abiding  event  of  reference ■     .         .         .        .  4GG 

Liability  of  agent  for  non-fnlfilment  of  agreement        .         .         .         .         .     .  id. 

Agent's  power  to  let  on  unusual  terms 4G7 

—  act  ratified  by  employer id, 

—  representation  by,  that  he  had  authority  to  act id, 

—  guarantee  of  solvency  by 4(;g 

Rights  of  assignee  of  mortgagor yi. 

Steam-engine,  grindstones,  etc.,  fixtures 4G9 

Annexation  of  chattel  to  freehold {j. 

Landlord's  claim  for  rent  under  _/i. /rt jd. 

Rights  of  presumptive  heir  to  rents .         .         .  /,/. 

Receipt  of  rent  from  third  party 470 

Holding  over  must  be  continuous  to  entitle  to  double  value     ....  •/(/. 

Ejectment  by  mortgagor id. 

Action  by  one  tenant  in  common  against  another id. 

Paying  tenant-right  to  false  devisee      .        • 471 

Enforcing  specific  performance  of  farming  agreement id. 

Lease  by  incumbent 472 

Lessee  bound  to  deliver  up  lease 473 


CHAPTER  XIV 


CONTRACTS   AND   SALES. 


Parties  bound  by  agreement  sent  to  solicitor  to  be  reduced  into  form 
Right  of  vendor  to  rescind  contract 

—  purchaser  to  insist  on  vendor's  personal  receipt  of  money 

—  —    to  recover  preliminary  expenses 

Remuneration  to  agent 

Contract  for  pr;rchase  of  land  when  complete 

Avoidance  of  contract  through  fraud 

Contract  as  to  coal-mines  worked  out    . 

Sale  of  close  inaccessible  except  by  way  over  another 

Auctioneer  agent  for  buyer  and  seller  . 

Default  by  purchaser  in  complying  with  conditions  of 

Right  of  i)urchaser  to  good  title     . 

Right  of  one  party  to  contract  to  substitute  a  third  party  in  his  place 


close 


sak 


474 

id. 
475 

id. 

id. 
47G 

id. 

id. 

id. 
477 

id. 
478 

id. 


.\xx 


CONTENTS. 


Right  of  ai\ctioneer  to  commission 

T.ai-gest  purchaser  entitled  to  title  deeds  . 

S;ile  of  reputed  water-meadow 

Sale  of  a  fee-farm-rent 

—  by  sealed  tenders         .... 

—  printed  particulars  of,  cannot  be  altered  liy  parol  evidence 
I'arol  evidence  when  not  receivable 

Sale  of  "  Ware  "  potatoes 

Parol  evidence  admissible  to  explain  trade  tcnn.^ 
Trade  meaning  of  cider 

_         _        —     1000  rabbits 

■Words  of  description  may  be  contradicted  by  parol 

IJefusal  of  seller  to  show  in  bulk 

Discharge  of  surety  by  variation  in  contract  without  his  consent 

Ordinary  rule  of  buying  by  sample 

Bulk  not  equal  to  sample 

Article  sold  by  sample  must  be  rejected  within  reasonable  time 
Article  sold  by  contract  must  reasonably  answer  description 

llight  of  purchaser  to  inspect  bulk 

Seed  not  corresponding  with  warranty       .... 

Necessary  to  give  notice  of  this 

Application  of  statute  in  such  cases 

Sale  of  turnip  seed 

Warranty  of  Skii-ving's  swedes 

—    seed  wheat        ....... 

—        —    sound  meat 

Contagious  Diseases  Animals  Act 

Alternative  contract  must  be  stated    ... 
Agreement  to  refer  enforceable  by  action      .... 
cTeliver  goods  "  from  time  to  time  " 

Recovery  of  remuneration  on  a  qiiantutn  meruit    . 

Seller  cannot  recover  price  of  part  of  contract 

Non-specification  of  time  for  delivery 

:Measurc  of  damages  for  non-delivery  of  goods  . 

Meaning  of  "  directly  "  in  contract  of  dcliveiy     . 
—    "  market  value  " 

Delivery,  what  constitutes 

Stack  sold,  but  burnt  before  paid  for         .... 

Sale  of  specific  chattel  on  credit 

Sufficient  agreement  within  Statute  of  Frauds  . 
—    deliveiy  to  satisfy  statute    ...  •        • 

What  constitutes  delivery,  leading  case  as  to    . 

No  actual  delivery  necessary  in  the  case  of  ponderous  goods 

Evidence  of  actual  acceptance 

Itefusing  to  deliver  to  bankmpt  vendee  after  sample  taken 

Drawing  samples  from  bulk  after  purchase 

rurchascr  putting  mark  on  particidar  article 

Actual  acceptance  and  receipt  of  goods     .... 

llif'ht  of  vendee  to  compare  goods  delivered  with  sample     . 


PAQF. 

478 
id. 
479 
id. 
id. 
id. 
480 
id. 
481 
id. 
482 
id. 
id. 
483 
id. 
484 
485 
id. 
486 
id. 
487 
■  id. 
id. 
488 
id. 
489 
490 
id, 
id. 
id. 
id. 
491 
492 
id. 
493 
494 
id. 
id. 
id. 
493 
496 
id. 
497 
498 
499 
500 
id. 
501 
502 


CONTENTS.  xxxi 

PAGE 

Acceptance  v/iihin  Statute  d  Frauds 503 

No  acceptance  where  goods  lost  in.  transitu id. 

Acceptance  of  seed,  what  constitutes id. 

Wheat  stopped  in  transitu 50-1: 

Memorandum  to  satisfy  17th  section  of  Statute  of  Frauds        .        ,        .        .  id. 

Statute  extended  by  9  Geo.  IV.,  c.  14 505 

Contract  to  furnish  turnip  seed 507 

Name  and  address  of  vendee  written  by  himself  at  bottom  of  list  of  articles 

purchased  sufficient  to  satisfy  statute id. 

What  acknowledgment  takes  debt  out  of  statute 508 

Pleasure  of  damages  for  breach  of  contract 509 

iVction  for  non-delivery  of  thrashing  machine  within  certain  time    .        .        .  510 

Delivery  of  goods  of  inferior  quality 511 

Itight  of  vendee  to  bring  trover  for  goods id. 

What  sufficient  evidence  to  support  trover 512 

When  trover  cannot  be  brouglit id. 

Order  for  delivery  on  thii'd  person .        .     .  513 

Measure  of  damages  in  trover id. 

Warranty  of  seed  barley oli 

Sale  of  Peruvian  guano id. 

Joint  occupation  of  a  farm 515 

Bill  of  sale  when  void  against  creditors      .                 id, 

—  —    assignment  of,  as  security  for  debt 51G 

Devise  of  farm  in  trust id. 

Drying  bark  distinct  trade  from  drying  corn 517 

Omission  of  statement  in  insurance  policy id. 

Law  of  the  market id. 

nights  of  seller  in  public  market 518 

Market  legally  established 519 

Fi'aud  on  lessee  of  market          .        .        .    _ id. 

Bankruptcy  of  vendees  before  taking  possession  of  bulk 520 

Eeturns  of  sales  of  corn ,  id. 

Corn  measures  in  different  markets 521 

Abolition  of  local  measures 522 

Selling  by  the  hobbett id. 

Sale  of  corn  by  sample 523 

Weight  of  hay  not  to  be  increased  by  water,  Sec id. 

Trading  by  farmer  within  bankrupt  laws id. 

Definition  of  a  trader 524 

—  —      cowkeeper id. 

Owner  of  market  liable  for  nuisance  arising  therefrom 525 

Cattle  fair  not  to  be  held  on  recreation  ground id. 

Selling  liorses  within  limit  of  market 526 

Warranty  of  seed id. 

Ilisk  of  vendee  in  absence  of  express  warranty 527 

Selling  manure  not  corresponding  with  warranty iil. 

Warranty  where  not  implied          ..........  id. 

No  implied  warranty  that  meat  fit  for  food 528 

Selling  bad  m-eat 523 


XXXll 


CONTENTS. 


h  o 


Carrier  iiulicttible  for  taking  bad  meat  to  market      . 

Absence  of  intent  to  sell  bad  meat 

Selling  bad  cider 

—  sulphured  hops 

—  refuse  cake 

sainfi>in  seed  adulterated  with  burnct 

Cinivietion  under  Adulteration  of  Seeds  Act,  ISC'.)     . 

Recovery  of  difEerence  between  sale  and  market  laicc 

Violation  of  consignor's  orders  by  carrier  .... 

Measure  of  damages  for  non-dclivcry    .... 

Acceptance  of  hops  within  the  Statute  of  Frauds      . 

Delay  of  delivery  cannot  be  set  up  in  reduction  of  damages  in  bre 

warranty 

What  is  sufficient  to  pass  property 

Contract  for  sale  of  growing  turnip  seed 

Vendor  liable  for  false  representation  of  lease 

Assicnment  by  client  to  attorney  not  void  on  ground  of  champerty     . 

Seizure  and  sale  under  bill  of  sale 

The  severance  of  one  part  of  farm  from  another  by  railway  an  injury  to  farm 

Railway  recpiired  to  take  whole  estate 

Mortgage  on  living  no  ground  for  rescinding  contract  of  sale  of  advowsou 

Inaccurate  particulars  of  sale 

Right  of  agent  to  remuneration  when  sale  goes  off        .... 
Aeent  at  auction  should  declare  himself 


PAGE 

529 

id. 
.  id. 

id. 
530 

id. 
581 
532 

id. 

534 


.580 
id. 
id. 

538 

id. 

id. 

.f>8n 

id. 
id. 
540 
541 
id. 


CHAPTEIl  XV. 

HORSES  AND  CATTLE. 

Rule  of  caveat  cinplor 

Warranty  of  soundness 

Distinction  between  representation  and  warranty     . 

"  This  horse  is  sound,"  a  warranty 

Misrepresentation  as  to  where  horse  comes  from 

General  rule  as  to  warranty 

Giving  horse  particular  character       .         .         .        •         . 
Warranty  of  horse  being  "  clever  hack "       .        .        .        . 

Unauthorised  warranty  by  servant 

Receipt  of  douceur  by  agent  from  seller         ... 
Action  against  agent  for  breach  of  duty     .... 
Loss  of  good  bargain  evidence  of  value 

Definition  of  bone-spavin 

Hirer  of  horse  to  use  reasonable  care     .... 
Full  description  in  auctioneer's  catalogue  .... 
Bidder  at  auction  may  retract  bidding  .... 

Puffers  at  auction  sales 

Conditions  of  auction  sales  sufficient  notice  to  buyers  . 

Horse  warranted  six  years  old  but  actually  twelve  may  be  returned 


542 

id. 

id. 

id. 

543 

id. 

544 

id. 

545 

547 

548 

549 

id. 

id. 

id. 

550 

id. 

id. 

551 


CONTENTS.  xxxiii 

PAQE 

Private  warranty  incorporated  into  conditions  of  sale 551 

Written  warranty        .         .         .         .         .         .         .         .         .         .         .         .552 

General  rule  for  horse-dealing 553 

Fraudulent  representation  at  time  of  sale  ........  id. 

Representation  must  be  known  to  be  false id- 

Warranty  by  servant  of  horse-dealer 554 

—  stranger 555 

General  rule  of  selling  by  servant       .........  id. 

Warranty  by  servant  merely  entrusted  to  deliver          .         .         .         .         .     .  id. 

Piule  of  master  taking  back  horse  which  will  not  stand  to  warranty  given  by 

servant 556 

Principal  responsible  for  agent's  fraud .         .         . id. 

Warranty  by  veterinary  surgeon  as  agent           .......  557 

Plea  of  breach  of  warranty    ...........  558 

Stamp  on  warranty    ............  id. 

Partnership  in  a  horse 559 

Undertaking  to  give  material  evidence id. 

Measure  of  damages  in  trover  for  a  horse      ........  560 

Riding  another  horse  without  licence  of  owner 561 

Warranty  that  horse  "  sound  and  quiet  in  harness  " id. 

—  "good  drawer" id. 

Agreement  to  return  mare  if  in  foal       .........  id. 

Dealing  on  Sunday 562 

Covering  mares  on  Sunday 563 

Farmer  not  within  Sunday  Trading  Act id. 

Positive  proof  of  unsoundness,  when  necessary id,. 

Warranty  when  continuing id. 

What  constitutes  unsoundness 564 

Warranty  of  bullocks id. 

Meaning  of  word  "  sound  " 565 

Defect  in  structure  of  horse 566 

Unusual  convexity  in  the  cornea  of  eye         .         • id. 

Hereditary  disease  in  sheep 567 

Permanent  cough  unsoundness 568 

Roaring      ......••••••••*"• 

Stringhalt 569 

Laminitis    ......••••••••  "^d. 

Contraction  of  hoof •    •        .     .  ^d. 

Navicular  joint  disease ^'^• 

Chest-foundered • 570 

Cataract      .......•••••••  '■c^- 

Affection  of  nerves  in  lumbar  region id. 

Badness  of  shape        .        .        .        .        •        •        •        •        •        •        •         .id. 

Curby  hocks ■^^^• 

Thin-soles 571 

Splint -^d. 

Effect  of  lapse  of  time  on  contract 573 

Agreement  to  take  horse  back  within  certain  time id. 

Reasonable  trial •         •  574 

Borrowed  horse  cannot  be  used  by  servant 574 

Difference  between  gratuitous  bailee  and  hirer id. 

Doctoring  hired  horse 575 

c 


xxxiv  CONTENTS. 

I'AGK 

Livery-stable  keeper  no  lien  for  veterinary  charges 57 (> 

"  No  cure  no  pay  " •  '"' 

Chemist's  liability  for  selling  improper  lotion id. 

Selling  improper  sheep-wash          . 577 

Veterinary  siirgeon's  claim 5 '9 

What  constitutes  an  acceptance *^- 

Sale  on  credit *"• 

Complete  contract  of  purchase  from  letters 580 

Giving  halfpenny  as  earnest  money 581 

Acceptance  within  statute 583 

Verbal  promise  to  purchase  cattle id- 

Acceptance  after  delivery 584 

Price  under  £10 .  585 

Borrowing  horse  before  actual  delivery id. 

Cleaning  of  acceptance 58b 

Comments  on  Statute  of  Frauds id- 

Extension  of  statute 587 

Stealing  from  agister ^"• 

Compensation  for  agistment 588 

No  lien  in  case  of  agistment 589 

Livery-stable  keeper  no  lien .id. 

Inn-keeper  no  lien  except  in  case  of  guest 590 

General  rule  of  lien id- 

Lien  on  race-horses        ............  id. 

Auctioneer's  lien 591 

Liability  of  auctioneer  as  agent id. 

Recovery  of  keep  when  warranty  broken 593 

Pm-chascr's  duty  to  return  unsound  horse id. 

Piecovery  of  keep  when  contract  broken 594 

Question  of  damages  on  returning  horse id. 

Purchaser's  duty  when  warranted  horse  unsound 595 

Right  of  purchaser  to  return  horse  within  certain  time 59r> 

Sale  by  public  auction  not  sale  in  market  overt 597 

Sale  of  stolen  horses id- 

Sale  of  gland  ered  horses 598 

Conspiracy  to  cheat  in  selling  horses id. 

Conspiring  to  defraud  by  false  pretences 599 

Ordinary  cheating  at  fair id. 

Recovery  of  stolen  goods  in  trover 600 

Malicious  prosecution  for  sheep-stealing id. 

Loss  of  chattels  at  inn GOl 

Horse  injured  at  livery-stables id. 

Placing  gig  in  street 602 

iJogs  in  charge  of  ostler id. 

Keeping  swine  a  nuisance id. 

Slaughtering  horses  at  kennels 603 

Cows  poisoned  in  pasture 603 

—  by  yew  clippings 604 

Acquiescence  of  owner  in  erection  of  injurious  works id. 

Cattle  injured  by  working  of  mines id. 

—  by  lead  works 605 

Symptoms  of  sulphate  of  lead        .         .        , 606 


INDEX    OF    CASES. 


A. 


Abbey  V.   Petcb,    8  M.   &  W.,   419— pp. 

298,  299,  300,  301 
Abbott'.  Weekly,  1  Lev.,  176—79,  349. 
Abington  v.  Lipscombe,  1  Q.  B.,  776 — 444 
Ablest  t'.  Pritcbard,  1  N.  R.  C.  P.,  210— 342 
Abron  V.  Fussell,  3  F.  &  F.,  152—549 
Ackland  v.  Buller,  1  Ex.,  837—401 
Acraraan  v.  Morrice,  8  C.  B.,  449—129 
Acton  V.  Blundell,  12  M.  &  W.,  324—175, 

176 
A(bams  V.  Great  Western  Railway  Company, 

30  L.  J.  N.  S.,  Ex.,  124—251 

V.  Richards,  2  H.  BL,  573—573 

Aldenburgh  v.  Peaple,  6  C.  &  P.,  212—434 
Alderi'.  Keighley,  15  M.  &  W.,  117—509 
Aldridgeo'.Grreat  Western  Railway  Company, 

3  M.  &  G.  515—360 
V.  Johnson,  26  L.  J.  (N.  S.)  Q.  B., 

296—498,  536 
Alexander  v.  Combe  [Comber],  1  H.  Bl., 

21—512 
V.  Gibson,  2  Camp.,   555 — 545, 

555 
Allaway  v.  Wagstaff,  99 
AHday  r.  Great  Western  Railway  Company, 

34  L.  J.  N.  S.  Q.  B.,  5—254 
Allen  V.  Cameron,  1  C.  &  M.,  832-484 

V.  Denstone,  8  C.  &  P.,  760—555 

V.  England,  3  F.  &  F.,  49—358 

V.  Lake,  18  Q.  B.,  560—487 

■ V.  Ormond,  8  East,  4 — 93 

Allott  (Exor.)  V.   Carr  and  Scholefield,  27 

L.  J.  (N.  S.)  C.  P.,  281  ;  Ex.  385— 

516 
Alsop  V.  Yates,  27  L.  J.  Ex,,  156-219 
Alston  V.  Scales,  9  Bing.,  3 ;  2  M.  &  Scott, 

5—143 
Anderson  r.   Blackburn,  A'eterinarian,  vol. 

21,  p.  469—569 
, r.  Robson,  ibid.,  p.  584 — 543 


Anderson  v.  Eadcliffe  and  Walker,  28  L.  J. 

(N.  S.)  Q.  B.,  32—516,  538' 
V.  Scott,  1  Camp.,  235  71—500, 

584 
Angerstein  v.  Handson,   1    Gale,  8  ;  1  G. 

M.  &  R.  789  ;  5  Tyr.,  383-315 
Anscomb  v.  Shore,  1  Taiin.,  261 ;  1  Camp., 

285—272,  279 
Applebee  v.  Percy,  9  L.  R.  C.  P.,  647—157 
Appledore  (In  re),  Commutation,  8  Q.  B., 

139—397 
Archer  v.  Horner,  3  L.  &  P.,  349—206 

V.  Sadler,  1  F.  &  F.,  481—359 

Arkwright  v.  Gell,   5  M.    &  W.,  203  ;  2 

Horn  &  H.,  17—182,  183,  184,  193 
Ashmead  v.  Ranger,  1  Ld.  Raym.,  522 — 115 
Ashworth  v.  Stanwix  and  Walker,  30  L.  J. 

Q.  B.,  183—216 
Askew  {In  re),  20  Law  J.  (N.  S.) ;  M.  C, 

241  ;  2  L.  M.  &  P.,  429—201 
Aste  V.  Montague,  1  F.  &  F.,  264  -222 
Attack  V.  Bantell,  N.  R.,  January  31,  1863 

—305 
Atterbury  v.  Fairmener,  8  Moore,  32 — 570 
Attorney- General  i\    Chambers,  6  Jurist, 

745—168 
V.   Hanmer,  27  L.  J.  (N. 

S.)  Ch.,  837—169 
V.    Matthias,    27    L.    J. 

(N.  S.)Ch.,  761—79 
V.   Corporation  of  South- 
ampton, 29  L.  J.  N.  S.  Ch.,  282-525 
V.  Pretymau,    19  Beav., 

538—316 
v.   Ward,  11  Beav.,  203 

—396' 
Atwood  V.  Emery,  1  C.  B.  (N.  S.),  110— 

493 
Aubrey  v.  Fisher,  10  East,  446—118 
Austin    V.     Manchester,     Sheffield,     and 

Lincolnshire     Railway    Company,    16 

Q.  B.,  600  ;  10  C.  B.,  454—236,  256 
c  2 


XXX  Yl 


INDEX    OF    CASES    CITED. 


B. 


Bach  i-.  Owen,  5  T.  R.,  409— 5S2 
Badkin  v.  Powell,  Cowp.,  476—268 
Bagge  V.  JIawby,  8  Ex.,  641—303 
Baglehole  v.  Waltei-s,  3  Camp.,  154-551 
Bagnell   v.    London    and    North   Western 

Railway  Company,  31  L.  J.  (N.  S.)  C. 

P.,  121—196 
Bailey  f.  Holford,  8  Q.  15.,  1000—375 

V.  Forrest,  2  C.  &  K.,  131—571 

V.  Forrest,  567 — 571 

r.  Stevens,  31  L.  J.  (N.  S.)226,  C.P.  ; 

12  C.  B.,  91  ;  6  Law  Rep.,  356—114 
Baker,  W.  (ex  parte),  2  H.  &  N.,  219  ;  26 

Law  J.  (N.  S.)  M.  C,  193—201 

V.  Berkeley,  3  C.  &  P.,  32—365 

V.  Holtpzaffell,  4  Taun.,  45—429 

Kaldey  r.  Parker,  3D.   &  R.,  220  ;  2  B. 
37—129,  500 

Castella,7  L.  R.  Ex.,  325—157 
Dyson,  1  Taun.,  279—92 
Benstead,  1  Camp.,  463—174, 


&C., 
Baldwin  ;•, 
Ballard  v, 
Balston  v. 

175 
Bamfordi).  Turnley,  31  L.  J.  (N.  S.)  Q.  V,., 

286—362 
Bandy  r.  Cai-twright- 463 
Bankhart  v.  Houghton,  Law  Times,  March 

12,  1859—604 
Banks  n  Crossland,  10  L.  K.   Q.  B.,  97— 

204 
Bannerman?-.  "White,  3]  L.  .T.  (N.  S.)C.  P., 

28—530 
Barker  v.  Aston,  1  F.  &  F.,  191—516 

r.  Davis,  391 

r.  Tithe  Commissioners,  9M.  &M., 

129  ;  11  M.  &  W.,  320—403 
■ V.  Richardson,  4  B.  &  Aid.,  579 — 

70 
Barlow  f.  Osborne,  27  L.  J.  (N.   S.)  Ch., 

308—479 
Barnes  v.  Harding,  1  C.  B.  (N.  S.)  568— 

411 
(Admx.)  V.  Ward,  9  0.   B.,  392  ; 

2  C.  &  K.,  661—137,  349 
Barnettr.  Guildford  (Earl),  11  Ex.,  19— 

357 
Barraud  v.  Archer,  2  Sim.  433—479 
Barrett  v.  Barrett,   —  Hetley,   35—122, 

309 
^— —  r.  Stockton  and  Darlington  Railway 

Company,  3  M.   &  G. ,  953  ;  3  Scott 

N.  R.,  803  ;  7  M.  &  G.,  270  ;  8  Scott 

N.  R.  641—274 


Barrington  v.  Turner,  3  Lev.,  28—368 
Barrow   v.   Ashburnham   (Lord),   4  L.   J. 

(N.  S.),  K.  B.,  146— 3?9 
Bartlettt'.  Purnell,  4  Ad.  &  E.,  792—592 
Bartons  Hill  Coal  Company  v.  Reid — 215 
Basingstoke  (Mayor  of)  v.  Lord  Bolton,  3 

Drew,  50—445 
Bas-sett  v.  CoUis,  2  Camp.,  522—568 
Bateman  v.  Burge,  6  0.  &  P.,  391—94 

V.  Farnsworth,  29  L.  J.  (N.  S.) 

Ex.,  365—303 
Bates  v.  Hudson,  6  D.  &  R.,  3—576 
Bathurst  (Earl)  v.  Burden,  2  Br.  Ch,  Rep., 

64—170 
Batti.shill  r.  Reed,  IS  0.  P..,  696—84,  354, 

355 
Battley  v.  Falkner,  3  B.  &  Al.,  288—487 
Baxendale  r.    Eastern    Counties    Railway 
Company,  27  L.  J.  (N.  S.)  0.  P.,  137 
—263 

r.  Hardingham,  L.  T. ,  April  30, 

1859—517 
Baxter  r.  Taylor,  4  B.   &  Ad.,  72  ;  1  N. 

&  M.,  11—94,  95,  348 
Baylisr.  Le  Gros,    26  L.  J.  C.   P.,    176— 

428 
Bayne  r.  Walker,  3  Dow.  H.  of  L.,  233— 

430 
Beadon  r.  Trimlett  (not  reported) — 27 
Bealey,   r.  Shaw,  6  East,    208  ;  2  Smith, 

321—76,  171,  172,  174 
Beardmore  v.   TreadwcU,  31   L.  J.  (N.  S.) 

Ch.,  892—362 
Beaseley  v.   Clark,  2   Eing.  (N.  C),  705  ; 
3  Scott,  258  ;  2  Hodges,  ]  00  ;  5  Dow. 
P.  C,  50—82,  83 
Beaty  v.  Gibbons,  16  East,  116—339 
Beaufort  (Duke  of)  v.  Glynn,  3  Sm.  &  Gif., 

213—476 
Bcavan  v.  Delahay,  1   H.    B.    L.,  5  —  290, 

291,  321 

Beckwith  v.  Shardike,  4  Burr.,  2092—367 

Bedford  v.  Warden  and  Society  of  Sutton 

Coldfiekl,  27  L.  J.  (N.  S.),  C.  P.    137 

-396 

Beech  v.  White,  12  Ad.  &  E.,  668;  4  P.  & 

D.,  399—430 
Beechey^'.  Sides,  9  B.  &  C,  806—364 
Beeru  Santer,  IOC.  B.,  435—329 
Beeston  v.  Collyer,  4  Bing.,  309—204 

V.  Stuteley,  27  L.  J.  (N.  S.),  Ch., 

156—419 

V.  Weate,  5  E.  &  B.,  986—192 

Behren  v.  Bremer,  3  0.  L.  R.,  40—419 
Bell  V.  Warden  (Willis,  202) -349 


INDEX    OF    CASES    CITED. 


XXXV 11 


Bell  V.  Young,  15  C.  B.,  524-524 
Benjamin  v.    Andrews,  27  L.    J.    (N.  S.), 

Q.  B.,  448,  M.  C,  310—519 
Bennett  V.  Ireland,  28  L.  J.  (N.  S.)  Q.  B., 

48—430 

•  r.  Womeck,  407 

Benwell  v.  Inns,  26  L.  J.  (N.  S.)  Ch.,  6G3 

—223 
Berkeley  v.  Hardy,  5  B.  &  C,  355  ;  8  D. 

&  R.,  102—420 
Benidge  y.  Ward,   30  L.  J.  C.  P.,  218— 

104 
Bcrriman  v.  Peacock,  2   M.  &  Scott,  524  ; 

9  Bing.,  384-109,  136 
Berry  v.  Herd,  Cro.  Car.,  242—115 
Bersell   [BesscU]    v.    Landslierg,   14  L.  J. 

(N.  S.)  Q.  B.,  355—434 
Besant  v.  L.  &  S.  W.  Ry.  Co.,  8  C.  B.,  368 

—153 
Best  V.  Osborne,  R.  &  M.,  296-569 
Bezozzi  V.  Harris,  1  F.  &  F.,  92—165 
Beverley  v.  Lincoln    Gas  Light  and  Coke 

Company,  6  Ad.  &  E.,  829—445,  446 
Bewick  V.  Whitfield,  3  P.  Williams,  268— 

109 
Bexwell  r.  Christie,  Cowp. ,  397 — 550 
Bigg  V.  Whisking,  14  C.  B.,  J 95— 129 
Biggins  V.  Goode,  2  C.  &  J.,  364  ;  2  Tyr., 

447—294 
Bignall  V.   Clark,  29  L.    J.    (N.   S.)  Ex., 

257—278 
Binks  V.  S.  Y.  &  River  Don  Nav.   Co.,  W. 

R.,  Nov.  29,  1862,  138 
Binns  v.  Pigott   9  C.  &  P.,  208—590 
Birch  V.   Liverpool  (Earl  of),  9  B.  &  C, 

392-203 
V.    Stephenson,  3  Taun.,    469-308, 

313 
Bird  V.  Baker,  28  L.  J.  (N.  S.)  Q.  B.,  7— 

435 

V.  Bond,  N.  R.,  Feb.  21,  1863—114 

^,.  G.  E.  Ry.  Co.,  34  L.  J.  (N.  S.)  C. 

P.,  366—392 

V.  Higginson,  4  N.  &  M.,  505—387 

V.  Holbrook,  4  Bing.,  628  ;   1  M.  & 

P.,  607—350,  390 

V.  Ralph,  4  B.  &  Ad.,  826-310 

Bishop  V.  Wraith,  2  C.  L.  R.,  287—410 
Bhichford  v.  Preston,  8  T.  R.,  93  &  95— 

550 
Black  t'.  Baxendale,  1  Ex.,  410—264 

V.  Elliot,   Times,  March  3,   1859— 

577 
Blackman  v.   Simmons,  3  C.  &P.,  138— 
162 


Blackniore  {Ex parte),  6  Ves.,  3—524 
(Adrax.)  V.  Bristol  and  Exeter 

Railway  Company,   27   L.    J.    (N.  S.) 

Q.  B.,  167  —  219',  575 
Blades  v.  Higgs  &  Anor.— 379 
Blagrave  v.  Bristol  Water  Works  Company, 

1  H  &N.,  369—94  * 
Blake  v.  Gills  [Gibbs],  5  Riiss.  16  n— 443 
V.  Peters,  31  L.  J.  (N.  S.)  Ch.,  884 

—  112 
Blakemorey.  Lancashire  and  Yorkshire  Rail- 
way Company,  1  F.  &  F.,  76  —  258 
Blaker  «.  Anscombe,  1   Bo.s.  &  P.   N.  R., 

25-115 
Blakey  v.  Dinsdale,  Cowp.,  664 — 518 
Blanchard  v.  Brydges,  4   Ad.  &   E.,  176  — 

97 
Bland  i:    Lipscorabe,  4  E.   &  B.,  713  n  — 

79 
Blatchf>a-d  v.  Cole,  28  L.  ,T.  (N.  S.)  C.  P., 

140—450 
Bleadon  v.  Pyke,  5  M.  &  S.,  146—69 
Blenkinsopp  v.   Clayton,  7  Taun.,    597 — 

582 
Blewett  V.  Jenkins,  12  C.  B.,  16—114 
V.  Tregonning,  3  Ad.  &  E.,  554 — 

79 
Blount  V.  Pearman,  1  Bing.  N.  C,  408  — 

416 
Blower  v.  G.  W.   By.  Co.,  7  L.  R.   C.  P., 

655-252 
Bloxam  r.  Morley,  7  D.  &  R.,  407—511 
Bloxsome  r.  Williams,  3  B.   &  C,  232- 

562 
Blundell  V.    Howard,    1   M.  &  S.,    292  — 

402 
Blythe  v.  Topham,  1  Roll.  Abr.,  88  ;  Cro. 

Jac.,  158-137,  349,  350 
Boldero  v.  Brogden,   2  Moo.  &  R.,  113— 

564,  565 
Bond  V.  Dowuton,  2  Ad.  &  E.,  26—351 
V.  Rosling,    30  L.  J.   (N.    S.)  Q.  B., 

227—464 
Boone  v.  Eyre — S32 
Bonomi  v.  Backhouse,    27  L.   J.    (N.   S.) 

Q.  B.,  378-80,  100 
Booth  V.  N.  E.  Ry.  Co.,  2  L.  R.  Ex.,  173 

—25.3,  254 

V.   Macfarlane,  1   B.    &  Ad.,  904— 

450 
Borastou  v.  Green,  16  East,  71—322,  325 
Bostock   V.    North    Staffordshire    Railway 

Company,  3  Sm.  &  Gif.,  283-351 
Boulton  V.  Reynolds — 272 
Bowen  v.  Jenkins,  6  Ad.  &  E.,  911—352 


xxxvni 


INDEX   OF   OASES   CITED. 


Bower  r.  Hill,  2  Bing.   (N.   C),   339;  2 

Scott,  535  ;  1  Hodges,  334—87 
Bowers  v.  Lovekin,  6  E.  &  B.,  584—207 

V.  Nixon,  2  C.  &  K.,  372  ;  12  Q. 

B.,  546,  558—312 
Bowyer  r.  Cook,  .4  C.  B.,  236—353,  354 
BoydeU  r. *  Mac:Micliael,  1   G.    M.    &  R., 

177  :  3Tyr.,  ISl,  974-460 
Boyfield  r.  Porter,  13  East,  200—351 
Boyle  V.  Tamlyu,  9  D.  &  R.,  430  ;  6  B.  & 

C,  329—134,  147 
Braceginllc  r.  Peacock,  8  Q.  B.,  174—352 
Bradbury  r.  Wriglit— 407 
Bradv  v.  Tod— 545 
Bi-agg  r.  Cole,  6  Moore,  114—128 
Braisher  r.   Jackson,  6  M.    &  W.,   509  — 

463 
Braithwaite  v.  Cooksey,  282 
Branscombe  v.  Rowcliffe,  6  C.    B.,   523— 

333 
Bramley  (appl.)  v.  Chesterton   (resp.),  27 

Law  J.  (N.  S.)C.  P.,  23-451^ 
Brancker  v.  MoljTieaux,  1  AI.   &  G.,  710 

—  352 
Brewer  v.  Eaton,  3  Doug.,  230—304 
Briddon  v.  Great  Northern  Railway   Co., 

28  L.  J.  (N.  S.)  Ex.,  51-259 
Bridge  v.    The   Grand  Junction    Railway 

Company,  3  M.  &  W.,  244—221 
Bridges  f.  Smyth,  5  Bing.,  410—288 
Bridgland  v.  Shapter,  5  M.  &W.  ,.375—519 
Briggs  V.  Baker,  Olliphant's  Law  of  Horses, 

57—570 
Bright  V.  Swat,  106 

r.  Walker,  1  C.    M.    Si  R.,  211  ;  4 

Tyr.,  502—70,  83 
Brightley  v.  Norton,  N.  R.,  Dec.  27,  1862 

-538 
Bringloe  v.  Morrice,  1  Mod.,  210—574 
Bristol  (Dean  &  Chapter)  v.  Jones  &  Oths. , 
1  E.  &  E.,  484  ;   5  Jurist.,  956—114 
Broadbent  v.   Ramsbotham,  11  Ex.,  602  ; 
25  Law  J.    (N.   S.)   Ex.,    115—176, 
178,  187 
Broadwater  v.  Blot,  Holt,  547-587 
Brock  V.  Copeland,  1  E.sp.,  203— ]  62 
Brown  v.  Best,  1  Wils.,  174—171 

V.  Cnunp,  1  Marsh,  567;  6  Taun., 

300—314 

V.  Elkington,  8  M.  &  W.,  132—567, 

570 

V.  Giles,  1  C.  &  P.,  118-367 

r.  Glenn,  16  Q.  B.,  254-284 

V.  Hellaby,  1  H.  &  N.,  729-419 

V.  Mallet,  5  C.  B.,  599—16/ 


Brown     v.     jMetropolitan     Counties    Life 
Assurance  Society — 282 

r.  Shevill,  2  Ad.  &  E.,  138—285 

V.  Robbiiis— 101 

V.  Turner— 392 

Browne  v.  Powell,  4  Bing.,  230—270 
Brownlow  v.  Thomlinson,  1  M.  &  G.,  484  ; 

1  Scott,  N.  R.,  428—94,  144 
Bruce  v.  Helliwell,  29  L.  J.  (N.  S.)  Ex., 

297—383 
Brucker  v.  Fromont,  6  T.  R.,  659—212 
Brunton  r.  Hall,  1  Q.  B.,  799—91 
Bryant  v.  Eastcrson — 517 
Brydges  v.  Stephens,  6  "SlaM.  279—121 
Buchanan  v.  Parnshaw,  2  T.  R.,  746  —  551 

V.  Poppleton,  27  L.  J.    (N.  S.) 

C.  P.,  210—438 
Buckingham  Ry.  Co.  in  re,  539 
Bucksby  v.  Coles,  5  Taun.,  311—88 
Buckworth  v.  Simpson,  1  C.  M.  &  R.,  834  ; 

5  Tyr.,  344—426,  451 
Budd  r.  Fairmener,  8  Bing.,  48  —  554 
Bull  r.  Sibbis,  8T.  R.,  327—448 
Bullardt;.  Harrison,  4  M.  &S.,  387-88.  94 
Ballen  v.  Denning,  8  D.  &  R.,  657  ;  5  B. 

&C.,  842  —  121 
Bulling  V.  Ellice,  9  Jurist,  936—208 
Burling  v.  ilead— 358 
Bunch  V.  Kennington,  1  Q.  B.,  679-368 
Burbago  v.  King,  2  Chitt.,  246-338 
Burnby  v.  Bollett,  16  M.  &  W.,  644—489, 

528 
Burnell  v.  Brown,  1  .Jac.  &  Walker,  168  — 

387,  540 
Burt?-.  Moore,  5  T.  R.,  329-267 
Burton  r.  Banks,  2  F.  &  F.,  213—473 
Bush  T.  Green,  4  Bing.  N.  C,  41 ;  5  Scott, 

289—368 
Bush  by  v.  Fisher,  3  N.  &  M.,  381—276 
Butcher  r.  Butcher,  7  B.  &  C,  399 ;  1  :\I. 

&  R.,  220—345 
Butler  f.  Hunter,  31  L.  J.,  Ex.  214—110 
Buttemere  v.  Hayes,  5  M.  &  W.,  456  ;  7 

Dow.  (P.  C),  48y— 62,  63 
Butterfield  v.  Forester,  11  East,  60-221 
By  water  v.  Richard.son,  1  Ad.  &  E.,  508  ; 
3  N.  &  M.  7-48-551,  569 


C. 


Caldccntt  r.  Smj-thics,  7  C  &  P.,  SOS  — 

321 
Caledonion  Railway  Company   v.  Sprott,  2 

Macq.  H.  L.  Cases,  449—81 


INDEX    OF    CASES    CITED. 


XXXIX 


Calvert  v.  Joliffc,  2  B.  &  Ad.,  418—295 
Callow   V.  Brouncker,   4  C.  &  P.,  518— 

203 
Caraberwell  Rent  Charge  {In  re),  4  Q.  B., 

151—280 
Camoys  (Lord)  v.  Scnrr,  9  C.  &  P. ,  386— 

574 
Canham  v.  Barry,  3  C.  L.  R.,  336—476 
—  r.  Fisk,  2  C.  &  J.,  126  ;  2  Tyr., 

155  ;  1  Price,  P.  C,  148—76 
Card  V.  Case,  5  C.  B.,  622—166 
Carl  yon  v.    Levering,   26  Law  J.   (N.    S.) 

Ex.,  251—86,  181 
Carr  v.  Lancashire  and  Yorkshire  Railway 

Company,  7  Ex.,  707—239,  249 
Can-ington  r.   Roots,    2  M.    &  W.,   248; 

Mur.  &  H.,  14—58 

V.  Taylor,  11  East,  571—385 

Camithers  ^\  Hollis  and  Church,  8  Ad.  & 

E.,  113—266 
Carter -y.  Crick,  28  L.  J.  (N.  S.)  Ex.,  238 

—528 
V.  Toussaint,  5  B.  &  Al.,  855—495, 

579 
Castleraain  v.  Hicks,  1  C.  &  M.,  266—283 
Caswell  V.  Coare,  1  Taun.,  566—593 
Cattle  V.  Gamble,  5  Bing.  N.  C,  46—416 
Cave  V.  Coleman,  3  M.  &  R.,  €—543 
Chambers  estates  (In  re),  106 
Ghannon  v.  Patch,  5  B.  &  C,  897  ;  8  D. 

&R.,  651—124 
Chaplin  v.  Rogers,  1  East,  192—496,  498, 

582 
Chapman  v.  Allen,   Cro.   Car.,   271—588, 

589   - 

V.  Cripps,  2  F,  &  F.,  864—106 

V.  Gwyther — 552 

• V.  Speller,  19  Law  J.   (N.  S.), 

Q.  B.,  239—301 
Charlewood  ?;.  Greig,  3  C.  &  K.,  46  —  159 
Charter  v.  Gneme  and  Simpson,  13  Q.  B. , 

216-137 
Chase  v.  Westmore,  5  M.  &  S.,  180-588 
Chasemore  v.  Richards,  2  H.  &  N. ,  168 — 

96,  176,  177,  178 
Chater  v.  Beckett,  7  T.  R.,  201—277 
Chawler  r.  Hopkins,  528  ^ 
Cheetham  v.  Hampson,  4  T.  R.,  318—132 
Chenie  v.  Watson,  2  Peake's  Add.  Cas., 

123-522 
Cherry  r.  Hemming,  4  Ex.,  631 — 495 
Chesterman  v.  Lamb,  2  A.  &  E.,  129  ;  4 

N.  &  M.,  195—593 
Chetham  v.  Williamson,  4  East,  468 — 75 
Chichester  (Earl)  ?•,  Prestney — 387 


Chinery  v.  Kail,  29  L.  J.  (N.  S.),  Ex.  180 

—305,  532 
Chippendale  v.  Lancashire  and  Yorkshire 

Railway  Company,  21  Law  J.  (N.  S.), 

Q.  B.,  22—235,  248 
Christy  v.  Tancred,  7  M.   &  W.,  127  ;  9 

M.   &  W.,  438;  12  M.  &  W.,  316, 

H.  &  Walm.,  50—450 
Chvirch  v.  Inclosure  Commissioners — 98 
Churchill  V.  Evans,  1  Taun..  529—133,  147 
Churchward  v.  Ford,  2  H.  &  N.,  446  ;  26 

Law  J.  (N.  S.),  Ex.,  354—44.5,  447 

V.  Studdy,  14  East,  249—367 

Clare  v.  Maynard,  6  Ad.  &  E.,  518  ;  7  C. 

&P.,  741—549,  558,594 
Clark  V.  Allatt,  4  C.  B.,  335—208 
V.  Gaskarth,  2  Moore,  491 ;  8  Taun., 

431—292 

V.  Mumford,  3  Camp.,  37 — 379 

V.  Roystone,  13  M.  &  W.,  752—329 

V.  Smythies,  2  F.  &  F.,  83—541 

r.  Wekter  &  Salt,  1  C.  &  P.,  104— 

161 
Clarke  v.  Cogge,  Cro.  Jac,  170 — 90 

V.  Crowder— 392 

V.  Gray,  6  East,  564—313 

V.  Yonge,  5  Beav.,  523—399 

V,  Westrope,  18  C.  B.,  765  —  334 

Clayton  v.  Corby,  2  Q.  B.,  813—84 
Clee  V.  Hall,  7  CI.  &  Fin.,  744—396 
Clegg  V.  Dearden,  12  Q.  B.,  576  —  180 
Cleghorn  v.  Dun-ant,  Law  Times,  June  26, 

1858-317 
Clement  v.  Milner,  3  Esp.  N.  P.  C,  95— 

266 
Clements  v.  Smith,  30  L.  J.  (N.  S.)  M.  C, 

16—342 
Cleobury    v.     Tattersall,    MSS.,     1859— 

544 
Coates  V.  Stevens,  2  Moo.  &  Rob.,  157 — 

564,  565,  567 
Cobb  (Clerk)  V.  Selby,   2   N.  R.,   466  ;  6 

Esp.,  103-93 
Cocker  v.  Cowper,  1  C.  M.  &  R.,  418  ;  5 

Tyr.,  103—74 
Cocking  V.  Ward,  1  C.  B.,  858—62,  64, 

65,  66 
Coe  V.  Clay,  5  Bing.,  440—309,  411 
Coke  r.  Cholmondeley,  27  L.  J.   (N.  S.) 

Ch.  286—431 
Colam  V.  Hall— 603 
Colchester  v.  Roberts,  4  M.   &  W.,  769  — 

352 
Colegrave  v.  Bios  Santos,  3D.  &  R.,  255  ; 

2  B.  &  C,  76—458,  461 


xl 


INDEX    OF    CASES    CITE-D. 


Coleman  v.  Foster,  1  H.  it  N.,  07 — 72 

Colesworth  v.  Spokes — 304 

CoUard  v.  South  Eastern  Railway  Company, 

30  L.  J.  (N.  S.),  Ex.,  3<t3-534 
Collen  r.  Wright,  7  E.  &  B.,  301—421, 

466,  467 
Collins  V.  Jenkins,  4  Ding.   N.  C,   225— 

559,  560 
Collis   V.    Botthamley,    'Weekly    Reporter, 

Dec.  11,  1858—204 
Colthenl  V.  Puncheon,  2  D.  &  R.,  10—561 
Cooch  V.  Goodman,  2  Q.  B.,  580—417 
Cook  r.  Manstnne — 490 
Cooke  V.  Humphrey,  Moore,  177 — 455 

V.  Riddelien,  1  C.  &  K.,  561—483 

Coonibes  r.    Bristol   and   Exeter  Railway 
Company,  27  L.  J.  (N.  S.)  Ex.,  269, 
401  —  264,  503 
Cooper  V.  Elston,  7  T.  R.,  14-485 

V.  Hubbuck,  31  L.  J.  Ch.,  123—97 

r.  Shuttleworth,  25  Law  J.  (N.  S.) 

Ex.,  114—333 

V.  Woolfitt,  2  H.  &N.,  122-442 

Corby  V.  Hill,  27  L.  J.  (N.  S.)  C.  T.,  318 

—355 
Cormack  v.  Gillis,  7  East,  480-484 
Comfoot  V.  Fowke,  6  M.  &  W.,  381—319, 

420,  556 
Cornwell  v.  Saunders,  32  L.  J.  M.  C,  6  — 

377 
Cotton  V.  Wood,  29  L.  J.  C.  P.,  333-217, 

361 
Countess  of  Cumberland's  case,  Moore,  812 

—125 
Courthorpe  r.   :Maplesden,  10  Yes.,  290— 

115 
Couston  V.  Chapman — 485 
Cowling  V.  Higginson,  4  M.  &W.,  245—93 
Cox  V.  Glue,  Mouseley  and  Saint,  5  C.  B., 
533—347 

V.  Godsalve,  6  East,  604—443 

V.  Reid,  13  Q.  B.,  558—371 

Coxon  V.  Great  AVestern  Railway  Company, 

29  L.  J.  (N.  S.)Ex.  165—251 
Cracknell  v.  Davey,  1  F.  &  F.,  57—423 
Cranston  r.  Clarke — 407 
Cresswellu   Hedges,  31  L.  J.  (N.  S.)  497 

Ex.— 471 
Ci-ipps  V.  Blanks,  9  D.  &  R.,  480—449 
Crisp  V.  Gill,  29  Law  Times,  82—489 
Croft  V.  Alison,  4  B.  &  Al.,  590-220 
Crosby  ?'.  Wadsworth,  6  East,  602  ;  2  Smith, 

559-52,  53,  56,  57,  58,  60,  347. 
Crouch  r.  Great  Western  Railway  Company, 
26  Law  J.  (N,  S.)  Ex.,  418—264 


Crouch  V.  Tregoniiing — 152 

Cuckson  V.  Stones,  28  L.  J.  (N.  S.)  Q.  B., 

25—199 
Cuff  r.  Penn,  1  M.  &  S.,  11—483 
Culling  r.  Tuflnall,  Bull  N.  P.,  34—455, 

458 
Cumberland   r.   Bowes  [Lady  Giamis],   24 

L.  J.  (N.  S. ),  C.  P.,  46—333 
Cumming  v.  Bedborough,  15  M.  &  W.,  438 

—  440 
Cummins  r.   Birkett,  27  L.  J.  (N.  S.)  Ex. 

216—431 
Cupit  I'.  Jackson,  Macall,  495—280 
Curtis  r.  Drinkwater,  2  B.   &  Ad.,  109 — 
559 

• r.  Hannay,  3  Esp.,  82 — 575 

V.  Mills,  5  C.  &  P.,  489—165 

V.  Wheeler,  M.  &  M.,  493;  4  C.  & 

P.,  196—290 
Cutter  V.  Powell,  2  Smith's  Leading  Cases, 
1—200 


D. 


Dalby  v.  Hirst,  3  Moore,  536;  1  B.  &  B., 

224—329 
Dalton  r.   Whittem,  3  Q.  B.,  901;  3  G.  & 

D.,  200—69,  461 
Damerell  r.  Protheroe,  10  Q.  B.,  20—443 
Daniel  v.  Grace,  6  Q.  B.,  145—440 

r.  North,  11  East,  372—70 

Dann  v.  Spurrier,  3  B.  &  P.,  399—435 
Darby  v.  Harris,  1  Q.  B.,  895-285 
Barer.  Heathcote,  25  L.   J.  (N.  S.)  Ex., 

245—93 
Dark  {In  re)  v.  Buck,  83—322 
Davidson  r.    Stanley,    2  M.    &  G.,  721— 

209 
Davies  v.  Baron  Berwick,  30  L.  J.  (N.  S.) 

84,  M.  C— 206 
Davies  [Davis]  v.  Connop,    1    Price,    53 — 
321 

V.  Mann,  10  M.  &  W.,  546—221 

V.   Underwood,   2  H.  &  N.,   570— 

426 
Davis  V.  Danks,  3  Ex.,  435—348 

V.  Cydc,  4  N.  &  M.,  462  ;  2  Ad.  & 

E.,  623—277 

r.  Jones — 465 

V.  Oswell,  7  C.  &  P.,  804—560 

r.  Powell,  Willes,   46  ;  7  Mod.,  249 

—  286,  298 
Davy  V.  Cracknell,  1  F.  &  F.,  57—448 
V.  Gillet,  MSS.,  1861—530 


INDEX    OF    CASES    CITED. 


xli 


Daw  V.  Hole,  15  Law  J.  (N.  S.)  Q.  B.,  32 

—353 
Dawes  v.  Hawkins,  29  L.  J.   C.  P.,  343— 

101 
Dawson  v.  Alford,  Dyer,  312—286,  287 
v.  Cropp,  1  G.  i>.,  !'61;  3  D.  &  L., 

225—302 

V.  Charaney,  5  Q.  B.,  154—601 

. V.  CoUis,  10  C.  B.,  523—484 

_  V,  Fitzgerald,  9  L.  R.,  Ex.,  7—391 

.V.  Linton,  5  B.  &  AL,  521;  1  D. 

&  R.,  117—439 
r.  Midland  Railway  Co.,  8  L.  R., 

Ex.  8-140 
Dayrell  v.  Hoare,  12  Ad.  &  E.,  356—384 
Deane  V.  Allalley,  3  Esp.,  11—455 

V.  Clayton,  7  Taun.,  419—389 

V.  Keat,  3  Camp.,  4 — 575 

Dearden  v.  Evans,  5  M.  &  W.,  11 ;  2  H.  & 

H.,  7—110 
Degg  (Adx. )  V.  Midland  Counties  Railway, 

1  H.  &  N.,  773—211,  217,  218 
Degge  V.  Tiicker,  1  H.  &  N.,  500—601 
Delaney  v.   Fox,  26  Law  J.  (N.  S.)  C.  B., 

248—357,  437 
Delapole  r.  Delapole,  17  Ves.,  150—126 
Denby  v.  ]\loore,   1  B.  &  AL,  123—440, 

441 
Dendy  v.  Niclwl,  27  L.  J.   (N.  S.)  C.  P., 

220—288,  451 

V.  Simpson,  18  C.  B.,  831—346 

Denneu  Light,  26  Law  J.  (N.   S.)   Ch., 

469—90 
Dennis  v.  Lofft,  Weekly  Reporter,  Feb.  5, 

1859—430 
Dent  Cummutation  [In  re),  8  Q.  B.,  43 — 

400 
Denton  v.   Richmond,  1  C.    &  M.,  734  ;  3 

Tyr.,  630-313 
Derby  (Earl)  v.  Gee  &  Others— 169 
Daring  (Ex, 2Mrte),  1  De  Gex  B.  C,  398 

—524* 
Dickinson  v.  Follett,  1  Moo.  &  R.,  299— 

570 
i\  Gappi  (cited  1  M.  &  Scott,  78; 

and  5  C.  &  P.,  81)— 553 
V.  Grand  Junction  Railway  Com- 
pany, 7  Ex.,  282—174,  177,  178,  186 
Digby  V.  Atkinson,  4  Camp.,  275 — 451 
V.    West   Ham    Board   of    Health, 

Weekly  Reporter,  May  1,  1858—602 
Dimech  v.  Corlett,  33  Law   Times,   21  — 

478 
Dingle  v.  Hare,  29  L.  J.  (N.  S.)  C.  P.,  148 

—527 


Dixon  r.  Geldard,  A.  D.,  1857— IIS 
Dobson  V.  Collis,  1  H.  &  N.,  81—203 
Doe  dem.  Asliuz'.  Sumraersett,  1  15.  &  Ad., 

135—432 

Baker  v.  Coombes,  9C.  B.,  714 — 345 

Barrett  v.  Kemp,  2  Scott,  9  ;  2  Bing. , 

N.  C,  102—170 
Bennett  v.  Turner,  7  M.  &  W.,  226  — 

346 

Bevis,  7  C.  B.,  456—482 

Bloomfield  v.  Smith,  6  East,  520— 

435 

Cates  V.  Somervilc,  9  D.  &  R.,  100— 

435 
Daggett  V.  Snowdon,  2  W.  Bl.,  1224 

—  433 

Davenish  r.  Moffatt,  15  Q.  B.,  257— 

413 
Davenport   v.  Rhodes,    11  M.  &  W., 

COO  ;  1  D.  &  L.,  292—433 

Dixon  ('.  Roe,  7  C.  B.,  134—304 

Douglas  V.  Lock,  2  Ad.   &  E.,  705  ; 

4  N.  &  M.,  807—90,  109,  384,  443 

Hall  V.  Benson,  4  B.  &AL,  588—432 

Hertford  (Marquis  of)  v.  Hunt,  1  M. 

&  W.,  690  ;  2  Gale,  102—423 
V.  Hopkinson,  3D.  &  R. , 

507—432 

•  Jones  V.  Crouch,  2  Camp.,  448—122 

Jordan  v.  Ward — 435 

Kirby  ?;.  Carter,  1  Ry.  &  Moo.,  237 

—  435 

•  Kindersley  v.  Hughes,   7   M.  &  W., 

130—432,  433 

Lewis  V.  Rees,  6  C.  &  P.,  610—169 

Macartney  (Earl)  r.   Crick,   5  Esp., 

196—432 
Mann  v.  Walters,  10  B.  &  C,  626  ; 

5  M.  &Ry.,357— 432 

Manvers  (Earl)  r.  Mizem,  2  Moo.  & 

R.,  56—420,  432 
Marlow  r.  W^iggins,  4  Q.  B.,  367  ;  3 

G.  &  D.,  504—417 

Marsack  v.  Read,  12  East,  57—432 

Morgan  v.  Powell,  7  M.  &  G.,  980— 

410 
Monkv.  Geeckie,  1  C.  &  K.,  307— 

290,  412 
Murrell  v.  Mil  ward,  3  M.  &  W.,  328 

—434 
Oldershaw  v.  Breach,  6  Esp.,  106^ 

435 
Philips  V.   Benjamin,   9  Ad.   &  E., 

644—410 
Pitt  V.  Laming,  4  Camp.,  73 — 314 


xlii 


INDEX    OF    CASES    CITED. 


Doe  dem.  riummcr  r.  iluiuby,   10  Q.  B., 
473-434 

Pring  r.  Pearscy,  7  P..  &  C.,  304  ;  9 

D.  &  R.,  90S— 143 

Rhodes  V.  Robinson,  3  P.ing.  (N.C.), 

677—420,  432 

Rigge  V.  Bell,  5  T.  R.,  471—434 

Rogers  v.  Price,    19  L.   J.    (N.  S.), 

C.  P.,  121—115 

r.  Rowlands,  9  C.  &  P.,  734-420 

r.  Sluvwcross,  3  B.  &  C,  752-304 

V.  Slight,  1  Dowl.,  163-411 

Spicer  r.  Lea,  11  East,  312—432 

r.  Rpiller,  6  Esp.,  70—432 

Strickland  v.  Spence,  6  East,  120— 

432 

Thomson  r.  Amcy,  12  Ad.  &  E.,  47G 

—415,  451 

Thomas  r.  Field,  2  Dow.,  542—450 

Tilt  V.  Stratton,  4  Bing. ,  446—435 

Watei-s  V.  Houghton,    1   M.    &  Ry. , 

208—417,  438 

"Webb  V.  Dixon,  9  East,  15—435 

Wetherell  r.  Bird,  6  C.  &  P.,  195— 

125 

Winnall  v.  Broad,  2  M.  &  G.,  523  - 

315 

-Wood,  3  B.  &  Aid.,  724—75 

Dolby  r.  lies,  11  A.  &E.,  335-426 
Donellan  v.  Read,  3  B.  &  Ad.,  899-495 
Douglas  r.  Archbutt,  21  L.  J.  (N.  S.l  Ch., 
271—478 

V.  Corbett,  6  E.  &B.,  511—600 

Dovaston  v.  Payne,  2   H.  Bl.,    527-135, 

.   145,  148,  150,  265 
DowTishire  (Marquis  of)  r.  Lady  Sandys,  6 

Yes.  107—126 
DoweU  V.    Dew,    12   L.   J.    (N.   S.)  Ch., 
158—415 

.  r.  General  Steam  Navigation  Co. ,  5 

E.  &B.,  206-221 
Draper  v.  Crofts,  15  M.  &  W.,  166-450 
Drant  >:  Brown,  3  B.  &  C,  665  ;  5  D.   & 

R.,  582-417 
Drury  v.  Molins,  6  Ves.,  328 — 308 

V.  De  la  Fontaine,  1  Taun.,  131—562 

,-.  Macnamara,  25  L.    J.  (N.  S.)  Q. 

B.,  5-416 
Duck?;.  Braddyl,  Macl.,  217—416 
Duddcn  r.  (luardiaus  of  Clutton  Union,  1 

H.  &N.,  627-179 
Dndlev  (Lord)  r.  Ward  (Lord),  Ai.dj.,  113; 

Bull  N.  P.,  34-455 
Duncan  v.  Topham,  8  C.  B.,  225—493 
Dunk  V.  Hunter,  5  B.  &  Al.,  322—290 


Duulop  V.  Dalhousie   (Earl   of),    7    Bligb 

K  S.,  422—452 

r.  Waugh,  1  Peake,  167-  543 

Durell  r.  Evans,  31  L.  J.  (N.  S.)  Ex.,  337 

—536 
Durham  and  Sunderland  Railway  Company 

('.  Walker,  11  L.  J.  (N.  S.)  Ex.,  440 

—90 
Dynen  r.  Leach,  26_L.  J.  (N.  S.)  Ex.,  221 

—219 


Eardley  v.  Price,  2  N.  S.,  333—206 
Eastwood  f.  Kenyon,  11  A.  &  E.,  438  ;  3 

P.  &D.,  276-64 
Eaves  v.  Dixon,  2  Taun.,  342—563 
Edge  V.  Strafford,  1  C.  &  J.,  391—68 
Edmonson  v.  Edmonson,  8  East,  294 — 66 
Edmonds  v.  Eastwood,  27  L.  J.  (N.  S.)  Ex., 

209—440 
Edwards  v.  Bunbury,  3  Q.  B.,  885  ;  3  G. 

&D.,  229—401 
Egerton  v.  Mathews,  6  East,  307  —  507 
Eliasr.  Nightingale,  27  L.  J.  (N.  S.)  Q.  B., 

195  ;  M.  C,  151—602 
Elliott  r.  Thomas,  3  M.  &  \Y.,  170—129 
Ellis  r.  Arnison,  3  D.  &  R.,  27  ;  1  B.  & 
C,  70—131 

r.  Chinnock,  7  C.  &  P., 169— 593,  594 

V.  Loftus  Iron  Co.,  10  L.    R.  C.  P., 

10-141 

r.  London  and  South  Western  Rail. 

Co.,  2  H.  &  N.,  424—150 

V.  Mortimer,  1  Bos.  &  P.,  257—574 

V.  Taylor— 271 

V.  Woodbridge— 103 

Elliss  V.  Ellis.s,  27  L.  J.  Ex.,  516—289 
Elmore  v.  Stone,  1  Taun.,  460— 498, 580,  583 
Elton  V.  Jordan,  1  Stark.  N.  P.  C,  127— 564 

V.  Brogden,  4  Camp.,  281 — 564 

Elwell».  Crowther,  31   L.  J.    (N.  S.)  Ch., 

763-196 
Elwes  V.  Mawe,  3  East,  38—454,  458 
Emberton  1'.   Matthews,  31   L.  ,T.    (N.  S.) 

Ex.,  139—529 
Emblen  r.  Myers,  30  L.  J.  (N.  S.)  Ex.,  71 

—359 
Embletonr.  Brown,  30  L.   J.  (N.  S.)  M. 

C,  1—169 
Embrey  ?\  Owen,   6  Ex.,  353— 187,   188, 

190,  196 
Emery  u  Bamett,  27  L.  J.   iN.  S.)C.  P., 
216—437 


INDEX    OB'   CASES    CITED. 


xliii 


Emery  i:  Pcakc,  Vctcrlnariau,  vof.    29,  p. 

430—156 
Emmerson  v.  Heelis,  2  Taun. ,  38—50, 51,60 
Emmett  v.  Kiddell,  2  F.  &  F.,  142—538 
EmpsoD  V.  Soden,  4  B.  &  Ad.,  655  ;  1  N. 

&  M.,  720—125 
Essex  (Earl  of)  v.  Capel,  a.d.  1809  (Cliitty 

on  Game  Laws,  31) — 365 
Evans  v.  Birch,  3  Camp.,  10-223 

V.  Botterill,  33  L.  J.  (N.  S.)  M.    C, 

50—376 

V.  Elliott,  6  X.  &  M.,  606  ;  5  Ad.  & 

E.,  142—279 

V.  Evans,  2  Camp.,  491—115 

■ V.  Matthias,  26  L.  J.  (N.  S.)  Q.   F.., 

309—411 

r.  Oakley,  1  C.  &  K.,  125-142 

■ V.  Roberts,  5  B.  &  C,  829  ;  8  D.  & 

E,.,611— 50,51,54,56,  57,  59,  60,67 
. V.  Wright,  27  L.  J.  (N.  S.)  Ex.,  50  ; 

2H.  &  N.,  527—285 
Every  v.  Smith,  26  L.  J.  (N.  S.)  Ex.,  344 

—  343 
Ewart  V.  Graham  (Bart.),  29  L.  J.  (N.  S.) 

Ex.,  88—382,  383 


F. 


Fairmener  v.  Budd,  7  Bing.,  575 — 559 
Falmouth  (Earl)  v.  Thomas,  1  C.  &  M.,  89 ; 

3Tyr.,  26-61,  306,  588 
Farrant  v.  Olmius,  3  B.  &  AL,  692—313 
■  r.  Thompson,  2  D.  &  R.,  1  ;  5  B. 

ct  Al.,  826  ;  3  Stark.  130—461 
Faviell  v.  Gaskoin,  7  Ex.,  273—317 
Fawcett  v.  Cash,  5  B.  &  Ad.,  907-200 
r.   The  York   and   North  Midland 

Railway  Company,  16  Q.  B.,  6]  0—144, 

147,  148,  150,  152 
Fcnn  r.  Harrison,  3  T.  R.,  760—545,  555 
Fennell  v.  Ridler,  5  B.  &  C,  406  ;  8  D.  & 

R.,  204-562 
Fentiman  v.  Smith,  4  East,  107 — 71 
Fenton  v.  Logan,  9  Bing.,  676—286 
Ferrier  v.  Peacock,  2  F.  &  F.,  717—538 
Few  V.  Perkins — 454 
Fewings  v.  Tindal,  1  Exch.  295-206 
Field  V.  Adames,  10  L.  J.  (N.  S.)  Q.  B.,  2 

—  266 
Fieldenv.  Tattersall,  N.  R.  Jan.  1863—328 
Fielder  r.  Starkin,  1   IL  V,\.  17—443,  573, 

574 
Fisher  -v.  Burrell,  2  (l   B.,  239  ;  8  Ex., 

256—398 


Fitch  V.  Rawling,  2  H.  Bl.,  399—79,  349 

Fitzgerald  i'.  Iveson — 527 

Fitzherbert  !'.  Shaw,  1  H.  BL,  258—455, 

461 
Fitzmaurice  v.  Bayley,  26  L.  J.  (N.  S.)  Q. 

B.,   114;  27  L.'  J.    (N.  S.)  Q.  B.  (in 

Error),  143—412 
Flanders  v.   Bunbury,  see  1  C.  B.,  678  — 

401 
Fleeming  v.  Snook,  5  Beav.,  250—314 
Fleming  (Lady)  ?'.  Simpson,  6  L.  J.  (N.  S.) 

Q.  B.,  207—110 
Fletchem  Calthorji,  6  (^.  B.,  880-369 

V.  Rylands,  1  L.  R.  Ex.,  265—156 

V.  Tayleur,  17  C.  B.,  21  —  511 

Flight  V.   Thomas,  11  Ad.   &  E.,  688  ;  10 

Ad.  &  E.,  59  ;  3  P.  &  D.,  442—84 
Flureau  r.  Thornhill,  2  Sir  W.  Black,  1078 

—388 
Folkingham  r.  Croft,  3  Anst.,  700—411 
Foord  V.  Morley,  1  F.  &  F.,  496—207 
Forbes  v.   Carney,  Wallis   (Lyne),    L.    Cli. 

Rep.,  38—312 
Ford  i'.  Lacey,  30  L.  J.  (N.  S.)  Ex.,  352— 

169 
1'.  Tynte,  31  L.  J.  (N.  S.)  Ch.,  177— 

382 
Forth  V.  Simpson,  13  Q.  B.,  680—590 
Foster  v.  Taylor,  5  B.  &  Ad.,  887—523 
(appt.)  V.  Smith  (resp.),  18  C.  B., 

156—557 
Fowkes  I'.  Joyce,  2  Vern.,  129—275,  276 
Franklin  ■;;.  Carter,  1  C.  B.,  750—440 
Frankum  v.  Falmonth  (EarL,  2  Ad.  &  E., 

452  ;  4  N.  &  M.,  330-171 
Freemantle  v.  L.   &  N.  W.  Ry.  Co.,  31  L. 

J.  (N.  S.)  C.  P.  12—360 
Freemason  r.  Booman,  2  Keble,  291 — 446 
Freestone  v.  Casswell,  4  L.  R.  Q.   B.  519 

—144 
French  v.  Styi-ing,  2  C.  B.  (N.  S.),  357;  26 

L.  J.  (N.  S.)  C.  P.  181—559 
Frend  v.  Tolleshunt  Knights— 409 
Freweu  v.  Phillips,  30  L.  J.  C.  P.  356—95 
Frith  I'.  Purvis,  5  T.  R.,  432—279,  283 
Frusher  v.  Lee,  10  M.  &  W.,  709  —  299 
Farley  v.  Wood,  1  Esp.,  197—432 


G. 


Gabay  r.  Lloyd,  5  D.  &  R.,  641  ;  3  B,  & 

C.,  793—231 
Gage  r.  Acton,  1  Salk.,  326  ;  1  Com.  Rep., 

67—277 


XllV 


INDEX    OF    CASES    CITED. 


(rale  r.  Bates,  33  L.  J.  (X.  S.)  Ex.— 235 
Gallin  v.  L.  &  X.  AV.  Ey.  Co.,  10  L.  R.  Q. 

B.,  212—203 
Galloway  r.  Keyworth,  2  C.   L.  R.,  S60— 

419 
Gahvay  r.  Baker,  5  CI.  &  Fin.,  157—121 

r.  Cozens — 271 

Gandy  r.  Tubber— 453 

Gardiner  r.  Williamson,  2  B.  &  Ad.,  22G— 

2S1,  2S8,  296 
Gardner  v.  Charing  Cross  Ry.  Co.,  31  L.  J. 

(N.  S.)  Ch.,  181—539 

r.  Grout,  2  C.  B.   (N.  S.),   310- 

500. 

Garland  i:  Jekyll,  2  Bing.,  273  ;  9  Moore, 

502-443,  444 
(steward's  Ca.se,  6  Rep.  59  b.  — 78 
Gee  r.  L.  &  York.  Ry.  Co.— 534 
Geeckie  v.  Monck,  1  C.  &  K.,  307—290 
Geddes  v.  Pennington,  5  Dow.,  159—543, 

553 
Gent  V.  Harrison,  29  L.  J.  (N.  S.)  Ch.,  68 

—111 
Gesswood  {ex  parte),  2  C.  &  R.,  269—201 
Gethiug  V.   Morgan,   Law  Tirties,   May  5, 

1857,  5  W.  R.  536  ;  E.  T.   1857,  Q. 

B.— 158 
Gibbins  r.  Board  of  Metropolitan  Asylum, 

11  Beav.,  1—421 
Gib.son  r.  Kirk,    10  L.  J.    (N.  S.)  Q.   B., 

967;    1   G.   &  D.,  2.52;   1   Q.    B., 

850—446,  447 

r.  S.  E.  Ry.  Co.— 359 

Giles  V.  Jones,  11  Ex.,  393—523 

V.  Spencer,  26  L.  J.  (N.  S.),  237,  C. 

P.— 281 

X.  Taff  Vale  Railway  Company,  2  E.  & 

•    B.,  822—512 
Gill  V.  M.  S.  &  L.  Ry.  Co.,  8  L.  R.  Q.  1'.., 

186— 2.">2 
Gimson  v.  Woodfall,  2  C.  &P.,  41-597 
Gingell  v.  Glascock,  8  Bing.,  86  ;  1  M.  & 

Scott,  125-222 
Gladman  v.  Johnson,  36  L.  J.  (X.  S.)  C.  P., 

153—157 
Glen  V.  Dungey,  4  Ex.,  61  ;  14  M.  &  W., 

4—448 
Glcnhamr.  Hanby,  1  Ld.  Raym.,  739— 128 
Glover  v.  Coles,  7  Moore,  231  ;  1  Bing.,  6 

—292 
V.  llackett,  26  L.  J.  (X.   S.)  Ex., 

416—418 
Glynn  v.  Thoma.s,  1  Ex. ,  870—271, 272,  275 
Godts  V.  Rose,  25  L.  J.  (N.  S.)  C  B.,  61- 

481 


Golden  v.  Taylor,  2  F.  &  F.,  110—464 
Goldingr. Stocking,  4  L.  R.  Q.  B.,  516— 144 
Goldsworth  r.  Knight  —  468 
Gooday  r.  Mitchell,  Cro.  Eliz.,  441—79 
Goode  V.  Jones,  1  Peake,  235-229 
Gooding  v.  Bvitnall,  31  L.  J.  (N.  S.)  C.  P., 

4—354 
Goodman  v.  Kennell,  1  M.  &  P.,  241  ;  3 

C.  &  P.,  167—219 
Gompertz  v.  Denton,  1  C.  &  M.,  207—596 
Gordon  v.  Woodford,  26  L.  J.  (N.  S.)  Ch., 

222-111 

V.  Rolt,  4  Ex.  365—220 

V.   Harper,   7   T.  R.,   9  ;  2  Esp., 

465—115,  458 
Gorman  v.  Boddy,  2  C.  &  K.,  145—496 
Gorton  v.  Falkner,  4  T.  R.  265—286 
Gott  V.  Gandy,  2  C.  L.  R.,  392—428 
Graburn  v.  Brown,  16  M.  &  W.,  831—403 
Graham  v.   Ewart,   1   H.    &  X.,  550;  11 

Ex.,  326—386 
V.  Musson,   5   Bing.    N.   C.   603  — 

477,  536 

V.  Peat,  1  East,  246—345 

Grant  v.  Hulton,  1  B.  &  Al.,  134—368 
Grantham  r.  Hawley,  Hob.,  132—323 
Graves  v.  Weld,  2  N.  &  M.,  725—442 
Great  Northern  Railway  Company  (appts.) 

v.  Morville  (resp.),   21  L.  J.,  (N.  S.), 

Q.  B.,  319—240 
V.  Swaf- 

iield— 253 

2C.  B.  (N.  S.),  344—260 
Greatheudv.  Morley,  3  M.  &G.,  139—382, 

386 
Greatrexf.  Hayward,  lEx.,  291—183,  193 
Greaves  v.  Ashlin,  3  Camp.,  426—480,  492 
v.  Wilson,  27  L.  J.  (N.  S.)  Cb.,  546 

—474 
Green  r.  Goddard,  1  Salk.,  641-344 
V.  Jenkins,  29  L.  J.  (N.  S.)  Ch.,  505- 

472 
V.  Saddington,  Jurist,  Aug.  1,  1857 — 

65,  68 
Greene  v.  Jones,  1  Wm.   Saun.,  299,  Note 

6—352 
Grecnslade  v.  Dower,   7  B.  &  C,  634  ;  1 

lAl.  &  R.  640—515 

V.  Halliday,  6  Bing.,  379—191 

V.  Tapscott,  1  C.  M.  &  R.,  55, 

4Tyr.,  566—314 
Greenway  v.  Marshall — 569 
V.  Tichmarch,  7  M.  &  W.,  221 

—559 


INDEX    OF    CASES    CITED. 


xlv 


Gregory  V.  Gregory,  (G.  Cooper,  201 ;)  S.C, 

Jacob,  631—112 
V.    West   Midland    Rail.    Co.,    3-3 

L.  J.  (N.  S.)Ex.  155—254 
V.  Piper,   9  B.  &  C,  591  ;  9  M. 


&  R.,  500-212 
V.  Wilson — 471 


Gregg  V.  Coates,  23  Beav.,  33—429 
Griffith  V.  Young,  12  East,  513—61,  63,  66 
Griffiths  V.  Chichester,  7  Ex.,  95—278 
V.  Hatchard,  1  K.  &  John.    17 — 

478 
V.  PuIestoD,  13  M.  &W.,  358— 

321 

V.  Tombs,  7  C.  &  P.,  810—322 

Griflfenhoofe  r.  Danbuz,  4  E.   &  B.,  230  ; 

3  C.  L.  R.,  91  ;  5  E.  &B.,  746—395 
Grimoldby  v.  Wells  — 485 
Grimwood  r.  Moss,  7  L.   R.  C.  P.,  360— 

305 
Grinstead  v.  Marlowe,  4  T.  K.  717 — 78 
(Trove  V.  West,  7  Taun.,  39—143 
Gruhb  V.  Brown,  Weekly  Reporter,  Nov.  13, 

1858—346 
Gulliver  v.  Cosens,  1  C.  B.  788—272,  273 
Gundry  v.  Feltham,  1  T.  R. ,  334—365 
Gurr  r.  Scudds,  11  Ex.,  190—260,  505 
Guy  V.  West,  2  Selw.,  N.  P.,  1287—131 
Gudgeon  r.  Bessett,  26  L.  J.  (N.  S.),  Q.  B., 

36—448 
Gnibb  V.  Inclosure  Commissioners — 1 05 


H. 


Hackett  v.  Overseers  of  Long  Bevington — 

408 
Hadley   v.   Baxeudale,   9  Ex.,    341  —  509, 

510,  511,  514,  533,  534 
Haigh  V.  London  and  North  Western  Rail- 
way Company,  1  F.  &  F.,  646—152 
Haldane  v.  Johnson,  1   C.    L.   R.,   672  — 

426 
Hale  V.  Oldroyd,  14  M.  &  W.,  789—170 
Hall  V.  City  of  London  Brewery  Company, 

31  L.  J.  (i\.S),  Q.  B.,  257—463 
V.  Feamley,   3  Q.  B.,  919  ;  3  G.  & 

D.,  10—351 
V.  Knox,  33  L.  J.  (N.  S.),  M.  C.  1  — 

376 
V.  North  Eastern  Railway  Company, 

10  L.  R.  Q.  B.,  437—253 
V.     Rogerson,    Olliphant's     Law    of 

Horses,  56—569 
V.  Smith  [Swift],  6  Scott,  167—171 


Hallen  v.  Runder,  3  Tyr.,  959  ;  1  C.  AL  .S: 

R.,  266-66 
Hallifax  v.  Chambers,  7  Dow.,  342  ;  4  M. 

&  W.,  662  ;  1  H.  &  H.,  417—306 
Halliwell  v.  Phillips,  Jurist,  July  10,  1858 

—  126 
Hamer  &  Straj^an  v.  Kuowles — 101 
Hamerton  v.  Stead,  3  B.  &  C,  478  ;  5  D. 

&  R.,  206-281,  412 
Hamilton   i\  Clanrlcardc  (P]arl  of),  1  Bro. 

P.  C,  341—420 
Hammack  v.  White,   30  L.   J.  (N.  S. )  Ch. 

681—362 
Hammersmith  Rent  Charge  (In  re),  4  Ex., 

87—280 
Hammond    (Ex  parte),  1  De  Gex,  B.  C, 

93—524 
Hancock  v.  Southall,  4  D.  &  R.  202—603 
Hannam  v.  Mockett,  4  D.  &  R.  518  ;  2  B. 

&  C.  934—345,  385 
Hanks  v.  Palling,  6  E.  &  B.,  659-479 
Hanson  v.  Armitage,  5  B.  &  Al.,  557—495, 

496,  500,  503 
Harcoiu-t  y.  WTiite,  30  L.   J.   (N.  S.),  Ch. 

681 ;  6  Jurist,  1087—112 
Hardcastle  v.   Shafto,  1  Anst.,  184—312 
r.     South    Yorkshire    Railway 

Company,  28  L.  J.  (N.  S.)  Ex.,  139— 

350 
V.   Soutli  Yorkshire  and  River 

Don  Company,  4  H.  &  N.  67—138 
Harden  v.  Hesketh,  28  L.  J.  (N.  S.),  Ex., 

137—448,  469 
Harman  v.  Reeve,  25  Law  J.  (N.  S.)  C.  P. 

257  ;  18  C.  B.  587—505,  587,  588 
Harmer  i\  Cornelius,  28  L.J.  (N.  S.),  C.  P., 

85—202 
Harpers.  Charles  worth,  4  B.  &  C,  574  ; 

6  D.  &R.,  572-91 
Harris  v.  Hoskins,  34  L^  J.  (N.  S.),  M.  C. 

145  —  376 

r.  Mantle,  3  T.  R.,  306—307 

V.  Ryding,  5  M.  &  W.,  60-81 

Harrison  v.  Barnby,  5  T.  R. ,  246 — 289 
V.   London,  Brighton   and    South 

Coast    Railway  Company,    31    L.    J. 

(N.  S.^„  Q.  B.  113—251 
Hart  V.  Prendergast,  14  M.  &  W.,  741  —  509 

V.  Sattley,  3  Camp.,  523—503 

V.  Windsor,  12  M.  &  W.,  68—425 

Hartley!;.  Burkitt,  4  Bing.  N.  C,  687—316 
• ■  V.  Harriman,   1   B.    &   AL,    620  ; 

Holt,  617  ;  2  Stark.,  212—157,  158,' 

160 
Harvey  v.  Bridges— 378 


xl 


VI 


INDEX'    OF    CASES    CITED. 


Harvey  v.  Pocock,  11  M.  k  W.  740—207 
i:  Grabham,  o  Ad.  5c  K.,  61  ;  G  N. 

&  .M.,  754  ;  2  II.  &  W.  14G-332 
Haseler  v.  Lemoyne,  28  L.  J.  ^N.  S.)  C.  T. 

103—28'. 
Hatch  V.  Hale,  15  Q.  B.,  10-278 
Ilawkes  r.  Orton,  5  Ad.  &  E.,  367-423 
Hawkins  v.  Ciurbines,  27  Law  J.  (N.  S.)  Ex., 

44— 3r.7 
Hayling  v.  Oakey,  S  Ex.,  531—3.52 
Head  V.  Tattei-sall— 549 
Heale  v.  jrcMunay,  23  Beav.,  401—411 
lleai-d  v.  Caniplin,  15  Law  Times,  437—413 
Heap  V.  Barton,  12  C.  B.,  274—461 
Hegan  r.  Johnson,  2  Taun.,  148—290 
Heisch  r.   Carrington,    5  C.   &  P.,  471 — 

483 
Helyear  v.  Hawkc,  5  Esp.,  71—54.5,  555 
Heliaby  r.  Brown,  1  H.  &  N.,  729—419 
Hellyer  v.  Silcox,  19  Law  J.  (N.  S.)  Q.  B., 

295—447 
Henchetti;.  Kimpson,  2  Wils.,  140—295 
Henderson  v.  Eason,  18  Law   J.    (N.   S.) 

Q.  B.,  62;  21  Law  J.  (N.  S.)  Q.   B., 

82  ;  15  Law  .L  (N.  S.)  Ch.  457—452 
Heriakendeu's   Case,    4    Bep.,    626 — 116, 

125 
Hetton  v.  English,  7  E.  &  B.,  94—515 
Hewitt  r.  Sir  0.  Isham,  7  Ex.,  77—127 
Hewlins  v.  Shippam,  7  D.  &  R.,  783;  5  B. 

&  C,  221—70,  71,  73,  74 
Heys  V.  Tindall,  30  L.  J.  (N.  S.),  Q.  B.,  362 

—468 
Hickman  v.  Machin,  28  L.  J.  {N.  S.)  Ex. 

311—468 
Higgon  V.  Mortimer,  6  C.  &  P.,  616 — 338 
Higgs  r.  Thrale,  Ollipbant's  Law  of  Plorses, 

56—570 
Higham  v.  Rabbit,  5  Bing.  N.  C. ,  C22  ;  7 

Dow.,  653  ;  7  Scott,  827—92 
Highmore  f.  Primrose,  5  M.  &  S.,  65  ;  2 

Chit.,  333—64 
Ilildreth  r.  Adamson,  30  L.  J.  (N.  S.)  M. 

C,  204—197 
Hill  V.  Balls,  2  H.  &  N.,  299  ;  27  L.  .J. 

(N.  S.)Ex.,  45,  542,  598 

V.  Barclay,  18  Yes.,  63—311 

V.  Walker,  2  Peake's  Add.  Cas.,  234— 

3  >> 
Hill.s  i:  Sheppard-516 
Hinchliffei'.  Armistead,  0  M.  kW.  155— 

404 
. V.  Kinnoul    (Earl  of),   6  Scott, 

650,  S.  C— 88 
Ilindle  V.  Pollett,  6  M.  &  W.,  529—339 


Hingeston  r.   Kelly,   IS  L.  .J.  Ex.,  360  — 

199 
Ilitchman  r.  Walton,   4  j\I.    &  W.,   400— 

460,  461 
Hobby  v.  Russell,  1  C.  &  K.,  716-589 
Hockin  v.  Cooke,  4  T.  R  ,  314—481 
Hodges  V.  Lawrence,  18  Jus.   Pea.,  347  — 

284 

V.  Litchfield,  1  NewCa.,  492—475 

Hodgson  V.  Coates,  23  Beav.,  33—429 

V.  Le  Brett,  1  Gamp. ,  233—500 

■ V.  Johnson,  Jurist,  April  2,  1859 

—67 
i\  Midland  Railway  Company,  33 

L.    J.   (N.    S.)  Q.    B.,    233  ;   .and  35 

L.  J.  (N.  S.)Q.  B.,. 85— 254 
Hodsoll  V.    Stallebrass,    8  Dow.    (P.    C), 

482-163 
Hogan  V.  Shurpe,  7  C  &  P.,  755—166 
Hogg  V.  Norris,  2  F.  &  F.  246—464 
Holbatch  I'.  Warner,  Cro.  Jac,  665 — 133, 

139 
Holder  V.  Coates,  Moo.  &  M.,  112—117 
Holding  V.  Pigott,  7  Bing.,  465—325 
Hole  V.   13arlovv,  27  L.   J.    (N.    S.)  C.   P., 

207—35.5,  362,  363 
Holland  v.  Hopkins,  2  B.  &  P.,  243—547 
V.  North  Eastern  Railway  Company, 

4  L.  R.   Ex.,  254,  .and  6  L.   R.   Ex., 

123—253 
Hollingham  v.  Head,  27  L.  J.   (N.   S.)  C. 

•P.,  241—514 
Holloway  v.  Berkeley,  6  B.  &  C,  2  ;  9  D. 

&  R.,  83—443 
Holmes  v.  Bellingham,  23  L.  J.  C.  P.,  132 

—103 

V.  Goring,  2  Bing.,  76—88,  89 

V.  Hoskins,  9  Ex.,  753—583 

— —  y.   Onion,  26  L.  J.   (N.   S.)  C.  P., 

261—213 
V.  Wilson,  10  Ad.  &  E.,  503—353, 

354,  355 
Holtr.  Daw,  16  Q.  B.,  990—352 
IIoltpz.affell  V.   Baker,  18  Ves.,  115— 429, 

430 
Holyday  v.  Morgan,  28  L.  J.   (N.   S.)  Q. 

B.,  9—566 
Homer  v.  Mellars  [Mallars],    Law  Times, 

Jan.  16,  1858-513 
Ilomfray  v.  Scropc,  13  Q.  B.,  509—402 
Iloneyman  v.   Marryatt,    6  CI.,    112;    21 

Beav.,  14—474 
Hood  (Lord)  v.  Kendall,   17  C.  B.,  260— 

123 
Hooker  v.  Wilkes,  2  Stra.,  1126—308 


INDEX    OF    CASES    CITED. 


xlvii 


Hooper  v.  Clarke — 454 

• r.  Treffry,  1  Ex. ,  1 7—488 

Hope  V.   Atkins,  1  Price,  143—482 
Hopkins  v.  Tanqueray,  15  C.  B.,  130-551 
Horn  V.  Tbornborougli,  3  Ex.,  846—363 
Ilorsford  v.  Webster,  1  C.  M.  &  R.,  696— 

276 
Hort  V.  Newiy  (Lord\  1  L.  J.,  K.  B.,  237 

—543 
Horwood  w.  Powell  — 107 

v_  Smith,  2  T.  R.,  750—600 

Hoskins  r.  Featherstone,  2  Bro.  C.  C.  552 

—  310 
Ilougliton  V.  Bankbart,  Law  Times,  March 

12.  1859—604 
Hoixnsell  v.  Smyth  (Bart.)  29  L.  J.  (N.  S.), 

203,  C.  P.  ;  7C.  B.  (N.   S.),  731  ;  1 

Law  Rep.,  440—138 
Howard  v.  Castle,  6  T.  R.,  642-550 
V.   Shaw,   8  M.   &  W.,  119-447, 

448 
V.  Sheward,  2  L.  R.  C.  P.,  148— 

222 
Howe  V.  Palmer,  3  B.  &  Al.,   321—495, 

496,  498 
Howell  1'.  Conplaud— 474 

r.  Richards,  11  East,  633—313 

Hudson  V.  Baxendale,  27  L.  J.  (N.  S.)Ex., 

93—264 
—  V.  McCrea,  33  L.  J.  M.  C,  65— 

377 

r.  Nicholson,  5  M.  &W.,  535-353 

r.  Robert-s,  6  Ex.,  697;   20  L.  J. 

Ex.,  697—160 
Hughes  V.  Bncklaud,  15  M.   &  W.,  346— 

363,  3*64 
V.  Denton,  Weekly  Reporter,  March 

12,  1859—405 
V.  GreatWestern  Railway  Company, 

14  C.  B.,  637—256 

-— V.  Humphreys,  3  E.  &B.,  954—522 

{Ex  parte),  23  L.  J.  (N.  S.),  M.C., 

138—202 
Hull  V.  Morell— 298 
and  Selby  Railway  Company  (//t  ?e), 

8  L.  J.  (N.  S.)  Ex.,  260—168 

V.  Yaughaii,  6  Price,  187 — 447 

Humer.  Oldacre,  1  Stark.  N.  P.  C,  351— 

365 
Iliunphries  v.  Brogdcn,  12  Q.  B.,  730-80, 

81 
Hunt  V.  Hecht,  8  Ex.,  814-502,  503 

V.  Bishop,  8  Ex.,  675-413 

Hunter  r.  Gibbons,  1  H.  &  N.,  459—356 
r.  Rice,  15  East,  100—512 


Hurst  I'.    Hurst,    4   Ex.,  571—109,    328, 

438 

V.  Orbell,  8  Ad.  &  E.,  107—596 

Hussey  v.  Hussey,  5  Madd.,  44 — 126 
Hutchins  t'.   Chambers,  1  Burr.,  579 — 286 

V.  Maughan,  4Gwill.,  1594—398 

Hutchinson  c.  Bowker,  5  M.  &  W.,  235— 

481 
and  Ors.  v.  Copcstakc,  31  L.  J. 

C.  P.,  19  Ex.  Ch.— 98 
V.  York,  Newcastle,  and  Berwick 

Railway  Company,  5  Ex.,  343—218 
Hutton  V.  Hamboro' — 103 
V.  Warren,  T.  &  G;,  646  ;  1  M.  & 

W.,  466  ;   2  Gale,  71—307,  320,  324 
Hyatt  r.  Griffiths,  17  Q.  B.,  505—451 
r.  Graham,  32  L.  J.  (N.  S.)  Ex.,  27 

—349 


I. 


Ibbetsou  V.  Peat,  34  L.  J.  (N.  S.)  Ex.,  118 

—376 
Ibks  V.  Richardson,  IP.  &D.,  618  ;  9  Ad. 

&  E.,  849—448 
Illidge  V.  Goodwin,  5  C.  &  P.,  190—220 
Illottr.  Wilkes,  3  B.  &  Aid.,  304—390 
Ingram  v.  Barnes,  26  L.  J.  (N.  S.)  Q.  B., 

319;  7  E^  &B.,  115—207 
Inman  v.  Stamp,  1  Stark.  N.  P.,  12—64, 

68 
In.sole  V.  James,  1  H.  &  N.,  243— ISO 
Irving  y.  Motley,  7  Bing. ,  543 — 555 
Izone  V.  Gorton,  5  Bing.  (N.  C.)  501—429 


J. 


Jack  V.  Macintyre,  12  01.    &   Fin.,   151  — 

482 
Jackson  v.  Cummins,  5  M.    &  W.,  342— 

590 

V.  Harrison,  2  F.  &  F.,  282—530 

V.  Pesked,  1  M.  &  S.,  234—95 

r.  Smithson,  15  M.   &  W.,  563  — 

167 

V.  Stacey,  Holt,  455—91 

Jacobs  r.  Latour,  2  M.  &  P.  205  ;  5  Bing. , 

130-589 
James  v.  Dods,  2  C.   &  i\r.,  260  ;  4  Tyr., 

101-93 
Jaiison  V.  Brown,  1  Camp.,  41 — 1(31 
Jeffrey  v.  Walton,  1  Stark.  N.   P.  C,  267 

—480 


xlviii 


INDEX    OF    CASES    CITED. 


Jeffreys  c.  Evans,  34  L.  J.  (X.  S. ^  C.  P., 

•261-392 
Jenkins  v.  Betham,  15  C.  B.,  16S— 333 

&  Dennis  r.  King,  392 

!—  !■.  Green.  2S  L.  J.  (N.  S.)  Cli.,  S17 

—472 

i\  Turner,    1    Ld.    Raym.,    109  ; 


Salk.  662—155 
Jenner  i:  Clegg,  1  Moo.  &  R.,  213-288 
Jenny  and  Runnacles  r.   Brook,  2  Q.  B., 

265;  6Q.  B.,  323-116,  141 

V.  YoUand— 287 

Jesse  r.  Gifford,  4  Burr.,  2141—87 
Joel  V.  Morisou,  6  C.  &  P.,  501  —  219 
Jobnson  V.  Dodgson,  2  M.  &  W.,  653—496, 

506,  535,  536 
V.  Faulkener,  2  G.  &  D.,  184;  2 

Q.  B.,  925—275 

V.  Goldswaine,  3  Aust.,  749-307 

V.  May,  3  Lev.,  150—446 

V.  The  Midland  Railway  Company, 

'4  Ex.,  367—232 
r.  Upham,  28  L.  J.  (N.  S.)  Q.  B., 

252—271 
r.   Huddleatone,  4  B.   &  C,  922  ; 

7D.  &R.,  411—434,450 
V.   Usborae,  11  Ad.  &  E.,  549— 

486 
Joliff  r.  Bendell,  1  Ry.  &  Moo.,  136—567 
Jones  V.  Chapman,  2  Ex.,  803—344 

V.  Clark,  2  Bulst.,  73—446 

,..  Flint,  2  P.  &  D.,  594  ;  10  Ad.  & 

E.,  753—59,  588 

V.  Gibbons,  1  C.  L.  R.,  461-490 

V.  Green,  3  Y.  &  J.,  298—312 

r.  Gooday,  8  M.  &  W.,  146-356 

r.  Hamp  (not  reported)  — 299 

V.  Jones,  31  L.  J.  (N.  S.)  Ex.,  406- 

358 

V.  Le  Da\nd,  4  GwilL,  1594-393 

V.  Nixon,  31 L.  J.  (N.  S.)Ex.,  504— 

463 

V.  Perry,  1  Esp.,  482—160 

V.  Richard,  6  Ad.  &  E.,  530—588 

V.  Tyler,  1  Ad.  &  E.,  522—602 

-  r.  ^Yilliams,  2  M.  &  ^Y.,  326—170, 
356 
Jordan  v.  Noiion,  4  M.  &  \Y.,  155—556, 

580 
Jordin  v.  Crump,  8  M.  &  \Y.,  782—349, 

350,  390 
Judson  V.   Etheridge,  1   C.    &  M.,   743 — 
589 


K. 


Kavanagh  r.  Gudge,  7  M.  &  G.,  316—127 
Keats  r.  Cadogan  (Earl),  10  C.  B.,  591  — 

425,  553 
Keeble  r.  Hickeringill,  11  East,  574  «.— 

385 
Keen  v.  Priest,  Law  Times,  Feb.  12,  1859 

—288,  305 
Kelcey  v.  Stupples,  32  L.  J.  (N.  S.)  E.k.,  G 

—466 
Kelly  (App.)  r.   Webb  (Resp.),  12  C.  B., 

283—64 
Kemp  V.  Crewes,  2  Liitw.,  1580—275 
Kendall  v.  Barker,  11  C.  B.,  842-453 

V.  S.  E.   Ry.  Co.,  7  L.  R.  C.  P., 

655 -252 
Kenyon  v.  Hart,  34  L.  J.   (N.  S.)  M.  C, 

87—376 
Keppell  V.  Bailey,  2  Mylne  &  K.,  517  — 

87 
Keymer  v.  Summers,  cited  3  T.  R. ,  157  — 

88 
Kiddell  i:  Biiniai-d,  9  M.  &  W.,  668—542, 

564,  567 
Kidgiil  V.  Moore,  9  C.  B.,  364-77,  95 
King  V.  Boston,  7  East,  481  h.— 594 

V.  Price,  2  Cliitt.,  416—594 

Kingdon  v.  Moss,  Veterinarian,  vol.  xxix. , 

491—212 
Kingsmill  v.  Millard,  11  Ex.,  313—346 
Kinlysidet'.  Thornton,  2  W.    BL,  1111  — 

308,  309 
Kintrea  v.  Preston,  1  H.  &  N.,  357—411 
Kirby  v.  Trotter,  1  F.  &  F.,  514—538 
Kirkham  v.  Marter,  2  B.  &  Ad.,  613  ;  1 

Chitt.,  382—561 
Knibs  V.  Hall,  1  Esp.,  N.  P.  C,  84-  274 
Knight  V.    Bennett,    3    Bing.,    361;    11 
Moore,  222—290 

V.  Cox,  18  C.  B.,  645—278 

Knowles  v.  Blake,  5  Bing.,  499-267,  268 
V.  Michel,  13  East,  249—63,  128 


Ladd  V.  Thomas,  12  Ad.  &  E.,  117-271, 

279 
Lancaster  and  Carlisle  Railway  Company  *•. 

Heaton,  28  L.  J.  (N.  S.)  Q.  B.,  195 

—404 
Lancaster  v.  Eve,  28  L.  J.  (N.  S.)  C.  P., 

235—469 


INDEX    OF    CASES    CITED. 


xlix 


Langford  v.  Selmes,  3  K.  &  Jobn,   220  — 

418 
Langhton  v.    Iliggins,  4  11.  &  N.,   402— 

536 
Large  v.  Pitt,  Peake's  Add.  Cases^  152  — 

88,  90 
Latham  v.  Atwood,  Cro.  Car.,  515 — 442 
Lathbury  v.  Earle,  27  Veterinarian,  548 — 

603,  605 
Lathropp  v.  Marsliam,  5  Ves.,  259—310 
Lattimore  n  Grairard,  1  Ex.,  809 — 333 
Last  V.  Dinn,  28  L.  J.   (N.  S.)  Ex.,  94  — 

452 
Laugher  v.  Pointer,  5  B.  &  C,  517—228 
Lawrance  v.  Faux,  2  F.  &  F.,  435—470 
Lawrence  r.  Aberdien,  5  B.  &  AL,  107  — 

231,  232 
V.  Jenkins,  8  L.  R.  Q.  B.,  274 

—139 


144 


V.   King,  3  L.  R.  Q.  B.,  345— 

■ —  V.  Tolleshunt  Knights,  31  L.  J. 

(N.  S.)  M.  C,  148—508 
Lawson  v.  Langley,  4  Ad.  &  E.,  890—84 
Lawton  v.  Lavvton,  3  Atk.,  13 — 455 
Layton  v.  Hurry,  8  Q.  B.,  811  — 270 
Leach  v.  Thomas,  7  G.  &  P.,  327  ;  2  M.  & 

W.,  427-307,  428,  460 
Leader  v.  Homewood,  27  L.  J.  (N.   S.)  C. 

P.,  316—459 
Leake's  (Sir  F. )  Case,  Dyer,  365  ;  1  Sauu. , 

206—135 
Leame  v.  Bray,  3  East,  593  ;  5  E.sp.,  18 — 

155 
Learson  v.  Robinson,  2  F.  &  F.,  351—471 
Leath  v.  Vine,  30  L.  J.  M.  C,  207—377 
Lee  V.  Riley,  34  L.  J.  (N.  S.)  C.  P.    212— 

140 

V.  Risdon,  Taun.,  189-69 

V.  Unwin,  263 

V.  Bayes  and  Robinson,  18  C.  B.,  599 

—697 
V.  Cooke  (in  Error),  28  L.  J.  (N.  S.) 

Ex.,  337—302 

V.  Muggeridge,  5  Taun.,  36 — 64 

V.  Stephenson,  27  L.  J.  (N.  S.)  Q.  B., 

263—74 
Leeds  v.  Burrows,  12  East,  1 — 332 

V.  Chectham,  1  Sim.,  146 — 429 

Legg  V.  Pardoe,  30  L.  J.   (N.  S.)   M.  C, 

108-381 
Legh  V.  Hewitt,  4  East,  154—315 
Leigh  V.  Patcrson,  2  Moore,  588  -  492,  493 

V.  Heald,  1  B.  &  Ad.,  622-109 

Lemayne  v,  Stanley — 535 


Lethbridge  f .  Lethbridge,  31  L.  J.  (N    S.) 

Ch.,  737—463 
Letticc  V.  Judkin.s,  9  L.  J.   (N.   S.)  Ex., 

142—229 
Lewis  V.  Bond — 471 
V.  Cosgrave,  2  Taun.,  2—558 

V.  Harris,  1  H.  Bl.,  7  n-290 

r.  Peake,  7  Taun.,  152—558 

V.  Read,  13  M.  &  W.,  834—278 

V.  Rogers,  1  C.  M.  &  R.,  48  —  523 

Lexington  v.  Clark,  2  Vent.,  223^277 
Ley  V.  Peter,  27  L.  J.  (N.  S.)  Ex.,  239— 

422 
Liddard  v.  Kain,  2   Bing.,  183  ;  9  Moore, 

356—563 
Lidstor  v.  Barrow,    9  Ad.   k  Ell.,    654  — 

368 
Liebenrood  v.  Vines,  1  Meriv.,  15—312 
Li  ford's  Case,  11  Rep.,  51  6—109,  127 
Liggins  V.  Inge,  5  M.  &  P.,  712  ;   7  Biug., 

682-73,  172,  174 
Lilley  V.  Elwin,  11  Q.  B.,  742—200,  202 
Lillie  V.  Legh — 471 
Liudon  r.  Hooper,  Cowp.,  414—272,  273, 

274 
— —  V.  Collins,  Wille.s,  429-280 
Line  2'.  Stephenson,  5  Bing.  (N.  C),  183  — 

411 
Limijus  V.   Gen.    Omnibus  Co.,  32  L.   J. 

Ex.,  34—218 
Lindsay  v.  Leigh,  11  Q.  B.,  455—201 
Lisburne  (Earl)  v.  Davids,  1  L.  R.  C.  P., 

259—346 
Littlefield  v.  Shee,  2  B.  &  Ad.,  811—64 
Livington   v.    Ralli,   3  C.  L.  R.,    1096  — 

490 
Llandaff  v.    Lyndon,    30    L.    J.    (N.    S.), 

C.  P.  M.  C,  192-526 
Lloyd  V.  Da  vies,  2  Ex.,  103-411 

V.  Walkey,  9  C.  &  P.,  771-602 

V.  Winton,  2  Wils.,  28—280 

Lochv.  Matthews,  W.   R.,  Feb.    14,  1863 

—463 
Loder  v.  Kekule,  27  L.  J.  C.  P.,  27—511 

V.  Bartlett,  31  L.  J.  (N.  S.)  Ex.,  92 

—533 

Logan  V.  Lemusier,  6  Pr.  C,  116—536 

London  and  North  Western  Railway  Com- 
pany (apijs.)  V.  Dunham  (resp.),  18 
C.  B.,  826-243 

London  and  Westminster  Loan  Cumiiany  v. 
Drake,  69 

Lonsdale  (Eari  of)  v.  Nelson,  2  B.  &  C, 
311-114 

V.  Rigg  -379 

d 


1 


INDEX    OF    CASES    CITED. 


Longmead  v.  Holliaay,    20  L.  J.  Ex.,  430 

—140 
LongstaflF  i\  Meagoc,  4   N.   &  M,  211  ;  2 

Ad.  &E.,  167— 4(!1 
Lord  r.  City  of  Sydney,  12  Moo.,  473-104 
Loring  v.   \Varburton,    11    Ex.,    870  ;  2.^) 

L.  J.    (N.  S.)   Ex.,    125  ;  28  L.    J. 

(N,  S.)E]i.,  31—274 
Lorymer  v.  Smith,  1  B.  &  C,  1—482 
Louth    V.    Druinmond    (cited    in    Manley 

Smith's    "Law   of  Master  and    Ser- 
vant," 48)— 203 
Lowe  V.  Peers,  4  Burr.,  2225—110 

V.  Ross,  5  Ex,,  553— 44.'i 

Lowden  v.  Kay,  6  D.  &R.,  20  ;  4  B.  &  C, 

3-143 
Lowndes  r.  Fountain,  11  Ex.,  487—336 
Lovel)  V.  Smith,  3  C.  B.,  120-87 
Lumley  v.  Hodgson,  16  East,  99  —  425 
Lucas  V.  Novosilieski,  1  Esp.,  296 — 199 

r.  Tarleton— 296 

Lucy  v.  Mouflet— 485,  529 
Lurting  v.  Conn,  1  Jr.  Ch.  Rep.,  23—310 
Lyde  v.  Russell,  1  B.  &  Ad.,  394—462 
Lynch  v.  Nurden,  1  Q.  B.,  37 ;  4  P.  &  D., 

677—350 
Lyon  V.  Mells,  5  East,  428—234,  236 
Lyons  v.  Martin,  8  Ad.  k  E.,  512—211 


M. 


:vral.erley  v.  Shepherd,  10  Bing.,  99—497 
McCance,  v.  London  and  N.  W.  Rail.  Co., 

31  L.  J.  (N.  S.),  65  ;  34  L.  J.  (N.  S.) 

Ex.,  39—252 
Machell  v.  EllLs,  1  C.  &  K.,  682—270 
Macintosh  t\  Trotter,  3  M.  &  W.,  184—461 
Mackenzie  v.  Cox,  9  C.  &  P.,  632—602 

V.  Hancock,Ry.  &  Moo. ,  436  -  593 

M'Kinnon  v.  Pen.son,  9  Ex.,  609  ;  and  23 

L.  J.  (N.  S.)  M.  C,  97-103 
M'Kone  v.  Wood,  5  G.  &  P.,  1-161 
Maclaughlin  v.  Pryor,  4  M.  &  G.,  48—220 
Macraanus  u  Cricket,  1  Ea.st,  106  —  211 
V.    Lanca-shire    and    Yorkshire 

Railway  Co.,  Law  Times, Feb.  20,1858; 

28  L.  J.  (N.  S.)  Ex.,  353—247,  254 
Macnolty  V.  Fitzherbert,    27  L.  J.  (N.  S.) 

Ch.,  272—431 
Magor  v.  Chadwick,  11  Ad.  &  E.,  571  — 

180,  182 
Mackin.son  v.  Rawlinson,  9  Price,  460 — 561 
Mal.iehy  v.  Snper,  3  Bing.  (N.  C),  371  ;  3 

Scott,  723—163 


Malins  c.  Freeman — 540 
Manchester,    Sheffield,     and    Lincolnshire 
Rail.  Co.  (app.)  v.  Wallis  (resp.),  14 

C.  B.,  213-148 

Mann  v.  Lovejoy,  Ry.  &  Moo.,  355— 290, 415 
Manning  r.  Lunn,  2  C.  &  K.,  13—279,  439 

V.  Wasdale,  5  Ad.  &  E.,  758—78 

Mant  V.  Collins,  8  Q.  B.,  916—456 
Margetsou  r.  Wright,  1  M.  &  Scott,  622  ; 

8  Bing.,  454  ;  7  Bing.,  603  :  5  M.  & 

P.,  696—571 
Marfell  v.  South  Wales  Rail.  Co.,  29  L.  J. 

(N.  S.)  C.  P.,  315;  8  C.  B.,  525-152 
Marker  v.  Kenrick,  13  C.  B.,  188—309 
Marlborough  (Duke  of)  v.  Osborn — 453 
Marlow  v.  Thompson,  1  Dow.  P.  C.  (N.  S.), 

575-418 
Marson  v.  Short,  2  Bing.  (N.  C),  111—559 
Martin  v.  Cogan,  1  Hog.,  120—308 
V.  Coulman,  4  L.  J.  (N.  S.)  K.  E., 

37—329 
V.  Gilham,  2  N.  &  P.,  568  ;  7  A. 

&  E.,  540—309 

V.  Knollys,  8  T.  R.,  145—116 

V.  Roe,  7  E.  &  B.,  237—432 

V.  Wallace— 585 

Martindale  v.  Smith,   1  Q.  B.,  389  ;  1  Q. 

&  D.,  1—495 
Martyn  (Adx. )  f .   Clue,  18  Q.   B.,  661  — 

306,  427 
Mason  v.  Hill,  5  B.  &  Ad.,  1  ;  3  B.  &  Ad., 

304;    2   N.  &  M.,    747—173,  174, 

175,  176 

V.  Newland,  9  C.  &  P.,  575—270 

V.  Welbank  [Welland],  Skin.,   238 

—446 
Massey  v.  Goodall,  17  Q.  B.,  510—337 
Masters  v.  Pollie,  2  Roll.  Rep.,  141—117 
Matson  v.   Cook,    6  Scott,    179  ;  4  Bing. 

(N.  C),  392—343 
Mathe-son  v.  Hart,  2  C.  L.  R.,  314  -438 

V.  Parker,  Oliphant,  343-570 

Matthews  v.  Leapingwell,  3  C.  B.,  912— 401 
May  r.  Burdett,  9  Q.  B.,  121—155,  167 
Mayfieldu  Wadsley,  3  B.   &  C,  357  ;  5 

D.  &R.,  224-60,  67 
Mechclenv.  Wallace,   2  N.  &  P.,  224s  7 

Ad.  &E.,  49;  W.  &W.  &D.,  40—66 
Meddins  v.  William.s,  Times,  Feb.,  1858— 

386- 
Meggison  i'. 'Lady  Glamis,  7  Ex.,  685—296 
Mellish  V.  Motteux,  1  Peake,  115—551 
Mennie  v.  Blake,  6  E.  &  B.,  842—298 
Meres  v.  Ansell,  3  Wils.,  275-482 
Meredith  v.  Megli,  2  E.  &  B.,  364-503 


INDEX    OF    CASES    CITED. 


li 


Merivale  v.  Exeter  Road  Trustees,  3  L.  R. 

Q.  B.,  149—141 
Mesnard  v.  Aldridge,  3  Esp.,  271—550 
Metcalfe  v.  Lumsden,  1  C.  &  K.,  309—229 
Metropolitan  Association  for  Improving  the 

Dwellings  of  the  Poor  v.    Fetch,    27 

L.  J.  (N.  S.)  C.  P.,  330—77 
Mews  V.  Carr,  1  H.  &  N.,  484—477 
Micklethwait  v.    Micklethwait,    28    L.    J. 

(N.  S.)C.  P.,  121—113,  125 
Middleton  v.  Gale,  8  Ad.  &  E.,  155-377 
Mildred  v.  "Weaver — 106 
Miles  V.  Harris — 304 

V.  Sheward,  8  Eas.,  7—462 

Milieu  V.  Fandrye,  Pop.,  161 — 367 
Miller  v.  Green,  2  C.  &  J.,  143  ;  2  Tyr., 

1  ;  8  Bing.,  92  ;  1  M.  &  Scott,  199— 

291 
Mill  V.  Commissioners  of  the  New  Forest, 

18  C.  B.,  60—85 
Millichamp  v.  Johnson,  "Willis,  202—349 
Milligan  v.  Wedge,   12  Ad.  &  E.,  737— 

228 
Minshall  v.  Lloyd,  2  M.  &  W.,  450-461 
Minshull  v.   Oakes,  27  L.  J.  (N.  S.)  Ex., 

194—427 
MitcheU  v.  Crasswaller,  22  L.  J.  (N.  S.)  C. 

P.,  100—219 
Mondel  v.  Steele— 536 
Monmouthshire  Canal  Co.    v.   Harford,    1 

C.  M.  &  R.,  614-82,  83 
Moody  V.  Dean  and  Chapter  of  Wells;  1  H. 

&  N.,  40—439 
Morden  v.  Porter,  29  L.  J.  (N.  S.)  M.  C, 

226—378 
Morgan  v.  Abergavenny   (Earl),   8  C.   B., 

768—375,  382 
V.  Bissell,  3  Taun.,  65—308,  410, 

414 
Morley  v.  Attenborough — 528 

V.  Pincombe,  2  Ex.,  101—285 

Moore  v.  Plymouth  (Lord),  7  Taun.,  316 — 

384 
V.  Rawson,  5  D.  &  R.,  234  ;  3  B.  & 

C,  332—77,  87 

V.  Webb,  1  C.  B.  (N.  S.),  673-181 

Moreten  v.  Porter,  29  L.  J.  M.  C,  213  — 

377,  381 
Moreton  v.  Harden,  4  B.  &  C,  223—216 
Morris  v.  Jeffries,  1  Q.  B.,  261—154 
V.  Norfolk  (Duke  of),  9  Sim.,  472- 

403 

V.  Morris,  1  Hog.,  238—308 

V.  Nugent,  7  C  &  P.,  572—161 

Mortimer  v.  Preedy,  3  M.  &\V.,  602—426 


Morton  v.  Tibbett,   15  Q.   B.,   428-501, 

502,  503 
Mottt;.  Turnage,  1  F.  &  F.,  6—413 
Mounsey  v.  Ismay,  W.   R.,  Jan.   24,  1SG3, 

349 
Mousley  v.  Saint — 347 
Mouseley  v.  Ludlam,  21  L.   J.  (N.    S.)  Q. 

B.,  64—329 
Moxon  V.  Savage,  2  F.  k  F.,  182-349 
Mum  V.  Fabian— 454 
Mumford    v.    Oxford    and    Worcestershire 

Railway  Company,  1  H.  &  N.,  34-95 
Muncey  v.  Dennis,  1  H.  &  N.,  216-325 
Murgatroyd  v.  Robinson,  26  Law  J.  (N.  S.) 

Q.  B.,  233—86 
Murray  v.  Mann,  2  Ex.,  588—556 
V.    East  India  Company,   5   B.   & 

Aid.,  204—210 
Muskett  V.    Hill,    7    Sc,   855  ;    5   Bing. 

(N.  C),  694—309 


N. 


Nargatt  v.  Nias,  28  L.  J.  (N.  S.)  Q.   B., 

143-286 
Neale  v.  Cripps,  Law  Times,  Jan.  22,  1859, 

115 

V.  Wyllie,  3  B.  &  C,  533—427 

Neal  V.  Swind,  2  C.  &  J.,  377—448 

V.  Viney,  1  Camp.,  471 — 460 

Nethorpe'y.  Holgate,  1  Coll.,  203—419 
Nesbitt  V.  Meyer,  1  Swan,  223—311 
Newall  (Ex  parte),  3  Deac,  333—524 
Newcastle  (Duke  of)  v.  Hundred  of  Brox- 

towe,  4  B.  &  Ad.,  273-430 
Newman  v.  Cardinal,  2  F.  &  F.,  840—303 
Newport  (Mayor  of)  v.   Saunders,   3  B.  &; 

Ad.,  411  —  518 
Newson  v.   Smythies,  29  L.  J.  (N.  S. )  C. 

P.,  97—331 
Newton  v.  Allin,  1  Q.   B.,   518  ;  1  G.   & 

D.,  44—437 
V.  Harland,  1    Man.   &  G.,  644— 

378 

V.  Wilmot,  8  M.  &  W.,  711  —  385 

Nicholson  v.  Bower,  28  L.   J.    (N.    S.)  Q. 

B.,  97—504 
Nichols  V.  Chapman — 101 
V.  Hall— 490 


Nicklin    v.    Williams,    10    Ex., 

100,  101 
Nicoll  V.  Greaves,  33  L.  J.   (N. 

259—201 
V.  Goots  — 530 


259—80, 

S.)  c.  r., 

d  2 


Hi 


INDEX    OF   CASES    CITED. 


Nixon  r.  Freeman,  '20  L.  J.   (N.  S.)  Ex., 

271—282 
Kokes  V.  Gibbons,  20)  L.   J.   (N.  S.)  Cli., 

20S,  433—311 
Norfolk  (Duchess  of)  v.  Wiseman— 384 
Norman  r.  Bell.  2  B.  &  Ad.,  191—523 

V.  Phillies,  14  M.  &  W.,  277-503 

V.  Wescombc,  2  M.  &  W.,  349— 

352 
North  Eastern  Railway  Company  v.  Elliot 

—100 
V.    Cros- 

land— 100 
North  r.  Smith,  10  C.  B.,  572-362 
Northam  r.  Hurley,  1  E.  &  B.,  665-189, 

191 
Nortbam])ton  (Mayor  of)  v.  Ward,  1  Wils., 

107  ;  2Strac.,  1238-517 
Norton  v.  Herron,  1  C.  &  P.,  648—420 
Norwood  r.  Pitt,  29  L.  J.  (N.  S.)  Ex.,  127 

—  358 
Nowlan  v.  Ablctt,  2  C.  M.  &  R.,  54—207 
Noye  V.  Reed,  1  M.  &  R.,  63—131 
Nuttall  V.  Staunton,  6  D.  &  R.,  155 ;  3  B. 

&  C,  51—290,  291 


0. 


Oastler  v.  Pound,  N.  R.,  Feb.  14,  1863- 

536 
Ockeuden  [Oekleden],  6  Henley,   27  L.  J. 

(N.  S.)  Q.  B.,  361-477 
Odiham  v.  Smith,  Cro.  Eliz.,  589-444 
Ongley  v.  Gardiner,  4  M.  &  W.,  496—83, 

84 
On.slow  V.  Eames,  2  Stark,  81—310,  568 
Orchard  v.  Rackstraw,  9  G.  B.,  698—576 

V.  Simpson,  2  C.  B.  (N.  S.),  299 

—  494 
Orr  r.  Fleming,  Weekly  Reporter,  vol.  1, 

339—157 
Osbond  V.  Meadows,   31  L.  J.   (N.  S.)  M. 

C,  238-377 
Osborne  v.  Harvey,  1  You.  &  Coll.  (N.  C), 
116-124 

V.  Wise,  7  C.  &  P.,  751-88 

Oswald  V.  Earl  Grey,  24  L.  J.  (N.  S.)  Q. 

P..,  69—419 
Oughton  V.  Scppings,  1  B.  &  Ad.,  241  — 

345 
Owens  V.  Denton,   1    G.   M.  &  R.,   711  — 

522 
Owen  V.  Leigh,  3  B.  &  Al.,  470-293 
Oxley  V.  James,  13  M.  &  W.,  209—290 


Oxley  r.  W^atts,  1  T.  R.,  12-344 
Oxendalc  v.  Wetherall,  9  B.  &  C,  336  ;  4 

M.  &  Ry.,  429—491 
Oxford,    Worcester    and    Wolverhampton 

Railway  Co.  (inre)  (ex parte) jDeviaccs 

of  Milward,  29  L.  J.  (N.  S.)  Ch.,  215 

—539 


Page  (Exor.)  v.  Pavey,  8  C.  &  P.,  769— 

488 
Pain  V.   Coombs,  Law  Times,   May  2  and 
Oct.  10,  1857—311,  415,  471 

V.  Patrick,  3  Mod.,  294—79 

Pad  wick  v.  King,  29  L.  J.  (N.  S.)  M.  C. 
42-381 

-y.  Tyndale,  28  L.  J.  (N.  S.)  Q.  B., 

90-443 
Palmer  v.  Temple — 478 

V.   The   Grand  Junction    Railway 

Company,  4  M.  &  W.,  749—232 
Pannell  v.  Mill,  3  C.  B.,  625—385 
Pardington  v.  South  Wales  Railway  Com- 
pany,  1   H.   &  N.,  392-244,   245, 
248 
Parish  v.  Sleeman,  29  L.  J.   (N.  S.)  Ch., 

53,  97—407 
Parker  v.  Great  Western  Railway  Company, 
7  M.  &  G.,  253,  7   Scott  N.  R.,  835 
274 

V.  Ibbetson,  26  L.  J.  (N.  S.)  C.  P., 

26-203 

i:  Mitchell,  11  Ad.  &  E.,  788  ;  3  P. 

&  D.,  655—84 

V.  Wallis,  5  E.  &  B.,  21-503 

V.  Staniland,  11  East,  362—52 

V.  Taswell,  27  L.  J.  (N.  S.)  Ch.,  812 

—  414 
Parkinson  v.  Lee,  2  East,  322—528 
Parmenter  v.   Webber,   8  Taun.,    593  ;  2 

Moore,  656—289 
Parrington  v.  Moore,  2  Ex.,  223—364 
Parrott  v.  Anderson,  7  Ex.,  93—277 
Parry  v.  Deere,  2  H.  &  W.,  395  ;  1  N.  & 

P.,  47  ;  5  Ad.  &E.,  551—417 
Parsons  v.  Se.xton,  4  C.  B.,  899—484 
Partridge   v.   Scott,   3   M.  &   W.,   220  — 

101 
Patrick   v.   Golerick,  3  M.  &  W.,   483— 

348 
Patteshall  v.  Tranter,  3  Ad.  &  E.,  103,  4 

N.  &  M.,  649—574 
Patten  v.  Guukl,  7  Taun.,  408—424 


INDEX    OF    CASES   CITED. 


liii 


ratten  V.  Rea,  26  L.  J.  (N.  S.)  C.  P.,  235 ; 

2  C.  B.  (N.  S.),  606—214 
Payne  v.  Cave,  3  T.  U.',  148—550,  592 

V.  Haine,  16  M.  &  W.,  541—427 

V.  Rogers,  2  H.  Bl.,  849—132 

V.  Shedden,  1  M.  &Rob.,  382—87 

V.  Whale,  7  East,  274—595 

Peacock  v.  Harris,  10  East,  104—64 

V.  Purvis,   5  Moore,   79  ;  2  B.  & 

B.,  362—294,  295 
Peate    v.    North     Staffordshire     Railway 
Company,    27  L.   J.  (N.    S.)  Q.   B., 
465—243 
Pearce  v.  Lodge,  12  Moore,  50 — 344 
Pearson  v.  Spencer,  1  B.  &  S.,  571,  584—89 
Peer  V.  Humphreys,   2  Ad.   &  E.,  495;  4 

N.  &  M.,  430—597 
Penley  v.  Watts,  16  L.  J.  (N.  S.)  Ex.,  229 

—427 
Penny  v.  Porter,  2  East,  2—490 
Penton  V.  Brown,  1  Sid.,  186—284 

V.  Robart,  2  East,  88—455,  460, 

461 
Perkins  v.  Potts,  2  Chitt.,  399—332 
Perry  v.  Fitzhowe,  15  L.  J.  (N.  S.)  Q.  B., 

239—358 
Petch  V.  Tutin,  15  M.  &  W.,  110—323 
Peter  v.  Knoll,  Cro.  Eliz.,  32—444 
Peters -y.  Blake,  6  L.  J.  (N.  S.)Ch.,  157- 
126 

V.  Clarson,  13  L.  J.  (N.  S.)  M.  C, 

153—351 
Peterson  v.  Ayre,  13  C.  B.,  363—492 
Peyton  v.  Watson,  3  Q.  B. ,  658—403 
Phillips  V.  Barlow,   14  L.  J.   (N.  S.)  Ch., 
35—127 

V.  Smith,  14  M.  &  W.,  589—122' 

V.  Wood,  IN.  &  M.,  434—576 

Philpotts  V.  Evans,  5  M.  &  W.,  475-492 
Pickering -y.  Busk,  15  East,  45—554 

V.  Earl  Stamford,  2  Yes.  Jun.,  272 

—112 
Pierce  v.  Corf — 477 

-V.  Webb,  3  Br.  Ch.  R.,  16-316 

Pigott?;.  Bullock,  1  Yes.  Jan.,  478—111, 
121 

V.  Birtles,  1  M.  &  W.,  441—286.  298 

—  V.  Eastern  Counties  Railway  Com- 
pany, 3  C.  B.,  229—217 
Pike  V.  Eyre,  9  B.  &  C,  909  ;  4  M.  &  Ry., 

661—290 
Pinchon  v.  Chicott,  3  C.  &  P.,  236—64 
Pinder  t).  Button,  W.  R.,  Nov.  15,  1862— 

526 
Pinhorn  v.  Soustcr — 282 


Pinnington  v.  Galland,  1  C.  L.  R.,  819 — 

477 
Pipe  V.  Fulcher,  28  L.  J.  Q.  B.,  12—105 
Pitt  V.  Shew,  4  B.  &  Aid.,  206-69 
Pleasant  v.  Benson,  14  East,  234—68 
Pluckwell  V.  Wilson,  5  C.  &  P.,  375—220 
PoUittv.  Forest,   1  C.  &  K.,560;  11  Q. 

B.,  949—291 
Pomfret  v.   Ricroft,   1   Saun.,  322  c— 94, 

109,  147 
Poole  V.  Bentley,  12  East,  168—414 
V.  Huskisson,  11  M.  &  W.,  827—91, 

197 
V.   Longueville,  2  Saun.,   290—135, 

275,  284 

V.  Tunbridge,  2  M.   &  W.,   67—426 

Porritt  V.  Baker,  10  Ex.,  759;  1  C.  L.  R., 

432—375 
Portman  v.  Middleton,  27  L.  J.  (N.  S.)  C. 

P.,  231—509 
Potter  ('.  Faulkner,  31  L.  J.,  Q.  B.,  30— 

217 
V.    Parry,    Weekly   Reporter,    Jan. 

29,  1859—134 
Poulter  i'.  Killingbcck,   1  B.  &  P.,  397 

57,  66 
Poulton  V.  Lattimore,  9  B.   &  C,  259— 

486 
Pounsett  V.  Fuller,  17  C.  B.,  660—388 
Pow  V.  Davis,  30  L.  J.  (N.  S.)  Q.  B.,  2.")7 

—467 
Powell  V.  Edmunds,  12  East,  6—480 

V.  Salisbury,  2  Y.  &  J.,  391—139 

Power  V.  Welles,  Cowp.  818—594 
Powis  V.  Smith,  5  B.  &  Al.,  850—289 
Powley  V.  Walker,  5  T.  R.,  373—306 
Powys  y.  Blagrave,   24  L.   J.  (N.  S.)  Ch., 

142—112 
Pownall  V.  Moores,  5  B.  &  AL,  416—338 
Pratt  V.  Brett,  2  Madd.,  62—309 
— -  V.  Brown,  8  C.  &.  P.,  244—340 
Preece  v.  Corrie,  5  Bing.,  24—289 
Price  V.  Harrison,  29  L.  J.  (N.  S.)  C.   P., 

35—332 

V.  Leyburn,  Gow.  N.  P.  C,  109—63 

•  V.  Williams,  1  M.  &  W.,  6—472 

V.  Woodhouse,  1  Ex,,  559—297,  444 

Prickett  v.  Badger,  1  C.  B.  (N.  S.),  296— 

475 
Priestley  v.   Fowler,  3  M.   &  W.,  1—215, 

217 
Prince  v.  Lewis,  5  B.  &  C,  363;  8  D.  & 

R.,  121-518 
Pritchett  v.   Honeybourne,  1  Y.  &  J.,  135 

—  401 


INDEX    OF    CASES    CITED. 


Proctor  V.  Hodgson,  24  L.  J.   (X.  S.)  Ex., 

195_S9,  HO 
Protheroe  r.  Matthe^vs,  5  C.  &P.,  581—368 
Proudlove  v.  Tweralow,  1  C.  &  M,,  326  ; 

3  Tyr.,  260—294,  305 
Pryce  r.  Burn,  5  Ves.,  681 — 112 
Pulteney  v.  Shelton,  5  Yes.,  147—310 
Pyer  ».  Carter,  26  L.  J.  (N.  S.)  Ex.,  258 

—74,  105 
Pyke  V.  Eyre,  9  B.  &  C,  909—69 
Pym  r.  Campbell — 465 
p'jTie  V.  Dor.,  1  T.  R.,  55—110 


Q. 


Quarman  r.  Burnett,   6  M.   &  W.,   449— 

213,  228 
Quaylc  r.  Davidson,  Law  Times,  March  5, 

1859-516 


E. 


Rabbeth  [Rabbett]  v.  Squire,  19  Beav.,  70 

—449 
Race  r.  Ward,  7  E  &  B.,  784  ;  4  E.  &  B., 

702—77,  79 
Rackham  v.  Marriott,  1  11.  &  N.,  234  ;  2 

H.  &  N.,  196—508,  509 
Radnor  v.  Evans — 108 
Ramsden  v.  Hirst  [Hurst],  27  L.  J.  (N.  S.) 

Ch.,  482—476 
Ramsbottom  v.  Mortley,  2  M.  &  S.,  445— 

418 
Randall  v.  Roper,  27  L.  J.  (N.  S.)  Q.  B., 

266—513 

V.  Raper— 468 

Randeau  v.  Wyatt— 485 
Randell  v.  Trimen — 467 
Rankin  r.  Lay,  29  L.  J.  (N.  S.)Ch.,  734— 

472 
Rawstron  v.  Taylor,  11  Ex.,  369— 178, 184, 

187 
Rayner  v.  Stone,  2  Eden,  128—310 
Raynor  v.  Childs,  2  F.  &  F.,  775—251 
Readr.  Edwards,  34  L.  J.  (N.  S.)  C.  P., 

31—391 
V.  Fairbanks,  22  L.  J.  (N.  S.)  C.  P., 

206  ;  13  C.  B.,  692—560 

r.  King,  Times,  Jan.  27,  1858—165 

Reay  v.  Rawlinson — 67 

Rcve  r.  Reeve,  1  F.  &  F.,  280—199 

Regent's  Canal  Company  v.  Ware,  26  L.  J. 

(N.  S.)  Ch.,  566—476 


Regina  ?•.  Almfv  &  Spencer,   Jurist,  Aug. 

8,  1857—372 
V.  Aylesford,  29  L.  .L  (N.   S.)  M. 

C.  83—470 
V.  Bedwell,  24  L.  J.   (N.  S.)  M. 

C,  17—202 
V.  Brooks  and  Gibson,  2  Cox  C.  C, 

436—370 

V.  Bryan,  7  Cox  C.  C,  599 

V.  Cheafor,  5  Cox  C.  C,  367—344 

■  V.  Commissioners  of  Land  Tax  for 


Tower  Division,  1  C.  L.  R.,  828—438 

V.  Crawley,  3  F.  &  F.,  109-529 

^,.  Cridland,  27  L.   J.  (N.   S.)  M. 

C,  28—102,  373,  377,  381 

V.  Dant,  34  L.  J.,  M.C.,  119—167 

V.  East  IMark  (Inhabitants   of),    3 

Cox  C.  C,  60—91 

V.  Edge  (not  reported) — 371 

V.  Egerton,  R.  &  R.,  375—515 

Friend  (Clerk),  28  L.  J.  (N.  S. ) 


M.  C,  169—406 

V.  Freyke,  7  Cox.  C.  C,  32—340 

V.  Garnham,  2  F.  &  F.,  347—382 

Goodbody,  8  C.  &  P.,  665—226 

, V.  Goodchild,    27  Law  J.    (N.   S.) 

M.  C,  233—404,  407,  408,  409 
r.  Goodchild  and  Lamb,   27  L.  J. 

M.  C,  251—406 

1),  Groves,  (clerk),  409 

V.  Grundell,  9  C.  &  P.,  365—224 

V.  Hawkhurst  (Inhabitants of) — 102 

V.  HayA\'ard,  1  C  &  K.,  518—223 

V.  Head,  1  F.  &  F.,  350—375 

V.  Hey,  1  Den.  C.  C,  602—226 

V.  Hornsea,  23  L.  J.  (N.  S.),  M.  C, 

59—169 
V.  Inhabitants  of  Madeley,  15  Q. 

B.,  43—400 

v.  Jarvis,  3  F.  &  F.,  lOS— 529 

t\  John.son — 102 

V.  Kenrick,  5  Q.  B.,  64—598,  599 

V.   Lady   Joan    Young,    4   Cooke's 

Reports,  pt.  7,  p.  82—345 

V.  Lamb,  27  L.  J.  (N.  S.),  M.  C, 

233—405 
V.  Lyon,  1  F.  &  F.,  54—222 

V.  Matty,  27  L.  J.   (N.  S.)  M.  C, 

59 

V.  Mills,  7  Cox  C.  C,  263—224 

V.  Musson,  27  L.  J.  (N.  S.)  Q.  B., 

222  ;  M.  C,  100—169,  170 

V.  Nickless,  8  G.  &  P.,  737—369 

V.  Parker,  33  L.  J.  (N.  S.)  M.  C, 

135—392 


INDEX    OF    CASES    CITED. 


Iv 


Regina  v.  Pearson — 104 

V.  Pratt,  24  L.   J.   (N.  S.)  M.  C, 

113  ;  3  L.  R.  Q.  B.,  64—141,  370, 

377 
V.  Q.  Prestney,  3  Cox  C.  C,  505 

—371 
V.  Privett  and  Goodhall,  1  Den.  C. 

C,  193—224 
V.  Sir  J.  Ramsden,  27  L.  J.  (N.  S. ) 

M.  C,  296  —  133 

V.  Read— 379 

V.  U.   K.  Telegraph  Co.  Lim.,  31 

L.  J.  M.  C,  166—102 

V.  Riley,  3  C.  &  K.,  116—371 

V.  Robinson,  28  L.  J.  (N.  S.)  M.  C, 

58—345 

V.  Stevenson,  3  F.  &  F.,  106—529 

V.  Stoke-upon-Trent,  5  Q.  B.,  303 

—199 

V.  Sylvester— 563 

■ —  V.  Tithe  Commissioners,  12  Q.  B., 

459—399,  401 
V.  Inhabitants  of  Thurlstone,  28  L. 

J.  (N.  S.)  M.  C,  106—383 
V.  Uezzell,  20  L.  J.  (N.  S.)  M.  C, 

192—369 

V.  Waley,  1  F.  &  F.,  528—370 

V.  Wall,  2  Cox  C.  C,  288—370 

V.  Western,  1  L.   R.  C.  C,  122— 


369 


-  V.  Whaddon,  10  L.  R.  Q.  B.,  230 
-120 

-  V.  Whitaker,  3  Cox  C.  C. ,  50—369 

-  V.  Whiteman,  1  Peers.  C.  C,  353 
-736 

-  V.  Wood,  7  Cox  C.  C,  106—370, 


371 


■  V.  Woods,  27  L.  J.  (N.  S.)  Q.  B., 

433  ;  M.  C,  289,  441 
V.  Wycombe  Ry.  Co.,  29L.  J.(N.S.) 

Ch.,  462—539 
Reiguolds  v.  Edwards,  Willes,  282—89 
Rex  V.  Addis,  6  C.  &  P.,  388—270 

V.  Arlington,  1  M.  &  S.,  622—208 

■ •  V.  Althorne,  2  B.  &  C,  211—208 

■  V.  Berenger,  3  M.  &  S.,  73—197 

V.  Birdbrook,  4  T.  R.  245—208 

V.  Bishop  Hatfield,    2   Bott.,    217— 

208 

V.  Bradshaw,  7  C.  &  P.,  233—269 

V.  Buckland  Denham,  Burr.  S.  C,  694 

—  208 

■ •  V.  Bucknall— 133 

V.  Doddridge,  cited  Weekly  Reporter, 

May  30,  1857—599 


Rex  V.  Dodderhill,  3  M.  &  S.,  243—208 
V.  Empingham,   2  Bott.   217  ;   Burr, 

S.  C,  791—208 
V.  Ferrybridge,  2  D.  &  R.  634  ;  1  B. 

&C.,  375  —  119 

V.  Flecknow,  1  Burr.,  461—134 

V.  Great  Yarmouth,  5  M.  &  S.,  114 

—208 

V.  Hampreston,  5  T.  R.,  205—208 

V.  Hoseason,  14  East,  605—209 

V.  H.  Hughes,  1  Ry.  &  Moo.,  370— 

225,  227 

V.  King,  2  Chitt.,  217—367 

V.  Lambeth,  4  M.  &  S.,  315—208 

V.  Lockerley,  Burr.  Sc. ,  315 — 267 

V.  Londonthorpe,  6  T.  R.,  377—459 

V.  Lord  Yarborough  (in  error),  1  Dow. 

&C.,  178;  3  B.  &C.,91  ;  iD.Jk'R., 

790—168 
V.  Macnamee,  1  Ry.  &  Moo.,   368 — 

225,  226,  227,  228 
1'.  Minchinhampton,  3  Burr.,  1308 — 

119 

-V.  Mirfield,  10  East,  219—119,  120 

V.  Narbeth  North,  IP.  &  D.,  590  ; 

9  Ad.  &  E.,  815—119 
-v.  Nettleton,  1  Ry.  &  Moo.,   259— 

225 

V.  North  Nibley,  5  T.  R.,  21—208 

V.  Otley,  1  B.  &  Ad.,  161—456,  459 

V.  Pease,  1  N.  &  M.,  690;  4  B.  &  Ad., 

30—148 

V.  Pershore,  8  B.  &  C. ,  679—208 

V.  Petrie,    24  L.    J.   (N.  S.)  Q.    B., 

167—91 
V.  Pywell,  1  Stark.   N.  P.  C,  402— 

598,  599 
V.  St.  Mary,  Bury  St.  Edmunds,  4  B. 

&  Aid.,  462—401 

V.  Stock,  1  Ry.  &  Moo.,  87—224 

V.  Stone,  1  East,  639—374 

V.  Tolpuddle,  4  T.  R.,  671  -267 

V.  Tratford,  9  L.   J.   M.C.,  66  ;   1  B. 

&  Ad.,  874—171 

V.  Turner,  5  M.  &  S.,  206—374 

V.  Turvey,  2  B.  &  Al.,  520—208 

V.  Warminster,  6  B.  &  C,  77  ;  9  D. 

&  R.,  70—208 

V.  Whitnash,  7  B.  &  C,  596—199 

V.  Woodward,  2  East  P.  C,  653—587 

V.  Vanderwall,  2  Burr.,  991—443 

Rice  V.  Baxendale,   30  L.  J.  (N.  S.)  Ex., 

370—533 
Richards  v.  Black,  6  C.  B.,  437  ;  7  D.  & 

L.,  325—316 


Ivi 


INDEX    OF    CASES    CITED. 


Richards  r.  F17,  3  N.  &  T.,  67— ISO 

V.  Porter,  6  B.  &  C,  437 — .")05 

r.  llicliards,  29  L.  J.  (N.  S.)  Ch., 

836—469 
Richardson  v.  Brown,    1    Bing.,    344  ;    8 
Moore,  338  —  554 

V.  Gifford,  1  Ad.  &  E.,  52— 

417 

I'.  N.  E.  Ry.  Co.,  7  L.  R.  C. 

r.,  75—254 
Rich  V.  Woolly,  7  Bing.,  651— 26S,  284 
Ricketts  i'.  Birmingham  Junction  Railway 
Company,  12  C.  B.,  160—146,  150 

r.  Salwey,   2  B.   &  Aid.,    360— 

352 
Bider  V.  Smith,  3  T.  R.,  766-133 
Ridge  {ex  parfe)  1  Yes.  &  Beam.,  360 — 

524 
Ridgway  v.   Stafford  (Lord),  6  Ex.,  404— 
298,  301 

V.  Wharton,3DeG.,M.  &G.,677, 

693—420,  474,  476,  505 
Rigg  V.  Lonsdale  (Earl)  1  H.  &  N. ,  923  ; 

11  Ex.,  654—386 
Riley  V.  Bazendale,  30  L.  J.  Ex.,  87—215 

V.  Warden,  2  Ex.,  59—207 

Rimel  V.  Sampayo,  1  C.  &  P.,  254-222 
Riseley  v.  Ryle,  11  M.  &  W.,  16—295 
Rivis  V.  Watson,  5  M.  ."fe  W.,  255—280 
Roads  r.  Trumpington,  5  L.  R.  Q.  B.,  56 

—120 
Roberts  r.  Barker,  1  C.  &  1\[.,  808—324 

r.  Great  Western  Railway  Company, 

27  L.  J.  (X.  S.)  C.  P.,  266—152 

V.  Smith,  2  H.  &  N.,  213—219 

V.  Tunstall,  4  Hare,  257,  14  L.  J. 

Ch.,  184—112 
Robertson  v.  Gauntlett,  16  M.  &  W.,  289 
—352 

(appl.)     V.     Burkett     (resp.). 

Weekly  Reporter,  Nov.  27,  1858—214 
Robinson  r.  Hindman,  3^4  Esp.,  234 — 
■  203 

V.  Purday,  16  M.  &  W.,  11—404 

V.  Rutter,  4  E.  &  B.,  954—591 

V.  Vaughton,  8  C.  &  P.,  252—366 

Roden  V.  Eyton,  6  C.  B.,  427—299,  332 
Rodgers  v.  Parker,  IS  C.  B.,  112-296 
Kodmel  v.   Eden  (Bart),  1  F.  &  F.  542— 

467 
Rodwell  V.  Phillips,  9  M.  k  W.,  501—51, 

54 
Rolfe  V.  Patcrson,  2  Bro.,  P.  C,  436—312 
Rolls  V.  Rock,  2  Selw.  N.  P.,  1287-109 
Rondeau  v.  Wyatt,  2  H.  Bl.,  63—505 


Rooth  V.  North  Eastern  Railway  Company, 

2  L.  R.  Ex.,  173-252 

V.  Wilson,  1  B.  &  AL,  59—138 

Roots  V.  Dormer  (Lord),  4  B.  &  Ad.,  77 — 

478 
Ross  V.  Smith,  1  B.  &  Ad.,  907—398 
Routledge  v.  Hislop,  29  L.  J.  (N.  S.)  M.  C, 

90—205 
Rowbotham  v.  Wilson,  27  L.  J.    (N.    S.) 

Q.  B.— 80,  81 
Rowo  V.  Young,  2  B.  &  B.,  195,  234—426 
Rowlston  V.  Hardy — 386 
Rudd  V.  Scott,  2  Scott,  N.  R.,  631—364 
Eudge  V.  Wiunell,  12  Beav.,  357—443 
Rusby  V.  Scarlett,  5  Esp.,  76-222 
Ryanr.  Shilcock,  7  Ex.,  72-284 


S. 


Sainsburyr.  Matthews,  4  M.  &  W.,  343— 

51,  53 
Saffery  v.  Elgood,  3  N.  &  M.,  346—275 
Salisbmy  (Marquis  of)  v.  Gladstone— 99 
Salkeld  (Clerk)  v.  Johnson,  2  C.  B.,  749— 

398 
Salter  v.  Woollams,  2  M.  &  G.,  650—513 
Salmon  v.  Ward,  2  C.  &  P.,  211—542 
Sampson  v.  Hodinott,  1  C.  B.  (N.  S.),  590 

—187,  194 
Sanders  v.  Jameson,  2  C.  &  K.,  557 — 485 
Sandys  v.  Mayor,  kc,  of  Beverley,  12  M. 

&  W.,  568-404 
Sarch  v.  Blackburn,  4  C.  &  P.,  297—163 
Sari  V.  Bourdillon,  1  C.  B.  (N.  S.),  188— 

507 
Saunders  v.  Baldy,  1  N.  R.  Q.  B.,   87— 
375 

V.  Kirwan,  30  L.  J.  (N.  S.)  C.  P., 

351—354 

V.   Newman,  1   B.   &  Al.,  258- 

172,  174 

-y.  Topp,  4  Ex.,  390—583 

Saunderson  v.  Griffiths,  8  D.  &  R.,  643  ; 
5B.  &C.,  909—306 

r.   Hanson,  3  C.   &  P.,  314— 

440 

V.  Jackson,  2  Bos.  &  P.,  238    - 

506 
Savage  v.  Connor,  7  Tr.  Jiir.,  161  —  309 
Scales  V.  Pickering,  6  L.  J.  C.  P.,  53—351 
Scarfe  v.  Morgan,  4  M.  &  W.,  268—563, 

590 
Schneider  v.  Norris,  2  M.  &  S.,  288-506 
Schwinge  v.  Dowell — 106 


INDEX    OF    CASES    CITED. 


Ivii 


Scorell  V.  Boxall,  1  Y.  &  J.,  396—56 
Scott  ('.  Hanson,  1  Riiss.  &  My.  ,128—479 

V.  Henderson — 569 

Seago  V.  Dcane,  4  Bing.,  459  ;  1  M.  &  P., 

227;  3  C.  &  P.,  170—64 
Seaman  v.  Price,  2  Bing.,  437—66 
Searle  v.  Lindsay,  31  L.  J.  (N.  S.)  C.  P., 

106—217 
Sears  v.  Lyons,  2  Stark.,  317—361 
Sellen  v.  Norman,  4  G.  P.,  80—199 
Selsea  (Lord)  r.  Powell,   6   Taun.,   297  ; 

3Eag.  &  Yc,  714—397,  398 
Senior  v.  Armitage,  Holt,  197 — 320 
Sewell  V.  Corp,  1  G.  &  P.,  392—579 
Shadwellv.  Shadwell,  28  L.  J.  (N.  S.)  G.  P., 

275—332 
Sharp  V.  Waterliouse  and  Calvert,  27  L.  J. 

(N.  3.)  Q.  B.,  70—75 
Sharpe  v.    Gummings,   14  L.    J.    (N.    S. ) 

Q.  B.,  10-452 
Sharrod   v.    London    and    North    Western 
Railway  Company,   4  Ex.,  580—144, 
145,  146,  220 
Sharman  v.  Sanders,  13  C.  B.,  166-207 
Shaw  V.  Robberds,  6  Ad.  &  E.,  75—517 

V.  York  and  North  Midland  Railway 

Company,  13  Q.  B.,  347—234,  239 
Sheen  v.  Reekie,  5  M.  &  W.,  175-458 
Shelton  v.  Livius,  2  C.  &  J.,  411—479 
Shepherd  v.   Marquis   of  Londonderry,   21 

L.  J.  (N.  S.)  Q.  B.,  304—399 
Sheriffs.  James,  1  Bing.,  341—272,  279 
Sherwin  v.  Swindall,  12  M.  &  W.,  783— 

353 
Shiels  V.  Great  Northern  Railway  Company, 

30  L.  J.  (N.  S.)Q.  B.,  331—251 
Shillitoe  V.  Glaridge,  2  Chitt.,  425—568 
Shrewsbury  (Earl)   v.   Gould,  2  B.   &  AL, 

487—314 
Shury  v.  Pigott,  Palm.,  444  ;  Popham,  166 

—76,  87,  174,  1S6 
Sibbering  v.  Earl  Balcarras,  3  De  G.  k  Sm., 

735,  and  19  L.  J.  Gh.,  252-112 
Sidwell  V.  Mason,  2  H.  &  N. ,  306  -  508 
Sieveking  v.   Dutton,  3  C.   B.,   331  ;  4  D. 

&L.,  197—484 
Silvester  v.  Bedford,  27  L.  J.  (N.  S.)  C.  P., 

105—396 
Simons  v.  Great  Western  Railway  Company, 
18  G.  B.,  805  ;  2  C.  B.  (N.  S.),  620— 
24.3,  248,  258 
Siramonds  v.  Carr,  1  Camp.,  3G1 — 563 
Simmons  v.  Swift,  5  B.  &  C.,  8.'>7 — 194 

V.   Hescltine,  Jurist,    March  26, 

1859-478 


Simmons  v.   Norton,  7  Bing.,  640  ;  5  M. 

&P.,  64.5—127,  308,  309 
Simpson  v.  Dendy,  8  C.  B.,  433—104 

;).  Lamb— 538 

■ V.  Lewthwaite,  3   R.   &  Ad.,  226 

—  3.V2 

V.  Savage,  1  C.  B.  (N.  S.),  347— 

95 

V.  Unwin,  3  B.  &  Ad.,  134-374 

Singleton  v.  AYilliaiiison,  31  L.  J.  (N.  S.) 

Ex.,  287—271 
Skeate  v.  Beale,  11  Ad.  &  E.,  933  ;  3  P. 

&D.,  597—274 
SkeiTy  jj.  Preston,  2  Chit.,  245—277 
Skipwith  V.  Green,  Stra.,  610—482 
Skrine  v.  Elmore,  2  Gamp.,  407 — 558 
Skull  V.  Glenister,  33  L.  J.  C.  P.,  185— 

104 
Skyringr.   Greenwood,  4  B.   &  C,  281  — 

278 
Slim     v.     The     Gi'eat    Northern    Railway 

Company,  14  C.  B.,  647—257 
Slocombe  v.  Lyall,  6  Ex.,  119— .''>52 
Sloper  V.  Saimders,  29  L.  J.  (N.  S.)  Ex.,  275 

—567 
Smallmanv.  Pollard,  1   D.   &  L.,  901  ;  6 

M.  &  G.,  1001—295 
Smart  v.  Allison,  21  Veterinarian,  24 — 569 

V.  Harding,  15  C.  B.,  652—64 

V.  Hyde,  8  M.  &  W.,  723—551 

—  V.  Morton,  4  E.  &  B.,  47—81 

Snieed  v.  Foord,  Law  Times,  February  12, 
1859-510 

V.  Poor— 533 

Smith  V.  Ackroyd,  10  C.  B.,  164—87 

V.  Chance,  2  B.  &  AL,  753-339 

V.  Dearlove,  6  C.  B.,  132—590 

V.  Eldridge,  2  G.  &  R.,  855—446 

r.  Fletcher,  7  L.  R.  Ex.,  305—156 

V.  Goodwin,  2  L.  J.  (N.  S.)  K.  B., 

192—272 

V.  G.  E.  Ry.  Co.,  L.  R.  G.  P.,  4—156 

V.  Hayward,  7  Ad.  &  E.,  544—206 

V.  Howard,  3  M.  &  G.,  254—411 

V.  Hudson — 520 

V.  Hughes— 500 

• V.  Humble,  3  C.  L.  R.,  225—438 

V.  Jeffreys,  15  M.  &  W.,  561—480 

V.  Kenrick,  7  C  B.,  515-180 

V.  Kingsford,  3  Scott,  279—206 

V.  Man-able,  11  M.  &  W.,  5-425 

V.  Miller,  1  T.  R.,  475—343 

V.  Neale,  2  C.  B.  (N.  S.),  67—495 

r.  Pansons,  8  C.  &  P.,  199-461 

V.  Peat,  2  C.  L.  R.,  424-428 


Iviii 


INDEX    OF    CASES    CITED. 


Smith  !•.  Telah,  2  Strange,  126^—158 
V.  Render,  27  L.  J.  (N.  S.)  Ex.,  83 

—459 
I'.  Surman,  4  M.  &  R.,  455  ;  9  B. 

&  0.,  561—54,  55,  56,  128,  496 

V.  Thorne,  IS  Q.  B.,  134-508 

V.  Wilson,  3  B.  &  Ad.,  728—482 

r.  AVriglit,  30  L.  J.  (N.  S.)  Ex.  313 

—282 
Sniout  V.  Ibury— 468 

Sneesby  v.  Lan.  and  Yorksli.  Ry.  Co. — 140 
Snelling  r.  Huntingfield  (Lord),  1  C.  M.  & 

R.,  30—205 
Somerset  (Duke  of)  v.  Fogwell,  5  B.  &  C, 

875-387 
Souch  r.  Straw-bridge,  2  0.  B.,  808—66 
Soulsby  V.  Neving,  9  East,  360  —  470 
Souter  I'.  Drake,  5  B.  &  Ad.,  992—411 
Southcote  V.  Stanley,  25  L.  J.  (N.  S.)  Ex., 

339—356 
Spain  V.  Arnott,  2  Stark.,  256—202,  203 
Spartali  v.  Benecke,  10  C.  B.,  212—481 
Speck  V.   Phillips,   5    M.    &  W.,   279  ;  7 

Doug.,  470—203 
Spencer  v.   Parry,  4  L.  J.  (N.  S.)  K.  B., 

186-439 
Spicert-.  Barnard,  29  L.  J.  (N.  S.)  M.  C, 

176—380,  381 

V.  Cooper,  1  C.  &D.,  52-481,  507 

Spieresr.  Parker,  IT.  R.,  144—374 

St.  Albans  (Duke  of)  v.  Ski^iwith,  8  Beav., 

354—310 
Stacey  v.  Whitehurst,  34  L.  J.  (N.  S.)  M. 

C,  94-376 
Stafford  (JIarquis)   v.  Coyney,  7  B.  &  C, 

257—197 
V.  Gardner,   7  L.  R.  G.  P.,  242— 

327—3.31 
(Mayor  of)   v.   Till,  4   Bing.,  75  — 

445 
Stamford  (Earl  of)  v.  Dunbar,  14  M.  &W., 

151  ;  12  M.  &  W.,  414  —  403 
Stammers  v.  Dixon,  7  East,  200-347 
Standen  v.  Chri.stmas,  10  Q.  B.,  135—42.5, 

447,  464,  468 
Staniforth  v.  Fox.  7  Bing.,  590—411 
Stanleys.  White,  14  Ea.st,  332—357 
Stannion  v.  Davis,  Salk.,  404—602 
Startup  V.  Cortazzi,  2  C.  M.  &  R.,  165  — 

493 
Staveley  v.  Allcock,  10  Q.  B.,  636—289 
Steel  V.    Houghton,  1  11.  Bl.,  51  —  344 
Steele  v.  Mart,  4  B.  &  C,  272—482 
Stevens  v.  Boswell,  28  Veterinarian,  666 — 

605 


Stevens  v.  Legh,  2  C.  L  R.,  251  —  557 
Steward  v.  Coesvelt,  10.  &  P.,  23—553 
Stile  V.  Abbot  of  Tewkesbury— 386 
Stockport  Waterworks  v.  Potter,  31  L.  J. 

(N.  S.)Ex.,  9-363 
Stokoe  V.  Singer,  26  L.  J,  (N.   S.)  Q.  B., 

257—77 
Stott  V.  Olegg— 107 

V.  Stott,  16  East,  343—352 

Stradbroke  (Lord)  v.  Mulcahy,  2   Jr.  Rep. 

(N.  S.),  406—442 
Stratton  v.  Pettit,  16  0.  B.,  420  —  413 
Street  v.  Blay,  2  B.  &  Ad.,  456—484,  495, 

596 
Strickland  v.  Maxwell,  2  0.  &  M.,  539  ; 

4  Tyr.,  346—322 
Stroud  (In  re),  19  L.  J.  (N.  S.)  0.  P.,  117 

—412 
Strutt  V.  Robinson,  3  B.  &  Ad.,  395—416 
Stuart  V.  Orawley,  2  Stark.,  323—264 

V.  Wilkins,  Doug.,  19-542 

Studdy  V.  Saunders,  8  D.  &  R.,  403  ;  5  B. 

k  0.,  628—481 
Summersett  v.  Jervis,  3  B.  &  B.,  2—524 
Sutton   V.    Moody,    2   Salk.,  556;    1    Ld. 

Raym.,  250—367,  379 

V.  Temple,  12  M.  &  W.,  52-424 

Swaisland  v.  Dearsley,   30  L.   J.   (N.  S.) 

Oh.,  653-541 
Swabman  v.  Ambler,  24  L.  J.  (N.  S.)  Ex., 

185—441 
Swinfen  i;.  Bacon,  30  L.  J.    (N.    S.)  Ex., 

109—470 
Sybray  v.  White,  1  M.  &  W.,  435—138 
Sylvester  u.  Scattergood,  15  Q.  B.,  506  — 

600 
Symons  v.  Marine  Society — 67 


T. 


Talbot  (Earl)  v.  Hope  Scott,  27  L.  J.  (N. 

S.)  Oh.,  273—115 
Talver  v.  West,  Holt  N.   0.  P.,  179-485 
Tanslcy  v.  Turner,.  2  Scott,  231  ;  2  Bing. 

N.  C,  151  ;  1  Hodges,  267—130 
Tappley?;.  Sheather,  W.  R.,  Nov.  15,  1862 

—466 
Tarling  v.  Baxter,  9  D.  &  R.,  272;  6  B.  & 

0.,  300—494 
Tarrant  v.  Webb,  18  C.  B.,  797—214 
Tasker  v.  Bullnian,  3  Ex.,  351  —  396 
Tassell  v.  Cooper,  9  C.  B.,  509—210 
Tatham  V.  Hodgson,  6  T.  R.,  656—231 
Taunton  v.  Costar,  7  T.  R.,  431—322,  345 


INDEX    OF    CASES    CITED. 


lix 


Tawney  v.  Crowther,  3  Bro.  C.  C,  161 — 

420 
Taylerson  v.  Peters,   2  N.    &  P.,  622  ;  7 

Ad.  &  E.,  110  ;  W.,  W.  &  D.,  644— 

290 
Taylor  v.  Caldwell — 475 
V.  Carr  &  Porter,  31  L.  J.  (N.  S.) 

M.  C,  111—206 
V.  Crowland  Gas  Co.,  11  Ex.,  1  & 

24  L.  J.  (N.  S.)  Ex.,  233—261 
V.  Henniker,  12  Ad.   &  E.,   488— 

284 
V.   Waters,  7  Tann.,   374—71,   74, 


302 

V.  Whitehead,  2  Doug.,  475—94 

V.  Zamira,  6  Taun.,  523 — 395 

Teal  V.  Auty,  4  Moore,  542  ;  2  B.  &   B., 

99—56 
Tempest  v.  Fitzgerald,  3  B.  &  Aid.,  680— 

495,  579,  582 
Templeman  (app.)   v.  Haydon  (resp.),    12 

C.  B.,  507—220 
Tenant  1).  Goldwin,  6  Mod.,  314— 133,  147 
Tennant    v.    Field,  27   Law  J.  (N.   S.)  Q. 

B.,  33-283 
Tew  V.  Jones,  13  M.  &  W.,  12—449 
Tewkesbui7   (Bailiffs   of)   v.    Bucknall,    2 

Taun.,  120—523 
Thomas  v.  Bering,  1  Keeb.,  729—421 
V.  Evans,  27  L.  J.   (N.  S.)  M.  C, 

172—364 

—  V.  Fredericks,  10  Q.  B.,  775—387 

V.  Harris,  9  Law  J.  (N.  S.)  C.  B., 

308—271,  283,  284 
V.  Morgan,  2  C.   M.  &  R.,  496— 


166 

V.  Packer,  1  H.  &  N.,  669—451 

V.  Phillips,  7C.  &  P.,  673—343 

■  V.  Thomas,  2  C.  M.  &  R.,  34—88 

V.  Williams,  10  B.  &  C,  664—276 

Thompson  v.  Gibson,  7  M.  &  W.,  456  ;  8 

M.  &  W.,  281  ;  9  Dow.  P.  C,  717  — 

354,  355,  493 

V.  Patteson,  Olliphant,  85—569 

Thornett  v.   Haines,  15  M.  &  W.,  367— 

550 
Thorpe  v.  Eyre,  1  Ad.  &  El.,  926—323 

V.  Plowden,  2  Ex.,  387—404 

Thrupp  V.  Collett,  Jurist,  Feb.  12,  1859  — 

209,  389 
Tickle  V.  Brown,   4  Ad.   &  E.,    369—82, 

83 
Tildesley  v.  Clarkson,  31  L.  J.  (N.  S.)  Ch., 

362—464 
Tincklcr  v.  Prentice,  4  Taun.,  549—284 


Tindall  v.  Powell,  Weekly  Reporter,  August 

28,  1858—211 
Tomkinson  v.  Staight,  25  Law  J.   (N.  S.) 

C.  P.,  85—505 
Tomlinson  (clerk)  v.  Burghey,  1  C.  B.,  6C3 

—401 

V.  Day,  2  B.  &  B.,  680—388 

Tooker  v.  Smith,  1  H.  &  N. ,  732—436 
Toss  [Foss]  V.  Racine,  7  Dow.,  53—439 
Towne  v.    D'Eynrick,    1  C.   L.   R.,  335— 

446 
Townend  v.  Woodruff,  5  Ex.,  506—518 
Townsend  v.  Wathen,  9  East,  277—389 
Toulmin-y.  Hedley,  2  C.  &  K.,  157—486 
Toymbee  v.  Brown,  3  Ex.,  117—403 
Trent  v.  Hunt,  29  L.  J.  (N.  S.)  Ex,  318— 

470 
Tress  v.  Savage,  4  E.  &  B.,  36—412,  436 
Trimmer  v.  Walsh,  32  L.  J.  (N.  S.)  Q.  B., 

20—406 
Truman  v.  Loder,  11  Ad.  k  E.,  593—210 
Truscott  V.  Merchant  Taylors  Company,  11 

Ex.,  863  ;  21  L.  J.  (N.  S.)  Ex.  173— 

96 
Tucker  v.  Newman,   11  Ad,   &  E.,   40— 

107 
Tuff  V.  Warman,  27  L,  J.  (N.  S.)  C.  P.,  322 

—221 
Turberville  v.  Stampe,  1  Ld.  Raym.,  264  ; 

1  Salk.,  13—212,  214,  360 
Turner  v.  Barnes,   31  L.  J.  (N.  S.)  Q.B., 

170—283 
V.   Hutchinson,   2  F.  &  F.,   185— 

467 

V.  Morgan- — 392 

V.  Robinson,  6  C.  &  P.,  15  ;  5  B.  & 

Ad.,  789—200,  202 

V.  Spooner,  30  L.  J.  Ch.,  801—97 

V.  Wright,  29  L.  J.  (N.  S.)Ex,  Ch. 


470,  598  ;  2  Law  Rep.   271,    640— 

113 
Tuton  V.  Senoria  [Sanoner],  27  L.  J.  (N.  S.) 

Ex.,  293—515 
Tutton  V.  Darke,  29  L.  J.  (N.  S.)Ex.,  271 

—282 
Tyler  v.  Bennett,  5  Ad.  &  E.,  377;  6  Nev. 

&  M.  826  ;  2  Har.  &  W.,  272—66 
V.  Wilkinson,  4  Mason,  U.  S.  R.,  397 

—174 
Tyson  v.    Thomas,  McClel.   &    T.,    119  — 

522 


k 


TXDEX    OF    CASES    CITED. 


Upton r.  Greenlecs,  25  Law  J.  (N.  S.)C.  P., 

44—437 
V.  Townend,  2".  Law  J.  (X.  S.)  C.  P., 

44—437 


A'aspor  r.  Edwards,  Holt,  257  ;  12  Mod. 

C60  ;  1  Salk.,  24S  ;  8  C.  B.,  812  ;  19 

Law  J.  (N.  S.)  C.  P.,  12—267 
Yaugliau  v.  Menlovc,  3  Bing.  N.  C,  468  ; 

4  Scott,  244—360 
V.   Taff  Yale  Railway  Company, 

28  L.  J.  (N.  S.)  Ex.,  41-360 
Venning  v.  Leekie,  13  East,  7;  7  C.  &  P., 

525—452,  459 
Vere  r.   Cawdor  (Lord),    11   East,   568— 

363 
Vertuc  V.  Bcasley,  1  JIoo.   &  Eob.,  21  — 

279 
Veysey  v.  Hoskins,  34  L.  J.  (X.  S.)  M.  C, 

145—376 
Yidler,  ex  parte  re  Terry,  AY.  R.,  Dec.  13, 

1862—539 
Yiney  v.  Chaplin,  27  L.  J.  (N.  S.)  Ch.,  434 

—475 
Vivian  v.  Champion,  2  Ld.  Rayni.,  1125 — 

429 
Vowles  r.  Miller,  3Taun.,  137—132 
Yoyce  v.  Yoyce,  Gow.,  201 — 135 
Vose   Administi-atrix    t\    Lancashii-e    and 

Yorkshire  Railway  Company,  214 


W. 


Waddington  r.  Bristowe,  2  B.  &  P.,  452— 

50,  .51,  53 
Wade  V.  Marsh,  Lutw.,  211—289 
Wadhurst  v.  Damme,  Cro.  Jac,  45 — 368 
Waldo  r.  AYaldo,  7  Sim.,  261—127 
Walker  v.  Bentley,  9  Hare,  629—395,  398 

V.  Giles— 282 

V.  The  York  and    North  Midland 

Railway  Company,  2  E.  &  B.,  750  — 

2.56 
Wallace  v.  Maclaren,  1  M  &  R.,  516—289, 

4.52 
Waller  v.  Lacy — 509 
Wallisw.  Harrison,   4  M.   &  W.,  538;  11 

L.  J.  (N.  S.)Ex.,  440—72,  90 


Wallisr.  Littell,  31  L.  J.  (N.  S.)C.  P.,  100 

—465 
Walmsley  v.  Milne,  29  L.  J.  (N.  S.)  C.  P., 

97—469 
Wansborough  v.  Maton,  4  Ad.  &  Ell.,  884 

—  455,  458 
Wanstead  Board  of  Health  v.  Hill,  N.  R., 

Jan.  23,  1863—363 
Warburton  v.  Parke,  2  H.  &  N.,  64—84 
Ward  V.  Andrews,  2  Chit.,  636—115 

V.  Robins,   15  M.  &  W.,  237—180, 

192 

■ V.  Ward,  7  Ex.,  838—86 

Wardle  v.   Brocklehurst,  29  L.  J.  (N.  S.) 

Q.  B.,  145—198 
Warden  r.   Usher,   3  Scott  N.  R.,    508  — 

122 
Warlow  V.  Harrison,  28  L.  J.  (N.  S.)  Q.  B., 

18—591 
Warner  v.  Wellington  [WilHngton],  3  Drew, 

523—495 
Warren  I'.    Rudall,   29  L.  J.  (N.  S.)  Ch., 

543—112 
Warton  v.  Flowers,  26  Veterinarian,  143— 

572 
Wamick  v.  Bruce,   2  M.  &  S.,  205—52, 
53 

V.  Collins,  5  M.  &  S.,  166;  2  M. 

&S.,  349—398 
Washbourne  v.  Burrows,  1  Ex.,  107—55, 

60 
Waterford    (Marquis   of)   app.    v.    Knight 

resp.,  11  CI.  &Fin.,  653—403 
Waterman  v.  Soper,  1  Ld.  Raym.,   737 — 

116,  117 
Waters  v.  Weigall,  2  Anst.,  575—430 
Watherell  v.   Ho  wells,    1    Camp.,     227— 

308 
Watkins  v.  Major,  10  L.  R.  C.  P.,  662— 
377 

r.  Reddin,  2  F.  &  F.  629—361 

.Watson  V.  Denton,  7  C.  &P.,  8()— 593 

V.  Lane,  25  L.  J.  (N.  S.)  Ex.,  102 

-357 
V.  Sprattley,  2  C.  L.  R.,   1434— 


Watts  V.  Ainsworth,  31  L.  J.  (N.  S.)  Ex., 

448—537 
V.  Friend,    10  B.  &  C,  446—507, 

521 
Weale  v.  West  Middlesex  Waterworks,   1 

Jac.  &  Walker,  372—518 
Weaver  v.  Lloyd  [Floyd],   21  L.  J.  (N.  S.) 

Q.  B.,  151—207 
Webb  V.  Bcavan,  6  M.  k  •'.,  1055-347 


INDEX    OF    CASES    CITED. 


Ixi 


Webb  V.  Bml,  31  L.  J.  C.  P.  335,  Ex.  Cli. 
— 9C 

V.  Paternoster,  Palm.,  71 — 71,  72,  74 

V.  Plummer,  2  J3.  &  Al.,  7-16-323, 

324,  325 
Weeding  v.  Mason,  2  C.  B.  (N.  S.),  382— 

333 
Weddall  V.  Capes,  1  M.  &  W.,  50  —  434 
Weekly  V.  Wiklman,  1  Ld.  Raym.,  407 — 78 
Wceton  v.  Woodcock,  7  M.  &  W.,  14-460 
Wellington  (Duke  of)  Settled  Estates  Act 

—198 
Wells  I'.  Head,  4  G.  &  P.,  568  -162 
Westr.  Hedges,  Barnes,  211-  295 

V.  Moore,  8  East,  339—443 

V.  Nibbs,  4  C.  B.,  172—279 

Western  v.  Russell,  3  V.  &  B.,  187,  191— 

421 
Whaley  V.  Laing,  2  H.  &  N.,  476—181 
Wharton  v.  Naylor,    6  D.  &  L.,  136  ;  12 

Q.  B.,  673—294 
Wheeler  v.  Overseers  of  Burmington,  408 
Whistler  v.  Paslow,  Cro.  Jac.  487—109 
Whitaker  v.  Barker,  1  C.  &  M.,  113—316 
White  V.  Hill,  6  Q.  B.,  487—144 

V.  James,  28  L.  J.  (N.  S.)  Ch.,  179 

—280 

V.  Lesson — 105 

V.  Nicholson,   4  M.  &  G.,   95  ;  11 

L.  J.  (N.  S.)C.  P.,  264—462 

V.  Sayer,  Palm.,  211—443 

V.  Spettigue,   13  M.  &  W.,   603— 

697,  599 

v.    The     Great    Western     Railway 

Company,  2  C.  B.  (N.  S.),  7—257 

N.   (In  re)  v.   Wakeley,    28  L.  J. 

(N.  S.)  Ch.,  77—431 
Whitehead  v.  Bennett,  27  L.J.  (N.  S.)  Ch., 
474—363 

V.  Parks,  2  H.  &  N.,  870—190 

Whiteman  Ex  parte — 1 42 
Whittington  (Ex  parte),  1  Buck,  87 — 322 
Whitty  V.  Lord  Dillon,  2  F.  &  F.  67—113 
Wickham  v.  Hawker,  7  M.  &  W.,  63—90, 
384,  385 

V.  Lee,  12  Q.  B.,  521—450 

V.  Wickham,  19  Yes.,  419—126 

Wicks  V.  Macnamara,  27  L.  J.  (N.  S.)  Ex., 

419  —  221 
Wieler  v.  Schilizzi,  17  C  B.,  G19— 425 
Wigles worth  v.  Dallison,   1  Doug.,  201  — 

319,  324 
Wilder.  Waters,  16  C.  B.,  637—69 
Wilder  v.  Speer,  8  A.  &  E.,  547—270 
Wilkins  v.  Wood -306 


Willett  V.  Boote,  30  L.  J.  (N.  S.)  M.  C, 

6—206 
Wilmot  V.  Rose,  3  E.  &  B.,  562-298 

V.  Lees — 570 

Wiley  [Wilby]  v.  The  West  Cornwall  Rail- 
way Company,  27  L.  J.   (N.  S.)  Ex., 

181—263 
Williamson  v.  Allison,  2  East,  446—542 
V.   Barton,   31  L.   J.    (N.   S.) 

Ex.,  176—541 
Williams  v.  Adams — 103 
V.  Burgess,  10  Ad.  &  E.,  499  ;  2 

Per.  &  D.,  422—561 
—  V.  Clo.igh,  27  L.  J.  (N.  S.),  325 

—  219 

V.  Currie,  1  C.  B.,  841—127 

V.  Eyton,  28  L.  J.  Ex.,  146—105 

V.  Llangeinwen,  31  L.  J.    (N.  S.) 

M.  C,  54—407 
V.  Millington,  1  H.  Bl.,  81—348, 

5S7 
V.  Moreland,  2  B.  &  C,  910  ;  4 

D.  &R,  583—172,  174 

-; V.  Morris,  8  M.  &  W.,  488—72 

V.  Paul,  6  Bing.,  653—562 

V.  Stiven,  15  L.  J.  (N.  S.)  Q.  B., 

321-288 

V.   Williams,   12  East,   209  ;  15 


Ves.  Jan.,  425—110 
Willoughby  (app.)  v.  Horridge  (resp.),  12 

C.  B.,  742—232 
V.  Willoughljy,  4  Q.  B.,  687— 

396 
Wills  v.  Stradling,  3  Ves.,  378—312 
Wilson  V.  Brett,  11  M.  &  W.,  113—574 

V.  Fuller,  3  Q.  B.,  68—420 

r.  Greenroyd,  Jurist,  May  1,  1858 

—344 

r.  ]\Lackreth,  3  Burr.,  1824-344 

V.  Newberry — 604 

V.  Stevens,  M.  S.  S. — 547 

Wiltshear  v.  Cotterell,  1  E.  &  B.,  674— 

456,  458 
Winchester  (Bishop  of)  v.   Knight,  2   Ld. 

Ilaym.,   1056;  1   P.  Williams,  406— 

99,  307 
Winter  v.  Brockwell,  8  East,  398—72,  73, 

74 
Winterbotham  v.  Ingham,  14  L.  J.  (N.  S. ) 

Q.  B.,  298—447 
Winterbourne  v.  Morgan,  11  East,  395 — 

279 
Wintringham  Tithes  (re)  ex  pai-te.    Lord 

Carington,    31   L.    J.    (N.    S.)  C.   P., 

274—407 


Ixii 


INDEX    OF   CASES    CITED. 


Wise  V.  The  Great  Western  Railway  Com- 
pany, 1  H.  &;  N.,  63— -244 

V.  Metcalfe,  10  B.  &  C,  299;  5  M. 

itRy.,  235  —  333 
Wish  V.  Small,  1  Camp.,  331  «.— 575 
Witcher  r.  James  Hall,  8  D.  &  11.,  22  ;  5 

B.  &  C,  2G9— 483 
Withei-s  V.  lleyuolds,  2  B.  &  Ad.,  882  — 

400 
Wittam  r.  Ury,  2  Dowl.,  543-309 
Womei-sley  v.  Dally,  2(J  L.  J.  (N.  S.)  Ex., 

219—319 
Wood  V.  Benson,  2  C.  &  J.,  104—588 
V.  Clarke,  1  C.  &  J.,  484—286 

V.  Hewett,  S  Q.  B.,  913—456,  469 

V.  Lake,  Sayer,  3 — 71 

r.  Lcadbitter,  13  M.  k  W.,  838—71, 

72,  127 

V.  Marjoribanks,  30  L.  J.  (N.  S.)  Cli  , 

176-540 

V.  Manley,  3  P.  &  D.,  5  ;  11  Ad.  & 

E.,  34—302 

V.  Nunn,  5  Bing.,  10—281 

V.  Smith,  4  C.   &  P.,  45  ;  5  M.   & 

K.,  124-543 

V.  Veal,  1  D.  &  R.,  20  ;  5  B.  &  Al., 

454—91 

V.   Waud,   3  Ex.,    748—176,    182, 

184,  188 

Woodhouse  v.  Swift,  7  C.  &  P.,  310—125 
Wpodland  v.  Mantell  — 444 
Woodley  v.  Brown,  2  Bing.,  527—521 
Woodin  V.  Burford,  2  C.  &  M.,  39—555 
Woodward  v.  Gyles,  2  Vern.,  119—312 
Woolcock  V.  Dew,  1  F.  &  F.,  337—427 
Wooton  V.  Dawkins,  2  C.  B.   (N.  S.),  312 

—391 
Worth  V.  Gilling,  2  L.  R.  C.  P.,  1—156 


Worthington  v.  Warrington,  8  C.    B.,  134 

—475 

r.  Grinson — 105 

Wright  V.  Bird,  1  Price,  20—524 

V.  Colls,  8  C.  B.,  150—419 

r.  Dewes,  1  A.  &  E.,   641 ;  3  N. 

&  M.,  790—295,  296 
V.  Howard,  1  Sim.  &  Stu.,  190— 


173,  175,  176 
V.  L.  &  S.  W.  Railway  Co.,  10  L. 

R.  Q.  B.,  298—253 

V.  Rattray,  1  East,  377—88 

V.  Smith,  470 

V.  Stavcrt— 68 

V.  Williams,  1  M.   &  W.,  77—84, 

ISO,  181 
Wrightup  V.  Chamberlain,   7  Scott,  598— 

558 
Wyndham  v.  Way,  4  Tauu.,  316—121 


Y. 


Yates  v.  Dunster,  11  Ex.,  15-430 

V.  Routledge,  29  L.  J.   (N.  S.)  Ex., 

117—249,  469 

V.  Pym,  6  Taun.,  445—480 

Yolland  v.  Price— 286 

York,    Newcastle,    and    Berwick   Railway 

Company  (app.)  v.   Crisp  and   Logan 

(resps.),  14  C.  B.,  527-254 
Yorke  v.  Greenhaugh,  Lord  Raym.,  8C8 — 

589 
Young  V.  Davis,  23  L.  J.   (N.   S.)  M.  C, 

97—103 
Young  i;.  Spencer,  10  B.  &C.,  145—348 
Ystradinglais   {In  re)  Commutation,  8  Q. 

B.,  32—400 


STATUTES    CITED. 


51  Hen.  III.,  st.  4 

52  Hen.  III.,  c.  4 

21  Hen.  VIII.,  c.  11 
25  Hen.  VIII.,  c.  11 
32  Hen.  VIII.,  c.  34 

2  &3Edw.  VI.,  c.  13 

3  &  4Edw.  VI.,  c.  7 
1  Eliz.,  c.  17 

13  Eliz.,  c.  5 
43  Eliz.,  c.  2 
3  Jac.  I.,  c.  12 

22  Car.  II.,  c.  6 

c.  8 
22  &  23  Car.  II.,  c.  9 


PAGE 

286 
297 
600 
385 
425 
397,  398,  403 
385 
364 
444 
119,  120 
364 
439 
520 
353 

c.  25  368 

23  Car.  II.,  c.  24  439 

29  Car.  II.,  c.  3   50,  52,  56,  58,  59,  62, 

63,  65,  66,  67,  68,  129, 

277,  501,  504,  587 

c.  7         199,  562,  563 

c.  8  409 

2  Will.  &  Mary,  s.  1,  c.  5  271,  282,  285, 

291,  292,  293,  332 

7  &  8  Will.  III.,  c.  6  404 
8&9\Vill.  III.,  c.  11  353 
9  &  10  Will.  III.,  c.  36  85 

I  Anne,  c.  7  85 

4  Anne,  c.  16  280,  452 

5  Anne,  c.  14  290,  368 

8  Anne,  c.  14   282,  288,  291,  294,  295, 

296, 321 

4  Geo.  II.,  c.  21  470 

4  Geo.  II.,  c.  28     291,  304,  450,  470 

c.  29  292 

9  Geo.  II.,  c.  36  395 

II  Geo.  II.,  c.  10  446 

c.  19    279,  280,  281,  283, 

284,  291,  292,  293, 

294,  295,  296,  397, 

425,  445,  450,  5U 

20  Geo.  II.,  c.  19    201,  202,  206,  209 


PAGE 

31  Geo.  II.,  c.  11  201 

13  Geo.  III.,  c.  78  143 

23  Geo.  III.,  c.  58  50 

23  &  24  Geo.  III.,  c.  39          121 

36  Geo.  III.,  c.  88  522,  523 

38  Geo.  III.,  c.  60  438,  439 

c.  5  438,  439 

39  Geo.  III.,  c.  12  343 
41  Geo.  III.,  c  109  78,  132 
46  Geo.  III.,  c.  66  309 

49  Geo.  III.,  c.  121  322 

50  Geo.  III.,  c.  41  518 
53  Geo.  III.,  c.  71  518 

55  Geo.  III.,  c.  156  416 

c.  184  54,  340,  416,  558,559 

56  Geo.  III.,  c.  50  292,  29'!,  298,  299 
59  Geo.  in.,  c.  95  340 
1  Geo.  IV.,  c.  56  363 

c.  87  450,  520 

3  Geo.  IV.,  c.  126    1C7,  141,  340,  341 

4  Geo.  IV.,  c.  28  418,  449 

c.  34     200,  201,  204,  205 
c.  95  154 

5  Geo.  IV.,  c.  14  396 

c.  28  404 

c.  74  507,  521,  523 

6  Geo.  IV.,  c.  16  298 

7  &  8  Geo.  fv.,  c.  18  390 

c.  29  136,  226,  227,  345, 

373,  599,  600 

c.  30     136,  137,  358, 

363,  372 

c.  31  430 

9  Geo.  IV.,  c.  14  505,  587 

c.  69        369,  370,  373, 

376,  382,  392 

n  Geo.  IV.  &  1  Will.  IV.,  c.  68     242 

1  &  2  Will.  IV.,  c.  32  363,  368,  369,370, 

371,  372,  373,  374, 

375,  376,  377, 

381,  386 


Ixiv 


INDEX    OF    STATUTES    CITED. 


PAGE 

PAGE 

1  &  2  Will. 

IV.,  c.  37 

207,  2U8 

8  &  9  Yict.,  c 

106 

412,  413, 

414,  464 

c.  42 

343 

c 

118 

9b,  346 

e.  45 

405,  409 

9  &  10  Yict., 

c.  73 

398 

2  &  3  Will. 

IV.,  c.  71    81 

82,  83,  84,  85, 

c.  93 

219,  350 

86,  93,  95,  97, 

c.  95 

251 

437,  449 

107,  170,  180, 

10  &  11  Yict. 

c.  14 

002 

182,  181,  384 

11  &  12  Yict. 

c.  29 

373 

c.  100 

398,  402,.403 

c.  30 

374 

3  Will.  IV. 

c.  34 

233 

c.  43 

201,  374 

3  &  4  Will. 

IV.,  c.  4 

422 

c.  63 

363,  602 

c.  27 

345,  346,  395, 

c.  99 

105 

479 

12  &  13  Yict. 

,  c.  45 

373 

4  Will.  lY. 

ss.  4,  5,  6 

94 

c.  92 

269 

270,  603 

5  &  6  Will. 

IV.,  c.  18 

340 

c.  106 

298 

524,  525 

c.  50 

102,  103,  141, 

142,  143,  144, 

146,  214 

13  &  14  Yict. 

c.  61 
c.  79 
c.  94 

344,  602 

341 

67,  395 

c.  53 

523 

14  &  15  Yict. 

c.  25 

293,  394, 

442,  462 

c.  59 

270 

c.  38 

341,  342 

c.  63 

522,  523 

c.  91 

528 

c.  74 

403,  404 

c.  99 

368 

c.  75 

398 

16  &  17  Yict. 

c.  62 

598 

6  Will.  IV. 

c.  13 

105 

17  &  18  Yict. 

c.  31 

242, 

247,  248, 

6&7Will.iv.,c.  71    280, 

281,  296,  394, 

249 

250,  252 

395, 

396,  397,  399, 

c.  36 

515 

400, 

401,  403,  404, 
406,  453 

c.  60 
c.  83 

270 
209,  416 

7  Will.  IV. 

&  1  Vict.,  c.  69          394,  399 

0.  124 

431 

1  Vict.,  c. 

69  . 

399,  400 

18  &  19  Yict. 

c.  120 

406 

1  &  2  Vict. 

,  c.  43 

80,  99 

c.  121 

160,  425 

c.  64 

399 

19  &  20  Yict. 

c.  101 

598 

2  &  3  Yict. 

,  C.62 

399,  400 

c.  97 

418 

3  &  4  Vict. 

c.  24 

353,  354 

c.  104 

405 

5  Vict.,  sess.  2,  c.  27 

272 

• 

c.  114 

523 

6  &  6  Yict. 

c.  35 

440 

20  &  21  Yict. 

,  c.  43 

382 

c.  54 

399 

c.  157 

567 

c.  55 

145,  147,  150 

23  &  24  Yict. 

c.  93 

394 

c.  97 

281,  397 

c.  126 

354 

c.  122 

525 

24  &  25  Yict. 

c.  70 

361 

G  &  7  Vict. 

c.  30 

270 

c.  96 

380 

c.  37 

395 

c.  103 

408 

7  &  8  Vict. 

,  c.  29 

373 

25  &  26  Yict. 

,  c.  114 

376, 

392,  393 

c.  76 

412,  413 

27  &  28  Yict. 

,  c.  101 

144 

8  &  9  Vict. 

,  c.  18 

392,  475,  539 

30  &  38  Yict. 

,  c.  141 

204 

c.  20 

146,  148,  149, 

32  &  33  Yict. 

,  c.  70 

490 

150,  153,  232 

38  &  39  Vict. 

,  c.  92 

43—49 

THE    LAW   OF    THE    FARM. 


CHAPTER    I. 

AGRICULTUEAL    CUSTOJIS. 


If  the  Agricultural  Holdings  Act  were  universally  adopted,  the 
term  the  "  Custom  of  the  Country,"  which  has  usually  found  its  way 
into  agricultural  leases,  would  cease  to  exist ;  but  as  it  seems  certain 
that  for  the  present,  at  any  rate,  the  Act  above  mentioned  will  not  be 
adopted  even  by  the  majority  of  farmers,  it  will  still  be  necessary  to 
explain  the  law  of  Agricultural  Customs. 

The  claim  for  remuneration  which  an  outgoing  agricultural  tenant 
has  on  his  landlord  for  various  operations  of  husbandry,  the  ordinary 
return  of  which  he  is  precluded  from  receiving  by  the  termination  of 
his  tenancy,  is  termed  "  Tenant-right,"  and  is  governed  by  the  different 
Customs  which  have  long  prevailed  in  the  counties  and  districts  of  the 
United  Kingdom.  These  customs  are  frequently  most  conflicting  and 
difficult  to  define.  In  many  counties  they  scarcely  exist  at  all ;  in 
others  it  is  rather  the  custom  of  districts,  and  in  many  the  custom 
merely  of  certain  estates.  They  are  imported  into  leases  or  agreements 
for  the  letting  and  occupation  of  land,  and  unless  the  agreement 
expressly,  or  by  implication,  excludes  the  custom  of  the  country,  the 
landlord  and  tenant  are  presumed  to  contract  with  reference  to  it. 
Tenant-right  extends  to  the  crop,  which  the  outgoing  tenant  has  sown 
and  leaves  in  the  ground,  and  to  remuneration  for  the  preparation  of 
the  soil  for  crops  by  tillage,  for  the  straw,  hay,  and  occasionally,  dung 
left  on  the  farm,  and  for  growing  underwood.  Of  late  years,  tlie  term 
has  happily  been  understood  in  a  much  wider  and  more  liberal  sense, 
and  in  many  parts  of  the  country  a  usage  has  sprung  up,  which  confers 
a  right  on  the  outgoing  tenant  to  be  re-imbursed  for  certain  other 
expenses  incurred  by  him  in  cultivation,  beyond  those  of  mere  ordinary 
husbandry.  Among  such  expenses  are  the  purchase  of  food  for  stock, 
as  well  as  of  certain  kinds  of  manure,  and  the  draining,  chalking  and 

B 


2  BEDFORDSHIRE. 

marling  of  the  soil.  If  there  be  no  usage  to  that  effect,  and  no  express 
stipulation,  the  outgoing  tenant  can  claim  no  compensation  for  any  of 
these  improvements,  however  short  may  be  the  time  between  their 
completion  and  the  termination  of  his  occupancy.  In  practice,  the 
compensation  agreed  to  be  paid  by  the  landlord  to  the  outgoing  tenant, 
is  paid  by  the  incoming  one.  The  cost  of  the  several  improvements  is 
found  by  valuers,  who  spread  the  amount  over  a  certain  number  of  years, 
within  which  each  kind  of  improvement  respectively  is  supposed  to  repay 
itself,  and  deduct  the  time  during  which  the  tenant  has  enjoyed  the 
benefit  of  it.  It  would  simplify  their  calculations  if  the  Michaelmas  entry 
was  universal.     The  customs  in  England  and  "Wales  are  as  follows  : 

Bedfordshire. — The  original  system  in  Bedfordshire  was  a  Lady-day 
hiring,  the  tenant  being  entitled  to  the  awaygoing  crop  ;  but  in  most 
instances  the  practice  is  now  changed  into  the  regnlar  IMichaelmas 
hiring.  The  tenant-at-will  receives  notice  by  the  25th  of  March  to 
quit  the  next  Michaelmas  ;  and  is  obliged,  according  to  the  custom, 
generally  speaking  (though  not  invariably),  to  give  up  his  fallows,  and 
a  portion  of  the  farmhouse,  and  a  stable  for  the  horses,  to  the  incoming 
tenant  ;  and  the  incoming  tenant  is  allowed  to  come  in  and  sow  the 
seeds  himself.  The  Norfolk  system  generally  prevails,  of  allowing  the 
outgoing  tenant  to  cultivate  the  fcxllows  in  the  usual  way,  carrying  the 
manure  out  and  sowing  the  turnips,  cutting  the  hay,  and  stacking  it  on 
the  fixrm.  He  has  to  be  paid  by  valuation  for  the  hay  and  turnips,  but 
he  receives  nothing  for  manure,  except  the  cartage,  however  expensively 
it  may  have  been  made.  No  exception  is  made  even  in  the  case  of 
oilcake  manure.  There  is  no  custom  that  enables  the  tenant  to  claim 
compensation  for  artificial  dressings  or  drainage,  or  anything  of  that 
kind.  In  the  Duke  of  Bedford's  leases  it  is  stipulated  that  the  tenant 
should  pay  six  per  cent,  on  the  cost  of  "hollow  draining  with  drain- 
pipe tiles.  Bet  upon  soles  or  flat  tiles  ; "  the  tenant  paying  for  the 
carriage  of  the  same.  On  his  Grace's  estates,  all  the  dung  manure  and 
compost  produced  and  made  during  the  last  year  of  the  tenancy,  and 
all  unexpended  manure  whatsoever  is  left  for  the  incoming  tenant 
without  compensation,  and  the  unconsumed  straw,  hay,  green  crops, 
stubble,  haulm,  stover,  chaff,  and  cavings  is  paid  for  at  a  spending 
price.  The  incoming  tenant  is  allowed  to  enter  in  the  November  of  the 
last  year  of  the  term,  and  as  often  afterwards  as  he  requires,  to  prepare  a 
certain  portion  of  the  arable  land  for  a  fallow ;  and  to  enter  at  seed-time 
on  all  the  land  which  shall  be  sown  for  a  crop  of  l)arley  or  other  spring 
com,  and  sow  clover  or  any  other  grass  seeds,  to  be  harrowed  in  with  the 
grain.     He  may  also  enter  upon  the  stubble  land,  which  may  have  pro- 


BERKSHIllE   AND    BUCKS.       CAMBRIDGESHIRE.  3 

duced  white  straw  grain,  or  pulse,  as  soon  as  it  is  carried  off  the  land  at 
harvest,  and  prepare  and  sow  it  with  rye,  tares,  or  any  other  seeds,  or  plant 
it  with  cabbages  or  other  plants  for  the  spring  feeding  of  cattle  or  sheep. 

Berkshire  and  Bucks. — The  customs  are  nearly  identical  in  these  two 
counties.  Michaelmas  is  always  the  time  of  entry,  and  there  is  no 
other  time  of  quitting.  The  incoming  tenant  pays  for  all  acts  of  hus- 
bandry. It  is  the  custom  not  to  allow  more  than  two  white  straw 
crops  to  be  taken  in  succession.  Many  tenants  are  allowed  to  sell  wheat 
straw,  but  the  general  principle  is  that  the  incoming  tenant  takes  to  it 
at  a  valuation.  The  hay  is  taken  to  sometimes  at  a  consuming  price, 
sometimes  at  a  market  price  ;  in  fact  there  is  no  standing  custom  at  all 
respecting  it.  The  manure  of  the  last  two  years  is  usually  considered 
the  incoming  tenant's  property,  provided  the  outgoing  tenant  had  it 
when  he  entered.  There  is  no  compensation  for  the  purchase  of  arti- 
ficial food  or  manure,  nor  for  drainage  or  chalking,  or,  in  fact,  for  any 
durable  improvements  of  the  land,  except  under  special  agreements.  It 
is  often  stipulated  that  a  certain  number  of  sheep  shall  be  kept  on  the 
farm  during  the  last  year  by  the  outgoing  tenant,  to  September  29th, 
and  folded  on  those  points  of  the  farm  the  incoming  tenant  may  select. 
After  the  farm  buildings  have  been  put  in  repair,  the  general  rule  is 
that  the  tenant  is  to  keep  them  so,  the  landlord  finding  rough  materials 
and  the  tenant  workmanship. 

Camlrklfjeshire. — There  are  so  many  varieties  of  land  in  this  county 
that  it  is  difficult  to  define  accurately  what  custom  obtains.  In  the 
fens  no  regular  system  of  cropping  prevails,  as  the  variety  of  seasons 
sets  all  regular  rotation  at  defiance  ;  in  many  instances  wheat  and 
bran  have  been  grown  alternately  for  years,  while  on  others,  potatoes, 
rape  and  mangel-wurzel  are  alternated  with  wheat  and  oats.  On  the 
high  land  the  old  Norfolk  four-course  system  is  usually  adoiDted,  viz., 
wheat,  roots,  barley,  seeds,  but  in  some  districts  the  use  of  artificial 
manures  has  permitted  and  rendered  profitable  the  introduction  of  the 
five-course  system,  in  which  case  barley  is  grown  after  wheat.  Where 
long  leases  are  granted,  tenants  are  usually  allowed  to  crop  without 
restriction,  provided  the  condition  of  the  land  is  maintained,  except 
during  the  last  four  years  of  their  tenancy,  wherein  the  four-course 
system  is  to  be  strictly  adhered  to.  It  is  customary  for  the  outgoing 
tenant  to  prepare  the  fallows  and  sow  the  small  seeds,  and  to  be  paid 
for  these  by  the  incoming  tenant.  Hay  is  paid  for  at  a  consuming 
price,  and  the  incoming  tenant  takes  the  last  year's  straw  and  chaff,  but 
pays  for  the  thrashing,  dressing,  and  delivery,  within  a  reasonable  distance. 

B  2 


4    CHESHIRE,  CORNWALL,  CUMBERLAND,  AND  WESTMORELAND. 

In  most  cases  an  allowauce  is  made  to  the  outgoing  tenant  for  oil  cake 
and  purchased  corn,  which  has  been  consumed  during  the  last  two  years 
of  his  occupation.     The  entries  arc  ahnost  invariably  at  Michaelmas. 

Cheshire. — See  Lancash ire. 

Conucall. — Michaelmas  is  the  most  general  time  of  entry,  but  there 
are  some  Lady-day  holdings,  especially  in  the  north  and  east  of  the 
county.  The  former  period,  however,  is  considered  the  most  desirable 
one.  The  length  of  holdings  varies  considerably.  In  many  instances, 
leases  are  granted  for  terms  of  seven,  fourteen,  or  twenty-one  years, 
and  a  very  large  number  of  farms  are  held  at  yearly  tenancies  with, 
and  sometimes  without,  a  written  agreement.  An  outgoing  tenant 
has  no  allowances  whatever  for  any  unexhausted  improvements,  except 
in  occasional  cases.  Draining  is  generally  either  performed  by  the 
landlord,  the  tenant  paying  a  yearly  per-centage  on  the  outlay,  or  it  is 
executed  by  the  landlord  and  tenant  jointly,  the  former  perhaps  paying 
for  the  cutting  of  the  drains,  and  the  latter  being  at  the  expense  of  the 
filling  in.  Instances  of  a  tenant  being  allowed  for  any  unexhausted 
manures  are  exceedingly  rare.  In  Lady-day  holdings  the  valuation 
would  comprise  the  growing  wheat  crop,  and  preparations  made  for 
the  turnip,  barley,  and  oat  tillages,  &c.  In  Michaelmas  holdings  the 
matters  which  come  under  a  valuer's  notice  are  subject  to  great  varia- 
tion, according  to  the  time  at  which  the  incoming  tenant  commences 
to  do  any  labour  on  the  farm.  Sometimes  the  outgoing  tenant  prepares 
for  and  tills  the  root  and  spring  grain  crops  ;  and  in  such  cases,  if  the 
incoming  tenant  intends  to  take  them  they  have  to  be  valued.  In 
others,  the  greater  part  of  these  preparations  is  performed  by  the  out- 
going tenant,  but  the  incoming  one  puts  in  the  crops,  and  of  course  the 
valuation  must  be  made  accordingly.  Sometimes  farm-yard  manure  left 
in  the  yards  or  in  heaps  in  the  fields,  not  used,  is  paid  for,  and  sometimes 
it  is  not ;  but  if  carted  together  in  heaps,  the  labour  attendant  on  it  is 
considered,  llay  is  usually  taken  by  the  incoming  tenant  at  a  valuation. 
The  outgoing  tenant  allows  for  the  repairs  required  to  gates,  fences,  &c., 
and  roofs  of  thatch  ;  but  slated  roofs  arc  kept  in  repair  by  the  landlord. 

CiimVcrlaml  and  Wesimoreland. — The  two  principal  times  of  entry 
are  Candlemas  (February  2nd)  and  Lady-day  (March  25th);  in  some 
instances  the  land  is  entered  on  at  Candlemas,  and  the  buildings  at 
May-day.  If  the  outgoing  tenant  leaves  the  farm  at  Candlemas,  he 
keeps  up  his  regular  stock  of  horses  and  cattle  until  the  end  of  the 
terra,  and  then  takes  away  or  sells  the  remainder  of  the  unconsumcd 


CUMBERLAND   AND   AVESTMOEELAND.  5 

vestures  of  the  last  year's  crop,  hay  and  straw.     The  mannro  is  left  for 
tlic  incoming  tenant,  free  of  any  charge.     In  some  instances  the  land- 
lord binds  the  tenant  to  consume  at  least  one-half  of  the  last  year's 
crop  of  hay  and  straw,  in  preference  to  the  undefined  term  of  "keeping 
up  the  usual  and  regular  stock."     The  outgoing  tenant  is  allowed  for 
rent  of  the  land,  taxes,  seed,  and  labour,  on  all  bare  or  dead  fallow  in 
the  last  year  of  the  term  ;  also  the  cost-price  of  clover  and  grass  seeds 
sown  the  preceding  spring,  if  kept  uninjured.     Gates  and  fences  must 
be  left  in  tenantable  repair  by  the  outgoing  tenant,  or  an  equivalent 
in  money  must  be  given  to  the  incoming  tenant  to  make  good  the 
same.     Should  the  entry  be  at  Lady-day,  the  tenant  is  in  some  cases 
bound  to  consume  upon  the  premises  at  least  two-thirds  of  the  last 
year's  crop  of  hay  and  straw,  and  leave  the  manure  for  the  use  of  the 
incoming  tenant,  ft'ee  of  charge  ;  and  where  the  entry  is  on  "  land  at 
Candlemas,  and  buildings  at  May-day,"  the  tenant  consumes  the  whole 
of  the  vestures  upon  the  premises,  and  leaves  the  manure  as  before 
stated.     Where  this  is  the  custom,  the  outgoing  tenant  is  only  entitled 
to  one  ploughing  and  harrowing,  seed  wheat,  carting,  and  spreading 
manure,  &c.,  on  dead  fallow  in  the  last  year.     This  is  the  custom  on 
Lord  Lonsdale's  farms  both  in  Cumberland  and  Westmoreland,  and  in 
fact  the  universal  one   in   the   latter   county.     The   landlord  usually 
drains  the  land,  the  tenant  paying  five  per  cent,  upon  the  outlay,  and 
carting  all   the  materials   free.     The  compensation  for  unexhausted 
improvements  must  be  according  to  agreement  ;  and  there  are  very 
few,  if  any,  for  which  an  outgoing  tenant  can  claim.     There  is  perhaps, 
no  estate  where  a  portion  of  the  oilcake  bill  is  allowed  in  the  last  year ; 
nor  is  it  usual  to  allow  for  bones,  guano,  &c.,  except  when  such  manures 
are  put  upon  the  dead  fallow  for  wheat  in  the  last  year,  and  the  out- 
going tenant  had  no  benefit  from  such  manures.     The  land  is  chiefly 
managed  under  the  five  and  six-course  rotation,  and  the  bare  or  dead 
fallow  constitutes  the  principal  claim   that   an  outgoing  tenant  has 
against  his  successor.    Each  party  chooses  a  valuer,  and  in  case  of 
'disagreement,  the  two  choose  a  third,  whose  decision  is  final.     The 
value  of  one  acre  might  be  as  follows  : — Ploughing  and  harrowing  four 
times  at  9s.,  <£l  IGs.  ;  land  rent,  say  £1  5s.  ;  seed  wheat,  say  £1  5s.  ; 
brining   and   sowing,   6^.  ;   leading   manure,   say    65.    6d.  ;   spreading 
ditto,  Is.  Gd.  ;  water-furrowing  and  guttering.  Is.  6d.  ;  rates  and  taxes, 
2s.  Gd. — total,  £4  18s.  Gd.     If  the  land  has  been  limed  in  that  year, 
the  cost  of  the  lime  as  well  as  the  leading  and  spreading  must  be 
added,  and  so  when  guano  or  bones  have  been  used.     The  cost  of  an 
acre  of  fallow  wheat  chiefly  depends  upon  the  value  of  the  land,  the 
market  price  of  seed  wheat,  and  the  distance  the  manure  is  to  be 


6  DERBYSHIRE. 

carted.  These  settlements  or  arbitrations  are  always  arranged  and 
carried  out  by  the  outgoing  and  incoming  tenants,  and  the  landlord 
seldom  takes  any  part  in  the  matter.  The  land  is  chiefly  managed 
under  the  five-  and  six-course  rotation  ;  that  is— first  year,  oats  out  of 
lea ;  second,  potatoes  and  turnips,  or  dead  fallow  ;  third,  wheat  or 
barley,  sown  with  grass  seeds  ;  fourth,  pasture,  or  mown  for  hay  ; 
fifth,  pasture  ;  sixth,  pasture.  If  the  five-course  be  adopted,  the  field 
would  be  in  oats,  and  not  in  pasture,  in  the  sixth  year. 

Berbi/shire.— The  invariable  time  of  entry  in  this  county  is  at  Lady- 
day.     The  oflFgoing  tenant  has  no  awaygoing  crop,  and  the  payments 
by  the  incoming  tenant  to  his  predecessor  are  regulated  by  the  usual 
restrictions  and  covenants  under  which  the  generality  of  tenant  farmers 
live,    and    occasionally  by  custom.      The   compensation  to  outgoing 
tenants  for  improvements  is  limited,  and  frequently  discretional  with 
the  landlord.     There  is  an  allowance  for  unexpended  bones,  and  for 
other  light  tillages,  such  as  guano,  rape-dust,  &c.     Generally  speaking, 
the  tenant  by  his  conditions  is  not  allowed  compensation  for  draining, 
but  in  most  cases  tlie  landlord  finds  drain-tiles  or  pipes,  as  may  be 
required;  and  if  the  landlord  or  agent  gives  consent  in  writing  for 
such  drainage  to  be  executed,  the  oflFgoing  tenant  would  be  allowed 
compensation,  on  a  seven  years'  scale.     Sometimes  when  there  is  no 
covenant,  and  the  tenant  quits  on  the  "  custom,"  draining  is  allowed 
for  on  a  ten  years'  scale.     Of  late  years  there  has  been  an  allowance 
of  one-third  for  oilcake  consumed  on  the  farm  the  previous  year,  and 
in  some  instances  half  the  cost  price.     Further  allowances  ought  to  be 
made  for  cake  consumed,  extending  over  the  second  year,  and  one- 
fourth  or  one-sixth  of  the  cost  price  would  be  a  compensation,  good 
proofs  being  produced  that  such  quantities  were  consumed.     Half-inch 
drill  bones  extend  over  a  period  of  six  years  on  grass  lands  when 
pastured;  and  where  crops  are  taken,  over  half  that  time.     In  some 
instances  where  tenants  are  living  under  conditions,  the  whole  of  the 
manure  made  on  the  farm  becomes  the  landlord's  property;  and  the 
offgoing  tenant  has  no  interest  in  making  rich  manure.     Hence  it  not 
unfrequently  happens  that  the  whole  of  one  year's  hay  and  straw  is 
left  unconsumcd,  to  be  taken  to  at  a  reduced  price.      The  hay  and 
straw  left  on  the  farm  are  paid  for  ])y  the  award  of  the  arbitrator, 
subject  to  tonnage,  by  which  is  meant  a  consuming  price,  the  tenant 
not  being  allowed  to  sell  hay  or  sti-aw  off  the  farm.     Leases  arc  the 
exception,  not  the  rule;  and  the  land  is  held  from  year  to  year,  with 
a  six-months'  notice  from  cither  party.      There  is  no  allowance  for 
buildings  of  stone  or  brick  erected  by  the  tenant.    Where  sheds  or 


DERBYSHinE   NORTH.  7 

hovels  are  built  of  wood  by  the  tenant,  he  can  remove  them  or  receive 
compensation ;  but  there  is  nothing  to  compel  ti  landlord  to  take  to  such 
buildings  at  a  valuation. 

Derlnjsldre  North. — The  general  time  of  entry  is  at  Lady-day,  and 
the  outgoing  tenant  has,  with  a  few  exceptions,  no  awaygoing  crop. 
Compensation  is  made  to  the  outgoing  tenant  for  making  clean  turnip 
or  summer  fallows  the  year  preceding  his  quitting,  by  payment  of  one 
year's  rent  and  taxes,  for  dressings,  turnip  seed  and  hoeing,  labour  on 
manure  from  the  yard,  for  any  purchased  manure  applied,  and  for  seed 
wheat  and  sowing  on  the  summer  fallows,  deducting  from  tlie  turnip 
land  two-thirds  of  the  value  of  the  turnip  crop  if  drawn  oif,  and  one- 
half  if  eaten  on  the  land.  For  land  having  had  one  crop  of  corn,  since 
fallowed,  and  laid  down  with  hay  or  clover-seeds,  the  cost  price  of  the 
seeds  and  labour  of  sowing  is  allowed  ;  and  for  wheat  sown  upon  grass 
or  clover  ley,  the  cost  price  of  the  seed  and  labour  of  ploughing,  harrow- 
ing and  sowing.  For  bones,  where  no  crop  has  been  taken,  the  cost 
price  and  labour  of  carriage  and  drilling  is  allowed ;  where  one  crop 
has  been  taken,  two-thirds  of  the  same ;  and  where  two  crops,  one-third. 
Where  land  has  been  pastured,  only  one-sixth  is  deducted  from  the  cost 
price  and  labour,  for  each  year's  pasturage.  Turnips  arc  not  considered 
to  be  a  crop.^  For  guano  and  rape-dust  the  cost  price  is  allowed  where 
no  crop  has  been  taken;  after  one  crop  one-third  of  the  value  is  allowed; 
and  upon  land  pastured,  one  year  after  application,  two-thirds  of  the 
value ;  and  after  two  years,  one-third.  For  mountain  or  carboniferous 
lime,  the  same  allowances  are  made  throughout  as  for  bones.  For 
magnesian  lime,  the  full  value  of  the  lime  and  labour  is  allowed  where 
no  crop  has  been  taken,  and  one-half  after  one  crop.  Where  land  has 
been  pastured,  one-fourth  of  the  cost  price  and  labour  is  deducted  for 
each  year's  pasturage.  One-fourth  of  the  cost  of  linseed-cake  consumed 
either  in  the  yard  by  cattle,  or  on  the  land  by  sheep,  during  the  last 
year  of  the  tenancy,  is  generally  allowed ;  and  one-eighth  of  that  con- 
sumed in  the  previous  year.  The  tenant  by  his  conditions  is  mostly 
allowed  compensation  for  draining,  varying  from  seven  to  ten  years ; 
when  it  is  done  by  the  landlord,  five  per  cent,  is  generally  charged. 
The  maniu-e  made  from  the  last  year's  produce,  which  in  former  years 
was  left  by  the  outgoing  tenant  without  any  compensation,  is  now  in 
many  instances  allowed  for,  and  it  is  found  that  the  outgoing  tenant 
having  an  interest  in  it,  makes  better  manure  than  when  he  was  not 
paid  for  it  under  the  old  system.  Hay  and  straw  left  upon  the  premises 
are  taken  to  at  a  valuation  not  exceeding  one-fourth  of  the  quantity  of 
the  preceding  year's  growth. 


8  DEVONSHIRE,    DORSETSHIRE, 

Dci'onsJtirc. — Farms  arc  usually  given  up  at  cither  Lady-day  or 
Michaelmas.  In  a  Lady-day  holding,  the  tenant  has  no  awaygoing 
crop ;  he  gives  up  everything  -when  he  leaves.  The  incoming  tenant 
generally  puts  in  the  wheat  and  ploughs  up  the  wheat  eddish  by  a 
provision  to  that  effect  in  the  lease.  If  he  has  no  such  agreement  there 
is  no  custom  to  give  him  a  right  of  entry  at  all,  and  he  has  to  compen- 
Bate  the  outgoing  tenant  for  seed  and  labour.  The  outgoing  tenant 
has  no  claim  for  improvements  that  he  has  made  on  his  farm,  nor  for 
cake,  except  by  special  agreement.  Where  they  arc  tenants-at-will 
from  year  to  year,  the  tenant  is  subject  to  six  months'  notice;  and 
whenever  the  six-months'  notice  is  given,  there  is  an  auction,  and  the 
tenant  sells  oif  everything,  including  the  manure.  There  is  scarcely 
any  general  agricultural  custom  existing  in  the  county.  The  tenants 
are  not  allowed  to  sell  hay  or  straw,  the  covenants  restrain  them ;  but 
they  sell  reed.  A  tenant  when  he  is  going  out  never  sows  wheat 
himself  by  the  custom  of  the  country,  but  by  agreement.  There  is  no 
custom  as  to  machinery,  thrashing  machines,  &c.  Cider  presses  are 
sometimes  the  property  of  the  tenant,  and  he  takes  them  away :  if  not, 
he  leaves  them  ;  and  it  is  the  same  with  thrashing  machines. 

DorscWiirc. — The  time  of  entry  upon  farms  is  generally  Lady-day, 
On  April  Gth  the  incoming  tenant  enters  the  meadows  with  the  land 
for  turnips ;  on  July  Gth  all  other  pasture  or  down  lands,  with  land  of 
two  years'  ley  for  wheat;  on  October  10th  the  remainder  of  the  arable 
lands;  and  on  July  Gth  of  the  following  year  the  remainder  of  the 
house,  barns,  stables,  &c.  He  is  allowed  stabling  and  straw  for  food 
and  litter  for  a  certain  number  of  horses,  and  the  use  of  the  yards  for 
turning  up  manure :  he  has  also  a  cottage  for  the  carter  and  shepherd, 
with  part  of  the  farm-house,  and  other  offices  therein.  The  outgoing 
tenant  generally  takes  the  following  wheat  or  barley  crop,  unless  there 
is  some  special  agreement;  it  is  valued  on  the  ground,  and  is  generally 
worked  off  by  the  outgoing  tenant.  The  manure  belongs  to  the  in- 
coming tenant,  whether  it  be  made  with  oilcake,  or  whether  it  is  mere 
straw  and  water,  and  he  usually  takes  any  hay  that  may  be  left  at  a 
valuation.  As  a  general  thing,  there  is  no  compensation  for  improve- 
ments to  outgoing  tenants,  and  none  for  artificial  manures,  chalking, 
marling,  claying,  buildings,  fences,  orchards,  &c.  Mr.  Sturt's  "  Tenant 
Security  Rules,"  however,  provide  a  scale  of  compensation  to  tenants 
for  unexhausted  improvements,  extending  in  the  case  of  liming  to  the 
seventh  year,  and  in  the  case  of  draining  to  the  eighth  year.  By  rule 
loth,  "For  conversion  of  all  pasture  land  into  arable,  the  outgoing 
tenant  is  to  U  alloiml  IS-s.  in  the  pound  for  paring  and  burning  before 


DURHAM    AND   NOllTnUMBERLAND.  9 

the  first  corn  or  pulse  crop  is  taken."  I.eases  are  not  very  general  in 
the  county.  Lord  Portman  has  granted  very  long  ones  to  his  tenants, 
half  the  rent  being  fixed  at  a  money  price,  and  the  other  half  regulated 
by  the  price  of  barley  and  wheat,  taken  on  the  average  of  the  United 
Kingdom,  as  returned  by  the  London  Gazette, 

Durham  and  Northvmlcrland.—TliQ  customs  in  Northumberland  and 

Durham  arc  much  alike.     Some  estates  are  let  on  an  annual  tenancy, 

but  the  best  cultivated  and  most  productive,  are  let  on  leases.     Fifteen 

years  is  a  common  term  of  lease,  but  on  large  farms,  or  where  much 

improvement  is  contemplated,  involving  a  large  outlay  by  the  tenant,  a 

term  of  21  years  is  not  unusual.     The  general  time  of  entry  is  the  13th 

of  May ;  but  it  is  stipulated  that  the  outgoing  tenant  shall  preserve 

uneaten  a  certain  portion  of  new  grass  for  meadow,  and  of  old  meadow 

land,  if  there  be  any,  from  the  end  of  the  preceding  October,  the 

incoming  tenant  finding  the  grass  seeds,  or  paying  for  them  afterwards. 

The  away-going  crop  belongs  to  the  outgoing  tenant,  by  whom  it  is 

sown,  and  he  is  entitled  to  reap  it,  and  to  retain  the  stack  garth,  barns 

and  granaries  till  the  13th  of  May  ensuing  ;  but  it  is  a  better  plan,  and 

becoming  customary,  to  bind   the  out-going   tenant  to  sell,  and  the 

incoming  tenant  to   purchase,  the   standing   crop   at  harvest,  by  the 

valuation  of  two  parties  mutually  chosen,  who  shall  choose  an  umpire, 

leaving  the  prices  to  be  determined  by  the  market  averages  of  the 

district  at  three  periods, — November,  February,  and  May,  at  each  of 

which  a  payment  shall  be  made.     The  threshing  machine,  if  a  fixed 

one,  is  also  transferred  by  valuation  in  like  manner,  so  that  the  entering 

tenant  gets  possession  of  the  whole  of  the  premises  and  produce  at  once. 

The  new  tenant  has  a  right  to  enter  into,  and  plough  the  stubble  land 

intended  for  fallow  or  root  crops  in  the  ensuing  year,  after  October, 

and  to  cart  out  manure  to  it  during  the  winter,  but  it  is  better,  and 

frequently  stipulated  for,  that  such  work  shall  be  done  by  the  out-going 

tenant,  who  has  little  occupation  for  his  draughts,  and  that  he  be  paid 

per  acre  for  doing  so,  by  the  incoming  tenant.    The  tenant  is  bound 

to  the  repair  of  buildings  and  fences  (walls,  roofs,  and  main  timber 

excepted).     Tenants  are  required  to  insure  against  fire.     Draining  is 

done  by  the  landlord,  the  tenant  carting  materials,  and  paying  five  per 

cent,  upon  the  outlay  for  labour  and  pipes.     In  some  cases,  as  on  the 

estates  of  Lord  Grey,  the  Greenwich  Hospital,  and  others,  compensation 

is  given,  on  a  fixed  ratio,  for  lime  and  purchased  manures  applied 

during  the  last  three  years  of  the  term,  in  case  the  tenant  leaves  the 

farm.     In  all  cases  the  manure  made  upon  the  premises  must  be  applied 

to  the  farm. 


10  ESSEX,   GLOUCESTEESHIRE. 

Esscr. — The  custom  of  compensation  varies  in  different  localities. 
The  rent  upon  the  fallowed  land  (and  in  some  cases  the  tithe  and  rates) 
is  for  the  most  part  allowed  to  the  outgoing  tenant.  He  is  also  allowed 
for  the  ploughing  and  tillage  thereon ;  for  the  seed-sowing  and  cultiva- 
tion of  the  turnips,  mangolds,  or  green  cattle-crops  upon  the  land  under 
fallow ;  for  the  labour  thereon,  and  the  dung,  either  left  in  heaps,  or 
carted  on  for  the  green  crops ;  and  for  the  cloverseeds  and  grasses,  if 
sown  upon  lands  fallowed  in  the  preceding  year,  whether  a  plant  is 
obtained  or  not.  Hay  is  valned  at  about  three-fourths  of  the  market 
price — being  the  market  value,  less  the  cost  of  cutting  out  and  market- 
ing, and  the  value  of  a  load  of  manure  brought  on  to  tlic  farm.  The 
outgoing  tenant  fodders  out  his  straw  and  hay  of  the  last  year,  or 
the  incoming  tenant  pays  the  cost  of  thrashing  out  the  crops,  and 
carts  out  the  grain  arising  therefrom  a  distance  not  exceeding  ten  miles 
by  way  of  compensation  for  the  straw,  &c.  The  tenant  repairs  the 
buildings,  and  the  landlord  finds  materials.  No  compensation  is  allowed 
for  draining,  or  for  artificial  manure,  or  oilcake,  &c.,  consumed.  A 
yearly  tenant  is  entitled  by  custom  to  the  rent,  ploughing,  and  tillages 
of  fallows ;  to  the  feeding  value  of  hay  and  straw  ;  and  to  compensation 
for  manure  left  upon  the  farm :  the  principle  being  that  he  shall  leave 
the  farm  in  the  same  way  as  he  entered.  The  dung  is  measured  in  the 
heap,  and  valued  at  so  much  the  square  yard.  All  the  tenancies  com- 
mence at  New  Michaelmas,  and  the  outgoing  tenant  is  entitled  to  the 
use  of  the  barns  until  the  Lady-day  following,  but  not  of  the  house, 
stables,  &c.  after  Michaelmas-day. 

Gloucestershire. — The  tenancies  are  yearly  ones,  and  sometimes  even 
without  a  written  agreement.  They  are  chiefly  from  Lady-day,  but 
some  few  are  from  Michaelmas.  The  commonest  course  of  cropping  is 
turnips,  barley,  "seeds"  two  years  (clover,  rye-grass,  &c.),  wheat,  oats 
or  barley.  When  the  "  seeds  "  are  ploughed  up  at  one  year,  the  oat  or 
barley  crop  after  the  wheat  is  omitted :  the  first  is  called  the  six-field 
system,  the  other  the  four-field  system.  The  landlord  keeps  all  the 
buildings  in  repair,  and,  generally  speaking,  the  gates ;  and  the  tenant 
does  the  hauling  for  the  repairs,  finds  straw  for  the  thatched  buildings, 
and  keeps  good  all  the  fences.  He  cannot  sell  off  either  hay,  straw,  or 
roots,  nor  take  more  than  two  white-straw  crops  under  the  six-field 
system,  or  one  under  the  fonr-field  system,  in  succession.  On  leaving, 
the  tenant  is  generally  allowed  a  barn,  yard  and  field  till  Midsummer, 
for  feeding  off  his  hay,  &c.  The  wheat  straw  is  valued  to  the  incoming 
tenant  at  a  consuming  price,  also  the  hay  and  other  straw  if  he  agrees 
to  take  to  it.    The  outgoing  tenant  generally  does  all  necessary  work  on 


HAMPSHIHE,    HERTFORDSHIRE.  11 

the  land,  such  as  ploughing,  sowing,  &c.,  up  to  a  short  time  before 
quitting,  and  is  paid  for  the  same  by  valuation.  One-year  "  seeds  "  are 
valued  to  the  incoming  tenant,  but  two-year  "seeds"  are  not.  The 
outgoing  tenant  is  paid  the  whole  cost  of  growing  the  turnip  or  other 
root  crop,  including  artificial  manures.  If  it  be  a  Lady-day  taking,  the 
root  crop  belongs  to  the  outgoing  tenant,  if  a  Michaelmas  taking,  it  is 
left  for  the  incoming  tenant,  the  outgoing  tenant  being  paid  the  same 
in  both  cases.  Dung  left  in  the  yards  or  hauled  on  to  the  land  belongs 
to  the  incoming  tenant,  who  pays  for  all  the  labour  of  preparing  or 
hauling  out  the  same.  Sainfoin  is  pai.d  for  according  to  its  age,  &c. 
Vetches  grown  and  fed  on  the  land  are  paid  for— that  is,  the  ploughing, 
sowing,  &c.,  but  not  the  seed.  All  exceptions  to  the  above  payments 
are  made  by  special  agreement.  The  foregoing  customs  have  been  in 
practice  for  many  years,  with  scarcely  any  alteration.  Those  in  the 
vale  of  Gloucestershire  differ  in  many  respects  as  to  cropping,  selling 
of  hay,  straw,  &c. ;  but  the  valuations  between  outgoing  and  in- 
coming tenants  do  not  differ  so  much.  The  Cotswold  Hills  are  the 
chief  corn  growing  district,  the  vale  being  chiefly  pasture  or  small 
arable  farms. 

Eamj^shire.—The  usual  time  of  giving  up  farms  is  at  Michaelmas ; 
and  the  custom,  when  the  lease  is  to  expire  next  Michaelmas,  generally 
allows  the  new  tenant  to  have  access  some  time  before  Lady-day.  He 
would  come  on  to  prepare  his  turnip  crop,  and  have  about  June  or  July 
a  certain  portion  of  land  to  enter  upon  to  prepare  his  wheat  season ;  and 
there  is  nothing  else  he  would  be  permitted  to  do  until  after  harvest. 
He  would  first  come  to  prepare  his  fallow  for  the  ensuing  year,  and  for 
the  wheat  a  short  time  before  Michaelmas.  The  dung  belongs  to  the  land- 
lord ;  in  fact  there  is  not  a  single  thing  the  outgoing  tenant  can  claim ;  he 
Avould  feed  the  stock  next  year  on  the  hay  and  straw  grown  in  the  last 
year  of  his  tenancy,  but  he  cannot  dispose  of  it ;  still  he  may  keep  the 
incoming  tenant  out,  and  say,  I  will  have  the  yards  and  fodder  myself, 
and  consume  the  hay.  The  incoming  tenant  has  no  claim  to  any  hay 
unless  he  purchase  it  by  agreement. 

Herffordshire.—The  general  custom  is  to  enter  upon  the  fallows  at 
Lady-day,  commencing  tenancy  the  Michaelmas  following.  Every  tenant 
is  allowed  to  quit  as  he  entered,  if  he  can  prove  that  entry,  unless  he  be 
bound  by  an  agreement  to  the  contrary  ;  if  not,  the  custom  is  laid  down 
in  the  regular  way,  for  a  certain  portion  of  the  fallows  to  be  given  up  at 
a  certain  time.  With  respect  to  the  straw  and  manure,  he  quits  as  he 
enters.    The  outgoing  tenant  gives  up  the  farm,  and  his  tenancy  ceases 


13  HEREFORDSHIRE   AND   MONMOUTHSHIRE. 

at  i\Iicliaelmas ;  and  the  incoming  tenant  has  a  right  of  entering  at 
Lady-day,  to  prepare  the  wheat  stubble  for  turnips,  and  the  fallow  land 
for  turnip  or  other  crops.  The  incoming  tenant  has  a  right  to  put 
stock  on  tlie  fallows,  but  not  on  any  other  part  of  the  farm,  and  to  sow 
seeds  in  the  growing  crops,  but  he  has  no  power  of  entry  to  prepare 
the  clover-land  for  wheat  till  the  29th  of  September.  The  dung  usually 
belon!>;s  to  the  landlord,  who  has  also  a  claim  for  dilapidations,  which 
are  irenerally  enforced,  such  as  for  dilapidations  of  premises,  and 
waste  upon  the  soil.  If  there  is  any  injury  by  cross-cropping  or 
neglect  of  tillage  (as  Avhen  the  land  is  foul  with  grass,  twitch,  &c.) 
the  landlord  has  a  legal  remedy,  and  frequently  recovers  compensation 
upon  those  grounds.  The  tenant  has  no  claim  for  compensation  for 
any  kind  of  improvements,  and  there  is  no  custom  that  gives  him 
anything. 

HprofonMiirc  and  Monmouthshire— IXia  time  of  entry  is  chiefly  at 
Candlemas-day,  the  2nd  of  February.     The  notice  to  quit  is  given  on  or 
before  the  previous  1st  of  August.     Yearly  tenancies  prevail,  leases  are 
the  exception.     The  outgoing  tenant  on  the  2nd  of  February  is  entitled 
to  an  awaygoing  crop  of  wheat  upon  one-third  of  his  arable  land ;  he 
receives  from  the  incoming  tenant  the  value  of  the  clover-seeds  sown, 
and  of  the  acts  of  husbandry  in  planting  them,  viz.,  sowing  and  harrow- 
ing.    The  outgoing  tenant  keeps  the  dwelling-house  and  fold-yards, 
and  also  one  inclosure  of  grass  land  near  the  fold  (locally  termed  a 
"  boozy  pasture  "),  until  the  1st  of  ?Iay,  with  the  exception  of  two 
rooms"^  in  the  house  for  servants,  and  stable  for  the  horses,  which  the 
incoming  tenant  may  claim.     The  incoming  tenant  receives  possession 
of  the  whole  of  his  occupation,  excepting,  as  before  mentioned,  on  the 
2nd  of  February ;  he  has  no  acts  of  husbandry  nor  unexhausted  manures 
to  pay  for,  and  he  receives  the  manure  made  in  the  winter  by  the  out- 
going tenant's  stock  without  charge.      The  outgoing  tenant  has  the 
right  to  cut  his  awaygoing  crop  of  wheat;  he  has  also  the  power  to 
defer  thrashing  the  same  to  any  period  previous  to  the  1st  of  May  after 
he  has  harvested  his  crop,  thereby,  if  so  inclined,  depriving  the  incoming 
tenant  of  any  wheat  straw  during  the  first  winter.    This  absurd  custom 
is  to  a  great  extent  done  away  with  by  special  agreements,  making  it 
compulsory  for  the  outgoing  tenant  to  sell  and  the  incoming  tenant  to 
purchase  the  wheat  crop  at  a  valuation  previous  to  harvest.     In  the 
hop  districts  the  poles  are  generally  valued  to  the  incoming  tenant ;  it 
is  of  course  his  interest,  but  it  is  not  compulsory  upon  him  to  take  to 
them.     (Three-fourths   of   the   hops  known   as   the  "Worcestershire 
plantation  "  are  grown  in  Herefordshire.)    No  comi^ensation  for  drain- 


HUNTINGDONSHIRE.  13 

ing  is  made  to  the  outgoing  tenant ;  but  latterly  landlords  have  incurred 
all  the  outlay  for  draining,  the  tenant  paying  a  percentage.  Cider  mills 
and  presses  for  making  cider  are  generally  the  property  of  the  landlord, 
as  well  as  any  fixed  thrashing  machines.  The  takings  in  Monmouth- 
shire are  generally  at  Candlemas,  as  in  Herefordshire,  and  the  customs 
almost  the  same,  with  the  exception  of  that  of  "land  share,"  by  virtue 
of  which  the  incoming  tenant  claims  one-fifth  of  the  outgoing  tenant's 
wheat  crop,  if  on  a  fallow,  and  one-third  if  sown  on  a  clover-ley.  This 
custom,  which  for  obvious  reasons  frequently  operates  most  unjustly,  is 
also  common  in  the  lower  part  of  Gloucestershire  ("West). 

HunUngdonshire. — The  holdings  are  for  the  most  part  from  Lady-day. 
After  a  tenant  has  given  or  received  notice  to  quit,  he  is  allowed  to  sow 
with  wheat  only  such  lands  as  the  landlord  or  his  steward  may  think 
fit,  and  in  all  respects  according  to  his  or  their  direction,  or  else  to 
allow  the  incoming  tenant  to  enter  on  such  lands  at  any  time  after  the 
1st  day  of  October.  He  must  also  allow  the  landlord  or  his  incoming 
tenant  to  enter  on  the  lands  proper  to  be  sown  with  beans  or  peas  after 
the  2nd  of  February,  and  upon  the  land  proper  to  be  sown  with  corn  or 
grain  or  seeds  any  time  after  the  Ist  day  of  March  in  the  last  year. 
He  is  paid  for  the  herbage  of  the  land  so  entered  on,  as  also  for  all 
bones  or  other  artificial  manures  purchased  and  used  in  the  production 
of  turnips  or  coleseed  in  the  last  year,  as  well  as  for  claying  fen  laud. 
For  lime,  four  years'  dropping,  he  is  allowed  oue-fourth  of  the  cost  in 
equal  proportions  at  the  end  of  every  year  from  the  time  of  application 
of  the  same,  and  also  for  young  seeds  if  sown  with  the  first  crop  after 
fallows,  and  not  injured  by  sheep  or  cattle.  He  has  also  a  fair  valua- 
tion for  labour  done  on  dead  fallows,  in  such  last  year,  if  the  said 
fallows  be  on  lands  unfit  for  turnips  or  coleseed;  such  valuation  to  be 
made  and  determined  on  by  two  disinterested  persons,  one  to  be  chosen 
by  each  party,  or  their  umpire,  whose  determination  shall  be  final.  In 
cases  where  the  outgoing  tenant  does  the  seeding,  or  any  of  it,  he  is 
allowed  for  all  seed  and  labour.  The  outgoing  tenant  is  allowed  one- 
third  for  all  linseed  cake  or  other  artificial  food  used  in  the  last  year 
before  quitting.  He  is  also  allowed  for  all  carriage  on  materials  for 
buildings  and  tiles  for  draining,  and  for  draining  done  in  the  five  years 
previous  to  quitting,  in  the  followmg  proportions  ;  viz. :  For  that  done 
within  the  last  year  the  whole  cost ;  for  that  done  one  year,  four-fifths ; 
two  years,  three-fifths ;  three  years,  two-fifths ;  and  four  years,  one-fifth 
of  the  cost,  after  which  no  claim  will  be  allowed  for  underdraining  or 
carriage  on  building  materials.  The  buildings  are  made  by  the  land- 
lord, and  the  tenant  keeps  them  in  repair.    A  great  deal  of  the  draining 


11  KENT. 

is  done  by  the  laudlorJ,  and  the  tenant  pays  interest  on  the  outlay 
varying  from  four  to  six  per  cent.,  but  five  per  cent,  is  the  most 
general  rate. 

Xeiit. — The  rate  of  compensation  for  improvements  as  between  the 
outgoing  and  incoming  tenant  varies  considerably  in  Kent.  In  the 
AVeald  of  Kent  nearly  everything  is  paid  for.  In  the  eastern  part  of 
Kent  the  custom  is  not  quite  so  extensive ;  generally  the  dang  is  not 
paid  for,  it  is  the  property  of  the  landlord,  and  the  tenant  is  paid  for 
labour  to  it  ouly ;  but  this  difference  does  not  exactly  occur  where  the 
division  of  the  county  for  other  purposes  is  taken.  There  is  another 
mode  in  ]\[id  Kent.  In  the  "Weald  of  Kent,  the  papnents  made  to  the 
outgoing  tenant  are  for  the  underwood  down  to  the  stubb,  the  fallows, 
including  rent  and  taxes  and  manures,  and  generally  speaking  half 
manures,  but  they  are  in  some  cases  now  being  bought  off  by  the 
landlords.  Hop  poles,  hay,  straw,  ploughings,  seeds  sowu,  dressings, 
young  hops  planted,  seasons,  and  generally  those  things  are  paid  for 
which  are  considered  to  be  an  improvement  of  the  land,  and  of  which 
the  incoming  tenant  derives  the  benefit,  such  as  striking  up  of  land  to 
let  off  the  water.  If  the  hop  land  is  also  struck  up,  and  laid  up  round, 
to  take  off  the  water,  that  is  paid  for  too.  Valuers  always  charge  the 
incoming  tenant  with  it,  and  in  doing  so,  if  it  be  wood,  they  allow 
four  years  to  run  out ;  if  one  year  is  fallow,  it  goes  over  another ;  if 
one  crop  is  taken,  they  give  three-fourths  of  the  outlay ;  if  two  crops, 
half;  if  three,  three-quarters ;  and  if  four,  nothing  is  allowed.  Draining 
is  generally  considered  as  embraced  under  the  term  "  custom  of  the 
country,"  which  is  a  very  common  one  in  the  Kent  agreements.  By 
the  term  "custom,"  is  meant  rather  the  mode  of  valuing;  it  is  very 
common  in  agreements  that  the  tenant  shall  be  "  valued  out  by  the 
custom  of  the  country."  There  is  no  such  thing  as  chalking,  in  the 
Weald  of  Kent.  Sometimes  things  are  done  in  preparing  the  grass 
land  for  years  to  come;  the  seed  is  occasionally  allowed  for  in  those 
cases.  There  is  scarcely  any  county  in  which  more  is  paid  for  between 
the  outgoing  and  incoming  tenant.  Valuers  take  into  account  dilapida- 
tions, both  as  to  farm  buildings  and  detrimental  acts  of  husbandry,  when 
they  are  permitted  to  apply  the  custom. 

In  ]\Iid  Kent  the  allowances  are  more  favourable  to  the  outgoing 
tenant  than  in  East  Kent.  In  the  Weald,  hay  passes  from  the  out- 
going to  the  incoming  tenant  at  what  is  called  a  feed  price,  which 
prevails  throughout  the  "Weald  of  Kent  and  Sussex.  A  feed  price  is  a 
price  between  what  is  termed  the  foddering  or  dung  price,  and  the  sale 
price;   that  is  to  say,  if  hay  was  worth  £4  a  ton,  it  would  fetch  505. 


KENT.  15 

The  dang  is  valued  in  the  Weald  of  Kent  and  Sussex  in  the  same  way, 
at  a  feed  price,  partly  acccording  to  measure  and  partly  according  to 
quality.  If  cake  or  corn  have  been  used,  more  is  paid  for  the  manure 
so  made.  The  custom  in  the  eastern  part  of  Kent  is  not  to  pay 
for  so  much ;  the  dung  there  is  principally  the  property  of  the  land- 
lord. Tlie  land  is,  moreover,  of  a  better  quality,  very  little  fallow 
is  done,  and  consequently  very  little  is  paid  for ;  the  hay  is  paid 
for  pretty  generally  in  the  same  way  as  in  the  Weald.  Mid  Kent  is 
better  cultivated  than  the  Weald  of  Kent,  and  things  are  paid  for 
higher;  hay,  and  straw,  and  dung  at  a  market  value;  and  the  custom 
is  more  certain,  though  it  does  not  embrace  such  a  variety  of  things  as 
the  mode  of  cultivation  in  the  Weald  of  Kent  requires. 

The  time  of  entry  in  the  Tenterden  part  of  the  county  is  always  at 
Michaelmas,  either  the  29th  of  September  or  the  11th  of  October.  The 
outgoing  tenant  is  paid  for  all  tillages  of  every  description.  He  is  paid 
for  hay  and  straw  at  a  feed  price,  and  for  the  underwood.  In  that 
woody  country,  he  is  paid  for  all  drainage,  of  every  description,  that  is 
performed  with  tiles  or  wood ;  if  with  wood,  he  is  paid  for  four  years  : 
with  tiles  he  is  allowed  to  go  back  ten  years  ;  that  is,  a  certain  amount 
is  deducted  each  year.  Supposing  he  left  at  the  end  of  the  ninth  year  he 
would  have  2s.  to  receive,  if  the  first  cost  was  20s.  Draining  has  been 
much  more  extensively  practised  in  the  course  of  the  last  few  years. 
All  bought  manures  are  paid  for,  as  also  are  half-mauures  ;  that  is,  the 
half  part  of  what  the  dung  would  have  been  valued  at,  had  it  been 
valued  the  year  before.  That  applies  to  artificial  manures,  but  not  in  the 
same  ratio.  The  latter  are  paid  for  according  to  their  durability  ;  for 
instance,  guano  would  be  paid  one-third  of  the  cost  price  after  one  crop 
off ;  for  bones  or  lime  the  outgoing  tenant  would  be  allowed  half  the 
sum  ;  and  for  carting  dung,  marl,  or  mould,  there  is  nothing  at  all  after 
one  crop.  Where  chalk  is  used,  it  is  a  very  permanent  job,  and  the 
outgoing  tenant  is  paid  considerably  for  it.  There  is  nothing  allowed 
for  oilcake  except  in  the  shape  of  the  extra  price  of  the  manure  so  made, 
and  the  manure  made  from  the  straw  is  put  at  a  different  price  from 
the  fatting-cake  dung.  The  valuers  value  the  latter  from  sight :  if 
there  is  any  diflBculty  they  call  for  evidence  ;  when  they  come  to  value, 
it  is  the  custom  of  the  country  for  parties  having  a  farm  to  produce  the 
invoice  of  the  artificial  manures.  There  was  once  no  allowance  for  the 
improvement  of  buildings,  not  even  for  an  oast  in  a  hop  district,  but 
now  it  is  generally  considered  that  the  tenant  has  a  right  to  be  paid  for 
all  buildings  erected  by  him  with  the  landlord's  consent.  The  great 
value  of  the  woods  in  Kent  is  for  conversion  into  hop  poles ;  and  if  near 
cutting,  the  incoming  tenant  has  a  larger  sum  to  pay  for  the  wood. 


16  LANCASHIRE  AND  CHESHIRE. 

The  outgoing  tenant  receives  according  to  the  age  of  the  wood.  Every 
act  of  husbandry  beneficial  to  the  Incoming  tenant  is  vakied.  Labour, 
rent,  and  taxes,  are  allowed  for  naked  fallows,  but  nothing  for  any 
cultivation  the  tenant  has  taken  one  crop  from. 

In  the  Ilythc  part  of  the  county  the  usual  entry  is  at  Michaelmas. 
The  manure  is  always  considered  to  be  the  property  of  the  landlord  ; 
and  the  feeding  properties  of  the  straw,  as  also  that  of  the  hay  (about 
two- thirds  of  the  real  value,  or  the  feed  price),  are  the  property  of  the 
tenant.  The  incoming  tenant  has  not  the  right  of  entry  from  Michael- 
mas for  the  cultivation  of  turnips  or  preparation  for  wheat,  unless  a 
previous  agreement  has  been  made  to  that  effect  with  the  outgoing 
tenant.  Terms  of  agreement  from  year  to  year  are  entered  into,  Avhicli 
admit  of  the  incoming  tenant  entering  to  prepare  for  wheat  previous  to 
the  determination  of  the  late  tenancy.  The  outgoing  tenant  receives 
no  compensation  for  oilcake  or  artificial  manure.  Durable  improve- 
ments, such  as  drainage  or  chalking,  are  frequently  made,  but  entirely 
at  the  hazard  of  the  tenant.  There  is  no  security  of  custom  or  anything 
else,  unless  there  is  a  private  agreement,  entered  into  between  the  land- 
lord and  the  tenant,  that  compensation  shall  be  allowed. 

It  is  contrary  to  the  custom  of  the  district  to  allow  anything,  either 
yalue  or  labour,  for  half-manures.  The  only  allowance  made  is  for 
labour  or  any  manure  from  which  no  crop  has  been  taken,  whether  it 
has  been  carried  and  spread  on  the  laud  or  is  in  the  mixen.  Where 
fallows  are  made  by  the  outgoing  tenant  the  last  year,  he  is  always 
allowed  the  rent  and  taxes  on  them  from  the  previous  Michaelmas, 
together  with  labour  of  eveiy  kind,  including  labour  on  manure,  made 
and  carried  out ;  and  if  sown  with  turnips,  the  cost  of  the  seed  and 
putting  in,  &c.,  in  fact  for  everything  done  to  the  fallow  since  the 
preceding  cxop  was  taken  off.  When  the  tenant  leaves  the  farm  at 
Michaelmas,  he  is  frequently  permitted  by  agreement  with  his  landlord 
to  have  the  use  of  the  buildings  to  thrash  and  prepare  the  corn  for  the 
market. 

Lancashire  and  Cheshire. — The  customs  between  the  outgoing  and 
incoming  tenants  in  Lancashire  are  very  limited  indeed.  A  tenant 
professes  to  quit  his  land  on  the  2nd  of  February,  Avitli  the  exception 
of  a  pasture  field,  called  "  the  outlet  for  the  cattle."  The  house,  build- 
ings, and  the  outlet  are  given  up  on  the  Ist  or  12th  of  May,  as  the 
case  may  be.  The  tenant  leaving  his  land,  therefore,  on  the  2nd  of 
February,  has  nothing  upon  it  but  the  wheat  crop,  and  for  that  he  gets 
half  of  the  wheat  crop  allowed  him  by  the  incoming  tenant,  if  it  is  after 
gi-cen  crops  (which  it  is  generally) :  if  it  is  after  the  summer  fallow,  he 


LEICESTERSHIRE.  17 

gets  two-thirds  of  the  wheat  crop  allowed  liira,  aud  that  is  all,  with  the 
exception  of  the  allowance  for  clover  or  grass-seeds  which  have  been 
sown  the  previous  year.  The  holdings  may  be  considered  as  yearly 
ones  from  Lady-daj'.  The  dung  belongs  to  the  l\irm,  and  the  incoming 
tenant  makes  no  payment  for  the  manure  he  finds  upon  the  premises. 
Compensation  for  improvements  is  rarely  given  by  the  landlord  to  the 
outgoing  tenant.  The  customs  in  Cheshire  between  outgoing  and  in- 
coming tenants  are  similar  to  those  in  Lancasliire,  and  the  period  of 
entry  is  the  same.  The  landlord  generally  puts  the  buildings  into 
repair  when  the  tenant  goes  to  the  place,  and  he  expects  the  tenant  to 
keep  them  in  repair  upon  being  found  materials  in  the  rough.  There 
are  various  customs  upon  different  estates,  but  those  repairs  arc  gene- 
rally done  by  private  agreement,  as  there  is  no  well-established  custom 
applicable  to  buildings.  If  the  tenants  put  up  a  thrashing  machine 
they  would  probably  be  allowed  to  remove  it,  but  it  is  optional  with  the 
landlord. 

Leicestershire. — The  time  of  entry  is  generally  Lady-day.  The 
manure,  the  produce  of  the  farm,  belongs  to  the  landlord,  and  the 
outgoing  tenant  receives  nothing  for  it  unless  he  paid  for  it  on  his 
entry,  which  is  not  a  usual  occurrence,  and  it  passes  to  the  inconiing 
tenant  free  of  charge.  In  the  absence  of  any  agreement,  the  custom  is 
as  follows  :  On  a  summer  fallow  sown  with  wheat  by  the  outgoing 
tenant  he  would  be  allowed  for  the  same,  the  valuation  of  the  various 
tillages,  the  carting  and  spreading  manure,  the  cost  of  seed,  and  one 
year's  rent,  rates,  and  tithes.  In  the  case  of  a  clover  ley  sown  v.'itli 
wheat,  half-a-year's  rent,  rates,  and  tithes,  the  cost  of  seed,  ploughing, 
harrowing,  &c.,  are  allowed  ;  and  on  bean  stubbles,  the  cost  of  plough- 
ing, sowing,  and  seed.  When  seeds  are  sown  with  the  preceding  spring 
corn,  the  cost  of  the  seed  only  is  allowed,  and  nothing  for  putting  it  in. 
No  compensation  is  given  for  the  culture  of  the  preceding  crop  of 
turnips,  though  eaten  on  the  land,  nor  for  manure  used  in  raising  the 
crop,  however  large  it  may  be.  There  is  no  allowance  for  draining,  or 
any  other  permanent  improvements  ;  nor  is  anything  paid  for  the  con- 
sumption of  extraneous  food  by  stock,  or  for  use  of  artificial  manures. 
The  above  is  all  which  the  custom  of  the  country  would  give  a  tenant ; 
but  of  late  years  a  more  liberal  system,  by  agreement,  has  been  adopted 
by  some  landlords.  An  allowance  is  made  by  them  for  draining  done 
by  the  tenant  within  seven  years  ;  for  instance,  he  would  receive 
nothing  for  what  had  been  done  seven  years  ;  one-seventh  of  the  cost 
of  that  done  six  years,  and  so  on.  In  some  instances,  a  portion  of 
the  cost  of  unexhausted  artificial  manures  which  have  been  used  is 


18  LINCOLNSHIRE   NOETH. 

allowed  ;  but  these  agTcements  are  by  no  means  general.  One-fonrtli 
of  the  oilcake  of  the  last  two  years  is  sometimes  allowed,  if  no  corn  crop 
has  been  grown  from  it.  There  is  also  a  three-years'  allowance  for 
bones  on  the  lighter  soils,  and  a  two-years'  one  for  lime.  According  to 
the  custom  of  the  country  a  tenant  cannot  remove  or  sell  off  any  hay, 
straw,  or  vegetable  roots,  without  permission  of  the  landlord  ;  or  turn 
any  permanent  grass  pastures  into  arable  land. 

Lincolnshire  {XortJi — The  Wolds). — The  usual  period  for  entering 
upon  fixnns  is  Lady-day  (the  Gth  of  April)  for  arable  land,  and  old  May- 
day (the  13th  of  May)  for  old  pasture  land  and  buildings.  Upon  some 
f\u-ms  the  outgoing  tenant  is  entitled  to  an  away-going  crop  of  corn 
varying  in  quantity,  which  is  usually  taken  by  the  incoming  tenant  at 
a  valuation.  The  outgoing  tenant  generally  sows  all  the  wheat  in  the 
autumn  before  he  quits,  and  is  paid  for  seed  and  labour.  He  generally 
ploughs  once  all  land  in  turn  to  be  fallowed,  and  sometimes  he  sows 
the  spring  corn  ;  and  for  both  of  these  he  is  paid.  The  outgoing 
tenant  is  also  paid  the  following  allowances  by  the  landlord  or  his 
incoming  tenant  on  quitting,  viz.  :  For  draining,  Avhere  the  landlord 
finds  the  tiles  and  the  tenant  puts  them  in  (which  is  the  most  usual 
com'se),  the  allowance  extends  over  four  years,  one-fourth  of  the  cost 
being  deducted  off  for  each  crop  taken  by  the  outgoing  tenant  ;  for 
marling  and  chalking,  the  allowance  extends  over  ten  years  ;  for  lime, 
five  years  ;  for  claying  sand  or  peaty  soils,  five  years  ;  for  bones  used 
within  twelve  months  preceding,  two-thirds  if  used  dry,  and  one-half 
if  dissolved  in  acid,  and  for  those  used  the  previous  year  one-third  if 
used  diy,  and  one-fourth  if  dissolved  in  acid  ;  for  guano  or  rape-dust 
used  within  twelve  months  preceding  for  turnips  or  other  green  crops, 
two-thirds  of  the  cost ;  for  oilcake  given  to  cattle  and  sheep,  one-third 
of  the  cost  of  that  used  within  twelve  months  preceding,  and  one-sixth 
of  that  used  in  the  previous  year  ;  and  for  seeds  and  clover  sown  within 
twelve  months  of  quitting,  the  whole  of  the  cost  of  seed  and  the  labour 
of  sowing  is  allowed,  where  they  have  not  been  stocked  after  th'e  1st 
of  November,  and  up  to  tiiat  time  only  with  sheep  and  pigs.  These 
allowances  are  ascertained  by  two  arbitrators,  one  selected  by  the  out- 
going and  the  other  by  the  landlord  or  his  incoming  tenant,  or  by  an 
umpire  to  be  appointed  by  the  arbitrators  in  case  of  their  disagreement. 
They  are  varied  upon  some  few  properties  by  agreement ;  but  upon  a 
considerable  part  of  the  district  tliey  are  made  by  custom,  and  not 
inserted  in  the  farm  agreements.  Formerly  the  allowances  were  con- 
fined to  acts  of  husbandry  only.  The  rotation  of  croi)S  varies  on  dif- 
ferent soils  and  in  dili'erent  localities,  but  the  four-field  course  is  the 


LlNCOLNSHIllE    SOUTH.  19 

one  most  jrencrally  followed.  There  is  very  little  land  let  npon  lease, 
and  the  usual  tenancies  are  yearly  ones  determinable  by  a  six-months' 
notice  from  either  party.  The  necessaiy  farm  buildings  are  generally 
erected  by  the  landlord,  and  afterwards  kept  in  repair  by  the  tenant ; 
but  in  some  cases  they  are  put  up  by  the  tenants  under  a  special 
agreement. 

Lincolnshire  {South). — The  usual  compensations  in  South  Lincoln- 
sliire  are  for  tillages,  manure,  and  draining.  The  whole  of  the  last 
year's  bill  for  bones  is  allowed  when  only  a  crop  of  turnips  has  been 
taken  ;  and  one-fourth  part  of  the  cake  bill  is  allowed,  which  is 
ascertained  by  producing  the  bill  of  the  last  year.  In  the  eastern  part 
of  Lincolnshire,  where  claying  is  carried  on  to  a  considerable  extent, 
the  outlay  is  spread  over  four  years,  and  one-fourth  is  deducted  for 
every  year.  On  the  heath  land,  when  a  tenant  receives  notice  to  quit, 
the  usual  plan,  where  there  is  a  good  understanding  between  the  land- 
lord and  tenant,  is  that  the  tenant  receiving  notice  applies  to  the  agent 
to  know  whether  he  is  to  continue  to  cultivate  the  land  in  the  way  he 
has  been  in  the  habit  of  doing  ;  and  if  the  agent  has  confidence  in  him, 
and  he  is  not  leaving  from  any  fault  that  the  agent  or  landlord  has  to 
find  with  him,  he  is  told  to  continue  the  same  manner  of  cultivation, 
with  the  assurance  that  he  will  be  paid  for  all  acts  of  husbandry  per- 
formed between  Michaelmas  and  Lady-day,  that  is,  sowing  wheat  and 
ploughing  the  land  ready  for  the  turnip  fallows,  &c.  He  is  paid 
for  the  herbage  upon  the  land  that  is  sown  with  wheat  seed.  If  he 
is  not  empowered  to  go  on  and  farm  in  the  usual  manner,  the  tenant 
would  have  no  claim  for  manure  used  after  the  time  of  his  notice,  nor 
for  the  wheat  if  sown  in  opposition  to  the  instruction  of  the  landlord  or 
his  agent. 

Usually  speaking,  the  tenant  farms  under  an  agreement  that  gives  the 
incoming  tenant  the  right  of  entry  after  a  specified  time — after  the  10th 
of  October,  for  sowing  wheat ;  and  after  the  1st  of  February,  to  prepare 
the  land  for  the  spring  corn,  peas,  and  beans.  After  the  first  of  February 
the  incoming  tenant  may  plough  up  the  stubbles  on  paying  for  any 
sheep-keeping  there  may  be.  The  lease  ends  on  the  5th  of  April,  and 
the  notice  to  quit  is  given  before  the  10th  of  October.  The  outgoing 
tenant  has  no  rights  for  acts  of  husbandry  from  October  to  April  with- 
out permission  from  the  landlord  or  his  agent.  If  there  was  a  hostile 
feeling  between  the  outgoing  tenant  and  the  landlord,  the  land  is, 
according  to  the  system,  left  abandoned  as  to  cultivation  from  October 
to  the  {ith  of  April,  when  the  incoming  tenant  can  claim  to  enter.  If 
there  is  no  agreement  the  latter  could  not  come  on  even  to  sow  the 

c  2 


20  MIDDLESEX. 

wheat,  and  the  outgoing  tenant  could  not  be  compelled  to  do  so  after 
receiving  notice  to  quit.  The  incoming  tenant  entering  upon  the  land 
after  the  1st  of  February  would  have  a  right  to  make  use  of  all  the 
manure  that  was  made  u})on  the  farm  from  the  produce  of  the  farm,  and 
the  outgoing  tenant  would  be  allowed  compensation  for  bones  and  lime 
and  oilcake,  and  the  other  matters.  He  would  have  no  compensation 
for  acts  of  husbandry  between  the  lOtli  of  October  and  the  1st  of 
February ;  but  if  he  continued  to  consume  oilcake,  he  would  be  entitled 
to  be  paid  for  a  proportion  of  all  the  cake  used  up  to  the  5th  of  April. 
The  customs  as  to  the  allowance  for  bones  and  marling,  or  chalking, 
have  been  upheld  in  a  court  of  law.  The  draining  custom  is  that  when 
the  landlord  finds  the  tiles,  and  the  tenant  only  finds  the  labour,  the 
expense  is  divided  into  three  years.  As  to  the  cost  of  the  labour,  if  the 
tenant  has  had  three  crops  he  receives  nothing  for  that;  if  he  has  only 
had  two  crops,  he  receives  one-third  ;  and  if  one  crop,  two-thirds.  When 
the  tenant  has  been  at  the  whole  expense  of  the  draining,  it  is  divided 
into  seven  years  in  the  same  way.  The  custom  for  drainage  is  not  a 
customary  allowance  made  by  all  landlords,  but  that  for  bones  and 
manure  is  customary  with  all.  Five  per  cent,  is  charged  when  the  land- 
lord does  all  the  work  of  drainage,  and  the  landlord  invariablyjrats  up 
the  buildings  throughout  the  estate.  Draining  is  now  very  much  done 
by  the  Drainage  Commissioners,  the  tenant  paying  interest  on  the 
money  expended.  The  practice  of  the  Lincolnshire  valuers  is  to  set  off 
dilapidations  in  buildings  against  tenant-right;  and  that  set-off  is 
extended  to  the  state  of  the  farm  as  to  clean  husbandry.  The  foul  state 
of  the  fallows  would  not  enter  into  the  calculation  unless  there  had  been 
cross-cropping  or  gross  neglect,  and  then  reductions  would  be  made. 

Miildlesex. — The  entry  is  generally  on  September  29,  and  the  holdings 
are,  to  a  great  extent,  from  year  to  year.  In  leases  it  is  almost  univer- 
sally stipulated  that  the  incoming  tenant  should  come  on  the  farm  to 
sow  clover  seeds  in  April.  If  the  outgoing  tenant  sows  them,  he  is 
paid  for  them  by  the  incoming  tenant.  The  latter  sometimes  takes  to 
the  fallows  about  April,  in  which  case  he  is  allowed  stable-room  for  his 
horses.  In  the  ordinary  twelve-months'  holdings  the  incoming  tenant 
often  makes  a  similar  agreement.  The  landlord  generally  finds  tiles 
for  draining,  and  the  tenant  the  labour ;  but  if  the  former  does  all,  he 
charges  five  per  cent.  In  consequence  of  the  proximity  to  the  metro- 
polis, hay  and  straw  are  always  allowed  to  be  sold ;  but  by  the  custom 
a  load  of  manure  must  be  brought  back  for  every  one  of  hay  and  straw 
that  leaves  the  farm.  If  a  tenant  pays  for  the  manure  on  coming  in 
(which  is  almost  always  the  case),  he  is  paid  for  it  on  leaving.     The 


MO^^MOUTHSHIRE,   NORFOLK,    NORTHAMPTONSHIRE.        21 

incoming  tenant  is  bound  to  take  all  the  wlieat-straw  and  hay  left  on 
the  farm  at  a  market  price,  and  the  Lenten  straw  at  a  consuming  price. 
Tenants  under  yearl}^  holdings  arc  allowed  to  sell  all  their  straw  at  a 
market  price,  while  those  under  lease  may  only  sell  their  wheat-straw ; 
and  it  is  the  custom  not  to  sow  more  than  two  white-straw  crops  in 
succession.  The  outgoing  tenant  is  allowed  for  dressings  and  half- 
dressings,  but  scarcely  anything  for  unexhausted  improvements.  There 
is  no  allowance  for  guano  or  bones;  and  in  valuing  manure,  no  evidence 
is  called  for  as  to  what  cake  has  been  used.  The  tenant-right  is,  in 
fact,  of  a  most  limited  character. 

Monmouthshire. — See  Herefordshire. 

Norfolk. — On  the  Holkham  estate  the  leases  are  for  21  years,  and  on 
others  for  8,  12,  or  16  years.  Tenants-at-will  are  comparatively  few. 
The  entry  is  always  on  October  11th.  The  four-course  shift  is  pretty 
universal,  viz.,  one-fourth  turnips  or  mangold-wurtzels,  one-fourth 
barley,  one-fourth  grass,  and  one-fourth  wheat ;  and  occasionally,  on 
part  of  the  land  sown  with  mangold-wurtzel,  that  crop  is  followed  by 
wheat  instead  of  barley.  The  Norfolk  covenant  applies  strictly  to 
root-crops,  and  not  to  tillages.  For  the  latter  there  is  no  valuation. 
The  root-crop  itself  is  valued  at  Michaelmas,  and  is  paid  for  by  the  in- 
coming tenant,  as  are  also  the  hay  and  the  manure  left  in  the  farm-yard. 
Latterly  it  has  been  the  custom  to  value  the  hay  a  little  above  the  con- 
suming price.  The  incoming  tenant  either  sows  the  seeds  in  the  last 
year,  or  pays  the  seed-bill  of  the  out-going  tenant,  who  is  bound  to 
harrow  and  roll  the  land  so  sown.  There  is  no  away-going  crop,  but 
the  incoming  tenant  takes  the  straw,  chaflp,  and  colder,  for  which  he 
carries  the  corn  to  market.  This  is  the  practice  on  the  Holkham  estate, 
but  on  other  properties  the  incoming  tenant  lias  generally  to  pay  for  the 
thrashing  and  dressing  of  the  crop,  as  well  as  for  carrying  it  to  market. 
On  the  Holkham  estate  the  drainage  is  all  done  by  the  landlord,  who 
charges  a  per-centage ;  the  buildings  are  put  in  good  repair  by  hiu], 
and  the  tenant  is  expected  to  keep  the  walls  and  houses  generally  in 
order :  but  new  roofs  are  paid  for  by  the  landlord. 

Korthamptonsldre. — The  periods  of  entry  are  Michaelmas  and  Lady- 
day,  but  the  latter  is  the  most  general.  At  the  Michaelmas  entry,  the 
custom  of  the  country  is  to  pay  for  acts  of  husbandry,  seed,  and  labour, 
and  for  dead  fallows.  The  outgoing  tenant  is  entitled  to  the  full  value 
of  his  turnips,  or  he  may  eat  them  on  the  land,  so  that  it  is  cleared  by 
April  5th.    Unless  the  incoming  tenant  takes  his  crops,  or  his  hay  and 


23  NORTHAMPTONSHIRE. 

straw  at  a  valuation,  the  outgoing  one  can  claim  the  use  of  the  barns, 
houses,  and  yards  up  to  Lady-day  to  consume  them.     With  respect  to 
the  Lady-day  holdings,  the  outgoing  tenant  has  not  the  away-going 
wheat  crop,  but  is  reimbursed  by  the  incoming  tenant  for  the  back  rent 
(if  on  fallow)  and  for  seed  and  labour,  up  to  the  time  of  his  leaving. 
The  manure  in  all  cases  belongs  to  the  farm.     The  buildings  arc  gene- 
rally made  by  the  landlord,  and  the  tenant  is  bound  to  keep  and  leave 
them  in  full  repair,  as  also  gates,  fences,  and  water-courses.    No  com- 
pensation is  given  at  quitting  for  manures,  or  unexhausted  improve- 
ments of  any  kind.     The  custom  allows  nothing  if  a  tenant  builds  or 
drains,  but  during  the  last  three  years  an  allowance  for  under-draining 
lias  become  common  in  some  districts.     The  landlord  most  commonly 
gives  the  tiles,  and  the  tenant  puts  them  in  at  his  own  expense.     In  the 
case  of  Lady-day  holdings,  the  custom  is  more  universal ;  but  it  varies 
so  much  in  different  parts  of  the  county,  and  is  so  undefined,  that  special 
agreements  are  mostly  resorted  to,  to  prevent  disputes.    The  farms  are 
in  many  cases  held  by  the  year,  but  leases  are  not  uncommon. 

In  the  Peterborough  part  of  the  county  the  valuation  to  an  outgoing 
tenant  is  generally  as  follows  :  On  bare  summer  fallows  he  is  allowed 
for  four  ploughings  and  orders,  labour  or  manure,  carting,  sowing  the 
wheat  or  barley  (as  the  case  may  be),  with  one  year's  rates  and  rent ; 
but  if  the  land  is  in  its  course  for  growing  turnips  or  other  roots,  no 
rent  is  allowed.     The  outgoing  tenant  is  allowed  half-a-year's  rent  and 
rates  on  lands  sown  with  wheat  after  oats,  beans,  clover,  or  vegetables. 
The  manure  belongs  to  the  estate ;  if  any  carriage  is  done  the  labour 
is  paid  for ;  and  if  artificial  manure  has  been  used  for  the  green  crop, 
the  whole  of  the  bill  and  carriage  is  allowed.     Half  of  the  oilcake  bill 
in  the  last  year  is  allowed ;  but  to  prevent  imposition  the  amount  of 
the  three  last  years'  oilcake  bills  is  added  together,  and  the  outgoing 
tenant  receives  one-sixth.     The  sowing  and  seed  bill  of  new  seeds  is 
allowed  if  they  are  not  stocked  after  Michaelmas.     When  lime  has 
been  used,  the  tenant  is  entitled  to  five  years'  benefit ;  and  when  burnt 
soil  is  applied  to  fallows  or  green  crops,  an  allowance  is  made  for 
labour   and   can-iage.      All   temporary  buildings,  such   as  cow,  calf, 
and  waggon  hovel,  piggeries,  &c.,  if  built  by  the  tenant,  with  the 
landlord's  sanction,  are  valued  and  paid  for  at  the  time  of  quitting. 
Hay  and  clover  in  stack,  not  consumed,  are  valued  at  two-thirds  of  the 
market  price;  and  all  skimming  or  scarifying  of  stubbles  after  harvest 
at  their  full  value.     A  great  quantity  of  drainage  (which,  if  practi- 
cable, is  not  less  than  three  feet)  is  done  by  the  aid  of  Government 
drainage  loans ;  and  when  the  landlord  finds  both  tiles  and  labour,  he 
charges  five  per  cent.   If  the  landlord  finds  tiles,  and  the  tenant  labour. 


NORTHUMBERLAND,    NOTTINGHAMSHIRE.  23 

the  latter  is  allowed  at  quitting  on  a  five  years'  scale.  If  it  has  been 
done  only  one  year  he  is  paid  for  the  whole  of  the  labour  and  the  car- 
riage of  tiles;  if  two  years,  four-fifths;  and  so  on.  Where  the  tenant 
finds  both  tiles  and  labour,  ho  is  allowed  on  a  seven  years'  scale.  In 
the  fen  districts  a  great  deal  of  claying  is  done,  at  a  cost  of  from  £2  to 
£3  an  acre;  and  this  is  also  allowed  for  on  a  seven  years'  scale. 

jyorUmmherland. — See  Durham. 

Nottinghamsldre. — The  time  of  entry  in  Nottinghamshire  is  generally 
at  Lady-day,  the  25th  of  March.  At  the  Lady-day  entry,  the  acts  of 
husbandry  for  which  the  incoming  tenant  pays,  but  for  which  the  land- 
lord is  liable,  are  all  the  labour  of  making  the  fallows,  one  year's  rent 
and  taxes  on  the  same,  deducting  for  potatoes  and  other  vegetable 
crops,  according  to  custom.  In  most  cases  the  labour  only  of  apply- 
ing the  manure  is  allowed,  the  seed  and  labour  on  the  corn  sown,  and 
the  full  value  of  purchased  tillages.  This  is  followed  by  the  half- 
tillages,  or  land  in  first  year's  seed,  for  which  the  cost  price  of  the 
seeds  and  labour  is  allowed,  and  the  application  of  all  purchased  till- 
ages, deducting  one-third  as  being  exhausted  by  the  first  grain  crop. 
As  regards  the  last  crop,  or  the  one  on  clover  ley,  or  pea  or  bean  stub- 
bles, seed  and  labour  are  generally  allowed,  with,  in  some  instances, 
a  proportionate  amount  of  purchased  tillages,  though  chiefly  under 
special  agreement.  In  the  fields,  as  distinguished  from  the  commons 
in  this  county,  the  following  crop  is  allowed,  deducting  one  year's  rent 
and  taxes.  Unexpended  tillages  are  also  claimed,  and  in  some  in- 
stances allowed  when  the  following  crop  is  taken,  but  this  in  a  great 
measure  depends  upon  the  former  application  of  tillages  to  the  four 
courses  of  cropping.  One  year's  manure  remaining  on  the  premises 
unconsumed  at  the  time  of  quitting  is  the  property  of  the  tenant  or 
landlord,  according  to  their  agreement.  The  custom  of  the  country 
does  not  usually  allow  anything  for  drainage,  nor  for  buildings.  For 
bones  and  other  artificial  manures,  and  oilcake,  there  are  certain  por- 
tions allowed.  The  compensation  the  outgoing  tenant  is  entitled  to 
for  those  artificial  manures  which  he  has  employed  upon  his  farm 
[western  side  of  Nottingham]  is  generally  one-third;  there  is  an 
allowance  for  three  crops,  deducting  a  third  each  crop.  Whatever  may 
have  been  the  intervening  crop,  the  expenditure  in  bones  is  spread  over 
three  years.  Where  the  manure  belongs  to  the  tenant,  he  would  get 
his  compensation  in  the  extra  price  of  the  manure ;  but  where  the 
manure  belongs  to  the  landlord,  they  usually  allow  one-fourth  of  the 
oilcake  to  the  tenant.     The  allowance  for  the  rapecake  (which  is  very 


24.  NOTTINGHAMSHIRE   SOUTH. 

generally  used)  is  the  same  as  for  bones.  In  some  cases  manure  has 
been  led  into  the  farm,  and  has  been  allowed  for.  The  custom  in  part 
of  South  Xottinghamshire  would  allow  it.  Probablj  stable  manure 
led  from  the  town  would  not  be  allowed  for  after  the  first  crop.  In 
some  parts  of  the  county  an  allowance  has  been  made  for  drainage ; 
for  shallow  draining  (three  feet)  seven  years,  deducting  a  seventh  each 
3'ear,  are  allowed,  and  for  deeper  draining  (ten,  twelve,  or  twenty  feet) 
ten  years.  The  allowance  would  not  be  enforced  as  a  custom  of  the 
country,  but  only  as  the  custom  of  certain  estates.  In  some  instances 
the  tiles  arc  given ;  but  generally  they  are  put  in  under  the  superin- 
tendence of  the  landlord.  In  the  ordinary  farm  agreements,  there 
are  generally  special  tenant-right  agreements  with  reference  to  bones, 
rapccake,  and  rapedust.  In  many  instances  the  landlord  finds  materials 
for  the  buildings,  in  others  he  does  them  altogether,  and  in  others  he 
does  nothing.  The  houses  and  barns  are  generally  put  up  by  the  land- 
lord ;  but  any  increase  in  the  buildings  is  often  made  entirely  by  the 
tenant.  Where  the  tenants  erect  buildings  themselves,  they  arc  con- 
structed on  wooden  posts  so  that  they  may  be  removed. 

Nottinghamshire  {South). — By  the  custom,  wheat  upon  fallow,  seed 
and  labour,  and  the  rates  and  taxes  for  one  year,  are  paid  for  ;  and  in 
many  cases  two-thirds  of  the  fallow  crop  are  allowed  to  the  outgoing 
tenant.  The  entry  is  at  Lady-day,  and  the  outgoing  tenant  is  paid 
rates  and  taxes,  which  is  termed  seed  and  labour  valuation.  That  takes 
in  a  year's  rates  and  taxes,  besides  making  the  fallows,  the  seed,  and 
the  sowing.  The  customs  vary  very  much  even  in  the  same  villages  : 
it  is  the  practice  of  each  estate  rather  than  the  custom  of  the  country. 
There  is  not  generally  any  compensation  to  the  outgoing  tenant  for 
improvements  by  bones,  nor  by  artificial  manure ;  but  cake  compensa- 
tion is  granted  in  some  instances.  In  some  parts  the  manure  made 
upon  the  farm  belongs  to  the  tenant,  and  in  others  it  does  not.  Some- 
times the  crop  is  valued  to  the  incoming  tenant ;  that  is  termed  the 
open-field  custom.  The  outgoing  crop  is  taken  by  valuation,  and  if 
not  taken,  the  outgoing  tenant  would  get  his  crop.  In  the  case  of 
Avheat  sown  upon  clover,  the  ploughing,  seed,  and  labour,  and  the 
herbage  from  ]\Iichaelmas  to  Lady-day  are  allowed  by  the  custom,  and 
so  for  all  the  wheat  sown  upon  pea  or  bean  stubbles.  Increased  value 
is  \mi  upon  the  manure  when  valued  if  the  tenant  has  purchased  oilcake. 
Lime  is  always  paid  for  by  the  general  custom  when  no  white  crops 
have  been  taken.  There  is  also  an  allowance  for  drainage,  of  five  or  six 
years  upon  the  labour  or  tiles  that  have  been  used  by  the  tenant,  when 
he  finds  both.    The  general  custom  in  some  districts  is  for  the  landlord 


OXFORDSHIRE.  25 

to  find  the  tiles  and  tlic  tenant  the  labour,  for  which  he  gets  an  allow- 
ance ;  but  the  agreements  by  which  the  land  is  held  from  year  to  year 
usually  define  the  allowances  which  the  tenant  is  to  receive  on  quitting, 

Oxfordshire. — The  time  of  entry  in  Oxfordshire  is  generally  at 
Michaelmas.  The  incoming  tenant  pays  the  outgoing  tenant  for  the 
ploughing,  manure,  seed,  hoeing,  &c.,  upon  the  turnip  land,  and  gene- 
rally takes  a  portion  of  the  hay  at  a  spending  price.  He  pays  for  the 
clover-seed,  and  other  seeds  sown  with  the  barley.  This  applies  espe- 
cially to  the  district  round  Chipping  Norton.  The  dung  which  is  made 
from  the  last  crop  belongs  to  the  incoming  tenant,  in  w^hatever  way  it 
is  made.  Compensation  is  very  seldom  given  for  any  improvements 
made  by  the  outgoing  tenant;  it  has  been  given  for  bones  and  guano, 
but  generally  speaking  there  is  none,  and  hardly  any  for  draining. 
Tenancies  usually  commence  on  New  ]\Iichaelmas-day,  The  outgoing 
tenant  may  enter  on  the  wheatlands  in  August,  and  has  half  the  stable 
from  that  date;  but  at  Michaelmas,  when  the  new  tenant  arrives,  the 
old  occupant  gives  up  only  half  the  house.  He  retains  the  other  moiety, 
a  portion  of  the  stable,  all  the  barns,  sheds,  and  yards  till  the  follow- 
ing May  or  June.  The  outgoing  tenant  of  course  thrashes  and  delivers 
his  corn  himself.  He  also  spends  the  "  straw,  chaff,  and  caving  "  in 
the  yards,  leaving  the  manure  for  the  new  tenant.  The  usual  covenants 
are,  that  the  outgoing  tenant  should  be  paid  for  all  operations  of 
husbandry  performed  in  the  preparation  of  the  ground  for  root  crops  or 
fallows.  The  turnips,  &c.,  are  valued  by  the  number  of  ploughings, 
hoeings,  and  cost  of  manuring,  and  not  by  the  worth  of  the  crop.  Fal- 
lows are  similarly  paid  for,  and  thus  the  land  is  often  ploughed  in  wet 
weather,  and  little  attempt  is  made  to  clean  it,  as  the  price  depends 
more  upon  what  has  been  done  than  on  the  manner  in  which  it  has  been 
performed.  The  price  allowed  for  ploughing  of  course  varies  on  dif- 
ferent soils  from  8s.  to  14s.  an  acre.  The  incoming  tenant  takes  to  all, 
or  only  half,  the  hay  and  wheat-straw  at  a  spending  price,  and  the  out- 
going tenant  retains  the  rest  of  the  produce.  Large  sums  have  been 
borrowed  from  the  Government  for  drainage,  and  refunded  at  the  rate 
of  Gi  per  cent,  for  twenty-one  years.  Some  landlords  make  the  tenants 
pay  all  this  charge ;  while  others  drain  the  land  themselves,  and  charge 
the  tenants  5  per  cent. ;  and  on  some  estates  it  is  customary  for  the 
landlord  to  find  pipes,  and  the  tenant  to  perform  the  labour  of  under- 
draining.  The  greater  part  of  the  college  property  is  let  on  leases  of 
twenty-one  years,  renewable  every  seven  years.  The  fine  is  something 
less  than  one  year's  income  :  and  the  college  has  the  power  of  increasing 
it,  and  may  renew  the  lease  or  not,  at  option.     The  lessee  is  supposed 


'2Q  TvUTLAXP,    SHROPSHIRE. 

to  keep  the  buildings  in  repair,  and  is  only  allowed  by  the  college  such 
timber  as  gro\YS  on  the  estate.  Farm  leases  are  the  exception,  and  nob 
the  rule,  and  almost  all  the  land  is  held  by  yearly  tenancies,  subject  to 
a  six-months'  notice  to  quit. 

Bit tl^iuJ.— The  time  of  entry  is  usually  Lady-day.  The  following 
scale  of  allowances  to  an  outgomg  tenant  is  made  on  one  of  the  largest 
estates  in  the  county. 

For  Draiumg.— When  the  landlord  has  found  tiles  and  the  tenant 
the  labour,  the  allowance  shall  be  upon  a  three-years'  principle;  and 
when  the  tenant  has  found  both,  upon  a  five-years'  principle,  provided 
the  drainage  has  been  done  to  the  satisfection  of  the  landlord,  and  an 
account  rendered  every  year.  For  lime  on  a  three-years'  principle, 
including  cartage :  for  bones,  or  other  approved  artificial  manures  used 
for  turnips  or  other  green  crops  in  the  preceding  year,  the  whole  cost 
limited  to  25s.  per  acre. 

For  cake,  one  fourth  of  the  cost  price  of  linseed  or  cotton  cakes 
consumed  by  beasts  in  yards  or  sheep  on  seeds  or  turnips  during  the 
two  previous  years,  provided  the  quantity  does  not  exceed  the  average 
of  the  two  preceding  years.  The  tenancies  are  usually  from  year  to 
year,  terminable  at  Lady-day  by  a  six-months'  notice  from  either  party. 

Shropshire. — The  period  of  entry  upon  farms  in  Shropshire  is  on  the 
25tli  of  ]\Larch,  invariably  ;  never  at  Michaelmas  ;  and  they  are  held  by 
a  rack  tenancy  from  year  to  year,  determinable  by  a  half-year's  notice 
given  on  the  25th  of  the  preceding  September.  Other  leases  are  com- 
paratively unknown,  but  on  many  estates  the  same  farm  is  held  by  one 
family  from  generation  to  generation.  The  outgoing  tenant  receives  no 
remuneration  from  his  successor  for  any  improvements  he  may  have 
made  upon  the  farm,  nor  for  any  artificial  manure  or  food.  A  great 
deal  of  draining  has  been  done  of  late  years  ;  and  the  landlord  either 
does  all  except  the  hauling,  and  charges  the  tenant  five  per  cent.,  or  the 
landlord  finds  pipes  and  the  tenant  lays  them  at  his  own  expense,  under 
the  supervision  of  a  bailiff.  The  soil  of  the  county  varies  considerably 
in  character  and  quality.  The  arable  portion  consists  partly  of  strong 
loamy  soil,  suitable  for  the  growth  of  wheat  and  oats,  and  partly  of 
lighter  description  of  soil,  suitable  to  the  turnip  and  barley  system  of 
husbandly.  The  pasture  and  meadow  lands  generally  require,  and  are 
capable  of,  much  improvement.  Within  the  last  few  years  it  has  been 
customary  for  the  landlord  in  a  few  districts  to  apply  bones ;  the  tenant 
hauling  and  spreading  them,  and  paying  a  per-centage  upon  their  cost. 
The  wheat  crop,  on  a  change  of  tenancy,  is  generally  divided  between 


SOMERSETSHIRE.  S7 

the  outgoing-  aud  incoming  tenants,  in  the  proportion  of  one-half  to 
each  of  that  grown  upon  clover-lejs,  and  two-thirds  to  the  outgoing 
tenant,  and  one-third  to  tiie  incoming  tenant,  of  that  grown  upon 
fahows.  In  a  district  on  the  southern  side  of  the  county  it  is  the 
custom  for  the  outgoing  tenant  to  take  the  whole  of  the  wheat  crop 
ui)on  quitting.  It  is  the  custom  for  the  outgoing  tenant  not  to  depas- 
ture the  young  clovers  after  the  2nd  of  November  next  previous  to 
quitting,  and  the  meadow  lands  to  be  mown  the  following  harvest  arc 
usually  paid  up  for  from  the  2nd  February  next  previous  to  the  time  of 
quitting.  The  outgoing  tenant  is  allowed  the  use  of  a  boozy  pasture 
appointed  by  the  landlord  for  the  purpose  of  consuming  thereon  any 
hay  or  straw  unconsumed  at  the  expiration  of  his  tenancy,  the  Lady-day 
previously:  and  his  right  in  this  terminates  the  1st  of  May  next  after 
he  quits.  The  outgoing  tenant  has  stackyard  room  for  his  share  of  the 
way-going  crop,  and  the  use  of  a  barn  to  thrash  it  in,  till  the  25th  of 
December  next  after  his  tenancy  ends.  He  is  paid  by  his  successor  for 
the  clover-seeds  he  has  sown  the  last  year  previous  to  his  quitting,  upon 
his  producing  the  bills  to  show  that  he  has  purchased  the  same.  He  is 
also  paid  a  fair  compensation  for  any  ploughing  he  may  have  done  for 
the  convenience  of  his  successor. 

Somerscisldre. — The  time  of  entry  about  Taunton  and  westward  is 
Michaelmas,  but  in  other  districts  generally  Lady-day.  In  the  Michael- 
mas lettings  the  incoming  tenant  has  no  right  of  entry  for  cultivation 
before  Michaelmas.  He  generally  gets  in  to  plough  the  turnip  fallows  ; 
sometimes  by  virtue  of  a  provision  in  the  lease.  It  is  only  in  these 
lettings  that  the  manure  can  be  used  for  potatoes.  In  the  Lady-day 
lettings  there  is  great  difficulty  in  getting  possession  of  the  arable  land 
time  enough  to  put  in  spring  grain,  where  there  are  natural  pasture 
meadows  that  spring  early,  and  will  not  bear  treading  out.  The  occu- 
pation terminates  either  at  Christmas  or  Candlemas,  when  the  rest  of 
the  holding  of  the  farm  is  fi'om  Lady-day.  There  is  no  compensation 
for  purchased  manure,  or  cakes  used  in  the  fatting  of  cattle  ;  or  for 
draining,  and  any  other  improvements.  In  a  recent  assize  case,  of 
Beadon  v.  TrhnMt,  which  was  referred  to  arbitration,  there  were  eleven 
different  customs  spoken  to,  in  different  parts  of  the  county.  Each 
part  of  the  county  has  its  peculiar  custom  ;  and,  as  the  tenants  come  in 
they  expect  to  go  out.  In  some  cases  they  take  the  offgoing  crop  ;  but 
a  clause  is  generally  inserted  in  the  leases  that  seed  and  labour,  and  a 
half-year's  rent,  shall  be  charged  to  the  new  tenant  in  lieu  of  it.  The 
outgoing  tenant  is  often  allowed  to  consume  the  straw  on  the  premises, 
or  he  leaves  it  to  be  consumed  at  a  feed  price,  by  the  incoming  tenant, 


28  STAFFOrvDSHIRE,    SUFFOLK. 

to  whom  the  mauurc  belongs,  for  the  use  of  the  farm,  in  either  case. 
The  principal  tenancies  are  from  year  to  year ;  but  in  a  great  many 
instances  they  are  for  seven  years. 

Staffordshire. — The  period  of  entry  is  Lady-day.  The  incoming 
tenant  pays  for  the  grass  seeds  ;  he  pays  also  for  any  tiUage  that  mtiy 
liave  been  done  to  the  fallows,  and  he  divides  with  the  outgoing  tenant 
for  the  v/heat  crop.  He  takes  half  where  it  is  a  brush  crop,  and  one- 
third  where  it  is  a  fallow  croj) ;  the  incoming  tenant  also  pays  for  the 
manure,  and  for  the  straw  and  hay  that  may  be  on  the  farm  at  the  time 
at  the  consuming  price.  In  the  north,  the  district  on  the  clay,  there 
are  some  considei-ablc  naked  follows.  For  wheat  fallows,  where  it  has 
been  really  a  naked  follow  during  the  whole  of  th.e  summer,  the  out- 
going tenant  takes  two-thirds  of  the  crop.  A  brush  crop  is  a  crop  of 
wheat  that  does  not  follow  a  naked  fallow  ;  but  one,  under  any  other 
circumstances,  after  clover,  roots,  or  green  crops  of  any  description. 
As  regards  compensation,  the  tenants  fall  back  upon  the  custom  of 
the  district ;  and  those  customs  probably  Avere  fixed  when  nothing  was 
known  of  artificial  food  or  artificial  manure,  or  drainage.  There  is  no 
custom  to  show  to  allow  compensation  to  the  tenant  for  marling,  or 
for  the  a})plication  of  artificial  manure  of  any  description.  There  is, 
in  fact,  no  other  custom  as  between  incoming  and  outgoing  tenant  than 
the  compensation  for  seeds,  straw,  and  hay.  The  customs  ap[>ly  chiefly 
to  the  light  soils  of  Staffordshire ;  but  there  is  very  little  difference 
in  the  whole  county  of  StaflPord.  So  various  and  contradictory  are 
the  customs  of  tenancy,  even  in  the  same  district,  that  now^  the 
settlement  of  all  such  questions  are  left  with  expei'ienced  arbitrators, 
who  make  as  nearly  as  they  can  an  equitable  adjustment  between  the 
parties. 

Suffolk. — There  is  no  tenant-right  in  the  county,  beyond  that  recog- 
nized by  the  custom  of  the  country,  and  by  the  leases  or  agreements 
generally  granted  in  the  neighbourhood.  Quite  one-third  of  the  county 
is  holden  upon  a  custom  without  any  written  agreement  ;  but  in  every 
instance  where  leases  exist,  the  covenants  for  entering  and  quitting 
the  occupation  are  distinctly  laid  down,  and  fully  acted  up  to.  The 
custom  of  the  country  varies  in  diflerent  neighbourhoods  :  but  where 
the  understanding  is  verbal,  the  custom  which  exists  in  that  particular 
district  is  considered  mutually  binding  on  each  party.  The  outgoing 
tenant  is  always  paid  for  the  rents  and  rates  incurred  on  the  last  year's 
fallows,  and  for  all  reasonable  tillage,  such  as  ploughing  and  harrowing, 
expended  thereon.     lie  is  also  paid  for  the  muck,  hay,  and  stover  made 


SUEREy.  29 

in  the  last  year,  and  for  the  clover  seeds  and  the  sowing  thereof  in  tlic 
preceding  spring.  In  many  instances  it  is  the  custom  to  allow  a 
certain  sum  for  the  clover  and  hean  stubbles,  but  this  is  generally 
considered  unfair  and  undesirable.  On  the  hght  lands  they  grow  all 
the  fallows  Avith  root  crops  ;  whereas,  on  the  heavy  land  they  grow  only 
a  portion.  The  outgoing  tenant  carts  the  manure  for  the  crop,  and  is 
paid  both  for  the  muck  and  cartage.  Tares  are  sometimes  grown  on  a 
part  of  the  heavy  land  fallows,  in  which  case  the  rent;  and  rates  are  not 
allowed,  and  the  tillages  after  the  removal  of  the  crop  alone  are  paid 
for.  The  outgoing  tenant  is  paid  for  all  sheep-folding,  provided  no 
after-crop  has  been  taken  from  the  land.  If  any  straw  remains  uncon- 
verted into  manure,  the  outgoing  tenant  receives  a  nominal  price  for 
the  same,  and  also  for  stover  or  old  hay  left  over  from  former  years. 
It  is  usual  to  mow  but  half  the  pastures  of  the  farm,  though  in  some 
districts  the  whole  can  be  mown  with  impunity,  and  the  custom  of  the 
country  compels  it  to  be  paid  for  at  the  price  per  ton  which  duly 
appointed  valuers  may  determine.  The  incoming  tenant  often  finds  the 
clover  and  the  turnip  seeds,  and  does  the  sowing  thereof,  but  this  is  a 
matter  of  arrangement ;  and  he  also  pays  3s.  per  acre  for  the  groundago 
or  feed  of  the  young  clover.  The  straw,  chaff,  and  colder  of  the  crop 
just  harvested  are  the  property  of  the  landlord  or  incoming  tenant ;  and 
the  custom  compels  his  successor  to  thrash,  dress,  and  deliver  the  corn 
of  the  outgoing  tenant.  October  the  11th  is  the  day  on  which  the  old 
and  new  hire  ceases  and  commences. 

Surrey. — Where  the  full  custom  of  the  country  is  spoken  of,  and  the 
tenant  speaks  of  being  paid  a  full  valuation,  according  to  the  custom  of 
the  country,  it  means  that  he  is  paid  for  dressings  and  half-dressings  of 
dung,  lime,  and  sheep  foldings ;  for  ploughings  and  ftillows,  including 
the  rent  and  taxes  of  the  same,  half-fallows,  young  seeds,  and  leys,  the 
underwoods  down  to  the  stem,  and  hay  and  straw  at  a  feeding  price : 
the  hay  and  straw  being  at  a  market  price  where  the  half-dressings  are 
not  paid  for.  These  valuations  are,  according  to  the  custom,  settled  by 
two  valuers,  or  their  umpire.  Fraud  takes  place  principally  in  the 
half-dressings;  by  which  is  generally  meant,  in  this  county,  those 
manurings  from  which  only  one  crop  of  corn  has  been  taken.  The 
"  dressing  "  is  dung  in  the  yards,  made  in  the  ordinary  course  of  culti- 
vation. Where  manure  has  been  put  on  at  a  distance  of  time,  it  is 
exceedingly  difficult  to  check  both  the  quantity  and  quality  of  the 
dressings,  and  very  false  returns  are  made  of  it.  In  many  cases  where 
farms  are  about  to  be  given  up,  tenants  scatter  down  an  inferior  and 
smaller  quantity  of  manure,  and  claim  for  it  as  dressing ;  they  work,  in 


30  SURPvEY. 

f^ict,  np  to  a  quitting:.     Having  been  so  imposed  upon  at  starting,  they 
feel  justified  in  playing  the  same  tricks  upon  their  quitting. 

T\liere  the  tenants  have  a  right  to  remuneration  for  dressings  and 
half-dressings,  they  are  paid  for  the  manure,  the  vaUic  of  which  is 
increased  by  cake ;  the  value  of  the  cake  is  taken  into  consideration  in 
the  value  of  the  manure ;  but  not  as  a  proportion  of  the  cost  of  the 
cake.  There  is  not  much  difficulty  in  ascertaining  the  value  of  the 
manure  while  it  is  in  the  yard ;  though  there  is  after  it  has  been  carried 
out  and  mixed  with  the  soil,  even  that  from  which  no  crop  has  been 
taken;  and  the  difficulty  is  of  course  increased  with  half-dressings. 
The  landlord,  if  it  is  inconvenient  to  lay  out  the  money  on  draining, 
allows  at  the  end  of  the  holding  (where  the  tenant  is  holding  by  the 
year)  for  a  certain  number  of  years  a  portion  of  the  outlay  of  drainage, 
calculated  according  to  the  number  of  years,  and  according  to  the 
quality  of  the  draining. 

Draining  some  few  years  ago  was  of  a  very  inferior  quality  to  what  it 
is  now ;  it  used  to  be  done  with  the  mole  plough,  and  with  bushes ;  but 
now  that  draining  is  improved  in  its  quality,  and  tile-drainiug  is  carried 
on  extensively,  landlords  are  enlarging  the  number  of  years  over  which 
those  allowances  extend.  Many  of  them  have  made  arrangements  that 
for  any  drainage  done  within  ten  or  twelve  years,  the  tenant  shall  be 
allowed  on  quitting  a  valuation  in  tenths  or  twelfths,  as  may  be  agTeed. 
Naked  fallows  are  not  very  much  practised ;  but  whether  they  are  naked 
or  bearing  a  green  crop,  they  are  equally  paid  for,  the  only  difference 
being  that  the  seed  is  added  in  the  latter  case.  The  landowners  have 
bought  up,  in  many  instances,  the  half-dressings  and  half-fallows,  as 
those  allowances  have  proved  so  onerous  to  the  incoming  tenant,  and 
have  a  tendency  to  lower  the  rents  of  the  farms.  In  this  respect  it  is, 
perhaps,  the  most  expensive  of  all  the  English  counties. 

It  is  the  habit,  in  making  a  clear  fallow,  in  Surrey,  that  the  ploughing 
should  be  repeated  four  times;  and  they  are  very  frequently  done  at 
improper  seasons.  It  is  difficult  for  an  arbitrator  to  say  in  October 
how  they  were  done  at  the  time,  though  there  would  be  none  in  giving 
compensation  for  the  foulness  of  the  laud,  which  valuers  will  not  con- 
sider. The  system  of  valuations  has  grown  up  and  greatly  extended  in 
Surrey  for  a  good  many  years.  It  originated  when  prices  were  higher 
than  they  are  now ;  but  it  has  been  of  gradual  growth,  and  there  are 
still  attempts  to  increase  it.  There  has  been  an  attempt,  since  the 
Tithe  Commutation  Act  converted  tithes  into  a  reut-charge,  to  add  to 
the  cost  of  the  fallows  the  tithe  rent-charge  upon  the  acres  coming  for 
fallow,  in  addition  to  the  rent  and  taxes ;  but  the  thing  is  better  under- 
stood now,  and  has  been  very  properly  resisted.   When  a  tenant  entering 


SUSSEX.  31 

upon  a  farm  pays  fov  such  things  with  the  cognizance  of  the  landlord, 
he  is  entitled  to  be  paid  when  he  quits.  The  disadvantage  of  the  Surrey 
tenant-right  is,  that  the  same  money  is  paid  for  the  slovenly  as  for  the 
good  farming,  as  the  valuers  never  take  the  bad  state  of  the  fallow  into 
account. 

Sussex. — The  time  of  entry  on  farms  in  Susses  is  Michaelmas,  and 
generally  the  29th  of  September  in  preference  to  the  10th  of  October. 
The  customary  payments  by  incoming  tenants  differ  very  much  in  the 
different  districts  of  the  county.  Taking  the  boundary  on  the  north  as 
the  South  Downs,  HamjDshire  on  the  west,  on  the  east  the  Adur,  and 
the  sea  on  the  south,  the  customs  north  of  the  Downs  and  east  of  the 
Adur  differ  very  much  from  those  in  the  other  parts  of  the  county.  In 
part  of  Sussex,  west  of  the  river  Adur,  the  customary  payments  by  the 
incoming  to  the  outgoing  tenant  are  confined  very  much  to  acts  of 
Imsbandry,  the  hay  at  a  feeding-off  price,  and  the  fodder  of  the  straw. 
In  the  Weald  the  payments  are  extended  to  the  payment  for  dressings 
and  half-dressings  of  dung  and  lime,  and  to  the  payment  for  fallows  and 
tillage  performed  on  the  fallows,  and  the  rent  and  taxes  thereon,  and  for 
leys.  The  payment  for  dressings  is  for  the  manures  made  on  the  land, 
and  from  which  no  crop  has  been  produced.  Half- dressings  comprise 
the  dung  from  which  one  crop  has  been  produced.  So  with  regard  to 
lime,  where  no  crop  has  been  produced,  or  if  it  be  in  the  heap  on  the 
farm,  it  is  paid  for  at  the  full  cost.  If  it  has  produced  one  straw  crop, 
then  it  is  paid  for  at  half  the  cost. 

On  heavy  laud  in  the  "Wealds  of  Sussex,  Kent,  Hampshire,  and 
Surrey,  it  is  usual  to  make  naked  fallows.  The  tenant  has  received 
no  advantage  from  the  expensive  course  of  ploughing  and  cleaning  into 
which  the  field  has  been  put,  and  therefore  it  is  customary  to  allow 
him  for  that  which  is  a  benefit  to  his  successor,  and  which  is  no  benefit 
to  him.  They  are  also  paid  in  the  Weald  and  east  of  Sussex  for  the 
hedgerows  and  underwood,  if  included  in  the  occupation.  When  they 
enter  upon  a  farm,  they  enter  upon  the  underwood  also,  and  pay  to 
their  predecessors  in  proportion  to  the  number  of  years'  growth  of  the 
underwood.  The  principle  of  underwood  is  applied  also  to  the  hedges, 
which  are  often  very  wide,  and  approaching  the  nature  of  a  copse,  or 
"shaws  "  as  they  are  termed.  They  are  allowed  for  the  growth  up  to 
a  certain  number  of  years.  By  the  custom  these  would  be  valued  to 
the  stem,  unless  there  is  any  special  arrangement  to  the  contrary. 
The  buildings  are  usually  maintained  by  the  landlord  providing  the 
materials  and  the  tenant  applying  them.  Acts  of  husbandry  on  the 
summer  fallows,  with  the  rent  and  taxes  that  arise  out  of  the  land, 


32  WARWICKSHIRE,    WESTMORELAND. 

having  been  useless  to  the  tenant,  form  a  large  proportion  of  the  valua- 
tion of  tenant-right  to  the  incoming  tenant.  The  coming-in  upon  a 
Sussex  form,  where  those  tillages  and  half-tillages  and  rent  and  taxes  arc 
paid,  is  very  heavy  ;  and  the  tenant-right  is  very  frequently  mortgaged. 
Everything,  labour,  rent,  and  taxes,  is  paid  for  naked  fallows,  but 
nothing  for  any  cultivation  from  which  the  tenant  has  taken  one  crop. 
If  manure  is  made  in  a  yard  used  for  feeding  cattle,  the  valuer  will 
place  a  different  price  upon  it  from  what  he  would  do  if  it  was  merely 
a  straw-yard  in  which  the  cattle  had  been  fed  upon  straw  only.  With 
regard  to  turnips,  the  ploughings,  sowings,  and  dressings  are  taken  into 
the  valuation,  from  the  outgoing  to  the  incoming  tenant.  Rapecake, 
nitrate  of  soda,  rags,  and  guano,  are  all  allowed  for,  according  to  their 
relative  value,  llapecake  is  more  lasting  tlian  rags,  and  rags  than 
guano.  There  is  no  compensation  for  buikling,  as  it  is  considered  that 
buildings  erected  on  the  estate  become  part  of  the  fee  of  that  estate. 
Stone  lime  is  very  much  used  in  Sussex,  and  is  often  brought  from  a 
great  distance,  and  the  outgoing  tenant  is  allowed  half-price  for  it  after 
one  crop. 

Warwichsldre. — The  time  of  entry  upon  farms  in  "Warwickshire  was 
formerly  Lady-day,  but  Michaelmas  "takes"  are  now  becoming  more 
general.  The  entry  being  at  Lady-day,  the  outgoing  tenant  takes  the 
following  crop  of  wheat,  except  an  arrangement  is  made  for  payment  : 
the  agreements  are  now  generaUy  made  so  that  the  outgoing  tenant 
cannot  hold  it,  but  it  must  be  valued  to  the  incoming  tenant.  By  the 
custom  the  outgoing  tenant  takes  the  value  of  it,  whether  it  be  in  -the 
crop  or  in  money.  If  a  change  of  tenancy  takes  place  at  Michaelmas, 
the  incoming  tenant  takes  to  the  wheat  sown  if  it  has  been  regularly 
fallowed,  and  in  the  event  of  their  not  agreeing,  the  outgoing  tenant 
is  at  liberty  to  come  upon  the  land  and  reap  it  himself.  The  manure 
on  the  premises  belongs  to  the  landlord.  If  the  outgoing  tenant  has 
spent  cake  upon  the  feeding  of  his  beasts,  he  could  not  claim  undei' 
the  present  custom  any  compensation.  Bones  arc  not  much  used 
except  on  the  sandy  soils,  and  the  tinie  over  which  compensation  is 
allowed  for  them  is  reduced  to  three  years.  No  compensation  for  im- 
provement of  the  land  is  paid  by  the  incoming  tenant  except  for 
draining.  That,  according  to  the  custom  of  many  valuers,  only  extends 
over  three  years  ;  but  the  time  is  getting  extended.  If  the  landlord 
does  it  all,  the  tenant  i)ays  five  per  cent. ;  but  very  generally  the  land- 
lord finds  the  pipes,  and  the  tenant  pays  for  laying  them  down. 

Westmoreland.  — See  Cumberland. 


ISLE    OF    WIGHT,    W[LT,SlimE.  33 

Isle  of  Wifjlit. — The  usual  period  for  eutering  upon  farms  is  at  Old 
Michaelmas,  the  11th  of  October.  A  great  part  of  the  island  is  farmed 
under  leases  from  year  to  year,  or  for  terms  of  seven  or  fourteen  years, 
and  no  allowance  is  made  for  artificial  manures  or  unexhausted  im- 
l)roYements.  About  ten  years  since  a  system  of  allowances  similar  to 
that  in  use  in  North  Lincolnshire  was  introduced  upon  Lord  Yar- 
borough's  estates  in  the  island,  and  it  is  understood  tiiat  the  same 
allowances  have  boon  adopted  upon  some  other  properties.  In  tliis 
agreement  provision  was  made  for  the  entry  by  the  incoming  tenant  to 
portions  of  the  farm  at  different  periods,  and  the  tenancy  was  also 
determinable  by  twelve  months'  notice.  Artificial  manures  are  not  used 
to  any  great  extent,  but  the  use  of  them  is  increasing.  The  landlord 
finds  materials,  and  the  tenant  pays  the  labour  of  keeping  the  buildings, 
gates,  and  hurdles  in  repair. 

]ViIf shire. — The  tenancy  ceases  in  the  Warminster  part  of  the  county 
generally  at  Michaelmas.  There  are  two  leases  ;  the  pasture-lands  are 
taken  at  Lady-day,  and  the  arable  farms  at  Michaelmas.  On  the  arable 
lands  the  incoming  tenant  pays  the  outgoing  tenant  for  the  tillages. 
If  the  landlord  makes  the  agreement  that  the  latter  is  to  do  the  tillages, 
he  is  paid  for  it,  such  as  ploughing  for  turnips,  and  anything  of  that 
kind  ;  that  is  oftener  done,  however,  by  the  incoming  tenant.  By  the 
custom  of  the  country,  the  incoming  tenant  has  the  right  of  entry  to 
prepare  a  certain  quantity  of  the  land  for  the  turnip  crop  before 
Michaelmas.  He  has  also  the  right  to  come  on  in  June,  generally,  to 
prepare  for  wheat  on  the  old  ley.  The  manure  belongs  by  the  custom 
of  the  country  to  the  incoming  tenant.  Unless  by  special  agreement 
the  tenant  has  the  right  to  make  those  preparations  of  the  land,  there 
would  be  little  or  nothing  to  be  paid  by  the  incoming  tenant  to  the 
outgoing  one.  There  is  nothing  paid  by  the  incoming  tenant  for  im- 
provements. The  dung  belongs  to  the  incoming  tenant ;  even  if  the 
outgoing  tenant  had  kept  a  number  of  beasts  upon  oilcake,  he  would 
have  no  compensation  for  that  ;  and  the  same  if  he  has  used  bones. 
For  permanent  pastures  the  tenant  receives  no  compensation.  The 
custom  of  the  incoming  tenant  entering  upon  the  land  to  do  the  acts  of 
husbandry,  is  the  one  under  which  most  of  the  new  tenants  have 
entered.  They  have  paid  nothing,  but  have  done  the  work  themselves 
on  entering.  The  time  of  entry  in  the  districts  south-west,  west,  and 
north-west  of  Devizes,  is  Lady-day.  These  districts  consist  of  lands, 
on  the  Gault,  lower  green  sand,  Kimmeridge  and  Oxford  clays,  and 
partially  on  outlying  portions  of  forest  marble  and  oolitic  formation. 
The  land  south-east  and  north-east  of  Devizes  is  generally  on  the 


34  WORCESTERSHIRE,   YORKSHIRE — EAST    RIDING. 

chalks,  with  deposits  in  the  larger  valleys,  and  is  appropriated  to  the 
growth  of  corn  and  tlie  rearing  (and  latterly,  to  some  extent,  the 
fattening)  of  sheep,  and  is  subject  to  the  same  customs  as  the  War- 
minster district.  The  incoming  tenant  takes  possession  of  the  farm  on 
the  25th  of  JIarch,  by  paying  for  all  tillages  ;  there  is  but  a  small  pro- 
portion of  arable  land  in  the  Devizes  neighbourhood  :  it  is  generally 
grazing  and  dairy  land.  The  tillages  are  paid  for,  and  the  labour  of 
manuring.  At  present  the  outgoing  tenants  would  have  no  compensa- 
tion if  tlicy  drained  the  land  themselves.  When  draining  is  done,  the 
usual  practice  is  for  the  landlord  to  find  pipes,  and  the  tenant  to  do  the 
hauling  and  labour  :  but  as  the  holdings  are  from  year  to  year,  and  no 
compensation  is  given  for  unexhausted  improvements,  drainage  is  not 
cai-ried  to  half  the  extent  it  otherwise  would. 

Worcosfershlre. — There  is  no  definite  time  for  the  incoming  tenant  to 
enter  upon  and  quit  his  farm,  but  Lady-day  is  most  usual.  The  off- 
going  tenant  allows  his  successor  to  commence  ploughing  the  wheat 
stubbles  on  the  1st  of  January  previous  to  quitting,  and  does  not  turn 
stock  upon  the  mowing  meadows  after  Candlemas-day.  He  is  paid 
for  the  seed  and  labour  of  sowing  clover  seeds  upon  his  lands  bearing 
the  last  crop  of  Lent  grain,  and  leaves  one-third  of  the  olfgoing  wheat 
crop  for  the  landlord  or  incoming  tenant  (after  the  value  of  the  tithe  is 
deducted),  and  all  the  straw.  There  is  no  compensation  for  any  kind 
of  improvements  or  manures,  unless  specially  provided  for  ;  and  if  any 
buildings  have  been  erected  by  the  outgoing  tenant,  he  is  not  allowed 
to  remove  them,  although  they  have  been  put  up  with  the  landlord's 
permission.  All  the  manure  belongs  to  the  landlord,  and  the  ofigoing 
tenant  has  till  the  1st  of  May,  after  quitting,  the  use  of  the  fold-yard, 
and  a  boozy  pasture  adjoining  or  near,  for  the  purpose  of  consuming 
his  hay  and  straw  of  the  last  year's  growth  ;  and  also  a  room  in  the 
house  for  the  servant  in  attendance  upon  such  stock  as  are  consuming 
the  hay  and  straw.  Since  the  Tithe  Commutation  Act  agreements 
have  become  much  more  general,  and  the  custom  is  but  seldom 
appealed  to. 

YorksJiire — East  Jiidinf/.—  ThevQ  is  hardly  one  single  instance  of  an 
agricultural  lease  in  this  riding  :  all  are  yearly  holdings,  and  these  are 
almost  universally  from  Lady-day.  With  regard  to  acts  of  husbandry, 
the  offgoing  tenant  is  entitled  to  a  waygoing  crop,  varying  from  one- 
third  to  one-fourth  of  the  arable  according  to  the  description  of  land 
he  farms.  Upon  the  wold  part  of  the  riding  they  have  one-quarter 
part  of  the  arable  land  as  a  waygoing  crop  ;  upon  the  stronger  soils 


YORKSHlllE — EAST    RIDING.  35 

(Eolderncss,  for  instance,  and  the  west  side  of  the  wolds,  which  is 
called  Howdeushire)  the  waygoing  crop  averages  one-third  part  of  the 
arable  land. 

The  East  Hiding  of  Yorkshire  may  be  described  as  consisting  of  three 
districts,  distinct  in  their  surfaces  and  soils,  viz.,  Holderness,  the  chalk 
wolds,  and  the  plain,  west  of  the  wolds,  which  last  section  contains 
Howdenshire  and  the  Vale  of  York.  The  soil  of  Holderness  is  gene- 
rally stony,  that  of  the  western  plain  stony  also,  with  interventions  of 
sand  and  gravel.  The  soil  of  the  wolds  is  thinner  and  lighter.  These 
characteristics  influence  the  customs  of  the  waygoing  crop.  On  the 
stronger  soils  in  former  days  (in  which  these  customs  originated)  the 
three-course  system  of  cropping  prevailed,  and  so  it  followed  that  one- 
third  of  the  arable  was  assigned  to  the  outgoer.  In  the  wolds  the 
Norfolk  or  four-course  system  was  introduced  upon  their  inclosure  and 
cultivation,  and  therefore  one-fourth  of  the  arable  portion  of  the  farm 
is  the  waygoing  crop.  This  crop  is  either  sown  after  rape,  turnips,  or 
seeds,  depastured  the  summer  previous.  The  outgoing  tenant  sows 
wheat,  barley,  oats,  &c.,  as  the  case  may  require,  and  he  leaves  the 
crop  at  a  valuation,  to  be  taken  l^y  the  incoming  tenant,  who  has  to  pay 
the  amount  of  this  valuation,  deducting  the  average  rent  per  acre  of  the 
farm  upon  whicli  the  waygoing  crop  has  grown,  which  is  called  the  on- 
staud,  also  deducting  the  expense  for  inning  and  outing,  Avhich  is 
reaping,  thrashing,  delivering,  stacking,  and  every  other  expense  attend- 
ing the  bringing  the  corn  to  market  ;  as  well  as  one  year's  parochial 
taxes  for  that  part  of  the  land  upon  which  the  waygoing  crop  is  grown. 
The  incoming  tenant  gets  the  straw  and  the  eatage  thereof ;  but  he  has 
to  allow  the  ofpgoing  tenant  Gs.  or  7s.  per  acre,  or  something  of  that 
sort,  for  the  eatage  of  the  straw. 

Three  parts  out  of  four  of  the  dung  belong  to  the  land.  The  out- 
going tenant  in  the  absence  of  covenants  has  no  compensation  for  the 
purchase  of  artificial  manure,  or  artificial  food  for  stock,  nor  for  drain- 
ing or  chalking  the  land.  The  chalking  and  marling  is  done  by  the 
tenant  at  his  own  risk.  The  tenant  does  nothing  but  keep  the  build- 
ings in  tenantable  repair,  and  the  same  with  respect  to  the  fences  and 
gates.  All  the  materials  belong  to  the  landlord  ;  the  painting,  the 
mending  of  the  fences,  and  the  repairing  of  the  gates,  belong  to  the 
tenant ;  but  if  any  new  gates  are  wanted,  the  landlord  generally  finds 
them.  As  to  the  new  roofs,  the  agi'eement  says  the  tenant  is  to  keep 
the  buildings  in  repair ;  main  walls,  main  timber,  and  damage  by  fire 
and  tempest,  only  excepted.  Of  late  years  there  has  been  some  compen- 
sation introduced  into  the  agreements;  it  was  not  so  formerly;  it  is  only 
within  the  last  few  years  that  it  has  been  the  custom  to  feed  with  oil- 

D  2 


36  YOEKSHIRE— NOKTH    KlDlNG. 

cake  ;  since  that  custom  has  come  in,  tlie  practice  has  been  gradually 
introduced  of  allowing  compensation  for  a  small  part  of  the  oilcake  that 
has  been  used  in  the  last  two  years.  It  is  very  usual  to  make  allowance 
for  cake  on  the  wolds,  though  it  can  hardly  be  called  the  custom  of  the 
East  Riding.  If  a  question  should  arise  upon  the  quitting  of  a  farm,  and 
reference  should  have  to  be  made  to  the  custom,  it  would  hardly  allow 
compensation  for  the  use  of  cake.  Scarcely  any  compensation  clause"" 
has  been  introduced  into  the  agreements,  except  as  to  oilcake.  Bones 
are  extensively  used,  but  they  are  not  allowed  for,  except  in  the 
Avaygoing  crop  ;  the  tenant  has  the  power  of  taking  the  crop  where 
it  has  been  boned  the  year  before,  and  he  gets  his  allowance  for 
bones  by  selecting  that  part  of  the  farm  from  which  he  takes  his  way- 
going crop. 

Yorlcsliirc — JVarfh  Riding. — The  tenants  of  a  great  portion  of  this 
extensive  riding  liaA'e  no  leases.  On  many  estates  they  are  simply 
tenants  from  year  to  year,  without  even  written  agreements.  A  cus- 
tomary regulation,  that  no  two  white  crops  are  to  be  grown  in  succes- 
sion, that  no  straw  is  to  be  sold  off'  the  farm,  and  that  the  tenant  shall 
leave  as  he  entered,  comprises  all  the  conditions  between  the  parties. 
There  are  no  stipulations  as  to  tenant-right  or  unexhausted  improve- 
ments ;  in  fact,  such  covenants  would  be  almost  a  dead  letter,  as 
changes  are  rare,  and  it  would  be  easy  to  point  out  tenants  on  many 
estates  whose  fathers  and  grandi'athers  before  them  held  the  same  farm, 
and  under  the  same  unwritten  agreements.  Upon  the  large  properties 
there  is  in  almost  every  case  some  peculiarity  as  to  the  times  of  entry, 
modes  of  cropping,  &c.,  and  hence  it  would  be  impossible  to  give  any 
one  general  rule.  Most  frequently,  perhaps,  the  entry  on  arable  land 
for  fallow  or  spring  crops  is  on  February  2nd  (Candlemas  day) ;  and  t  n 
the  rest  of  the  arable  land  at  the  separation  of  the  awaygoing  crop  ; 
pasture  land  on  April  Gth ;  and  the  dwelling-house,  offices,  and  meadow 
land  on  May  13th.  The  outgoing  tenant  has  a  right  to  one-third  of 
the  arable  land  on  which  to  grow  an  awaygoing  crop,  and  on  some 
estates  he  pays  what  is  called  an  onstand  for  his  awaygoing  crop,  which 
is  occasionally  the  average  rate  per  acre  of  the  rent  of  the  farm,  but  is 
more  frequently  a  fixed  sum  of  Gs.  M.  per  acre.  In  the  latter  case  the 
outgoing  tenant  has  generally  the  right  of  consuming  the  straw  of  his 
awaygoing  crop  on  the  premises.  Sometimes,  however,  the  outgoing 
tenant  pays  no  onstand  for  his  awaygoing  crop,  but  leaves  the  straw,  as 
soon  as  it  is  thrashed,  for  the  use  of  the  incoming  tenant  without 
purchase.  The  manure  on  the  farm  belongs  to  the  outgoing  tenant  up 
to  February  8th,  for  his  use  on  his  awaygoing  crop  ;  whatever  remains 


YORKSHIRE — WEST   RIDING.  37 

on  the  farm,  or  is  made  there  after  February  8th,  belongs  to  the  in- 
coming tenant  without  purchase.  The  DulvC  of  Leeds,  since  18-48, 
has  inserted  a  clause  in  his  agreements  to  the  effect  that  the  incoming 
tenant  should  pay  on  entry  a  reasonable  price  for  all  manure  found 
on  the  farm  made  from  the  previous  year's  crop.  In  taking  his  a^^vay- 
going  ci'op  the  outgoing  tenant  is  obliged  to  take  it  upon — 1st,  naked 
fallow ;  2nd,  turnips  half-eaten  on  ;  and,  3rd,  clover  ley.  A  great 
extent  of  drainage  has  been  effected  in  this  riding  within  the  last 
fifteen  years,  partly  at  the  joint  expense  of  landlord  and  tenant,  the 
former  finding  tiles,  and  the  latter  being  at  the  rest  of  the  expense  ; 
and  partly  by  the  landlord  finding  the  money,  and  charging  such  per- 
centage as  may  be  agreed  on ;  but  chiefly  under  the  operation  of  the 
drainage  loan  acts.  In  the  latter  case  the  tenant  frequently  leads  the 
materials  without  charge,  and  pays  as  additional  rent  the  Government 
charge  of  G|-  per  cent,  on  the  money  expended.  The  ordinary  offices  on 
the  farm  are  usually  kept  up  at  the  landlord's  cost,  the  tenant  finding 
carriage  of  materials. 

Yorlcshire — Wed  Ei'dhig. — The  tenant-right  is  heavier  than  in  Lin- 
colnshire in  the  tillages  and  half  tillages.  They  get  paid  for  whatever 
they  have  done  in  their  ftillow  year,  as  well  as  a  year's  rent  and  rates 
and  manure.  Then  they  go  to  a  second  year,  and  have  half  that 
allowance.  The  tillage  is  the  north-country  term  for  what  is  called  in 
the  south  an  allowance  for  working  fallows.  That  applies  to  all  land 
alike,  for  so  many  ploughings  and  harrowings  in  order  to  clean  the 
land.  The  West  Eiding  of  Yorkshire  is  the  larger  portion  of  York- 
shire, and  its  system  extends  partly  into  Nottinghamshire,  and  also  into 
part  of  Derbyshire,  though  it  is  a  very  injurious  one  to  the  incoming 
tenant  and  to  the  estate,  as  regards  the  awaygoiug  crops  and  the  half 
tillages.  One-fifth  of  the  farm  should  be  in  grass,  and  the  remaining 
four-fifths  are  farmed  in  the  four-course  shift  of  husbandry.  The 
allowances  are  :  First  course — Summer,  turnip,  potato,  or  rape  fallows  ; 
on  these  are  allowed  one  year's  rent  and  taxes,  the  dressings  of  the 
fallows,  with  manure,  and  all  other  tillages  purchased,  deducting  for 
the  vegetable  crops,  and  the  seed  and  labour  for  the  corn  sown  as  a 
first  crop.  Second  course — Seeds,  or  pea  or  bean  stubble,  called  half- 
tillage  land,  for  which  are  allowed  the  dressings,  half  the  rent  and 
taxes,  half  value  of  manure,  three-fourths  of  bone  tillage,  one-third  of 
guano  or  other  light  artificial  tillage,  less  one-half  the  amount  of  last 
year's  deduction  for  vegetable  crop.  Third  course— Wheat  on  ley,  or 
on  pea  or  bean  stubbles  ;  the  fidl  value  of  the  crop  is  allowed,  deduct- 
ing one  year's  rent  and  taxes ;  however,  in  some  instances  only  the  seed 


38  NOrtTH   WALES. 

and  liiboiu-  of  the  last  crop  arc  allowed  ;  but  this  depends  upon  whether 
the  land  is  "  old  inclosnre,"  "  field,"  or  lands  on  "  the  commons  of  the 
coiinty."  Fourth  course— Fallow  ;  here  the  ploughings  and  dressings 
are  all  allowed  ;  but  if  dressed  at  Michaelmas,  nothing  is  allowed  in  tlie 
following  spring  for  manure  made  from  the  stubbles  or  refuse.  The 
valuation  on  the  premises  comprises  generally  one  year's  manure,  which 
is  lying  unspread,  and  the  value  of  all  fodder  not  consumed  on  quitting ; 
and  the  fixtures  in  the  house  and  buildings  according  to  entry.  Draiu- 
ac^e  is  permitted  and  compensated  for  by  special  agreement. 


NORTH   WALES. 

Tenant-right  cannot  be  said  to  exist  in  North  Wales.  Generally 
speaking,  all  farms  and  lands  are  held  under  a  yearly  tenancy,  deter- 
minable either  upon  the  part  of  the  landlord  or  the .  tenant,  by  six 
months'  notice  to  quit.  The  time  of  entering  upon  farms  varies  in 
different  parts  of  Xorth  Wales ;  but  the  most  general  and  common 
custom  is  for  the  incoming  tenant  to  take  possession  of  the  lands  upon 
the  30th  of  November,  and  of  the  house,  out-buildings,  and  boozy 
pasture  (being  a  single  field  near  the  house  reserved  for  the  purpose  of 
turning  the  cattle  in,  for  exercise  and  to  water  during  the  winter)  upon 
the  first  of  May.  The  first  half-year's  rent  becomes  payable  upon  the 
25th  March  intervening  between  these  days,  and  is  therefore  somewhat 
in  the  nature  of  a  fore-hand  rent,  of  which  the  tenant  has  the  benefit 
upon  leaving  the  farm.  In  the  Island  of  Anglesea  it  has  been  attempted 
to  establish  a  custom  of  Tenant-right.  This  has  been  done  by  the 
tenants  erecting  houses  and  buildings  upon  their  lands  at  their  own 
expense,  and  claiming  in  consequence  either  an  equitable  right  for 
themselves  or  successors  to  stay  upon  the  farm,  or  compensation  in 
respect  of  their  improvements.  Buildings  erected  under  these  circum- 
stances being  generally  of  an  inferior  character,  it  has  become  the 
practice  in  some  of  the  agreements  used  in  the  Island  to  restrict  the 
tenants  from  erecting  buildings  without  the  sanction  of  their  land- 
lords. Upon  the  change  of  tenancy  no  division  of  crops  takes  place  (as 
in  England),  between  the  offgoing  and  incoming  tenant,  inasmuch  as 
the  offgoing  tenant  has  reaped  all  his  crops  before  the  tenancy  of  the 
land  expires,  and  the  incoming  tenant  sows  in  the  autumn  the  crops  he 
is  to  reap  in  the  ensuing  summer,  and  in  respect  of  which  he  pays  a 
half-year's  rent  upon  the  25th  of  March.  Such  a  thing  as  an  allowance 
in  respect  of  unexhausted  improvements  is  almost  unknown  in  North 


SOUTH   WALES — BRECONSHIRE,    CARDIGANSHIRE.  39 

Wales.  Agriculture  is  altogether  in  a  backward  state.  Old  hedgerows 
are  seldom  removed,  and  artificial  manures  are  rarely  used.  Draining 
is  very  much  required  in  places,  and  whatever  progress  is  made  in  this 
respect  is  principally  effected  cither  by  the  landlords  themselves,  or 
with  the  aid  of  the  Drainage  Commissioners. 


SOUTH   WALES. 

Breconshirc. — In  this  county  the  holdings  commence  almost  entirely 
at  Michaelmas.  All  the  land  is  retained  by  the  outgoing  tenant,  with 
the  exception  of  one  field,  until  St.  Andrew's-day  (November  30th), 
when  the  whole,  except  such  boozy  pasture  field  and  the  turnips  and 
green  crops,  are  given  up  to  the  incoming  tenant.  The  latter  are 
retained  by  the  outgoing  tenant  till  March,  when  the  incoming  tenant 
enters  to  sow  his  Lent  grain,  but  the  boozy  pasture  is  given  up  to  the 
incoming  tenant  on  the  1st  of  May.  All  buildings  at  the  homestead, 
with  the  labourers'  cottages,  &c.,  are  retained  by  the  outgoing  tenant 
till  the  1st  of  May,  but  access  to  the  kitchen  and  one  sleeping-room  is 
granted  to  the  incoming  tenant,  together  with  a  stable,  and  a  place  for 
his  horse-gearing.  The  wheat  has  to  be  sown  by  the  29  th  September, 
unless  leave  for  further  time  has  been  obtained  from  the  incoming 
tenant,  Avho  is  entitled  to  one-fourth  of  the  produce  on  fallow,  and  one- 
half  from  stubble  or  swarth.  In  Llanfigan  the  outgoing  tenant  has 
no  right  to  the  turnips  or  green  crops  after  November  30th  (unless 
they  are  previously  taken  from  the  field  and  stacked),  except  by  con- 
sent, which  is  usually  given,  as  is  also  permission  to  sow  wheat  after 
September  29  th. 

Gardigamhire. — The  usual  period  of  entry  upon  farms  is  Michaelmas, 
and  the  holding  from  year  to  year.  Leases  for  one  or  two  lives  arc  not 
uncommon,  also  for  seven,  fourteen,  or  twenty-one  years ;  but  the  leases 
for  lives  are  not  so  general  as  they  formerly  were.  The  outgoing  tenant 
has  nothing  to  do  with  the  incoming ;  but  each  settles  his  claim  with 
the  landlord.  If  a  landlord  gives  a  tenant  notice  to  quit,  he  has  to 
pay  him  for  all  necessary  improvements  on  buildings,  made  during  the 
tenancy,  and  for  all  draining  if  properly  executed.  The  outgoing  tenant 
quits  the  farm  at  Michaelmas.  If  he  has  carted  lime  on  the  farm,  or 
left  any  farmyard  manure,  or  has  sown  rye-grass  and  cloverseed,  &c., 
the  new  tenant  has  to  pay  for  them ;  and  also  for  half  the  value  of  the 


40  CARMARTHENSHIRE,   EAST   AND   WEST. 

lime  which  has  been  carted  and  spread  upon  the  farm  during  the  pre- 
ceding year,  and  produced  one  crop. 

Carmarthensliire  {East). — Tlie  usual  period  of  entry  is  at  Micliaelmas, 
and  the  holdings  are  fi'oni  year  to  year.  Leases  are  uncommon,  and 
when  granted,  rarely  exceed  twenty-one  years,  though  they  run  as  high 
as  sixty.  Where  land  is  to  be  embanked  from  the  sea,  or  reclaimed  at 
a  great  expense,  leases  have  been  granted  for  ninctj'-niue  years.  It  is 
not  the  custom  for  the  outgoing  tenant  to  receive  any  remuneration 
from  his  successor  for  improvements  made  on  the  farm ;  and  even  if  he 
has  expended  money  on  draining  or  farm  buildings,  &c.,  he  is  veiy 
rarely  remunerated  by  his  landlord.  The  outgoing  tenant  almost  in- 
variably disposes  of  his  crops  by  public  auction,  and  very  seldom  by 
valuation  to  the  incoming  tenant:  sometimes  the  manure  is  disposed  of 
the  same  way,  unless  there  happens  to  be  (which  is  very  seldom)  a 
special  agreement  to  leave  it  on  the  land.  ]>y  the  custom,  the  outgoing 
tenant  is  paid  for  all  the  manure  that  remains  unused,  also  for  the  lime 
and  manure  on  summer  fallows,  as  well  as  for  the  ploughings  and  har- 
rowings  of  the  latter,  for  the  clover  and  grass-seeds  sown  with  the  spring 
corn,  and  mostly  for  part  of  the  manure  and  lime  and  the  wheat  crop, 
and  any  ungrazed  aftermath. 

Carmurtlicn shire  {West). — The  entry  is  generally  at  Michaelmas,  but 
sometimes  at  Lady-day.  The  usual  holdings  are  from  year  to  year. 
Leases,  as  a  rule,  are  uncommon;  the  few  granted  are  chiefly  for  lives: 
those  for  a  term  of  years  are  very  rare.  The  outgoing  tenant  receives 
some  remuneration  from  his  successor  for  improvements  which  have 
been  recently  made.  The  landlord  allows  him  remuneration  for  the 
outlay  on  recently-erected  buildings,  and  draining ;  but  very  little  of 
the  latter  is  done.  The  incoming  tenant  has  to  pay  for  the  manure 
and  lime  on  the  farm ;  he  has  also  to  pay  for  seeds,  clover,  and  rye- 
grass, sown  the  preceding  spring  by  the  outgoing  tenant.  If  the  latter 
removes  to  another  farm,  he  takes  the  crops  with  him ;  if  lie  does  not, 
the  usual  custom  is  for  him  to  have  a  sale  by  auction  of  all  his  farming 
stock  and  crop  on  the  holding  which  he  is  about  to  leave,  unless  there 
is  a  prohibition  in  his  agreement  against  his  taking  away  the  straw. 
In  the  latter  case,  the  landlord  of  the  incoming  tenant  has  to  pay  for 
the  crop,  and  two  valuers  are  appointed. 

Glamorganshire. — The  tenure  of  a  seven  or  fourteen  years'  lease  is 
pretty  common,  and  the  time  of  entry  respectively  on  the  land  and 
house,  in  the  southern  districts,  arc  Lady-day  and  May-day ;  and  in 


GLAMORGANSHIPvE.  41 

the  other  district?,  Candlemas  and  May-day.  The  landlord  keeps  in 
repair  all  the  buildings  on  the  farm,  the  tenant  doing  the  haulage  of 
materials  for  such  repairs,  and  furnishing  good  wheat  straw  for  thatch- 
ing, if  required,  without  any  compensation.  If  the  landlord  erects  any 
new  buildings,  or  does  any  draining,  five  per  cent,  is  charged  on  such 
outlay.  In  the  eastern  districts  (where  the  holdings  are  principally 
from  year  to  year,  and  if  by  lease,  twenty-one  years),  a  form  of  lease  is 
becoming  very  prevalent,  which  stipulates  that  the  tenant  shall  not  at 
any  time  sow  more  than  one  quarter  of  the  arable  land  with  wheat,  and 
one  quarter  with  other  straw  crops,  nor  take  more  than  two  straw  crops 
from  the  same  land  during  any  four  years  of  tenancy  ;  and  also  lays 
down  strictly  the  allowance  to  the  tenant  on  quitting.  All  the  manure, 
straw  or  stubble  unconsumed  on  the  farm,  is  left  for  the  landlord  or 
the  incoming  tenant  without  compensation.  iWi  the  unconsumed  hay 
is  left,  and  a  certain  number  of  tons  are  paid  for  by  the  landlord  or  in- 
coming tenant  at  a  consuming  price,  and  the  remainder  left  on  the 
premises  without  compensation.  In  the  last  year  of  the  tenancy,  the 
tenant  is  bound  to  sow  one-fourth  of  the  arable  land  with  barley,  and 
to  suffer  the  landlord  or  the  incoming  tenant  to  sow  clover  or  other 
seeds  on  the  same.  He  is  also  bound  to  sow  one-fourth  part  of  the 
arable  land  in  the  same  year  with  turnips.  The  landlord  or  the  in- 
coming tenant  pays  for  the  crop  of  turnips  thus  raised,  and  the  value 
of  the  same  as  well  as  the  hay  is  ascertained,  by  two  valuers,  and  an 
umpire  if  necessary.  It  is  not  usual  to  make  the  tenants  any  allowances 
for  improvements,  unless  there  be  an  agreement  to  that  effect.  They 
cannot  claim  remuneration  for  draining  or  farm  buildings,  unless  they 
have  been  done  with  the  consent  of  the  landlord,  and  on  an  understand- 
ing that  they  are  to  be  allowed.  It  can  hardly  be  said  that  an  estab- 
lished custom  prevails  between  incoming  and  outgoing  tenants ;  but  it 
is  usually  agi-eed  that  if  the  outgoing  tenant  has  properly  fallowed  the 
land,  and  not  taken  a  crop  from  it  during  the  last  year  of  his  tenancy, 
the  year's  rent  and  taxes,  with  other  outgoings,  cost  of  seeds,  sowing, 
&c.,  shall  be  aUowed.  It  is  also  usual  where  lime  has  been  spread  on 
land  and  only  one  crop  taken,  to  allow  one-half  of  the  value  of  such 
lime  at  the  kiln.  Where  clover  seed  has  been  sown  with  the  barley 
crop  in  the  last  year,  the  expense  of  sowing  it  is  allowed,  as  well  as 
that  of  ploughing  up  stubbles,  or  any  necessary  act  of  cultivation  con- 
ducive to  a  future  crop. 

Glamorganshire  {West). — There  is  no  general  custom  as  to  the  period 
of  entry  on  farms  :  some  commence  at  Michaelmas,  some  at  Lady-da}'. 
Leases  are  rather  the  exception  j  those   at  present  in  existence  are 


43  PEMBEOKESHIEE. 

cliiefly  the  remnants  of  the  old  system  of  leases  for  three  lives,  at  a 
nominal  or  at  a  verv  low  fine.  As  the  lives  fall  in,  the  farms  are 
nsnally  re-let  at  rack-rent,  and  subject  to  a  six  months'  notice  to 
quit.  As  a  rule  the  tenants  make  no  improvements,  and  can  there- 
fore claim  nothing  at  leaving.  The  old  class  of  tenants  with  j)rofit- 
able  leases  merely  seem  to  regard  their  leases  as  a  security  against 
all  modern  improvements,  and  upon  the  expiration  of  the  lease  the 
premises  are  generally  found  to  be  ruinous,  and  the  land  in  as  bad  a 
condition  as  possible.  The  rack-rent  tenants  naturally  expect  every- 
thing in  the  way  of  draining  or  building  to  be  done  by  the  landlord ;  in 
the  rare  cases  where  a  tenant  lays  out  money  in  improvements,  the 
landlord  allo^^■s  him  for  them,  but  there  is  no  custom  upon  this  point. 
The  tenants  have  seldom  sufficient  capital  for  the  ordinary  working  ex- 
penses and  proper  stocking  of  the  farm ;  all  improvements  by  them  are, 
therefore,  totally  out  of  the  question.  Tiie  custom  is  for  the  outgoing 
tenant  to  impoverish  the  land  by  a  succession  of  straw  crops  as  long  as 
his  landlord  will  allow  him  to  do  so,  and  when  the  farm  is  thoroughly 
run  out,  he  gives  notice  to  quit.  Before  leaving,  he  has  a  sale  of  all 
his  stock,  crop  and  manure,  doAvn  to  tlie  mud  in  the  lanes,  which  he 
usually  scrapes  up  to  make  the  muck  heap  larger.  The  sale  is  by 
auction,  with  six  or  nine  months'  credit.  The  only  allowance  occasion- 
ally made  to  an  outgoing  tenant  is  for  the  lime,  which,  by  the  custom  of 
the  country,  must  be  paid  full  value  for,  if  put  on  the  same  year,  and 
half  value  if  put  on  the  year  previous.  However,  several  large  land- 
owners are  beginning  to  establish  a  better  state  of  things,  having  de- 
termined to  let  their  farms  upon  yearly  agreements,  with  proper  cove- 
nants as  to  cultivation,  with  a  view  to  prevent  the  overcropping  and  sale 
of  manure  at  the  expiration  of  the  tenancy.  Some  have  begun  to  pur- 
chase all  the  straw  and  manure  of  the  outgoing  tenant,  and  make  the 
incoming  tenant  a  present  of  it  on  condition  that  he  signs  an  agree- 
ment. This  involves  a  considerable  outlay  on  the  part  of  the  landlord, 
but  if  constantly  and  universally  adopted,  will  end  by  entirely  putting  a 
stop  to  the  credit  sales,  which  are  a  most  serious  evil,  and  will  in  some 
measure  compensate  for  the  want  of  capital  on  the  part  of  the  incoming 
tenant,  who  will  find  his  farm  in  good  condition,  and  will  be  merely 
bound  under  heavy  penalties  to  leave  it  as  good  as  he  found  it. 

Pemlrolcesliire. — The  general  entry  on  farms  is  at  Michaelmas,  and 
the  holdings  are  mostly  by  the  year.  Leases  arc  not  so  common  as 
they  were  some  years  ago.  Tliere  are  a  few  for  lives,  and  some  for 
seven,  fourteen,  and  twenty-one  years.  Any  remuneration  which  the 
outgoing  tenant  receives  from  his  landlord  for  building  or  draining  on 


THE  AGrJCULTURAL  HOLDINGS  ACT.  43 

qiiiiting  his  fann,  is  guided  entirely  by  tlic  agreement  wliicli  is  made 
between  them  on  entry.  The  incoming  tenant  pays  for  the  manure 
left  on  the  farm;  sometimes  the  crops  are  taken  at  a  valuation,  and 
if  they  cannot  agree,  the  outgoing  tenant  thrashes  the  corn,  leaving 
the  straw  on  the  farm.  The  turnip  crops  are  generally  taken  by  valua- 
tion. Where  tlicre  is  a  fallow,  so  much  per  acre  is  charged  for  work- 
ing it ;  and  that,  as  well  as  clover-seeds  sown,  are  paid  for  by  the  in- 
coming tenant. 

Radnorshire.  —  In  this  county,  the  smallest  in  South  Wales — so 
small,  indeed,  as  to  have  been  styled  from  the  Bench,  "  that  little 
sheep-walk,  which  calls  itself  a  county," — no  established  tenant-right 
can  be  said  to  exist,  as  the  customs  widely  differ,  even  in  neighbouring 
parishes.  A  very  large  portion  of  the  north-west  side  of  the  county 
consists  of  open  mountain,  and  is  farmed  as  a  sheep-walk.  In  this 
district  an  almost  feudal  relation  exists  between  landlord  and  tenant : 
the  landlord  is  looked  upon  as  the  owner  of  the  flocks,  and  the  tenant 
receives  a  certain  proportion  of  the  profits  in  return  for  his  labour  and 
attendance.  In  the  more  cultivated  districts  the  incoming  tenant 
usually  takes  possession  of  the  land  at  Lady-day;  but  the  outgoing 
tenant  does  not  quit  the  premises  till  February  ;  he,  however,  gives  up 
possession  of  all  the  land,  with  the  exception  of  one  field  sufficient  to 
keep  a  cow.  The  country  on  the  east  side,  in  the  neighbourhood  of 
Knighton,  is  very  fertile,  and  the  Herefordshire  system  of  farming  is 
prevalent.  In  the  more  remote  districts  leases  are  not  uncommon, 
those  for  lives  preponderating  over  those  for  a  term  of  years. 


THE   AGRICULTURAL    HOLDINGS   ACT. 

This  Act,  .38  &  39  Vict.  c.  92,  was  passed  for  the  protection  of 
tenant  farmers  in  England,  and  with  the  intention  of  providing  a 
remedy  for  a  supposed  grievance  under  which  the  tenant  farmers  had 
long  laboured. 

Leases  in  this  country  are  no  doubt  the  exception  and  not  the  rule, 
and  unless  a  tenant  had  a  lease  he  was  liable  under  the  old  system  to 
be  turned  out  of  his  occupation  at  six  months'  notice,  which  notice 
would  probably  expire  at  Michaelmas,  without  receiving  any  com- 
pensation for  his  unexhausted  improvements.  These  improvements 
might  consist  of  permanent  buildings,  drainage,  value  of  unexhausted 
manures,  etc.,  and  it  was  argued  that  no  tenant  could  be  expected  to 


4i  THE  AGRICULTURAL  HOLDINGS  ACT. 

invest  his  capital  in  improvements  of  this  character  if  lie  were  hablc  to 
be  turned  out  of  his  occupation  at  six  months'  notice  without  any 
compensation  for  the  money  which  he  had  expended  upon  his  landlord's 
property.  This  act  came  into  operation  on  the  llth  February,  167G, 
and  does  not  extend  to  either  Scotland  or  Ireland.  The  4th  sec. 
interprets  the  terms  used  in  the  Act:  the  word  "landlord"  bears  a  wide 
interpretation,  viz.,  "  the  person  for  the  time  being  entitled  to  possession 
of  knd  subject  to  a  contract  of  tenancy,  or  entitled  to  receipt  of  rent 
reserved  by  a  contract  of  tenancy,  whatever  be  the  extent  of  his  interest, 
anil  although  the  land  or  his  interest  therein  is  incumbered  or  charged 
by  himself  or  his  settlor,  or  otherwise,  to  any  extent ;  the  party  to  a 
conti-act  of  tenancy  under  which  land  is  actually  occupied  being  alone 
deemed  to  be  the  landlord  in  relation  to  the  actual  occupier  :  it  also 
includes  the  agent  authorised  in  writing  to  act  under  this  Act  generally, 
or  for  any  special  purpose,  and  the  executors,  administrators,  assigns, 
husband,  guardian,  committee  of  the  estate,  or  trustees  in  bankruptcy 
of  the  landlord.  The  interpretation  of  the  "  tenant "  is  not  different 
from  that  usually  held.  The  5th  sec.  gives  a  list  of  improvements 
which  are  comprised  in  the  Act.  They  are  divided  into  three  classes. 
The  first  comprises  : 

Drainage  of  land. 

Erection  or  enlargement  of  buildings. 

Laying  down  permanent  pasture. 

flaking  and  planting  osier  beds. 

Making  of  water  meadows  or  works  of  irrigation. 

]\Iaking  of  gardens. 

Making  or  improvement  of  roads  or  bridges. 

Making  or  improving  of  watercourses,  ponds,  walls,  or  reservoirs, 
or  of  works  for  sn[)ply  of  water  for  agricultural  or  domestic  purposes. 

Marking  of  fences. 

Planting  of  hops. 

Planting  of  orchards. 

Pweclaiming  of  waste  lands. 

"Warping  of  land. 
These  are  called  improvements  of  the  first  class,  and  the  tenant  is 
entitled  to  compensation  up  to  the  end  of  twenty  years  from  the  date  of 
outlay.  The  amount  of  the  tenant's  compensation  in  this  class  of 
improvements  is  the  sum  laid  out  by  the  tenant  on  the  improvement, 
with  a  deduction  of  a  proportionate  part  thereof  for  each  year  while  the 
tenancy  endures  after  the  year  of  tenancy  in  which  the  outlay  is  made, 
and  while  the  improvement  continues,  with  this  proviso,  that  where  the 
landlord  was  not,  at  the  time  of  the  consent  given  to  the  execution  of 


THE   AGRICULTUEAL    HOLDINGS    ACT.  45 

the  improvement,  absolute  owner  of  the  liolding  for  his  own  benefit, 
the  amount  of  the  compensation  shall  not  exceed  a  capital  sum,  fairly 
representing  the  addition  which  the  improvement,  as  far  as  it  continues 
unexhausted  at  the  determination  of  the  tenancy,  then  makes  to  the 
letting  value  of  the  holding. 

It  is  most  important  to  notice  that  a  tenant  shall  not  be  entitled  to 
compensation  in  respect  of  improvements  of  the  first  class  unless  he 
has  received  the  landlord's  consent  in  writing. 

Further  a  sura  reasonably  necessary  to  be  expended  for  the  purpose 
of  putting  an  improvement  into  tenantable  repair  or  good  condition 
shall  be  deducted  from  the  amount  payable  to  the  tenant. 

It  will  be  observed  that  the  words  "  tenantable  repair "  or  "  good 
condition  "  are  used  synonymously. 

The  former  certainly  implies  much  less  than  the  latter,  and  it  is 
diificult  to  see  why  the  words  "  good  condition "  were  put  in  as  an 
alternative.  A  place  may  be  in  tenantable  repair,  but  not  in  good 
condition,  and  certainly  a  place  which  is  in  good  condition  is  in 
tenantable  repair. 

Improvements  of  the  second  class  consist  of — 
Boning  with  undissolved  bones. 
Chalking  of  land. 
Clay  burning. 
Claying  of  land. 
Liming  of  land. 
Marling  of  land. 
Improvements  of  this  class  are  to  be  deemed  unexhausted  for  seven 
years,  and  the  amount  of  compensation  shall  be  the  sum  properly  laid 
out  by  the  tenant  on  the  improvement,  with  a  deduction  of  a  propor- 
tionate part  thereof  for  each  year  while  the  tenancy  lasts  after  the  year 
of  tenancy  in  which  the  outlay  is  made,  and  while  the  improvement 
continues  unexhausted.     A  tenant  shall  not  be  entitled  to  compensation 
in  this  class  unless  he  has  given  notice  to  the  landlord  in  writing  of  his 
intention  to  make  the  improvement,  not  more  than  forty-two  or  not  less 
than  seven  days  before  beginning  to  execute  it,  nor  where  it  is  executed 
after  the  tenant  has   given   or   received   notice   to  quit,  without  the 
previous  consent  in  writing  of  the  landlord.     A  distinction  is  drawn 
between  improvements  of  the  first  and  second  class  in  this  respect,  that 
in  the  former  no  compensation  will  be  given  under  this  Act  unless  the 
consent  in  writing  of  the  landlord  has  been  first  obtained,  whereas  in 
the  latter,  the  tenant  has  power  to  make   the  improvements  and  to 
demand  compensation  provided  he  has  given  the  requisite  notice  to  the 
landlord  unless  he,  the  tenant,  be  under  notice  to  quit. 


46  THE   AGRICULTUEAL   HOLDINGS   ACT. 

Improvemcuts  of  the  tliird  class  consist  of — 
Application  to  land  of  purchased  artificial  or  other  purchased  manure. 
Consumiition  on  the  holding-  by  cattle,  shee.})  or  pigs,  of  cake  or 
other  feeding  stuff  not  produced  on  the  holding. 

Improvements  of  the  third  class  are  deemed  unexhausted  to  the  end 
of  two  years. 

It  is  somewhat  remarkable  that  there  is  no  distinction  between 
artificial  and  other  manures,  it  having  been  held  usually  that  the 
former  are  exhausted  in  one  year,  -while  the  farmyard  manure  is 
supposed  to  benefit  the  land  for  a  much  longer  period. 

The  tenant  is  not  entitled  to  compensation  in  respect  of  an  improve- 
ment in  this  class  where  a  crop  of  "  corn,  potatoes,  hay  or  seed,  or  any 
other  exhausting  crop"  has  been  taken  since  the  execution  of  the 
improvement. 

The  "words  "  other  exhausting  crop "  are  very  vague,  but  would 
probabl}'  include  peas,  beans,  vetches,  flax,  etc. 

By  sec.  14  the  tenant  is  not  entitled  to  compensation  in  respect  of 
an  improvement  in  the  third  class,  consisting  in  the  consumption  of 
cake  or  other  feeding  stufiP,  where,  under  the  custom  of  the  country  or 
an  agreement,  he  is  entitled  to  claim  payment  from  the  landlord  or 
incoming  tenant  in  respect  of  the  additional  value  given  by  that  con- 
sumption to  the  manure  left  on  the  holding  at  the  determination  of  the 
tenancy. 

A  custom  has  obtained  in  some  districts  to  allow  the  outgoing  tenant 
one  half  the  value  of  corn  consumed  on  the  holding  during  the  last 
year  of  his  tenancy  where  no  crop  has  been  taken,  but  it  seems  that  he 
has  the  option  of  taking  advantage  of  the  Act  or  of  seeking  compensa- 
tion under  the  custom  of  the  country. 

Bee.  1')  restricts  the  amount  of  compensation  which  can  be  allotted 
under  this  class  to  the  average  amount  of  the  tenant's  outlay  for  like 
purposes  during  the  previous  three  years  of  his  tenancy,  or  other  less 
number  of  years  Ibr  which  his  tenancy  has  endured,  and  the  value  of  the 
manure  which  would  have  been  made  by  the  consumption  of  any  hay, 
green  crops,  etc.,  sold  ofP  within  the  last  two  years  of  the  tenancy,  except 
in  cases  where  a  proper  return  has  been  made  in  the  shape  of  manure. 

By  sec.  IG,  the  landlord  may  deduct  irom  the  tenant's  compensation 
■whatever  is  or  may  be  due  during  his  occupation  for  taxes,  rates,  the 
tithe-rent-charge,  rent,  or  landlord's  compensation.  The  landlord,  by 
sec.  17,  may  also  set  off  whatever  sum  he  has  contributed  towards  the 
improvements. 

Sees.  18  and  19  provide  for  compensation  for  breach  of  covenant  by 
either  party. 


THE   AGRTCULTUr.AL    HOLDINGS    ACT.  47 

Sees.  20—44  provide  for  the  method  of  procedure  for  tlie  recovery  of 
cUiiins  and  counter-clfiims  under  t1ic  Act. 

Firstly,  the  tenant  must  give  one  month's  notice  to  tlie  landlord  that 
he  intends  to  make  a  claim  under  the  Act,  and  the  landlord  may  at  any 
time  after  receipt  of  notice  of  claim  before  determination  of  the  tenancy 
or  fourteen  days  thereafter,  give  notice  of  counter-claim.  The  parti- 
culars of  the  claim  and  counter-claim,  as  far  as  they  reasonably  can,  arc 
to  be  stated  in  the  notices. 

It  is  difficult  to  see  why  the  words  "  as  far  as  they  reasonably  can  " 
are  inserted.  If  a  tenant  intends  to  seek  compensation  under  the  Act, 
he  ought  to  keep  an  accurate  account  in  detail  of  what  he  has  expended 
in  this  respect,  and  the  qualification  added  would  seem  to  encourage 
parties  to  make  additional  demands  at  the  trial. 

The  landlord  and  his  tenant  may  settle  their  differences  themselves  ; 
if  not,  they  must  go  to  a  reference. 

If  the  parties  agree,  they  may  appoint  jointly  a  referee :  if  not,  each 
shall  appoint  a  referee ;  and  the  two  referees  before  they  enter  on  the 
reference  shall  appoint  an  umpire  :  if  they  fail  to  appoint  within  fourteen 
days  the  County  Court  shall  appoint  an  umpire.  But  in  cases  where 
two  referees  are  appointed,  either  party  may,  on  giving  notice  to  the 
other  in  writing,  require  that  the  umpire  shall  be  appointed  either  by 
the  Inclosure  Commissioners  or  the  County  Court.  The  registrar  may, 
by  consent  of  the  parties,  exercise  the  powers  of  the  Court. 

The  same  powers  are  given  to  the  referee,  referees,  or  umpire  as  are 
usually  given  to  an  arbitrator  as  regards  administering  oaths  to  wit- 
nesses, production  of  documents,  *&c. 

A  single  referee  must  make  his  award  within  twenty-eiglit  days  after 
his  appointment ;  but  two  referees  have  power  to  extend  their  time,  pro- 
vided it  be  done  jointly  in  writing,  up  to  forty-nine  days.  If  two  referees 
fail  to  make  their  award  within  the  appointed  time,  their  authority 
ceases,  and  the  matters  then  stand  referred  to  the  umpire,  who  must 
make  his  award  within  twenty-eight  days  of  his  appointment  as  arbitrator, 
or  within  such  time  as  the  registrar  of  the  County  Court  may  appoint. 

The  award  is  not  to  award  a  sum  generally  for  compensation,  but 
must  specify  in  detail  the  class  under  which  each  sum  is  awarded  and 
the  amount  of  each  improvement,  together  with  the  time  at  which  it 
was  expended. 

The  costs  of  the  reference  are  to  be  paid  by  the  parties  in  such 
proportion  as  the  referees  or  umpire  shall  direct. 

In  cases  where  the  amount  claimed  exceeds  £50  either  party  may 
within  seven  days  after  delivery  of  the  award,  appeal  to  the  Judge  of 
the  County  Coui't,  on  the  grounds— 


48  THE   AGRICULTUPvAL   HOLDINGS   ACT. 

1.  That  the  award  is  invalid: 

2.  That  compensation  has  been  awarded  in  respect  of  matters  for 
■which  the  party  claiming  vras  not  entitled  to  compensation:  or 

3.  That  compensation  has  not  been  awarded  in  matters  for  which  the 
party  claiminii'  was  entitled  to  compensation,  and  the  Jndge  may  remit 
the  whole  or  part  of  the  case  to  be  reheard. 

The  decision  of  the  County  Court  Judge  shall  be  final,  save  that  at 
the  request  of  either  party  he  shall  state  a  special  case  on  a  question  of 
law,  for  the  judgment  of  the  High  Court  of  Justice. 

Any  money  agreed  or  awarded  to  be  paid  under  this  Act  siiall  be 
recoverable  as  other  money  under  the  ordinary  jurisdiction  of  the 
County  Court. 

The  County  Court  has  power  to  appoint  a  guardian  for  landlord  or 
tenant  in  the  case  of  either  being  an  infant  or  of  unsound  mind :  it  may 
also  appoint  a  person  to  act  as  the  next  friend  of  a  married  woman  in 
certain  cases. 

By  sec.  42,  a  landlord,  by  an  order  of  the  County  Court,  may  charge 
the  holding  with  the  amount  of  compensation  he  has  paid  to  the  tenant, 
provided  that,  if  he  be  not  absolute  owner  of  the  holding  for  his  own 
benefit,  no  instalment  or  interest  shall  be  made  payable  after  the  time 
when  the  improvement  in  respect  whereof  compensation  is  paid,  will  for 
the  purposes  of  the  Act  be  taken  to  be  exhausted. 

By  sees.  45 — 47,  the  Act  applies  to  lands  belonging  to  Her  Majesty 
the  Queen,  in  right  of  the  Crown  and  the  Duchy  of  Lancaster,  and  to 
land  belonging  to  the  Duchy  of  Cornwall. 

By  sec.  48,  tlie  powers  of  tliis  Act  cannot  be  exercised  by  an  arch- 
bishop or  bishop  in  respect  of  lands  assigned  "or  secured  as  the  endow- 
ment of  a  see  without  the  approval  in  writing  of  the  Ecclesiastical 
Commissioners. 

Nor,  by  sec.  49,  in  the  case  of  an  incumbent  of  an  ecclesiastical 
benefice  without  the  written  approval  of  the  Governors  of  Queen  Anne's 
Bounty, 

Nor,  by  sec.  50,  in  the  case  of  trustees  for  ecclesiastical  or  charitable 
purposes  without  the  written  approval  of  the  Charity  Commissioners. 

Sec.  51  is  very  important,  seeing  that  by  it  a  year's  notice  to  quit  is 
necessary  instead  of  half  a  year. 

Sec.  52  legislates  for  cases  in  which  a  landlord  gives  notice  to  his 
tenant  to  quit  with  the  object  of  using  the  land  for  certain  purposes, 
viz. : 

(].)  I'^i'cction  of  farm-labourers'  cottages ; 

(2.)  Providing  gardens  for  farm-labourers; 

(3.)  Allotments  for  labourers  ; 


AGRICULTURAL   HOLDINGS   ACT.  4'J 

(4.)  Plantations ; 

(5.)  Mines; 

(G.)  Briclv-earth,  gravel,  or  sand  ; 

(7.)  Watercourses  or  reservoirs  ; 

(8.)  Eoads,  tramways,  &c. 

In  all  these  cases  the  provisions  of  the  Act  apply  as  regards  compen- 
sation, as  on  determination  of  a  tenancy  of  an  entire  holding,  and  the 
tenant  will  be  entitled  to  a  proportionate  redaction  of  rent  for  the  land 
taken,  and  also  in  respect  of  any  depreciation  of  the  value  to  him  of  tl)e 
residue  of  the  holding  by  the  withdrawal  of  that  land  or  liy  the  use  to 
be  made  thereof. 

Sec.  53  relates  to  fixtures. 

By  sec.  54,  nothing  in  the  Act  shall  prevent  a  landlord  and  tenant 
from  making  any  agreement  they  may  think  fit ;  but  by  sec.  55  they 
may  adopt  certain  parts  of  the  Act,  and  not  the  whole. 

By  sec.  50,  this  Act  will  apply  to  all  future  tenancies,  unless  the 
parties  agree  in  uniting  that  this  Act  shall  not  apply  to  their  contract. 

And  by  sec.  57,  either  landlord  or  tenant  in  any  contract  of  tenancy 
current  at  the  commencement  of  the  Act  might,  by  giving  notice  to  the 
other  within  two  months  after  the  commencement  of  the  Act,  viz., 
February  14,  1.S76,  become  exempt  from  the  provisions  of  the  Act ;  and 
the  Act  does  not  apply  to  holdings  of  less  than  two  acres. 

It  will  be  observed  that  the  adoption  of  the  Act  is  not  compulsory, 
and  that  it  does  not  interfere  with  the  freedom  of  contract  between 
landlord  and  tenant  in  any  way.  It  seems,  moreover,  that  the  process 
of  settling  a  heavy  case  is  both  expensive  and  long :  certain  it  is  at  any 
rate  that  the  Act  has  not  at  present  been  adopted  to  any  extent. 


50  INTERESTS   IN   LAND.      SALE   OF   HOPS. 


CHAPTER   IT. 

INTERESTS    IN    LAND. 

T7here  anything  is  done  which  substantially  amonnts  to  a  sale  or 
parting  with  an  interest  in  land,  the  contract  is  for  or  relating  to  the 
sale  of  an  interest  in  or  concerning  lands,  tenements,  or  hereditaments, 
within  the  meaning  of  the  29  Car.  II.  c.  3,  s.  4. 

The  case  of  Waddt/i//fon  v.  Brisiowe,  where  a  written  agreement  was 
made  in  November,  1799,  for  all  the  hops  which  should  be  grown  in  the 
ensuing  year,  upon  a  given  number  of  acres  of  land,  was  long  regarded 
as  a  leading  one  on  the  subject  of  root  crops,  conferring  an  interest  in 
land.  The  hops  which  were  the  subject  of  the  contract  were  not  then  in 
existence  ;  there  was  nothing  but  the  root  of  the  plant  (from  which  the 
bine  which  was  to  flower  and  produce  the  hop,  w^ould  shoot  out  in  the 
following  sj)ring),  and  the  purchaser  was  not  to  have  that.  However, 
after  the  lapse  of  a  quarter  of  a  century,  Mr.  Justice  Bayley,  when 
delivering  judgment  in  Evans  v.  Roherts,  passed  it,  among  several 
others  of  the  same  class,  under  review,  and  showed  that  it  could  not 
be  said  to  have  been  decided  on  that  ground  at  all.  "  The  question  in 
that  case,"  said  his  lordship,  "  was  not  whether  the  agreement,  which 
was  in  writing,  was  for  an  interest  in  land,  but  whether  it  ought  to 
have  been  stamped.  It  was  contended  that  it  was  within  the  exception 
in  23  Geo.  III.  c.  58,  s.  4,  an  agreement  made  for  and  relating  to  the 
Bale  of  goods,  wares,  and  merchandise.  All  the  judges  concm-red  in  the 
judgment  that  the  contract  in  that  case  was  not  such  an  agreement  ; 
but  Charnbre  J.  was  the  only  judge  who  intimated  an  opinion  that  the 
contract  gave  the  vendee  an  interest  in  land.  He  certainly  stated  that 
tiic  contract  gave  the  vendee  an  interest  in  the  produce  of  the  whole  of 
that  part  of  the  vendor's  fiirm  whicli  consisted  of  hop  grounds."  Hence 
the  case  hardly  deserved  to  be  quoted  by  Lord  Mansfield  C.J.,  as  a 
precedent  strictly  in  point  in  Emmerson  v.  Heelis,  where  the  Court  of 
Common  Pleas  decided  that  a  sale  of  growing  turnips  by  public  auction 
no  time  being  stipulated  for  their  removal,  and  the  degree  of  their 
maturity  not  being  positively  found,  was  a  sale  of  an  interest  in  land 
withm  29  Car.  11.  c.  3,  s.  4,  and  must  be  in  writing,  "  because  we  do 


GROWING    POTATOES.  51 

not  see  how  it  can  be  distinguished  from  the  case  of  hops  decided  in 
this  court." 

In  Emmersoii  v.  Heelis  the  defendant,  by  his  agent,  who  was  his 
farming  servant,  attended  at  the  sale,  and  being  the  highest  bidder  was 
declared  the  purchaser  of  twenty-seven  different  lots,  of  fourteen  stitches 
or  furrows  each,  and  his  name  was  written  in  the  sale-bill  by  the 
auctioneer  opposite  each  particular  lot  which  he  had  purchased.  On 
this  case  also  Bayleij  J.  thus  commented  in  Evans  v.  RoVerts  :  "  It  was 
not  necessary  to  decide  the  point  upon  the  Statute  of  Frauds,  because 
there  was  another  point  in  favour  of  the  plaintiflF,  which  rendered  a 
decision  upon  the  first  question  perfectly  unnecessary,  for  the  contract 
being  signed  by  the  auctioneer  as  the  agent  of  the  buyer  was  equally 
binding,  whether  it  was  for  a  sale  of  goods  and  chattels  or  of  an  interest 
in  land."  Parlce  B.  also  said  in  allusion  to  Waddington  v.  Bristoice,  in 
the  course  of  the  argument  in  Rodwell  v.  Phillips,  "  hops  are  fnidus 
industriales.  That  case  would  now  probably  be  decided  differently. 
The  distinction  is  pointed  out  in  Sainshurij  v.  MaWieivs." 

The  facts  in  Evans  v.  Rolerts  were  as  follows  :  The  defendant,  on 
September  25,  1825,  agreed  by  parol  with  the  plaintiff  to  purchase  a 
cover  of  potatoes  then  growing  on  land  of  the  plaintiff  at  the  price  of  £5, 
and  the  defendant  paid  \s.  earnest.  Some  dispute  arose  as  to  who 
should  raise  the  potatoes,  and  the  plaintiff  agreed  to  dig  them  np, 
the  defendant  agreeing  to  come  and  take  them  away  before  the  next 
Christmas ;  but  in  consequence  of  the  price  falling  from  12s.  to  8s. 
per  sack  he  refused  to  stand  by  his  bargain.  Garroiu  B.  ruled,  in  an 
action  of  indehitatus  assumpsit  for  a  cover  of  potatoes  bargained  and 
sold,  that  inasmuch  as  the  vendor  was  to  take  up  the  potatoes,  it  must 
be  considered  not  as  an  interest  in  land  within  the  4th,  but  as  merely 
a  contract  for  the  sale  and  delivery  of  goods  and  chattels  within  the 
meaning  of  the  17th  section  of  the  Statute  of  Frauds,  and  the  plaintiff 
had  a  verdict  for  £4  19s.  The  Court  of  King's  Bench  refused  to 
enter  a  nonsuit,  and  held  that  this  was  clearly  not  an  interest  in 
land. 

Bagleg  J.  said,  "  The  defendant  has  no  right  to  any  possession  of  the 
land  ;  the  only  thing  for  which  he  has  bargained  is  that  he  shall  have 
the  potatoes  delivered  to  him  when  their  growth  shall  be  complete." 
"  In  the  case  of  growing  potatoes,  which  are  the  artificial  produce  of 
the  land,  arising  from  a  particular  course  of  husbandry,  they  come 
within  the  description  of  emblements,  and  go,  not  to  the  heir,  but  to 
the  executor,  and  they  may  be  seized  in  execution  under  a  writ  of  fieri 
facias.  That  writ  goes  against  the  goods  and  chattels  of  the  party,  and 
therefore  whatever  the  executor  would  be  entitled  to  take  as  goods  and 

E  2 


5i  GROWING    POTATOES. 

chattels  may  be  seized  by  the  sheriff.  Xoay  the  potatoes  in  this  case 
might,  in  my  opiuioii,  be  seized  under  a  writ  of  fieri  facias,  and  whether 
at  the  time  of  the  contract  they  were  in  a  growing  state,  or  in  a  ware- 
house, it  seems  to  me  that  they  are  to  be  considered  as  what  the  law 
designates  goods  and  cliattels.  If  that  be  so,  then  they  are  not  within 
the  provision  of  the  4th  section  of  the  29  Car.  II.  c.  3.  In  the  case  of 
ParJcer  v.  Staniland,  the  potatoes  were  clearly  considered  as  goods  and 
chattels,  and  not  amounting  to  an  interest  in  land.  I  agree  that  that 
case  is  distinguishable  from  the  present,  because  there  the  potatoes  had 
ceased  to  grow.  The  case  of  War/ricJc  v.  Bruce  is  distinguishable  from 
this  in  the  same  particular  ;  but  I  think  the  reasoning  of  Lord  Mlen- 
lorouijlt,  in  the  latter  case  is  extremely  important  in  assisting  us  in 
coming  to  a  right  conclusion  when  forming  a  judgment  as  to  the  effect 
of  that  clause  of  the  Statute  of  Frauds  which  speaks  of  an  interest  in 
lands,  tenements,  or  hereditaments.  He  there  says,  '  As  to  the  last 
objection,  if  this  had  been  a  contract  conferring  an  exclusive  right  to 
the  land  for  a  time,  for  the  ])urpose  of  making  a  profit  of  the  growing 
surface,  it  would  ]:»e  a  contract  for  the  sale  of  an  interest  in  or  concern- 
ing lands,  and  would  then  fall  unquestionably  within  the  range  of 
Croshij  V.  Wadsworth.  But  lierc  is  a  contract  for  the  sale  of  potatoes 
at  so  much  per  acre  ;  the  potatoes  are  the  subject-matter  of  the  sale, 
and  whether  at  the  time  of  the  sale  they  were  covered  with  earth  in  a 
field  or  in  a  box,  still  it  was  a  sale  of  a  mere  chattel.  It  falls  therefore 
within  the  case  of  Parlccr  v.  Staniland,  and  that  disposes  of  the  point 
on  the  Statute  of  Frauds.'  It  docs  not  appear  that  the  other  judges  in 
giving  judgment  made  any  observations  upon  that  point ;  but  it  is 
clear  that  my  Lord  EllmlorouglC s  judgment  proceeded  on  the  ground 
that  if  the  contract  gave  to  the  vendee  no  right  to  the  land  for  the 
purpose  of  enabling  liim  to  make  a  profit  of  the  growing  surface,  then  it 
was  not  to  be  considered  as  giving  him  an  interest  in  the  land,  but 
merely  in  a  chattel.  Now,  trying  this  case  by  that  test,  there  is  nothing 
but  a  contract  for  the  sale  and  delivery  at  a  future  period  of  that  which 
at  a  future  period  Avould  be  in  a  perfect  state  as  goods  and  chattels." 

In  ParJcer  v.  Staniland  the  plaintiff  o,wned  a  two-acre  close,  which 
was  crojiped  with iiotatocs,  and  agreed  with  the  defendant  on  November 
21st,  to  sell  him  the  potatoes  at  4s.  Gf7.  per  sack.  The  defendant  was 
to  get  them  up  himself,  and  to  get  them  immediatehj,  and  he  employed 
men  on  the  2r)th,  2Gtli,  and  27lh  of  the  same  month,  and  got  21,  24, 
and  33  sacks  full.  On  the  4th  of  December  he  got  7  sacks  more,  and  14 
aljout  Ladij-ddjf,  the  value  of  which  was  covered  by  the  money  paid 
into  Court.  There  remained  about  tliree  I'oods  of  potatoes,  which  were 
not  dug  up,  and  which  were  spoilt  1)y  the  frost  j  and  in  an  action 


(IKOWING   POTATOES.  53 

brought  to  recover  the  vahie  of  these,  the  plahitiff  had  a  verdict.  It  was 
objected  on  behalf  of  the  defendant,  that  it  was  an  interest  in  land,  and 
ought  to  have  been  in  writing  ;  but  BayJcij  J.  overruled  the  objection, 
and  the  Court  unanimously  refused  to  grant  a  nonsuit.  Baijlcy  J. :  "  I 
do  not  think  that  this  contract  passed  an  interest  in  the  land,  within 
the  meaning  of  the  fourth  section  of  the  Statute  of  Frauds.  In  the 
cases  of  Crosby  v.  Wadstvorih,  and  Waddmgton  v.  Bristowe,  the  contracts 
were  made  for  the  growing  crops  of  grass  and  hops,  and  therefore  the 
purchasers  of  the  crops  had  an  immediate  interest  in  the  land,  while 
the  crops  were  growing  to  maturity  before  they  v/ere  gathered :  but 
here  the  land  was  considered  as  a  mere  warehouse  for  the  potatoes,  till 
the  defendant  could  remove  them,  which  he  was  to  immediately,  and 
therefore  /  do  not  ihlnh  the  case  is  within  the  slalute."  And  jjer  Ellcn- 
horouyh  C.  J. :  "  The  lessee  primce,  vesturec  may  obtain  trespass  quara 
dausumf regit,  or  ejectment  for  injuries  to  his  possessory  right,  but  this 
defendant  could  not  have  maintained  either  ;  for  he  had  no  right  to 
the  possession  of  the  close  ;  he  had  only  an  easement,  a  right  to  come 
upon  the  land  for  the  purpose  of  taking  up  and  carrying  away  the 
potatoes ;  but  that  gave  him  no  interest  in  the  soil.  I  am  not  disposed 
to  extend  the  case  of  Crosby  v.  Wadsicorth  further,  so  as  to  bring  such 
a  contract  as  this  within  the  Statute  of  Frauds,  as  passing  an  interest 
in  land." 

The  defendant  in  War  wide  v.  Bruce  on  the  12  th  of  October  agreed  by 
parol  to  sell  to  the  plaintiff  (an  infant)  all  the  potatoes  then  growing  on 
3|-  acres  of  his  land,  at  £25  an  acre,  to  be  dug  u^p  by  the  2)laintiff,  who 
paid  £40  under  the  agreement.  The  latter  then  dug  up  and  carried 
away  part  of  the  potatoes,  but  was  prevented  by  the  defendant  from 
digging  and  carrying  away  the  residue.  It  was  held  that  the  plaintiflp 
was  entitled  to  recover  for  this  breach  of  the  contract  in  part  executed 
by  him,  and  which  was  for  his  benefit,  and  that  it  was  not  within  the 
fourth  section  of  the  statute. 

Again,  in  Sainsbury  v.  Matthews  the  plaintiff  and  defendant  were  at  an 
inn  on  the  29th  of  June,  and  the  latter  said  he  had  100  bags  of  potatoes 
to  sell  at  2s.  a  sack.  The  plaintiff  said  he  would  take  them,  and  it  was 
agreed  that  he  was  to  hare  them  at  that  price  at  diyging-iq)  time,  and  find 
diggers.  When  the  potatoes  were  ripe,  the  plaintiff  sent  diggers  to  take 
them  up,  but  the  defendant  refused  permission.  There  was  some  con- 
flicting evidence  as  to  whether  the  agreement  had  been  previously 
rescinded  ;  but  the  plaintiff"  had  a  verdict  for  £5  10s.,  and  the  Court 
of  Exchequer  refused  a  nonsuit.  Parlee  B.  said  :  "  This  is  a  contract 
for  the  sale  of  goods  and  chattels  at  a  future  day,  the  produce  of  certain 
land,  and  to  be  taken  away  at  a  certain  time.     It  gives  no  right  to  the 


54  GROWING   FRUIT   AND   TIMBER. 

laud :  if  a  tempest  had  destroyed  the  crop  in  the  meantime,  and  there 
had  been  none  to  deliver,  the  loss  would  have  clearly  fallen  upon  the 
defendant.  The  case  is  stronger  than  that  of  Evans  v.  Roberts,  because 
here  there  is  only  a  stipulation  to  pay  so  much  per  sack  for  the  potatoes 
when  delivered:  it  is  only  a  contract  for  goods  to  be  sold  and  delivered." 
And^w  Lord  Ahiiujer  C.B.:  "  This  was  not  a  contract  giving  an  interest 
in  the  land  :  it  is  only  a  contract  to  sell  potatoes  at  so  much  a  sack  on 
a  future  day,  to  be  taken  up  at  the  expense  of  the  vendee  ;  he  must  give 
notice  to  the  defendant  for  that  purpose,  and  cannot  come  upon  the  land 
when  he  pleases." 

In  Mod/cell  v.  PldlUps  it  was  decided  that  an  agreement  for  the  sale 
of  gro/rini/  fruit  and  vcgetaltcs  is  an  agreement  for  the  sale  of  an  interest 
in  land,  within  the  meaning  of  the  Stamp  Act,  55  Geo.  III.  c.  184, 
sched. part  I.,  title  "  Conveyance"  and  if  of  the  value  of  £20,  requires  a 
stamp.     The  memorandum  of  agreement  was  as  follows  : 

Memorandum  of  agreement,  this  lith  day  of  July,  1840. 

"  Thomas  Phitlijis  agrees  to  sell  to  Mr.  Rod  well  all  the  crops  of  fruit  and 
vegetables  of  the  upjjcr  portion  of  the  garden,  from  the  targe  pear 
trees  for  the  sum  of  £S0 ;  and  Lionel  Rodwell  agrees  to  buy  the 
same  at  the  aforesaid  price,  and  has  paid  £1  dep)osii. 

"  Witness  our  hands,  "  T.  P. 

"  L.  Rr 

Lord  Ahinger  C.B.,  said:  "There  is  a  great  variety  of  cases,  in  which  a 
distinction  is  made  between  the  sale  of  growing  crops  and  the  sale  of  an 
interest  in  land  ;  and  it  must  be  admitted  that  taking  the  cases  alto- 
gether, no  general  rule  is  laid  down  in  any  one  of  them,  that  is  not 
contradicted  by  some  other.  It  is  sufficient,  however,  for  us  to  say, 
that  we  think  this  case  ought  not  to  be  governed  by  any  of  those  in 
■which  it  is  decided  that  a  sale  of  growing  crops  is  a  sale  of  goods  and 
chattels.  Growing  fruit  would  not  pass  to  an  executor,  but  to  the  heir; 
it  could  not  be  taken  by  a  tenant  for  life,  or  levied  in  execution  under  a 
writ  of  fieri  facias,  by  the  sheriff ;  therefore  it  is  distinct  from  all  those 
cases  where  the  interest  would  pass  not  to  the  heir-at-law,  but  to  some 
other  person.  Undoubtedly  there  is  a  case,  Smith  v.  Surman,  in  which 
it  appears  that  a  contract  to  sett  timber  growing  was  lield  not  to  convey 
any  interest  in  the  land  ;  but  that  was  wdicre  the  parties  contracted  to 
sell  the  timber  at  so  much  per  foot,  and  from  tiic  nature  of  that  contract 
it  must  be  taken  to  have  been  the  same  as  if  the  parties  had  contracted 
for  the  sale  of  timber  already  felled.  In  this  case  there  seems  to  be  no 
doubt  that  this  was  a  sale  of  that  species  of  interest  in  the  produce  of 


GROWING   TIMBEPw  55 

lands  which  has  not  been  excepted  by  the  Stamp  Act,  and  that  it  is  not 
a  sale  of  goods  and  merchandise." 

Smith  V.  Sunnan,  which  Alder  son  B.  alluded  to  in  the  course  of  the 
argument  of  Washhourne  v.  Burrows,  as  "  in  fact  a  contract  to  sell 
timber  as  a  chattel,"  was  an  action  to  recover  £17  3s.  &d.  for  229  feet 
of  ash  timber  at  l.s.  Qil.  per  foot.  The  plaintiflF,  who  was  the"  proprietor 
of  a  coppice,  had  given  orders  to  fell  some  ash  trees.  When  two  of  the 
trees  had  been  already  felled,  the  defendant  came  to  the  coppice,  and 
the  plaintiflF  pointed  out  to  him  the  remainder,  which  were  numbered 
from  1  to  14.  The  defendant  said  to  a  bystander  he  had  made  a  good 
bargain,  and  told  one  of  the  cutters  to  tell  the  other  men  to  cross-cut 
them  fair.  When  they  were  cut  and  measured,  the  defendant  met  the 
measurer,  and  on  hearing  that  they  were  measured,  offered  to  sell  him 
the  butts  (which  he  alleged  he  had  bought  of  the  plaintiff),  and  then 
said,  when  this  was  not  acceded  to,  that  he  would  go  to  the  plaintiff's 
and  convert  the  tops  into  building-stuflf.  He  afterwards  said  that  he 
had  bought  ten  trees  only,  and  that  the  reason  he  did  not  take  them  was 
that  they  were  unsound.  The  timber  not  having  been  taken  away,  tlie 
plaintiff's  attorney  wrote  him  to  say  that  the  timber  he  objected  to  as 
faulty  and  unsound,  was  "  very  kind  and  superior,  and  a  superior 
marketable  article,"  and  that  he  could  have  no  objection  to  the  mode 
of  cross-cutting,  as  it  was  done  agreeably  to  his  own  direction.  The 
defendant  wrote  in  his  answer  that  he  bought  the  timber  from  Mr.  Smith 
"/tf  he  sound  and  good,  which  I  have  some  doubts  whether  it  is  so  or  not ; 
but  he  promised  to  make  it  so,  and  noiv  denies  it.  When  I  saw  him,  he 
told  me  I  should  not  have  any  without  all ;  so  we  agreed  on  these  terms, 
and  I  expected  him  to  sell  it  to  somebody  else."  The  Court  of  Queen's 
Bench  held  that  the  contract  was  not  one  for  the  sale  of  an  interest  in 
land  within  the  meaning  of  the  4th  section,  but  one  for  the  sale  of 
goods,  within  the  17th.  Litlledalc  J.,  said  :  "  I  think  that  the  contract 
in  this  case  was  not  a  contract  for  the  sale  of  lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concerning  the  same  within  the  meaning 
of  the  4th  section.  Those  words  in  that  section  relate  to  contracts 
(for  the  sale  of  the  fee-simple,  or  some  interest  less  than  the  fee),  which 
give  the  vendee  a  right  to  the  use  of  the  land  for  a  specific  period.  If 
in  this  case  the  contract  had  been  for  the  sale  of  the  trees,  with  a 
specific  liberty  to  the  vendee  to  enter  the  land  to  cut  them,  I  think  it 
Avould  not  have  given  him  an  interest  in  the  land,  Avithin  the  meaning 
of  the  statute.  The  object  of  a  party  who  sells  timber  is  not  to  give 
the  vendee  any  interest  in  his  land,  but  to  pass  to  him  an  interest  in 
the  trees  when  they  become  goods  and  chattels.  Here  the  vendee  was 
to  cut  the  trees  himself.    His  intention  clearly  was  not  to  give  the 


56  GROWING    UNDERWOOD. 

vendor  any  property  in  the  trees,  until  they  were  cut,  and  ceased  to  be 
part  of  the  freehold."'  And  per  curiam  there  was  no  part  acceptance  or 
actnal  receipt  of  the  broods  to  satisfy  the  iTth  section,  inasmuch  as  there 
was  nothing  to  show  that  the  purchaser  had  divested  himself  of  his  right 
to  object  to  the  quality  of  the  goods,  or  tliat  the  seller  had  lost  his  lien 
for  the  price. 

Scorrdl  v.  Boxall,  where  it  was  ruled  in  the  Court  of  Exchequer  that 
the  sale  of  groiving  wider  wood  to  be  cut  by  the  purchaser  confers  an 
interest  in  land,  was  relied  on  for  the  defendant  in  Smith  v.  Siirman, 
but  was  not  commented  upon  in  any  of  the  judgments,  which  were 
principally  directed  to  show  that  the  contract  was  one  for  the  sale  of 
goods,  wares,  and  merchandize,  within  the  17th  section  of  the  statute. 
Hidloclc  B.,  in  ScorrcU  v.  Boxall,  refused  to  recognize  as  law  the 
opinion  of  Treljy  C.J.  and  Poicell  J.  (1  Ld.  Raym.  182),  that  the  sale 
of  timber  growing  upon  land  may  be  by  7;«ro?,  because  it  is  but  a  bare 
chattel,  and  rested  his  decision  on  the  principle  that  trees  annexed  to 
the  freehold  are  parcel  of  the  inheritance,  and  pass  with  it,  while  corn 
and  other  industrial  crops  go  to  the  executor,  and  may  be  seized  under 
a  fi.fa.,  which  was  the  distinction  on  which  Littledale  J.'s  judgment 
was  based  in  Evajis  v.  Rolcrts.  His  Lordship  also  relied-  on  Teal  v. 
Auiy,  where  the  Court  of  Common  Pleas  intimated  that  the  sale  of 
growing  ])oles  or  young  trees  which  the  defendants  had  purchased  and 
afterwards  cut  and  carried  away,  does  confer  an  interest  in  land. 
There,  however,  it  was  not  necessary  to  inquire  whether  the  original 
agreement  was  in  writing,  as  the  poles  were  taken  away  and  the  agree- 
ment executed,  and  the  plaintiff  was  nonsuited  in  consequence  of  the 
absence  of  proof  as  to  what  was  strictly  due. 

Crosly  V.  Wadsivorth  is  among  the  first  of  the  cases  which  were 
decided,  under  the  statute,  on  the  question  of  grass  crops.  The  plaintiff 
agreed  by  parol  with  the  defendant,  on  June  C,  1804,  for  the  purchase 
of  a  standing  crop  of  moiving  grass,  then  growing  in  a  close  of  the 
defentant's  at  Claypole,  for  20gs.  It  was  to  be  mown  and  made  into 
hay  by  the  plaintiff,  but  the  parties  did  not  absolutely  fix  upon  any 
time  at  or  which  the  mowing  was  to  be  begun.  JSTo  earnest  was  given, 
and  no  note  or  memorandum  signed.  The  defendant,  who  kept  pos- 
session of  the  close,  told  the  plaintiff  on  the  2nd  of  July  that  he  should 
not  have  the  grass,  and  sold  it  to  another  person  on  the  same  day  for 
2.5g8.  Later  in  the  month,  the  plaintiff  tendered  to  the  defendant 
20gs.,  which  the  latter  refused,  and  then,  finding  the  gate  unlocked, 
entered  and  cut  part  of  the  grass.  He  was  discharged,  and  the  whole 
of  the  crop  was  taken  away  by  the  new  purchaser.  It  was  held  by  the 
Court  of  King's  Bench  that  the  plaintiff  had,  under  the  circumstances, 


GROWING    CROrS.  57 

such  a  possession  of  the  close  though,  for  a  limited  purpose,  that  he 
might  maintain  trespass  qu.  d.  freg.  against  any  person  entering  the 
close,  and  taking  the  grass  even  with  the  assent  of  the  owner  ;  but  that 
this  being  a  contract  for  the  sale  of  an  interest  in  and  concerning  land, 
it  was  voidable  by  the  4tli  section  of  the  statute  if  not  reduced  to 
writings  and  might  be  discharged  by  parol  notice  from  the  owner  before 
any  part  execution  of  it.  Baylcy  J.  observed  upon  this  case,  in  Evans 
V.  Roberts,  "  The  contract  was  clearly  for  the  sale  of  an  interest  in  land. 
There  the  grass  was  growing,  and  the  vendee  was  to  mow  it,  and  con- 
vert it  into  hay.  He  had  the  whole  of  the  vesture  of  the  land,  and  had 
the  exclusive  possession  of  the  soil  from  the  date  of  the  contract,  until 
the  period  when  the  grass  should  be  cut  and  made  into  hay.  Grass 
growing  in  a  natural  state  stands  on  a  very  different  footing  from  pro- 
duce which  is  obtained  from  the  land  by  artificial  means,  or  by  the 
application  of  a  particular  course  of  husbandry.  Grass  is  the  natural 
growth  and  produce  of  the  land  itself,  permanently  remaining,  not 
exhausted  when  once  cut,  but  constantly  growing  and  renewing.  It 
cannot  be  seized  in  execution  under  a  fieri  facias,  as  goods  and 
chattels,  and  on  the  death  of  the  owner  of  the  laud  it  goes  to  the  heir, 
and  not  to  his  executor  or  personal  representative." 

Poidter  V.  KiUimjlmlc,  which  was  alluded  to  at  the  close  of  the  plain- 
tifiTs  argument  in  the  above  case,  had  no  material  application  in  favour 
of  the  plaintiff.  There  the  plaintiff  wished  to  cultivate  some  pieces  of 
fen  land,  and  agreed  verbally  to  let  them  to  the  defendant  without  rent, 
the  latter  to  plough,  dress,  and  sow  them  for  two  successive  crops,  and 
in  lieu  of  rent  to  allow  the  plaintiff  a  moiety  of  the  crops.  Yvhile  the 
crops  of  the  second  year  were  in  the  ground  an  appraisement  of  them 
was  taken  fur  both  parties,  and  the  value  ascertained  ;  and  as  the 
defendant  refused  to  pay  a  moiety  of  the  value,  this  action  was  brought. 
It  was  held  by  the  Court  of  Common  Pleas  that  the  plaintiff  might 
well  declare  in  indeMatus  assumimt  for  a  moiety  of  the  value  of  the 
crop  sold,  without  stating  the  special  agreement,  as  that  was  executed 
by  the  appraisement,  and  the  action  rose  out  of  something  collateral  to 
it.  Bidler  J.  said,  "  If  no  appraisement  had  taken  place,  the  objection 
to  the  action  in  this  form  might  have  prevailed.  But  that  circum- 
stance is  decisive.  With  res[)ect  to  the  point  made  at  the  trial,  on  the 
Statute  of  Frauds,  that  agreement  does  not  relate  to  any  interest  in 
land,  which  remains  altogether  unaltered  by  the  arrangement  concern- 
ing the  crops."  Lord  EUenhorovgh  remarked  on  this  point,  in  Croslnj 
V.  WadsworUi,  "  The  contract  in  Poidter  v.  KiJJinglycclc,  if  it  had  origi- 
nally concerned  an  interest  in  land,  after  the  agreed  substitution  of 
pecuniary  value  for  specific  produce  no  longer  did  so  ;  it  was  originally 


58  GROWING   GEASS. 

an  agreement  to  render  what  should  have  become  a  chattel,  ?'.  c,  part 
of  a  severed  crop,  in  that  shape,  iu  lieu  of  rent ;  and  by  a  subsequent 
agreement  it  was  changed  to  money  instead  of  remaining  a  specific 
render  of  produce.  So  that  one  wonders  rather  how  it  should  ever 
have  been  thought  an  interest  in  land,  than  that  it  should  have 
been  decided  not  to  be  so," 

In  Caii-iiKjton  \.  Roots  the  plaintiff  had  verbally  agreed  with  the  de- 
fendant, in  ]May,  to  buy  of  him  a  crop  of  grass,  growing  in  a  four-acre 
field,  at  £5  lO-s,  per  acre,  to  be  cleared  by  the  end  of  September,  and 
half  the  price  to  be  paid  down  before  the  plaintiff  cut  any  of  the  grass. 
This  condition  not  having  been  complied  with,  the  defendant  turned  the 
plaintiffs  horse  and  cart  out  of  the  field,  and  prevented  him  from  cutting 
or  carrying  away  the  grass.  It  was  held  by  the  Court  of  Exchequer 
that  trespass  did  not  lie,  for  that  this  was  in  substance  an  action 
charging  the  defendant  on  the  contract  within  section  4  of  the  Statute 
of  Frauds,  and  that  a  contract  for  the  sale  of  an  interest  in  land  without 
a  note  in  writing,  may  operate  as  a  licence,  so  as  to  excuse  the  entry 
of  the  purchaser  on  the  land,  but  cannot  be  made  available  in  any 
Avay  (IS  a  contrcict. 

Parlce  B.  said,  "  The  question  is,  what  the  plaintiff  means  when  he 
avers  in  his  replication,  that  while  the  close  or  crop  of  grass  was  the 
property  of  the  defendant,  he  agreed  to  sell  and  sold  to  the  plaintiff, 
and  the  plaintiff  agreed  to  buy  and  bought  of  him  the  crop  of  grass  at 
a  certain  price  per  acre,  with  lil)erty  to  the  plaintiff  to  cut  and  take 
away  the  grass,  and  to  enter  upon  the  close  with  his  horse  and  cart  for 
that  purpose,  by  virtue  of  which  he  became  possessed  of  the  crop  of 
gi'ass.  Docs  he  mean  an  agreement  in  fact,  operating  as  a  licence  only  ? 
or  a  binding  contract  for  the  sale  of  the  crop,  and  for  him,  the  plaintiff, 
to  have  a  right  of  entry  on  the  land  to  gather  it  ?  I  think  the  latter  is 
the  true  construction,  and  that  it  means  a  contract  which  one  party 
could  enforce  against  the  other  as  a  matter  of  right.  If  this  be  so,  then 
supposing  the  agreement  to  be  for  the  sale  of  chattels,  it  was  not  proved 
by  the  evidence :  if  it  was  an  agreement  for  the  sale  of  an  interest  in 
land,  it  was  not  binding,  by  virtue  of  the  4th  section  of  the  Statute  of 
Frauds.  I  think  the  right  interpretation  of  that  section  is,  that  an 
agreement  which  cannot  be  enforced  on  either  side,  is  as  a  contract  void 
altogether  :  no  doubt  it  may  have,  as  an  agreement  in  fact,  some  opera- 
tion in  communicating  a  licence,  but  such  licence  would  be  counter- 
mandablc ;  and  tliat  appears  to  be  the  whole  effect  of  the  decision  in 
Crosby  v.  Waclsivorth.  There,  no  doubt,  tlie  j^laintiff  might  have  pleaded 
a  licence;  but  the  defendant  Avould  have  rcjjlied  that  it  was  counter- 
manded, and  the  plaintiff  could  not  have  succeeded  on  that  issue.    I 


CORN   CROPS.  50 

think,  therefore,  this  is  an  averment  of  a  binding  contract  for  the  sale 
of  the  crop,  with  a  riglit  to  enter  on  the  land  in  order  to  take  the  cro}). 
That  contract  being  void  by  the  statute,  the  action  cannot  be  maintained, 
and  the  rule  ought  to  be  absolute  for  a  nonsuit." 

In  Jones  v.  Flint  the  plaintiff  and  defendant  agreed  verbally  that  the 
defendant  should  give  £45  for  the  cro})  of  growing  corn  (wheat  and 
barley)  on  the  plaintiff's  land,  and  tlie  ]jrofit  of  the  sfuhMe  afterwards ; 
and  that  plaintiff  was  to  have  liberty  for  his  cattle  to  run  with  the 
defendant's.  Defendant  was  also  to  have  some  potatoes  growing  on  the 
land,  and  whatever  lag  grass  was  in  the  fields,  and  also  to  harvest  the 
corn  and  dig  up  the  potatoes,  the  plaintiff  paying  the  tithe.  It  did  not 
distinctly  appear  whether  the  sale  was  liy  the  acre  or  not ;  and  the  crojis, 
&c.,  Avere  taken  by  the  defendant  in  conformity  with  the  agreement. 
The  payment  of  £5  and  the  tender  of  £30  lis.  lOcl.  were  proved  as 
pleaded ;  and  Bosanquet  J,,  overruling  the  objection  for  the  defendant 
that  the  contract  proved  was  for  an  interest  in  land,  directed  a  verdict 
for  the  plaintiff  on  the  first  issue,  never  indebted  as  to  all  but 
£35  11 5.  10^/,,  and  for  the  defendant  on  the  second  and  third.  The 
Court  of  Queen's  Bench  refused  a  nonsuit,  and  held  that  it  did  not 
appear  to  be  the  intention  of  the  parties  to  contract  for  any  interest  in 
land,  and  the  case  was  therefore  not  within  the  4th  sec.  of  the  Statute 
of  Frauds,  but  a  sale  of  goods  and  chattels  as  to  all  but  the  lay  grass ; 
and  as  to  that,  a  contract  for  the  agistment  of  defendant's  cattle. 

Lord  Denman  C.  J.  said,  "  The  crops  of  corn,  potatoes,  and  the  after 
eatage  of  stubble  and  lay  grass,  were  all,  except  the  lay  grass,  frudus 
industriaJes ;  as  such  they  are  seizable  by  the  sheriff  under  ^  fieri  facias, 
and  go  to  the  executor  and  not  to  the  heir.  If  they  had  been  ripe  at 
the  date  of  the  contract,  it  may  be  considered  now  as  quite  settled  that 
the  contract  would  have  been  held  to  be  a  contract  merely  for  the  sale  of 
goods  and  chattels.  And  although  they  had  still  to  deri^'c  nutriment 
from  the  land,  yet  a  contract  for  the  sale  of  them  has  been  determined 
from  this  their  original  character,  not  to  be  on  that  account  a  contract 
for  the  sale  of  an  interest  in  land.  Evans  v.  Roleris  proceeds  on  this 
principle.  Holrogd  J.  says,  '  This  is  to  be  considered  a  contract  for  the 
sale  of  goods  and  chattels  to  be  delivered  at  a  future  period,  although 
the  vendee  might  have  an  incidental  right,  by  virtue  of  this  contract,  to 
some  benefit  from  the  land  while  the  potatoes  were  arriving  at  maturity, 
yet  I  think  he  had  not  an  interest  in  the  land  within  the  meaning  of 
this  statute.'  And  Littlcdate  J.  says, '  I  think  that  a  sale  of  any  growing 
produce  of  the  earth  (reared  by  labour  and  expense)  in  actual  existence 
at  the  time  of  the  contract,  whether  it  be  in  a  state  of  maturity  or  not, 
is  not  to  be  considered  a  sale  of  au  interest  in  or  concerning  lands  within 


60  AGREEMENT   TO   AGIST. 

the  mcauing  of  the  -1th  section.'  Bcujley  J.  lays  down  the  same  principle, 
and  qnalifies  not  the  judgment  but  the  dictum  of  Main^field  C.  J.  in 
Emmerson  v.  Hcelis,  which  is  certainly  at  variance  with  the  decision  of 
the  Court  of  King's  Bench  in  Evans  v.  Roberts.  It  was  a  dictum,  how- 
ever, unnecessary  to  the  decision.  The  present  case  differs  from  Evans 
V.  Eoherfs  in  this,  that  there  the  potatoes  were  to  be  dug  up  by  the 
seller;  but  Holroijd  S.  expressly  says  that  even  if  they  were  dug  up  by 
the  buyer,  '  I  think  he  would  not  have  had  an  interest  in  the  land.'  " 

On  the  whole  the  Court  considered  that  the  possession  of  the  field 
remained  in  the  owner  after  the  harvesting,  and  that  it  was  more  reason- 
able to  consider  him  as  (([listing  the  vendee's  cattle,  than  as  having  his 
own  cattle  agisted  by  him  whose  interest  at  the  best  was  of  so  very 
limited  a  nature;  but  that  if  this  had  been  a  case  in  which  the  parties 
intended  a  sale  and  purchase  of  the  grass  to  be  mowed  or  fed  by  the 
buyer,  the  defendant's  objection  must  prevail.  Without,  however,  im- 
peaching the  authority  of  Croshy  v.  Wcuhworth,  but  deciding  on  the 
additional  facts  in  the  case,  they  thought  the  introduction  of  the  lay 
grass  into  the  contract  (especially  as  it  might  be  doubted  on  all  the 
evidence,  which  did  not  state  that  any  clover  or  other  grass  had  been 
sown  with  the  corn,  whether  anything  that  could  be  called  a  crop  of 
grass  was  in  the  ground)  did  not  alter  its  nature,  and  that  the  defendant 
took  no  interest  in  land.  Excluding  the  lay  grass,  the  parties  must  be 
taken  to  have  been  dealing  about  goods  and  chattels,  and  an  easement 
of  the  right  to  enter  the  land  for  the  purpose  of  harvesting  and  carrying 
tliem  away  was  all  that  was  intended  to  be  granted  to  the  purchaser ; 
and  as  to  the  lay  grass,  it  was  a  mere  contract  for  the  agistment  of 
defendant's  cattle. 

The  general  ijrinciple  was  thus  stated  by  R(jlfe  B.,  in  Wasldmirne  v. 
Binroirs:  "When,"  said  his  Lordship,  "a  sale  of  growing  crops  does, 
and  when  it  does  not  confer  an  interest  in  land,  is  often  a  question  of 
much  nicety ;  but  certainly  when  the  owner  of  the  soil  sells  what  is 
growing  on  the  land,  whether  natural  produce,  as  timber,  grass,  or 
apples,  or  fnictus  indiistrialcs,  as  corn,  pulse,  or  the  like,  on  the  terms 
that  he  is  to  cut  or  sever  them  from  the  land,  and  then  deliver  them 
to  the  purchaser,  the  purchaser  acquires  no  interest  in  the  soil,  which 
in  such  case  is  only  in  the  nature  of  a  warehouse  for  what  is  to  come 
to  liim  merely  as  a  personal  chattel." 

In  Mayfield  v.  Wadsley,  the  Court  of  King's  Bench,  Littledale  J., 
did).,  was  of  opinion  that  where  there  was  a  sale  of  (jrowing  crojjs 
distinct  from  any  assicjnment  or  letting  of  the  land,  the  crops  do  not 
constitute  part  of  the  inheritance  or  any  interest  in  land,  but  are  mere 
chattels,  and  may  be  recovered  on  a  declaration  for  goods  bargained 


CROPS   AND   TILLAGES.  CI 

and  sold  ;  or,  per  Ahhot  C.J.,  at  least  on  a  declaration  stating  that  the 
defendant  was  indebted  for  the  value  of  crops  sown  by  the  plaintiff  on 
land  in  his  possession,  and  which  the  defendant  (who  had  made  a  part 
payment  on  account  for  such  crops,  some  dead  stock,  and  a  farm 
machine)  was  allowed  to  take,  and  for  which  he  promised  to  pay. 

The  case  of  the  Earl  of  Falmouth  v.  Thomas,  where  the  pleadings 
expressly  connected  the  bargain  as  to  ike  crops  and  Ullages  with  an 
interest  in  land,  established  that  a  contract  by  plaintiff  with  an  in- 
coming tenant  to  take  and  pay  for  growing  crops,  and  the  work, 
labour,  and  materials  expended  on  making  lands  ready  for  tillage,  and 
for  which  the  plaintiff  had  not  as  yet  derived  any  benefit,  in  considera- 
tion of  plaintiff's  letting  him  a  farm  for  fourteen  years,  is  a  contract  or 
sale  of  an  interest  in  or  concerning  land,  and  therefore  void  if  not 
reduced  into  writing.  At  the  time  when  each  of  those  contracts  upon 
which  the  plaintiff  sued  were  stated  to  be  made,  the  cro]3S  were  grow- 
ing upon  the  land,  the  defendant  was  to  have  the  land  as  well  as  the 
crops,  and  the  work,  labour,  and  materials  were  so  incorporated  with 
the  land  as  to  be  inseparable  from  it.  The  defendant  would  not  have 
the  benefit  of  the  work,  labour,  and  materials  unless  he  had  the  land, 
and  hence  the  Court  of  Exchequer  considered  that  the  right  to  the 
crops,  and  the  benefit  of  the  work,  labour,  and  materials  were  both  of 
them  an  interest  in  land. 

An  agreement  hy  a  tenant  ivith  his  landlady,  that  if  she  would  accept 
another  for  her  tenant  in  his  place  (he  being  restrained  from  assigning 
the  lease  without  her  consent)  he  would  pay  her  £40  out  of  £100 
which  he  was  to  receive  for  the  good-will  if  her  consent  was  obtained, 
is  a  contract  for  an  interest  in  land  (Griffith  v.  Young).  As,  however, 
the  defendant  had  received  the  £100  from  the  new  tenant,  who  was 
cognizant  of  this  agreement,  and  then  refused  to  pay  the  £40  on  the 
ground  that  "  there  was  no  written  agreement,  and  words  were  but 
wind,"  he  was  held  liable  to  his  landlady  in  an  action  for  money  had 
and  received  to  her  use.  Lord  Ellenhorongh  C.J.  said  :  "  I  have  no 
doubt  it  would  have  been  within  the  statute  if  the  contract  were 
executory  ;  but  when  the  contract  is  executed,  and  money  has  actually 
been  paid  by  the  succeeding  tenant  to  the  defendant  in  trust,  to  be  paid 
over  by  him  to  the  plaintiff,  shall  he  now  gainsay  that  he  received  it 
for  her  use  ?  If  one  agree  to  receive  money  for  the  use  of  another, 
upon  a  consideration  executed,  however  frivolous  or  void  the  considera- 
tion might  have  been  in  respect  of  the  person  paying  the  money,  if 
indeed  it  were  not  absolutely  immoral  or  illegal,  the  person  so  receiv- 
ing it  camiot  be  permitted  to  gainsay  his  having  received  it  for  the  use 
of  that  other."    Le  Blanc  J.  said  :  "  The  consideration  is  past  :  Pugh 


G:2  ACCEPTANCE   OF   NEW   TENANT. 

is  iu  possession,  and  has  paid  this  money  to  the  defendant  for  the  very 
purpose  of  his  paying  it  over  to  the  plaintiff :  it  is  clearly,  therefore, 
money  received  for  her  use.  It  wonld  have  been  a  different  question 
if  Pugh  had  not  paid  the  money  to  the  defendant,  and  the  action  had 
been  brought  against  him.'' 

So  in  Buitcmere  v.  Hayes,  the  plaintiff  being  possessed  of  a  messuage 
and  premises  for  the  residue  of  a  certain  term  of  years,  made  a  parol 
contract  with  the  defendant  to  relinquish  possession  to  him,  and  to 
suffer  him  fo  become  tenant  of  the  premises  for  the  residue  of  the  term, 
in  consideration  of  his  paying  £10  towards  completing  certain  repairs 
of  the  premises,  on  the  latter  being  estimated  by  a  surveyor.  The 
defendant  became  tenant,  and  entered  into  possession,  but  refused  to 
pay  for  such  repairs  after  the  surveyor  had  sent  in  his  report.  This 
was  held  to  be  an  agreement  relating  to  the  sale  of  an  interest  in  land 
within  29  Car.  II.  c.  3,  s.  4,  and  void  for  want  of  being  in  writing,  and 
the  defendant  was  allowed  to  avail  himself  under  non  assumpsit,  of  the 
objection  that  there  was  no  memorandum  or  note  in  writing,  &c.,  of 
such  contract.  Parlce  B.  said  :  "  Perhaps  if  the  declaration  had  stated 
an  agreement  to  relinquish  the  possession  merely,  it  might  not  have 
amounted  to  a  contract  for  an  interest  in  land  ;  but  it  goes  on  to 
allege  that  the  plaintiff  was  to  suffer  the  defendant  to  become  tenant 
thereof  for  the  residue  of  the  term.  Now,  he  could  not  become  tenant 
for  the  residue  of  the  term  except  by  an  assignment,  and  that  would 
be  a  contract  for  an  interest  in  land  within  the  statute,  and  ought  to 
be  reduced  into  writing." 

This  case  governed  the  decision  of  the  Court  of  Common  Pleas  in 
Cockinej  v.  Ward,  where  the  contract  pointed  to  a  surrender  or  relin- 
quishment by  the  plaintiff  of  an  interest  in  land  in  favour  of  the  defen- 
dant. The  facts  were  as  follows  :  The  plaintiff  was  about  to  relinquish 
a  farm,  which  her  deceased  husband  had  occupied  for  several  years  ; 
and  the  defendant,  who  occupied  an  adjoining  one,  promised  to  give 
her  £100  if  she  would  give  up  possession  at  Lady-day,  and  induce  her 
landlord  to  accept  him  as  a  tenant  in  lieu  of  her.  This  arrangement 
was  effected;  but  after  entry  the  defendant  refused  to  pay  the  £100, 
admitting  his  liability,  and  asking  for  time  till  he  got  the  valuation 
of  his  own  farm,  which  he  duly  obtained  before  the  trial.  It  was 
contended  for  the  defendant  that  the  agreement,  if  any  existed,  being 
for  the  sale  of  an  interest  in  land,  could  not  be  proved  by  parol 
testimony  ;  while  it  was  insisted  for  the  plaintiff  that  the  contract 
being  executed  might  be  proved  by  parol,  and  that  there  was  at  all 
events  sufficient  evidence  of  an  account  stated.  A  verdict  was  taken 
for  the  plaintiff,  damages  £100,  leave  being  reserved  to  the  defendant 


I'JIOOF    OF    8Uun    EXECUTED    CONTRACT.  C>:} 

to  move  to  euter  a  nonsuit,  or  a  vci'dict  fur  liim,  if  tlic  Court  should 
l)C  of  opinion  that  there  was  not  suffieicnt  evidence  to  sustain  the 
verdict  upon  the  special  count  or  the  account  stated.  The  Court 
entered  the  verdict  for  the  defendant  on  the  first  count,  Ijut  ordered  it 
to  stand  for  the  plaintiff  on  the  second. 

Tindal  C.J.  said  :  "  It  was  not  contended  that  a  contract  under 
which  the  plaintiflF,  in  consideration  of  a  sum  of  money,  gave  up  the 
tenancy  in  the  land,  and  procured  the  defendant  to  be  put  in  her  place, 
was  not  a  '  sale  of  an  interest  in  the  land '  within  the  meaning  of  the 
Statute  of  Frauds  ;  but  the  argument  before  us  was,  that  although  if 
this  contract  had  been  executory,  it  must  have  been  proved  by  an 
agreement  or  memorandum  in  writing  :  yet,  as  it  was  executed,  as  tlie 
plaintiff  had  surrendered  her  tenancy  and  had  procured  the  defendant 
to  be  made  tenant  instead  of  herself,  the  case  was  not  to  be  held 
within  the  statute  :  and  the  case  of  Price  v.  Leylmrn,  before  Dcdias 
C.J.,  was  relied  on  as  an  authority  to  that  effect.  But  as  the  special 
count  in  this  action  is  framed  upon  the  very  contract  itself,  to  enforce 
the  payment  by  the  defendant  of  the  sum  stipulated  to  be  paid  as  the 
2)rice  of  the  interest  in  the  land  which  the  plaintiff  gave  up,  and  to 
which  the  defendant  succeeded,  we  think  the  contract  itself  cannot  ])e 
considered  as  altogether  executed,  so  long  as  the  defendant's  part  still 
remains  to  be  performed.  The  case  appears  to  us  to  fall  within  the 
principle  adverted  to  by  Le  Btcvnc  J.  in  Griffith  v.  Yowig ;  and  farther, 
Ave  think  the  case  of  Buttemere  v.  Hayes  is  an  authority  in  point,  that 
the  present  contract,  though  executed  on  the  part  of  the  plaintiff,  yet 
not  being  executed  on  the  part  of  the  defendant  also,  is  still  to  be  con- 
sidered as  a  contract  within  the  Statute  of  Frauds.  The  plaintiff, 
therefore,  failing  upon  the  special  contract,  the  remaining  question  is 
whether  she  is  in  a  condition  to  recover  the  £100  under  the  count  upon 
an  account  stated.  There  was  distinct  evidence  in  this  case  that  after 
the  plaintiff  had  given  up  the  possession,  and  after  the  defendant  had 
succeeded  to  it  through  the  plaintiff's  application  to  the  landloi'd,  the 
defendant  admitted  that  he  owed  the  £100  to  the  plaintiff,  and  this 
appears  to  us  to  be  sufl&cient  evidence  to  enable  the  plaintiff  to  recover 
on  the  account  stated." 

"  The  objection  was  that  the  admission  of  a  debt  will  only  enable  a 
plaintiff  to  recover  as  upon  an  account  stated,  where  the  debt  itself 
does  not  appear  to  be  incapable  of  being  recovered  as  a  debt ;  and  that 
here  the  plaintiff  could  not  recover  upon  the  original  contract,  inas- 
much as  it  was  not  evidenced  by  a  writing  signed,  but  in  the  first  place 
such  an  exception  is  contrary  to  the  authority  of  several  decided  cases. 
In  Knoivles  v.  llichel  the  ground  of  the  original  debt  was  a  sale  to  the 


64  SALE    OF    MILK-WALK. 

defendant  of  standing'  trees,  -which  the  defendant  afterwards  procured 
to  be  felled  and  taken  away  ;  and  the  objection  was  that  the  plaintiff 
conld  not  recover  on  the  orii^nnal  contract  for  standing  trees,  which 
formed  part  of  the  realty  ;  but  it  was  held,  nevertheless,  that  the  ac- 
kaowledgraent  of  the  price  to  be  paid  for  the  trees,  after  they  were 
felled  and  applied  to  tlie  nse  of  the  defendant,  was  sufficient  to  sustain 
tlie  count  on  tlie  account  stated  :  Lord  EUcnhorougli  C.J.,  saying,  that 
if  there  were  an  acknowledgment  by  the  defendant  of  a  debt  due  to 
the  plaintiff  upon  any  account,  it  was  sufficient  to  enable  him  to 
recover  on  an  account  stated.  And  in  Hiylimore  v.  Primrose  the  Court 
of  Queen's  Bench  held  that  the  proof  of  the  acknowledgment  of  one 
item  of  debt  only,  was  good  to  support  a  count  upon  an  account  stated ; 
and  the  former  case  was  there  mentioned  with  approbation,  and  relied 
on.  In  Pinchon  v.  ChUcott  there  was  a  verbal  contract  for  turnips 
growing  in  a  field,  upon  which  it  was  held  the  plaintiff  could  not 
recover  ;  yet  as  the  defendant  admitted,  after  some  of  the  turnips  were 
drawn,  tliat  he  owed  the  plaintiff  £3  for  them,  it  was  held  by  Best  C.J. 
at  Nisi  Prills  that  he  could  recover  to  that  amount  upon  an  account 
stated,  and  no  motion  was  made  to  the  Court  to  question  the  ruling. 
And  in  Sea(jo  v.  Deanc,  a  promise  to  pay  a  specified  sum  where  the 
party  had  the  benefit  of  the  contract,  though  he  could  not  have  been 
sued  upon  it,  on  account  of  its  being  a  verbal  contract  only,  was  held 
to  be  good  evidence  on  the  account  stated.  See  also  Peacoclc  v.  Harris. 
Upon  the  authority,  tlierefore,  of  decided  cases,  as  well  as  on  principle, 
we  think  the  plaintiff's  right  to  the  verdict  on  the  account  stated  may 
be  sustained."  As  to  the  sufficiency  of  a  consideration  arising  out  of  a 
morcd  obligation,  see  Lee  v.  Miiggeridge,  Seago  v.  Deane,  Liitlejield  v. 
Shee,  and  Eastwood  v.  Keinjon. 

The  decision  of  the  case  of  Coching  v.  Ward  was  also  upheld  by  the 
Court  of  Common  Pleas  in  the  case  of  Kelhj  app.,  ^Yel)h  resp.,  which  was 
an  appeal  from  a  decision  of  the  Ticeds  county  court. 

It  was  also  held  l)y  Lord  EUcnl)oroiigk  C.J.,  in  Inman  v.  Stamp,  that 
an  agreement  to  occu})y  lodgings  at  a  yearly  rent,  payable  in  cpiarterly 
portions  (the  occupation  to  commence  on  a  future  day),  is  an  agreement 
relating  to  an  interest  in  land. 

Smart  v.  Harding  was  another  case  of  the  same  class.  The  defendant 
agreed  to  purchase  a  milk-walk  in  Islington  for  £80,  including  jJosses- 
sion  of  the  2)remises  (of  which  he  was  tenant  from  year  to  year),  and 
plant,  cans,  and  pails.  When  the  contract  was  entered  into  the  plain- 
tiff represented  tlie  custom  at  between  twelve  and  fourteen  barn  gallons 
a  day,  and  the  customers  as  all  full-priced  ones  except  two  or  three. 
The  defendant  was  not  to  have  had  possession  for  three  Aveeks,  but  took 


PURCHASE   OF   MILK- WALK.  65 

possession  at  once  in  consequence  of  the  death  of  plaintiff's  wife,  paying 
£51  5s.  3d.  down,  and  promising  to  pay  the  balance  when  the  agree- 
ment was  ready  for  execution.  Finding  that  the  plaintiff  had  misre- 
presented both  the  quality  of  the  customers  and  the  quantity  of  the 
milk  sold,  the  defendant  refused  to  pay  the  balance  of  the  purchase 
money,  £28  14s.  Od.  Crcssivell  J.  left  the  case  to  the  jury  on  the 
conflict  of  evidence,  reserving  leave  to  the  defendant  to  move  to  enter  a 
verdict  for  him,  or  a  nonsuit,  if  the  Court  of  Common  Pleas  should 
think  the  objection  that  the  contract  was  void  by  29  Car.  II.,  c.  3,  s.  4, 
for  want  of  a  writing,  and  the  plaintiff  had  a  verdict  for  the  balance. 
The  Court,  Ckessivell  J.  assentiente,  directed  a  nonsuit,  and  held  that 
the  yearly  tenancy  of  the  premises  where  he  carried  on  his  business, 
whicli  the  plaintiff  agreed  to  assign  to  the  defendant,  was  clearly 
an  interest  in  lands  within  the  statute,  and  cited  the  authority  of 
Coching  v.  Ward.  There  the  plaintiff  announced  to  the  defendant  that 
she  had  not  an  interest  which  she  could  legally  part  with  to  him  ;  but 
here  the  plaintiff  expressly  agreed  to  "  yield  up  the  possession  and  occu- 
pation of  the  premises  to  the  defendant,  and  to  permit  him  thenceforth 
to  occupy  the  same."  If  the  landlord  consented,  Harding  was  to 
become  his  tenant ;  if  not,  he  was  to  be  tenant  to  Smart  for  the  extent 
of  his  interest  in  the  premises.  And  per  3IauU  J.  :  "  The  only  dif- 
ference between  the  two  cases  is,  that  there  was  in  CocJcing  v.  Ward  a 
stipulation  in  the  agreement  that  the  plaintiff  would  endeavour  to  in- 
duce the  landlord  to  accept  the  defendant  as  tenant  in  lieu  of  himself. 
The  case  is  a  stronger  one  than  Coching  v.  Ward,  inasmuch  as  here  the 
plaintiff  contracts  absolutely  to  assign,  whereas  there  the  contract  was 
to  assign  subject  to  the  consent  of  the  landlord." 

Again  in  Green  v.  Saddington  a  parol  agreement  was  made  that  de- 
fendant should,  give  up  possession  of  iiremises  in  Manchester  to  the 
plaintiff,  who  was  to  pay  him  £37,  and  that  the  latter  was  to  repay  him 
£10  in  case  the  town-council  of  Manchester  should  at  a  future  time 
refuse  a  licence  to  the  plaintiff  to  use  the  pi-emiscs  as  a  slaughter-house. 
The  possession  was  given  up  by  the  defendant,  and  the  plaintiff  paid 
£37,  but  the  licence  was  refused.  The  plaintiff  was  nonsuited  by  the 
recorder  in  the  Court  of  Eecord  in  an  action  to  recover  the  £10  ;  but  it 
was  held  by  Wigldman  and  Erie  J  J.  {Cromjjfon  J.  duMtante)  that  the 
contract  as  far  as  the  land  was  concerned  having  been  executed,  the 
contract  sued  upon  was  not  a  contract  for  an  interest  in  or  concerning 
land  within  section  4  of  29  Car.  IT.,  c.  3,  and  the  rule  was  made  abso- 
lute for  a  new  trial.  Erie  J.  said,  "  The  defendant  objects  that  the 
whole  contract  was  for  a  contract  or  sale  of  an  interest  concerning  land, 
and  the  objection  would  prevail  if  the  action  was  for  the  land  or  the 


66  EIGHT   TO    TAKE   WATER   FROM    A   WELL. 

purchase-money,  according  to  Cochlng  v.  Ward.  Bat  the  interest  in 
land  in  this  case  has  passed,  and  tlic  pin-chase-money  has  been  paid. 
As  far  as  the  land  is  concerned  the  contract  is  completely  executed,  and 
cannot  now  be  rescinded.  In  the  present  action  the  whole  considera- 
tion for  the  promise  now  sued  on  was  money,  viz.,  £37.  The  whole  of 
the  promise  now  sued  on  is  for  money,  viz.,  £10.  It  therefore  appears  to 
us  not  to  be  within  the  Statute  of  Frauds  ;  but,  on  the  contrary,  to  be 
within  the  class  of  cases  where,  after  the  contract  directly  concerning 
an  interest  in  land  has  been  executed,  the  action  has  been  held  to  be 
upon  a  separate  promise  to  be  performed  after  such  execution.  In 
Griffith  X.  Young,  a  tenant  agreed  to  pay  the  landlady  £40  out  of  £100 
to  be  received  by  him  from  an  incoming  tenant ;  this  he  was  to  pay  to 
her  for  consenting  to  the  assignment  by  him  of  his  term  ;  the  assign- 
ment was  made,  and  consented  to  by  the  plaintiff,  and  the  £100  was 
received  by  the  defendant ;  and  in  an  action  by  the  landlady  for  £40, 
it  was  held  that  the  action  lay  without  any  writing,  the  contract  con- 
cerning the  interest  in  land  having  been  executed.  The  same  reasoning 
was  applied  in  Poultcr  v.  KilUng'beclc,  and  Seaman  v.  Price.  Also  the 
reasoning  of  Tindal  C.J.  in  Souch  v.  StraivMdge,  that  the  enactment  in 
section  4  of  the  Statute  of  Frauds,  relating  to  contracts  not  to  be  per- 
formed within  a  year,  has  no  application  in  an  action  of  indehdatus 
assumpsit  on  an  executed  consideration,  applies  equally  to  the  present 
action  of  indebitatus  assumpsd  for  money  had  and  received,  when  the 
defendant  seeks  to  avail  himself  of  the  part  of  the  same  section  relating 
to  land."  Orompton  J.,  on  the  contrary,  thought  that  there  was  only 
one  indivisible  contract. 

It  was  also  held  in  Tgkr  v.  Bennett,  that  a  right  to  take  water  from  a 
well  by  reason  of  the  occupation  of  a  dwelling-house,  and  for  the  more 
convenient  occupation  thereof,  is  an  interest  in  land.  •  Lord  Denman 
C.J.  observed,  "There  is  no  doubt  that  a  right  to  take  water  is  an  in- 
terest in  land."  And  j^er  Patteson  J.  :  "  In  Edmonson  v.  Edmonson  it 
was  not  doubted  that  if  the  right  (to  dig  turves)  had  come  in  question 
it  would  have  been  an  interest  in  land,  and  within  the  exception." 

In  Mechelm  v.  Wallace  the  declaration  stated,  as  the  consideration  for 
the  defendant's  promise,  that  the  plaintiff  was  to  become  tenant  to  the 
defendant,  of  the  house  and  furniture  together,  at  a  certain  rent,  from  a 
given  day,  if  complete  furniture  were  sent  into  the  house  in  reasonable 
time,  and  it  was  held  by  the  Court  of  Queen's  Bench  that  the  de- 
fendant's agreement  to  send  in  furniture  was  an  inseparable  part  of  a 
contract  for  an  interest  in  land,  and  that  the  promise  to  do  so,  for 
neglect  of  which  the  defendant  was  sued,  must  be  in  writing.  But  it 
was  ruled  in  ffallm  y.  Runder  that  an  agreement  by  an  outgoing  tenant 


PAYMENT  OP  LEGACIES  OUT  OF  SALE  OF  GROWING  CROPS.  67 

to  leave  his  fixtures  (which  he  had  purchased  on  entering,  and  might 
have  removed  during  his  tenancy)  for  the  landlord  at  a  valuation,  is  not 
the  sale  of  an  interest  in  land  within  the  4th  sec.  of  the  Statute  of 
Frauds,  nor  at  semble  the  17th,  which  relates  to  the  "sale  of  goods" 
above  the  value  of  £10,  and  the  tenant  recovered  £40  105.  in  indebi- 
tatus assumpsit  for  the  price  and  value  of  fixtures,  &c.,  bargained  and 
sold,  and  for  fixtures  sold  and  delivered.  That  case  was,  in  fact,  a 
mere  waiver  of  the  tenant's  right  to  remove  the  fixtures  in  consideration 
of  the  landlord's  agreeing  to  pay  for  them,  according  to  a  valuation  to 
be  made  afterwards.  The  plaintiff  did  not  give  the  defendant 
a  right  to  the  fixtures  before  the  expiration  of  the  term,  but  he 
agreed  to  waive  his  right  to  sever  them  during  the  term,  and  to  sell 
them  to  her  at  the  end  of  the  term.  Parlte  B.  said,  "The  case  bears 
a  strong  analogy  to  that  of  a  contract  by  a  tenant  to  give  up  to  his 
landlord  or  successor  those  growing  crops  to  which  he  is  entitled  by  the 
common  law  or  custom  of  the  country  as  emblements,  and  the  value  of 
which,  after  the  contract  is  executed,  may  certainly  be  recovered  on  a 
count  of  crops  bargained  and  sold.  (See  MaijfiM  v.  Wadsley.)  We 
are  quite  satisfied  that  this  is  not  a  sale  of  any  interest  in  land,  and  the 
judgment  of  the  Court,  and  particularly  of  Mr.  Justice  Littledale  in 
Evans  v.  Eobcrts,  upon  the  subject  of  growing  crops,  is  an  authority  to 
the  same  eflTect." 

Payment  of  legacies  out  of  sale  of  groiving  crops. — Growing  crops  are 
an  interest  in  land  within  the  statute  of  mortmain  (13  &  14  Vict.,  c.  94). 
And  jHT  Stuart  V.C. :  "  If  growing  crops  pass  under  a  devise  of  land, 
how  is  it  possible  to  say  that  the  legacies  which  the  testator  has  given 
to  these  charities  would  be  paid  out  of  monies  arising  from  the  sale  of 
pure  personalty,  if  they  were  paid  out  of  the  sale  of  growing  crops  ?  " 
(Sgmons  v.  Marine  Society.) 

Easement  of  "  grass  for  a  cow"  creates  no  interest  in  land. — A  gift  by 
will,  dated  in  1838,  to  J.  M.  "  of  the  house  she  lives  in,  and  grass  for  a 
coiv  in  G  field,"  part  of  another  estate,  passes  an  estate  in  fee  in  the 
house,  but  does  not  create  a  permanent  interest  in  the  land  of  the  other 
estate.  And  per  Sir  J.  Romilly  M.R. :  "  The  grass  for  a  cow  was  not 
necessary  for  the  enjoyment  of  the  house  ;  it  passed  no  interest  in  the 
land,  but  merely  gave  a  personal  right  to  Jane  Malcolmson  by  way  of 
easement  to  pasture  a  cow  on  a  field  given  absolutely  to  another,  aa 
long  as  she  thought  fit "  {Reay  v.  RawUnson). 

Indiuisibte  contract  for  interest  in  land. — In  Hodgson  v.  Johnson 
(Jurist,  April  2, 1859),  plaintiff  and  defendant  agreed  by  word  of  mouth 
that  plaintiff  should  become  tenant  in  his  stead,  of  a  brick  yard,  and 
take  the  plant  upon  a  valuation,  and  that  defendant  should  settle  with 

F  2 


C8       CONTRACT   BY    i'AKOL   TO   LIVE   AT   A   BOARDING   HOUSE. 

the  landlord  for  the  rent  due,  and  for  plaintiff  becoming  tenant  upon 
the  same  terms  as  defendant.  Plaintiff  having  entered  into  occu- 
pation, and  worked  the  ground,  a  distress  was  put  in  for  rent  due 
from  defendant  to  the  landlord ;  and  in  an  action  to  recover  damages 
for  breach  of  defendant's  promise  to  pay  the  rent,  it  was  held  by  the 
Court  of  Queen's  Bench  that  the  promise  in  respect  of  which  the 
plaintiff  sued  was  part  of  an  indivisible  contract  for  an  interest  in  land 
within  sec.  4  of  stat.  29  Car.  II.  c.  3,  and  that  therefore  plaintiff  could 
not  recover.  And^per  Campbell  C.J. :  "  the  principle  of  the  decision  in 
Green  v.  Saddington  [see  Law  of  the  Farm,  p.  65]  is,  that  there  were  in 
that  case  two  separable  contracts — not  that  there  was  one  contract 
which  might  be  split  in  two,  and  that  a  new  consideration  was  con- 
stituted on  the  part  performance  of  the  contract."  And  per  Crompton  J.: 
"  I  entertain  a  strong  opinion  upon  Green  v.  Saddington,  where  it  was 
thought  by  the  majority  of  the  Court  that  the  contract  being  executed 
as  far  as  regarded  the  land,  and  the  promise  sued  on  relating  wholly 
to  money,  the  plaintiff  might  recover.  That  decision  can  only  be 
defended  on  the  ground  that  there  were  two  contracts.  In  this  case 
it  is  clear  that  there  is  only  one,  and  one  part  of  it  cannot  be  severed 
from  the  other." 

Contract  hy  parol  to  live  at  a  hoarding-house.— In  Wright  v.  Slaver t, 
where  the  defendant  agreed  by  parol  with  plaintiff,  who  kept  a  boarding- 
house,  to  pay  for  the  board  and  lodging  of  himself  and  servant,  and 
accommodation  for  a  horse,  £200  a  year  from  a  given  day,  terminable  by 
either  party  at  a  quarter's  notice — this  was  held  not  to  be  a  contract  in 
or  concerning  land  within  the  Statute  of  Frauds,  and  plaintiff  could 
maintain  an  action  for  the  breach  of  it.  And  per  Blackburn  J. :  "  In 
Inman  v.  Stamp,  (1  Stark,  N.  P.  12),  and  Edge  v.  Strafford,  (1  C.  & 
J.,  391),  there  would  have  been  an  actual  demise,  had  the  contract  been 
executed  giving  such  a  right.  In  the  present  case,  there  was  no  con- 
tract that  defendant  should  become  tenant  or  occupier  of  any  specific 
room,,  and  therefore  there  was  no  intention  to  pass  any  interest  in  that 
room." 

Right  of  mortga,gee  of  tenant's  fixtures  to  enter  and  sever  them. — The 
moiigagee  of  tenant's  fixtures  has  a  right  or  interest  m  the  land,  which 
the  tenaut  who  has  mortgaged  cannot  defeat  by  a  subsequent  surrender 
of  the  lease  to  his  landlord ;  and  if  he  does  so  surrender,  the  mortgagee 
has  a  right  to  enter  and  sever  such  fixtures,  and  may  maintain  an 
action  against  an  incoming  tenant  who  has  prevented  him  from  ex- 
ercising such  right,  and  recover  the  value  of  the  fixtures  as  severed. 
knUper  Curiam:  "This  doctrine  has  been  fully  adopted  and  acted  on 
in  modem  cases  as  in  Pleasant  v.  Benson  (U  East,  234),  Dd.  Bleadon  v. 


RIGHT   OF   MORTGAGEE   TO    TENANT'S    FIXTURES.  69 

PyU  (5  M.  &  S.,  146)  and  Pijice  v.  Eyre  (9  B.  &  C,  909).  The  ques- 
tion is  thus  reduced  to  the  inquiry  whether  the  mortgagee's  right  to 
sever  the  fixtures  from  the  freehold  is  a  "right  or  interest  within  the 
meaning  of  this  rule  of  law,  and  we  are  of  opinion  that  it  is.  Certainly 
it  is  an  interest  of  a  peculiar  nature  in  many  repects,  rather  partaking 
of  the  character  of  a  chattel  than  of  an  interest  in  real  estate  ;  but  we 
think  it  so  far  connected  with  the  land  that  it  may  be  considered  a 
right  or  interest  in  it,  which,  if  the  tenant  grants  away,  he  shall  not 
be  allowed  to  defeat  his  grant  by  a  subsequent  voluntary  act  of  sur- 
render" {London  &  Westminster  Loan  Co.  v.  Drake).  The  price  of 
fixtures,  as  such,  cannot  be  recovered  under  the  common  count  of  goods 
sold  and  delivered  {Lee  v.  Risdon,  Taun.  189) ;  but  it  would  be  other- 
wise if  they  had  been  first  removed  {Wilde  v.  Waters,  16  C.  B.,  637; 
Dalton  V.  Whitteen,  3  C,  B.,  961 ;  Pitt  v.  Shetv,  4  B.  &  Aid.,  206). 


70  rJGHT   TO   CONSlTvUCT   DRAIN, 


CHAPTER    III. 

EASEMENTS. 

"  Terms  dc  la  Ley "  defines  an  easement  to  be  a  privilege  that  one 
neijrhltonr  liatli  of  another  by  charier  or  prescription,  without  profit, 
and  it  instances  "  as  a  way  or  sink  through  his  land,  or  such  like."  To 
establish  the  presumption  of  a  grant  of  an  easement,  it  must  appear 
that  the  enjoyment  was  with  the  acquiescence  of  him  who  was  seised 
of  an  estate  of  inheritance  ;  for  a  tenant  for  life  or  years  has  no  power 
to  grant  such  right,  except  as  against  himself  {Bright  v.  ]YaRer), 
{Daniel  v.  Korlh)  {Barker  v.  Richardson).  And  iw  Bayley  J.;  in 
Ilciclins  Y.  Shippam:  "A  right  of  way  or  a  riglit  of  passage  for  water 
(where  it  does  not  create  an  interest  in  the  land)  is  an  incorporeal 
right,  and  stands  upon  the  same  footing  with  other  incorporeal  rights, 
such  as  right  of  common,  rents,  advowsons,  &c.  It  lies  not  in  livery 
but  in  grant,  and  a  freehold  interest  in  it  cannot  le  "created  or ]jassed 
(even  if  a  chattel  interest  may,  which  I  think  it  cannot)  othenvise  than 
ly  decd.'^ 

In  this  case  the  action  was  stopping  up  a  drain,  and  the  declaration 
claimed  the  right  as  a  licence  and  authority  granted  to  the  plaintiff's 
landlords,  their  heirs  and  assigns,  to  make  the  drain,  and  have  the  foul 
water  pass  from  their  scullery  through  it  across  the  defendant's  yard. 
One  of  the  counts  claimed  it  indefinitely,  without  fixing  any  limits ; 
others  restricted  it  either  to  the  time  the  defendant  should  continue 
possessed  of  his  yard  or  house,  or  so  long  as  it  should  be  requisite  for 
the  convenient  occupation  of  the  plaintiff's  house ;  some  stated,  as  part 
of  the  consideration,  that  defendant's  landlords  should  do  some  repairs 
to  the  defendant's  premises  ;  and  others  did  not.  It  appeared  in  evidence 
that  the  licence  to  construct  and  continue  the  drain  was  by  parol,  and 
it  was  held  that  as  the  right  claimed  in  the  declaration  was  a  freehold 
riglit,  assuming  that  it  was  an  easement  only  upon  the  land  of  another, 
and  not  an  interest  in  land,  it  could  not  be  created  without  deed. 
Bayley  J.  said,  after  elaborately  reviewing  all  the  authorities,  "  We  are 
of  opinion  that  although  a  parol  licence  might  be  an  excuse  for  a 
trespass  till  such  licence  was  countermanded,  that  a  right  and  title  to 


LICENCE    TO    ENTER   LAND,    WHEN   IRREVOCABLE.  71 

have  passage  for  the  water,  fur  a  freehold  interest,  required  a  deed  to 
create  it ;  and  that  as  there  has  beeu  no  deed  in  this  case,  the  present 
action,  which  is  founded  on  a  right  and  title,  cannot  be  supported."  In 
Fentiman  v.  Smith,  where  the  plaintiff  claimed  to  have  passage  for 
water  by  a  tunnel  over  defendant's  land,  Lord  EUenhoroufjh  C.J.  laid  it 
down  distinctly  that  "the  title  to  have  the  water  flowing  in  a  tunnel  over 
the  defendant's  land  could  not  pass  by  parol  licence  without  deed ;  and 
the  plaintiff"  could  not  be  entitled  to  it  as  stated  in  the  declaration,  by 
reason  of  \\\%  possession  of  the  mill,  but  he  had  it  by  the  licence  of  the 
defendant,  or  by  contract  with  hun,  and  if  by  licence  it  was  revocable 
at  any  time." 

^Vell  V.  Paternoster,  Wood  v.  Lake,  and  Taijlor  v.  Waters,  were  not 
cases  of  freehold  interest,  and  in  none  of  them  was  the  objection  taken 
that  the  right  lay  in  grant,  and  therefore  could  not  pass  without  deed. 
In  Webb  v.  Paternoster  there  was  a  licence  to  the  plaintiff"  from  Sir 
William  Plummer,  to  lay  a  stack  of  hay  on  his  land,  for  a  reasonaljle 
time.  Afterwards  Sir  William  leased  the  land,  and  the  lessee  turned 
in  his  cattle  and  ate  the  hay  {mise  ses  avers  in  c'est  acre,  queur  eleroure 
le  code  lie  hay).  The  Court  held  that  such  licence  was  good,  and  could 
not  be  countermanded  within  a  reasonable  time,  but  that  more  than  a 
reasonable  time  had  elapsed,  viz.,  half-a-year,  and  that  therefore  the 
licence  was  at  an  end.  The  question  in  Wood  v.  Lalce  was  whether  a 
parol  agreement  for  the  liberty  to  stack  coals  upon  land  is  good  for 
seven  years,  and  Lee  C.J.  and  De/nison  J.  thought  that  it  was,  as  the 
agreement  was  only  for  an  easement,  and  not  for  an  interest  in  land. 

These  cases,  as  well  as  that  of  Taylor  v.  Waters  (in  which  the 
plaintiff,  who  had  purchased  a  silver  opera  ticket,  was  held  entitled  to 
a  verdict  of  28  guineas,  as  the  damage  for  two  years'  exclusion  from 
the  opera,  where  they  refused  to  recognise  it),  established  that  a  licence 
to  enjoy  a  beneficial  privilege  on  land  may  be  granted  without  deed, 
and  notwithstanding  the  Statute  of  Frauds,  without  writing.  The 
grounds  of  the  judgment  of  Gibbs  C.J.,  which  was  here  upheld  by  the 
Court  of  Common  Pleas,  were  that  the  right  under  the  silver  ticket 
was  not  an  interest  in  land,  but  a  licence  irrevocable  to  permit  the 
plaintiff  to  enjoy  certain  privileges  thereon ;  that  it  was  not  required 
by  the  Statute  of  Frauds  to  be  in  writing,  and  conseqiiently  might  be 
granted  without  deed.  The  Court  of  Exchequer,  however,  in  Wood  v. 
Leadbittcr,  considered  Taylor  v.  Waters  "  to  the  last  degree  unsatisfac- 
tory— an  observation  we  have  the  less  hesitation  in  making,  in  conse- 
quence of  its  unsoundness  having  previously  been  doubted  by  the  Court 
of  King's  Bench  and  Mr.  Justice  Bayloy,  in  the  case  of  Hewlins  v. 
Shippamr    And  per  Alderson  B. :  "  Although   the  older  authorities 


72  NATURE   OF   LICENCE. 

speak  of  incori^oreal  inheritances,  yet  there  is  no  doubfc  but  that  the 
principle  does  not  depend  on  the  quality  of  interest  granted  or  trans- 
ferred, but  on  the  nature  of  the  subject  matter  :  a  right  of  common,  for 
instance,  which  is  a  jn-oflt  a  prendre,  or  a  right  of  way,  which  is  an 
easement,  or  right  in  the  nature  of  au  easement,  can  no  more  be  granted 
or  conveyed  for  life  or  for  years  without  a  deed,  than  in  fee  simple."  {ih.) 

It  would  seem  from  Williams  v.  Jforris,  that  there  cannot  he  an 
irrcrocohJe  ticence  to  enter  vpon  land,  without  its  amounting  to  an  in- 
terest in  land,  and  such  licence  can  only  be  granted  by  deed.  And  so 
it  was  held  by  the  Court  of  Exchequer  in  Wood  v.  Leadhittcr,  that  a 
right  to  come  and  remain  for  a  certain  time  on  the  land  of  another 
can  be  granted  only  by  deed ;  and  a  parol  licence  to  do  so,  though 
money  be  paid  for  it,  is  revocable  at  any  time  without  paying  back  the 
money. 

A  licence  is  a  thing  so  evanescent  that  it  cannot  be  transferred,  and 
it  is  determined  ly  the  assignment  of  the  subject  matter,  in  respect  of 
which  the  privilege  is  to  be  enjoyed  {Coleman  v,  Foster).  A  parol 
licence  from  A.  to  B.,  to  enjoy  an  easement  over  the  land  of  A.,  is 
countermandable  at  any  time,  while  it  remains  executory  (Wallis  v. 
Harrison).  And  if  A.  conveys  the  land  to  another,  the  licence  is  de- 
termined at  once,  without  notice  to  B.  of  the  transfer,  and  B.  is  liable 
in  trespass  if  he  afterwards  enters  upon  the  land  (ib).  And  j^er  Parke 
B.,  ""We  are  not  called  upon  in  this  case  to  consider  whether  a  licence 
to  create  or  make  a  railroad,  granted  by  a  former  owner  of  the  soil,  is 
countermandable  after  expense  has  been  incurred  by  the  licensee,  which 
was  the  question  in  Winter  v.  Broclcivell ;  for  it  is  not  alleged  that  there 
has  been  any  expense  incurred  in  consequence  of  the  licence,  and  there- 
fore it  remains  executory ;  and  I  take  it  to  be  clear  that  a  parol  execu- 
tory licence  is  countermandable  at  any  time,  and  if  the  owner  of  the 
land  grants  to  another  a  licence  to  go  over  or  do  any  act  upon  his  close, 
and  then  conveys  away  that  close,  there  is  an  end  to  the  licence  ;  for  it 
is  an  authority  only  •with  respect  to  the  soil  of  the  grantor,  and  if  the 
close  ceases  to  be  his  soil,  the  authority  is  instantly  gone.  Webb  v. 
Paternoster  is  very  distinguishable  from  this  case,  for  there  the  licence 
was  executed  by  putting  the  stack  of  hay  on  the  land ;  the  plaintiff 
there  had  a  sort  of  interest  against  the  licensor  and  his  assigns,  but  a 
licence  executory  is  a  simple  authority  excusing  trespassers  on  the  close 
of  the  grantor,  as  long  as  it  is  his,  and  the  licence  is  uncountermanded 
but  ceases  the  moment  the  property  passes  to  another."  {ih.) 

In  Winter  v.  Broclcwell  it  was  decided,  on  the  authority  of  Webb  v. 
Paternoster,  that  a  imrol  licence  to  put  a  skylight  over  the  defendant's 
area  (which  impeded  the  light  and  air  from  coming  to  the  plaintiff's 


LICENCE    TO    ERECT    A   WEIR,  73 

dwelling-honse  through  a  window)  cannot  le  recalled  at  phasvre,  after 
it  has  been  executed  at  the  defendant's  expense,  at  least  not  without 
tendering  the  expenses  he  had  been  put  to.  Eaylnj  J.  thus  expressly 
distinguished  this  case  from  Heiulins  v.  Shqipam  in  his  judgment  in 
the  latter :  "  All  that  the  defendant  there  did  he  did  vpon  his  own  land. 
He  claimed  no  right  or  easement  upon  the  plaintiff's.  The  plaintiff 
claimed  a  right  and  easement  against  him,  by  the  privilege  of  light  and 
air  through  a  parlour  window,  and  a  free  passage  for  the  smells  of  an 
adjoining  house,  through  defendant's  area ;  and  the  only  point  decided 
there  was,  that  as  the  plaintiff"  had  consented  to  the  obstruction  of  such 
his  easement,  and  had  allowed  the  defendant  to  incur  expense  in 
making  such  obstruction,  he  could  not  retract  that  consent  without  re- 
imbursing the  defendant  that  expense.  But  that  was  not  the  case  of 
the  grant  of  an  easement  to  be  exercised  upon  the  grantor's  land,  but  a 
permission  to  the  grantee  to  use  his  own  land,  in  a  way  in  which  but 
for  an  easement  of  the  plaintiff''s  such  grantee  would  have  had  a  clear 
right  to  use  it." 

Ti7idal  O.J.  adopted  Winter  v.  Brochvell  as  the  basis  of  his  judgment 
in  Liggins  y.  Inge,  where  the  predecessors  of  the  plaintiff",  who  was 
entitled  to  a  flow  of  water  to  his  mill  over  the  defendant's  land, 
authorized  the  latter  by  a  parol  licence  to  cut  down  and  lower  a  bank, 
and  to  erect  a  weir  upon  their  own  land,  the  eflFcct  of  which  was  to 
divert  into  another  channel  the  water  which  was  requisite  for  the 
working  of  the  plaintiff's  mill.  Subsequently  the  plaintiff  complained 
to  the  defendant  of  the  injurious  effects  of  the  weir,  and  brought  an 
action  upon  their  refusal  to  remove  it  and  restore  the  bank  to  its  ancient 
height ;  but  the  Court  of  Common  Pleas  considered  that  the  operation 
and  effect  of  the  licence  after  it  had  been  completely  executed  by  the 
defendants,  Atas  sufficient,  without  holding  it  to  convey  any  interest  in 
the  water,  to  relieve  them  from  the  burthen  of  restoring  to  its  former 
state  what  has  been  done  under  the  licence,  although  such  licence  was 
countermanded ;  and  that  consequently  they  were  not  liable  to  an  action 
as  wrong  doers,  for  persisting  in  such  refusal. 

His  lordship  observed,  "  This  is  not  a  licence  to  do  acts  which  con- 
sist in  repetition,  as  to  walk  in  a  park,  to  use  a  carriage-way,  to  fish  in 
the  waters  of  another,  or  the  like,  which  licence  being  countermanded 
the  party  is  but  in  the  same  situation  as  he  was  before  it  was  granted  ; 
but  this  is  a  licence  to  construct  a  work  which  is  attended  with  expense 
to  the  party  using  the  licence ;  so  that  after  the  same  is  countermanded, 
the  party  to  whom  it  was  granted  may  sustain  a  heavy  loss.  It  is  a 
licence  to  do  something  that  in  its  own  nature  seems  intended  to  be 
permanent  and  continuing  ;  and  it  was  the  fault  of  the  party  himself, 


74  CLAIM   TO   SPEING   OF   WATEE. 

if  he  meant  to  reserve  the  power  of  revoking  such  licence  after  it  was 
carried  into  clfect,  that  he  did  not  expressly  reserve  that  right  when  he 
granted  the  licence,  or  limit  it  as  to  duration.  Indeed,  the  person  who 
authorizes  the  weir  to  be  erected,  becomes  in  some  sense  a  party  to  the 
actual  erection  of  it,  and  cannot  afterwards  complain  of  the  result  of 
an  act  which  he  himself  contributed  to  effect.  Upon  principle,  there- 
fore, we  think  the  licence  in  the  present  case,  after  it  was  executed,  was 
not  couutcrmandablc  by  the  person  who  gave  it,  and  consequently  that 
the  present  action  cannot  be  maintained.  And  upon  authority  this  case 
appears  to  be  already  decided  by  that  of  Winter  r.  BrochceU,  which  rests 
on  the  judgment  in  ]yehh  v.  Paternoslcr.  "We  have  no  reason  to  doubt 
the  authority  of  that  case,  confirmed  as  it  has  been  by  the  case  of 
Taylor  v.  Waters  in  this  Court,  and  recognized  as  law  in  the  judgment 
of  Mr.  Justice  Bayteij  in  the  case  of  Hew  tins  v.  Shipjxim.'" 

In  Coclcer  v.  Couycr  the  plaintiff,  a  brewer,  claimed  to  bo  entitled  to 
the  benefit  of  certain  water  arising  from  a  spring  in  defendant's  close, 
and  flowing  through  a  drain  that  he  had  cut,  with  the  verbal  consent  of 
the  then  tenant  and  the  defendant.  It  was  ruled  that  he  could  not 
recover,  and  that  a  verbal  licence  was  not  sufficient  to  confer  an  casement 
of  having  a  drain  in  the  land  of  another,  to  convey  water,  and  that  such 
licence  may  be  revoked  though  it  has  been  acted  upon.  The  Court  of 
Exchequer  considered  "  that  with  regard  to  the  question  of  licence,  the 
case  of  Hctclins  v.  Shippam  is  decisive,  to  show  that  an  easement  like 
this  cannot  be  conferred  unless  ly  deed,  nor  has  the  plaintiff  acquired 
any  other  title  to  the  water.  In  order  to  confer  a  title  by  possession, 
it  ought  to  appear  that  he  has  enjoyed  it  for  twenty  years,  whereas  here 
he  had  only  done  so  for  eighteen.  The  mere  entry  into  the  close  of 
another,  and  cutting  a  drain  there,  and  conveying  water  from  a  spring 
rising  there,  cannot  confer  a  title."  Where  the  owner  of-M:wo  or  more 
adjoining  houses  sells  one  of  them,  the  purchaser  of  such  house  is, 
without  any  exj)rcss  reservation  or  grant,  entitled  to  the  henefit  of  all  drains 
from  his  house,  and  is,  on  the  other  hand,  subject  to  all  the  drains 
necessary  for  the  enjoyment  of  the  adjoining  house.  Such  necessity  is 
to  be  considered  with  reference  to  the  time  of  the  conveyance  as  matters 
then  stood,  without  alteration,  and  without  reference  to  whether  any 
other  outlet  could  be  made  for  the  drainage.  And  ^xt  curiam,  "  It  was 
the  defendant's  own  fault  that  he  did  not  ascertain  what  easements  the 
owner  of  the  adjoining  house  possessed  at  the  time  of  the  purchase." 
{Pyer  v.  Carter.) 

A  clause  in  a  lease  of  land  from  the  plaintiff  to  the  defendant  re- 
served to  the  plaintiff,  in  Lee  y.  Stevenson,  power  to  enter  upon  the 
demised  land,  and  to  dig  and  make  a  covered  sewer  or  watercourse 


EXCLUSIVE   RIGHT    TO    SEWER.  75 

through  it,  in  order  to  convey  the  waste  water  from  the  premises  of  the 
plaintiff  to  the  river  Witham.  In  pursuance  of  this  power,  the  plaintilf 
did  make  a  covered  sewer  across  the  demised  land,  after  which  the 
defendant  made  a  drain  from  his  own  premises  into  the  plaintiff's 
sewer,  and  through  an  opening  which  he  made  in  it,  sent  in  water,  &c. 
from  his  own  premises ;  and  it  was  held  by  the  Court  of  Queen's  Bench 
that  the  plaintiff  was  entitled  to  recover,  as  by  a  grant  he  had  a  right 
to  the  exclusive  use  of  the  sewer  which  he  had  made  under  the  power 
reserved  to  him.  And  per  Curiam,  "  A  man  cannot  derogate  from  his 
own  grant.  If  the  grantee  had  made  a  sewer  of  iron,  he  would  liave 
done  no  more  than  he  had  a  right  to  do  under  the  grant.  It  is  really  and 
substantially  the  grant  of  a  tube,  and  from  the  very  nature  of  the  grant, 
it  would  appear  to  be  exclusive.  Chetham  v.  Williamson,  and  Doe  v. 
Wood  are  distinguishable.  As  soon  as  the  minerals  were  detached  they 
belonged  to  the  person  who  had  the  new  right,  and  as  the  plaintiff  had 
a  mere  licence  to  get  minerals,  he  had  no  right  to  say  that  that  which 
had  been  taken  was  his  ;  but  semhie,  he  would  have  had  a  right  of 
action  at  the  moment  the  minerals  were  taken  away."  (ib.) 

The  discussion  of  Sharp  v.  Waterhouse  and  Calvert,  in  the  Court  of 
Queen's  Bench,  was  brought  to  a  question  upon  the  construction  of  the 
deed,  and  whether  the  covenant  ran  with  the  land.  The  deed  between 
Sharp  and  the  defendants  recited  that  the  former  was  seised  of  three 
closes,  and  that  the  defendants  were  the  proprietors  of  a  mill  and  dye- 
house,  from  which  was  produced  dye- water  and  soke,  and  that  defen- 
dants had  agreed  with  Sharp  for  leave  to  make  a  reservoir  in  L  close 
for  the  reception  of  such  dye-water  and  soke,  in  order  to  filter  the  same, 
and  also  a  sough  or  drain  for  carrying  it  away  from  the  reservoir  ;  and 
in  consideration  of  the  premises,  and  in  consideration  of  being  supplied 
by  defendants  with  pure  water,  and  of  receiving  for  his  own  use  the 
sediment  which  might  be  found  in  the  reservoir  and  sough,  and  of  the 
privilege  of  using  such  dye-water  and  soke  for  manuring  his  lands, 
Sharp  gave  licence  to  defendants  to  use  the  said  reservoir  and  sough, 
and  agreed  that  he  would  cleanse  the  said  reservoir,  when  neces- 
sary. There  was  a  covenant  by  defendants  with  Sharp,  his  heirs  and 
assigns,  that  ihey  would  at  all  times  thereafter,  at  their  own  expense, 
supply  from  their  said  reservoir,  or  from  some  other  source,  pure  water 
for  the  cattle  of  the  owners  and  occupiers  for  the  time  being  of  the 
three  closes,  and  that  it  should  be  lawful  for  Sharp  to  cleanse  the 
reservoir,  and  also  the  sough  or  drain,  and  to  take  the  sediment 
away  therefrom  for  his  and  their  own  use  and  benefit.  In  an  action 
of  covenant  by  the  devisees  of  Sharp  against  defendants  for  diverting 
dye-water  and  soke  produced  at  the  mill,  it  was  held,  Coleridge  J.  diss., 


76  rXITY    OF   OWNERSHIP. 

that  tlie  (Icctl  contaiiicJ  only  a  licence  to  Sharp  to  take  or  use  the 
Avatcr  aud  soke,  and  that  a  covenant  by  defendants  to  send  down  the  dye- 
Tvater  and  soke  from  their  mill  to  the  land  of  Sharp  conld  not  be  implied. 

In  Shnry  v.  Pigoit  the  defendant  pleaded  that  the  land  over  which 
the  water  ran  to  a  pool  in  the  plaintiff's  close,  and  the  close  itself,  were 
both  part  and  parcel  of  the  manor  of  ]\Iarkham,  and  that  Henry  VIII. 
being  seised  of  the  said  manor  in  his  demesne  as  of  fee,  granted  the 
hind  over  Avliich  the  water  ran  to  one  under  whom  the  defendant 
claimed,  and  the  question  was  whether  unity  of  ownership  in  the  king 
had  extinguished  the  easement.  The  whole  Court  agreed  that  the  water- 
course was  not  extinguished  ;  but  Doddridge  J.  said  "that  a  way,  if  it 
Avcre  a  way  of  convenience,  is  extinguished,  but  not  a  way  of  necessity." 
Coihom  v.  Fiflr,  which  was  one  of  case  for  diverting  a  watercourse,  also 
turned  on  a  unity  of  ownership.  Up  to  1811  the  plaintiff's  garden  and 
an  adjoining  close,  in  which  a  stream  took  its  rise  and  floM'ed  through 
the  garden,  were  the  property  of  ]\rrs.  Holford,  and  in  one  possession. 
About  that  time  the  plaintiff  purchased  the  garden  and  continued  to 
use  the  water  till  the  obstruction  complained  of.  The  defendant  sub- 
sequently purchased  the  head  of  water  and  diverted  it.  Garrow  B. 
thought  that  the  unitg  of  oicncrship  dcstrogcd  the  prescrqAive  right,  and 
nonsuited  the  plaintiff,  and  the  Court  of  Exchequer  made  a  rule  for  a 
new  trial  absolute. 

Baglcg  B.  remarked  in  the  course  of  the  argument,  "  A  unity  of  pos- 
session merely  suspends  :  a  unity  of  ownership  would  destroy  a  title  by 
prescription,  but  here  the  ]>laintiff  had  enjoyed  the  water  since  1811." 
His  lordship  also  seemed  to  intimate  that  if  the  owner  of  two  closes  sell 
one  with  a  run  of  water  upon  it,  the  vendor  or  any  other  person  claim- 
ing under  him  could  not  obstruct  or  divert  that  water ;  and  in  reference 
to  the  remarks  of  the  counsel  that  there  were  but  three  ways  of  acquir- 
ing a  right  to  the  water,  viz.,  by  prescription,  which  is  disposed  of  by 
tlie  unity  of  ownership,  actual  grant,  which  was  not  produced,  or  a  lost 
grant,  he  added  there  was  a  fourth,  by  appropriation,  and  t.hat  according 
to  Becdey  v.  Shaw,  if  a  man  find  water  running  through  his  land,  he 
may  appropriate  it,  and  thus  acquire  a  title  to  the  water.  And  ^;er 
Jjord  Lgndhvrsf  C.B.:  "As  the  possession  of  the  garden  had  been  in 
the  plaintiff  since  1811,  such  possession  was  evidence  of  a  fee  which 
could  only  pass  by  grant,  and  a  grant  of  the  land  would  carry  the  water. 
If  the  conveyance  had  been  produced,  and  had  been  silent  as  to  the 
water,  still  the  conveyance  would  have  passed  the  water  which  flowed 
over  the  land.  And  are  we  to  assume  that  tiie  water  was  excepted  out 
of  the  conveyance,  merely  because  the  conveyance  was  not  produced  ?  " 
Baylnj,  B.  added,  "If  T  build  a  house,  and  having  land  surrounding  it, 


BLOCKING   UP   ANCIENT   LIGHTS.  77 

sell  the  house,  I  cannot  afterwards  stop  the  lights  of  that  house.  By 
selling  the  house,  I  sell  the  easement  also.  This  land  is  purchased  witli 
the  water  running  upon  it,  and  the  conveyance  passes  the  land  with  tlie 
easements  existing  at  the  time." 

Moore  v.  Rawson  is  an  authority  that  stopping  up  ivindoivs  is  primd 
facie  an  aVatulonment ,  and  that  it  lies  on  the  owner  of  the  dominant 
tenement  to  show  something  from  whence  to  infer  an  intention  of  re- 
suming the  right  within  reasonable  time.  This  case  was  relied  on  for 
the  defendants  in  Stolcoe  v.  Singer,  where  it  was  held  by  the  Court  of 
Queen's  Bench,  that  if  the  plaintiff  having  acquired  the  right  to  the 
passage  of  light  to  his  windows  blocks  them  up,  and  the  defendant 
while  they  are  blocked  up  purchases  the  servient  tenement  and  com- 
mences building  on  it,  so  as  to  obstruct  the  windows  if  open,  where- 
upon the  plaintiff  reopens  them  and  brings  an  action  for  the  obstruc- 
tion, the  plaintiff's  right  to  recover  depends  upon  two  points  :  that  he 
did  not  so  close  his  lights  as  to  lead  the  defendants  to  incur  exjjense 
or  loss  in  the  reasonable  belief  that  they  had  been  permanently  aban- 
doned ;  nor  so  as  to  manifest  an  intention  of  permanently  abandoning 
the  right  of  using  them.  And  ^^fv  Lord  CamphcU  C.J. :  "  The 
question  is  not  what  the  party  stopping  up  the  windows  intended,  but 
what  he  gave  others  reason  to  believe  that  he  was  going  to  do.  Sup- 
posing the  facts  to  be  as  in  Moore  v.  Baivson,  and  that  in  addition 
the  plaintiffs  showed  by  undoubted  evidence  that  the  former  owner 
had  a  lonafide  intention  of  opening  a  fresh  window  on  a  given  day,  I 
doubt  whether  this  would  entitle  the  plaintiff  to  maintain  the  action." 

In  an  action  for  an  injury  to  the  reversion,  hy  ohstructing  ancient 
lights,  it  was  ruled  by  the  Common  Pteas,  on  the  authority  of  Kidgitl  v. 
3Ioore,  that  it  is  sufficient  for  the  declaration  to  show  an  obstruction 
which  may  cause  an  injury,  especially  if  it  be  alleged  that  by  means 
thereof  the  plaintiff's  reversionary  estate  was  injured  ;  and  such  de- 
claration is  not  bad,  because  the  obstruction  is  one  which  is  capable  of 
being  shown  to  be  only  temporary,  and  not  injurious  to  the  reversion. 
{Metropotitan  Association  for  Improving  the  Divetlings  of  the  Poor  v. 
Petch.) 

Water  as  it  issues  from  a  wetl  or  spring,  is  not  to  he  considered  as  the 
produce  of  the  soit,  so  as  to  make  the  right  to  take  it  in  alieno  solo  a 
profit  a  'prendre.  Such  right  to  use  running  water  (under  which  descrip- 
tion the  Court  of  Queen's  Bench  considered  that  a  spring  might  fairly 
be  ranked)  is  an  easement  only,  and  may  be  claimed  by  custom  {Race  v. 
Ward).  And  'per  Lord  Campletl  C.J. :  "  The  reason  why  a  profit  h 
prendre  cannot  be  supported  by  a  custom  in  an  indefinite  number  of 
people,  is  that  the  subject  of  the  profit  a  j^rendre  would  in  that  case  be 


78  EIGHT   TO    A   WELL. 

liablo  to  be  entirely  destroyed.  The  ai-gmncnt  in  fi^YOur  of  the  further 
reason  given  in  Oafeiranrs  case,  viz.,  that  such  a  custom  could  not  be 
realized,  applies  equally  to  many  kinds  of  casements  by  custom.  A 
right  to  take  by  custom  part  of  the  soil,  like  sand  or  clay,  or  stones, 
or  the  produce  of  the  soil,  like  grass,  or  turves,  or  trees,  would  clearly 
be  bad,  for  they  all  come  under  the  category  of  profit  «  2Jrendre,  and 
such  a  claim  which  might  leave  nothing  for  the  owner  of  the  soil  is 
wholly  inconsistent  with  the  right  of  property  in  the  soil.  But  the 
spring  of  water  is  supplied  and  renewed  by  nature  ;  it  must  have 
flowed  from  a  distance  by  an  underground  channel  ;  and  when  it  issues 
fi'om  the  ground  till  appropriated  for  use,  it  flows  onward  by  the  law  of 
gravitation.  While  it  remains  in  the  field,  where  it  issues  forth,  in  the 
absence  of  any  servitude  or  custom  giving  a  right  to  others,  the 
owner  of  the  field,  and  he  only,  has  a  right  to  appropriate  it,  for  no 
one  else  can  do  so  without  committing  a  trespass  ;  but  when  it  has  left 
his  field  he  has  no  more  power  over  it  or  interest  in  it  than  any  other 
stranger."  {ii.) 

And  where  the  inhabitants  of  a  township  had  from  time  immemorial 
taken  water  from  a  well  for  domestic  purposes,  and  about  fifty  years 
before  action  the  locus  m  quo  was  inclosed  under  a  special  inclosure 
act,  incorporating  the  General  Inclosure  Act  then  in  force  (41  Geo.  III. 
c.  100),  but  neither  in  the  special  act  nor  in  the  award  of  the  commis- 
sioners was  any  mention  made  of  this  well,  or  of  any  access  to  it,  it  was 
held  by  the  Court  of  Queen's  Bench,  on  a  rule  to  enter  a  verdict  for 
the  plaintiiF,  who  had  brought  an  action  against  the  township  for 
breaking  his  close,  that  the  right  to  take  water  from  the  well  was  not 
extinguished  by  the  inclosure  ;  and  that  whether  the  ancient  right  of 
access  to  the  well  for  that  purpose  was  or  was  not  extinguished  (and 
semhk  it  was  not)  the  inhabitants  might  in  other  modes  legally  get 
access  to  the  well,  so  that  the  fifty  years'  enjoyment  de  facto  since  the 
inclosure  might  have  a  legal  origin,  and  the  verdict  for  the  defendant 
was  ordered  to  stand,  {it).) 

According  to  GatewanTs  case,  and  Grinstead  t.  Marlow,  any  mere 
easernoU  can  he  clamed  hy  custom.  The  iidiabitants  of  a  district  may, 
by  custom,  liave  a  right  to  go  upon  the  soil  of  another  to  take  or  to 
use  water.  In  Weeldy  v.  Wildman  it  was  decided  that  inhabitants  may 
liave  a  right  to  enter  the  soil  of  another  to  take  pot  water.  Mannrng  v. 
Wasdale,  where  in  the  first  count  of  the  declaration  the  plaintiff  claimed 
a  right  as  occupier  of  an  ancient  messuage  -within  the  parish  of  St,  Ives, 
to  wash  and  water  his  cattle  in  a  certain  pond,  and  also  to  take  and  use 
the  water  of  the  pond  for  domestic  purposes  for  the  more  convenient 
use  and  enjoyment  of  the  said  messuage  at  all  times,  at  his  free  will  and 


CLAIM    OF   EASEMENTS    BY    CUSTOM.  79 

pleasure  ;  and  in  the  second,  merely  as  an  inhabitant  householder  of 
the  parish, — decided  that  such  a  privilege  is  not  a  i^rofd  it  2)rendre,  but 
a  mere  easement.  It  may  be  claimed  l)y  reason  of  the  occupation  of  an 
ancient  messuage,  without  any  limitation  as  to  the  quantity  of  water 
taken  (/^.).  Andj^^r  Coleridge  J.,  the  right  claimed  in  each  count  was 
an  easement.  Lord  Denman  C.J.  said,  "It  is  not  consistent  with 
ordinary  language  to  call  the  taking  of  water  a  profit  d,  prendre.  But 
assuming  it  to  be  so,  I  cannot  see  that  the  declaration  here  necessarily 
claims  more  than  enough  for  the  supply  of  water,  for  the  culinary 
purposes  of  the  house,  and  for  cattle  levant  and  couchanl  on  the  premises. 
There  is  therefore  no  objection  available  on  general  demurrer."  It  was 
said,  arguendo  in  Fitch  v.  Raiding,  that  a  custom  to  water  cattle  at  a 
certain  watering-place  was  an  easement,  and  this  Avas  cited  in  Blewelt 
T.  Tregonning,  and  not  disputed.  In  Pain  v.  PatricJc  there  is  a  dictum 
that  a  custom  alleged  by  the  inhabitants  of  a  vill,  or  all  the  parishioners 
of  a  parish,  for  a  gateway  or  Avatercourse,  is  an  easement  ;  and  in 
Goodag  v.  Miclictl  a  wag  to  a  common  fountain  is  mentioned  as  an 
easement,  claimable  for  parishioners  by  custom. 

There  cannot  he  a  custom  to  talce  a  iwofit  in  alieno  solo.  And  so  in 
Bleivett  V.  Tregonning,  3  Ad.  &  E.  554,  the  Qaeen's  Bench  held  an 
alleged  custom  to  be  bad  for  all  the  inhabitants  occupying  lands  in  a 
district  of  Cornwall  to  enter  a  close  and  take  therefrom  reasonable 
quantities  of  sand  which  had  been  drifted  by  the  wind  from  the  sea- 
shore. The  reason  was  that  the  drifted  sand  had  become  a  part  of  the 
close,  so  that  the  claim  was  to  take  a  profit  in  alieno  solo.  Lord 
Denman  C.J.  observed,  "  It  cannot  be  said  that  the  inhabitants  may 
take  the  sand  which  has  drifted  at  any  distance  of  time,  that  would  place 
the  whole  soil  at  the  mercy  of  any  person  claiming  under  the  custom." 
And  per  Lord  Cknnplell  C.J.  in  Race  v.  Ward :  "  As  to  customary  rights 
claimed  by  reason  of  inhabitancy,  the  distinction  has  always  been 
between  a  mere  easement  and  a  2^rofit  ct  2)rendre.  A  custom  for  all  the 
inhabitants  of  a  vill  to  dance  on  a  particular  close  at  all  times  of  the 
year  at  their  free  will  for  their  recreation  has  been  held  good,  this 
being  a  mere  easement  {Abbott  v.  Weeklg)  ;  but  a  custom  to  take  as  a 
profit  what  is  valuable  would  be  very  injurious  to  the  owner,  and  of  but 
little  benefit  to  the  inhabitants,  and  is  bad.  And  so  we  held  in  Bland 
V.  Lipsconibe,  that  to  a  declaration  for  keeping  and  entering  the  plain- 
tiflf's  close,  and  taking  his  fish,  a  custom  pleaded  for  all  the  inhabitants 
of  the  parish  to  angle  and  catch  fish  in  tlie  locus  in  quo  is  bad,  as  this 
was  a  pro/it  ci  ptrendre,  and  might  lead  to  the  destruction  of  the  subject 
matter  to  wdiich  the  alleged  custom  applied." 

It  was  held  by  Sir  TV.  P.  Wood,  V.O.  and  Bccgleg  J.,  in  The  Attorney 


80  EIGHTS   OF   OWNER   OF   SURFACE. 

General  v.  Maiiliias,  that  the  woodwards  or  foresters  of  B  walk  (the 
soil  of  which  was  in  the  Crown)  within  the  limits  of  the  Forest  of  Dean, 
could  not  as  such  have  a  right  to  ^-rant  to  certain  persons  called  "  free 
miners"  gales  or  licences  for  working  stone  within  B  walk,  and  to 
take  gale  I'ents  and  apply  them  to  their  own  purposes,  without  account- 
ing to  the  Crown.  Independently  of  statute  1  &  2  Vict.,  c.  43,  which 
extinguished  the  right  and  capacities  of  free  miners,  no  right  could 
ever  have  been  established  by  any  custom,  however  ancient,  uniform, 
and  clear,  to  the  exercise  of  the  custom  as  now  claimed  by  the  defend- 
ants, viz.,  a  right  in  one  person  to  enter  upon  the  soil  of  another, 
and  to  carry  away  portions  of  it.  Such  a  right  cannot  lie  estahlished 
htj  prescription,  nor  by  assumption  of  a  lost  (jrant ;  and  a  claim  which 
is  radically  bad  in  itself  cannot  be  substantiated  by  any  statutes  of 
limitation. 

The  right  of  the  owner  of  the  surface  to  the  support  of  the  under- 
ground strata,  under  and  near  to  his  land,  is  one  of  the  ordinary  natural 
rights  of  property  incidental  to  all  land,  and  not  an  easement  or  right 
acquired  by  grant  or  otherwise  ;  and  the  injury  to  this  right,  and  not 
the  consequential  damage,  is  the  cause  of  action.  Hence  the  Statute 
of  Limitations  runs  from  the  time  of  the  act  which  ultimately  caused 
the  damage,  although  actual  damage  did  not  arise  till  afterwards,  and 
so  it  was  held  by  Lord  Campbell  C.J.,  Coleridge  J.,  and  Erie  J.,  Wight- 
man  J.,  dissentienle,  in  Bonomi  v.  Baclchouse.  And  per  Curiam:  "The 
check  upon  mining  for  the  protection  of  the  surface  is  for  the  advantage 
of  the  surface,  and  that  advantage  is  secured  by  the  decision  in 
IhimpJiries  v.  Brogden.  Tlie  surface  owner  taking  that  advantage  may 
not  unreasonably  be  held  to  take  it  with  ordinary  legal  incidents,  and, 
among  others,  a  liability  to  be  barred  by  six  years  from  the  wrongful 
act.  In  case  of  mining  operations,  Avhich  are  a  trespass,  the  statute 
runs  from  the  trespass,  though  the  party  may  have  been  ignorant  of  the 
act  done.  The  same  rule  may  with  equal  justice  apply  to  a  surface 
owner,  notwithstanding  he  may  have  been  ignorant  of  the  violation  of 
the  right  to  support.  The  right  of  support  which  the  plaintiffs  here 
claim  is  a  natural  right  of  property  to  be  presumed  till,  as  in  Iiowbotham 
V.  Wilson,  evidence  is  given  to  rebut  the  presumption  ;  and  that  such 
a  right  is  not  to  be  considered  an  easement  or  a  servitude  arising  from 
grant.  But  the  consequence  does  not  seem  to  follow,  that  the  Statute 
of  Limitations  cannot  begin  to  run  for  an  injury  to  such  a  right  till 
there  has  been  an  actual  subsidence  of  the  surface.  With  regard  to  the 
authorities  quoted,  JVicklin  v.  Williams  is  expressly  in  point,  and  the 
decisions  relied  upon  to  show  that  this  is  an  action  for  consequential 
damage  complete  only  upon  the  subsidence  of  the  surface,  may  be 


CLAIM   BY   PRESCRIPTION.  81 

distinguished  from  it,"  but  this  judgment  was  over-ruled  (see  Law  of 
the  Farm,  pp.  100, 101).  Rowhotham  Y.Wilson  was  directed  to  show  the 
quahfied  right  to  support  by  a  person  who  acquired  the  title  to  the  sur- 
face soil,  subject  to  a  covenant,  under  which  the  owner  of  the  minerals 
might  work  them  without  liability  to  an  action  for  damage  by  the  sinking 
of  the  surface.  Harris  v.  Rijclinrj,  Humpliries  v.  Brogdcn,  Smart  v.  Morton, 
and  7'he  Caledonian  Railway  v.  Sjjrott,  show  what  arc  the  rights  of 
support  both  subjacent  and  adjacent  existing,  of  common  right,  and 
upon  the  construction  of  ordinary  grants  and  exceptions  in  conveyances. 

The  case  of  Rowl)otJiam  v.  Wilson  was  taken  to  the  House  of  Lords, 
who  affirmed  the  decision  of  the  Court  of  Queen's  Bench,  and  it  was 
decided  that  the  "  right  to  work  mines  is  an  incident  to  the  grant  of 
mines,"  that  though  the  covenants  could  not  operate  as  a  release  of  the 
general  right  of  a  surface  owner  to  the  support  of  the  subjacent  soil,  it 
did  operate  as  a  grant  of  the  right  to  work  the  mines,  and  thereby 
injure  the  surface,  provided  such  injury  was  not  the  result  of  negligence 
or  unskilfulness  (8  L.  C.  348  ;  L.  J.  30  Q.  B.  49). 

In  2  &  3  Will.  IV.,  c.  71  (an  act  for  shortening  the  time  of  prescrip- 
tion in  certain  cases),  it  is  enacted  by  sec.  1,  that  claims  to  right  of 
common  and  other  2^>'ofils  d  j^rcndre  are  not  to  be  defeated  after  30 
years'  enjoyment,  by  showing  only  that  they  were  first  taken  and  enjoyed 
at  any  time  prior  to  the  commencement  of  such  30  years  ;  and  that 
after  60  years'  enjoyment  the  right  is  to  be  absolute,  unless  the  same 
was  taken  and  enjoyed  by  some  consent  or  agreement  expressly  made  or 
given  for  that  purpose  by  deed  or  writing. 

Sec.  2  enacts,  "  That  no  claim  which  may  be  lawfully  made  at  the 
common  law,  by  custom,  prescription,  or  grant,  to  any  way  or  other 
easement,  or  to  any  watercourse,  or  the  use  of  any  water  to  be  enjoyed  or 
derived  upon,  over,  or  from  any  land  or  water  of,  &c.,  when  such  way 
or  other  matter  as  herein  last  before-mentioned  shall  have  been  actually 
enjoyed  by  any  person  claiming  right  thereto,  without  interruption, 
for  the  full  period  of  20  years,  shall  be  defeated  or  destroyed,  by 
showing  only  that  such  way  or  other  matter  was  first  enjoyed  at  any 
time  prior  to  such  period  of  20  years  ;  but  nevertheless,  such  claim 
may  be  defeated  in  any  other  way  by  which  the  same  is  now  liable  to  be 
defeated  :  and  where  such  way  or  other  matter  as  herein  last  before- 
mentioned  shall  have  been  enjoyed  as  aforesaid  for  the  full  period  of 
40  years,  the  right  thereto  shall  be  deemed  absolute  and  indefeasible, 
unless  it  shall  appear  that  the  same  was  enjoyed  by  some  consent  or 
agreement  expressly  given  or  made  for  that  purpose,  by  deed  or 
writing." 

Sec.  8  enacts,  "  That  when  any  land  or  water  upon,  over,  or  from 


S-Z  CLAIM    OF    IlIGHT    TO    EASEMENTS. 

which  any  sucli  way  or  other  convenient  watcrconrsc  or  nsed  water 
shall  have  been  or  shall  be  enjoyed  or  derived,  hath  been  or  shall  be 
held  nnder  or  by  virtue  of  any  term  of  life  or  any  term  of  years  exceed- 
intr  three  years  from  the  irranting  thereof,  the  time  of  the  enjoyment 
of  any  such  way  or  other  matter,  as  herein  last  before-mentioned  during 
the  continuance  of  such  term,  shall  be  excluded  in  the  computation  of 
the  said  period  of  40  years,  in  case  the  claim  shall  within  three  years 
next  after  the  end  or  sooner  determination  of  such  term,  be  resisted 
by  any  person  entitled  to  any  reversion  expectant  on  the  determination 
thereof." 

According  to  7'/cJrJe  v.  Broim,  4  Ad.  &  E.  378,  the  words,  "  enjoyed 
by  any  person  claiminrj  rigJiV^  applied  to  easements  in  sec.  2  of  this 
statute,  and  "  enjoyment  thereof  as  of  rigid,"  in  sec.  5,  means  an  enjoy- 
ment had  7iot  secreih/  or  hij  stealth,  or  hj  tacit  sufferance,  or  hy  permissim 
aslced  from  time  to  time,  on  each  occasion  or  on  many,  but  an  enjoyment 
had  openly,  notoriously,  without  particular  leave  at  the  time  by  a  person 
claiming  to  use,  without  danger  of  being  treated  as  a  trespasser,  as  a 
matter  of  right,  whether  the  right  so  claimed  shall  be  strictly  legal,  as 
by  prescription  and  adverse  user,  or  by  deed,  or  shall  have  been  merely 
lawful,  BO  far  as  to  excuse  a  trespass.  To  a  plea  of  40  or  20  years' 
enjoyment  of  a  way,  a  licence,  if  it  cover  the  whole  time,  must  be 
pleaded  ;  but  a  parol  or  other  licence  given  and  acted  on  duriny  the 
40  or  20  years,  may  be  proved  under  a  general  traverse  of  the 
eujojmcnt  as  of  7-iyht,  and  this  whether  such  licence  be  granted  for  a 
single  time  of  using  or  for  a  definite  period  (/&.).  And  semhle  that 
where  issue  is  joined  on  the  allegation  of  an  interruption  acquiesced  in, 
the  party  alleging  the  interruption  having  proved  a  non-user  during 
part  of  the  time,  may,  in  order  to  show  that  such  non-user  was  not  a 
voluntary  forbearance,  give  evidence  that  two  years  before  the  non-user 
commenced,  the  party  claiming  the  way  paid  a  consideration  for  being 
allowed  to  use  it  (ib.). 

In  Beasley  v.  Clarice,  2  N.  C.  705,  the  Court  of  Common  Pleas  upheld 
the  construction  put  upon  the  5th  sec.  in  Tickle  v.  Broivn,  and  ruled 
that  under  a  plea  denying  that  the  defendant  had  used  the  way  for 
40  years,  as  of  right  and  without  interruption,  the  plaintiff  is  at  liberty 
to  show  the  character  and  description  of  the  user  and  enjoyment  of  the 
way  during  any  part  of  the  time,  as  that  it  was  used  by  stealth,  or  in 
the  absence  of  the  occupier  of  the  close,  and  without  his  knowledge,  or 
that  it  was  merely  a  precarious  enjoyment  by  leave  and  licence,  or  any 
other  circumstances,  which  negative  that  it  is  a  user  or  enjoyment 
under  a  claim  of  right.  Monmrmthshire  Caned  Conqmny  v.  Harford,  in 
the  Court  of  Exchequer,  is  another  authority  for  the  same  construction 


CONTINUOUS    ENJOYMENT    OF    EASEMENT.  83 

of  the  act.  So  in  Onghy  v.  Gardiner  it  was  decided  that  the  enjoyment 
of  an  casement  as  of  right  for  20  years  next  before  the  commence- 
ment of  the  suit,  within  tiie  stat.  2  &  3  Will.  IV.,  c.  71,  means  a  con- 
tinuous enjoyment,  as  of  right  for  the  twenty  years  next  before  the 
commencement  of  the  suit,  of  the  easement  as  an  easement,  without 
interruption,  acquiesced  in  for  a  year.  It  is  therefore  defeated  by 
unity  of  possession  during  all  or  part  of  the  20  years,  and  such 
unity  of  possession  need  not  be  replied  specially  under  the  5th  section. 
Here  the  defendant  in  support  of  his  plea  proved  that  about  40  years 
ago  the  close  now  called  the  Click  Head  Coppice  was  a  hop-yard,  and 
that  at  that  period  hops  used  to  be  carried  thence  over  the  plaintiff's 
two  closes  to  the  highway,  and  also  that  once  in  every  six  or  seven  years 
hop-poles  were  carried  across  them  to  and  from  the  hop-yard.  This  use 
of  the  premises  had,  however,  long  ceased,  and  the  hop-yard  was  after- 
wards planted  as  a  coppice,  and  it  appeared  that  for  many  years,  down 
to  a  period  of  about  15  years  before  the  commencement  of  the  suit, 
all  the  three  closes  had  been  occupied  together  :  from  that  period  to  the 
commencement  of  the  action  the  defendant  proved  a  user  of  the  way 
for  all  purposes.  The  plaintiff  objected  that  under  these  circumstances 
the  plea  under  the  statute  was  not  sustained,  for  that  there  had  not 
been  an  enjoyment  as  ofriglit,  i.e.,  adversely  to  the  owner  and  occupier 
of  the  closes,  over  which  the  way  was  claimed,  for  the  full  period  of 
20  years  next  before  the  suit. 

A  verdict  was  found  for  the  defendants,  leave  being  reserved  by 
Patteson  J.  to  the  plaintiff  to  move  to  enter  a  verdict  for  nominal 
damages.  The  Court  of  Exchequer  gave  the  defendant  leave  to  amend 
by  pleading  the  right  immemorially.  Parlce  B.  said,  "  The  enjoyment 
of  the  easement  must  be  continuous,  and  the  Court  has  already  inti- 
mated its  opinion  to  that  effect,  in  tlic  case  of  The  llonmouthshire 
Company  v.  Harford.  That  an  enjoyment  must  be  of  an  easement,  as 
such,  is  a  matter  on  which  we  feel  no  difficulty ;  and  the  Court  has 
already  put  this  construction  on  the  act,  after  some  consideration  in 
the  case  of  Briyht  v.  WaUccr,  though  the  precise  point  was  certainly 
not  in  judgment.  As  to  tlie  question,  whether  the  proof  of  unity  of 
possession  is  admissible  under  the  traverse  of  the  plea,  no  doubt  can 
be  entertained,  since  the  decision  of  the  case  of  The  Monmouthshire 
Compcmy  v.  Harford,  and  its  confirmation  by  the  Court  of  King's 
Bench  in  Ticlcle  v.  Brown,  and  by  the  Court  of  Common  Pleas  in 
Beaslcy  v.  Clarice.  The  '  simple  fact  of  enjoyment,'  referred  to  in  the 
5th  sec,  is  an  enjoyment  'as  of  riyht^  and  proof  that  there  was  an 
occasional  unity  of  possession  is  as  much  in  denial  of  that  allegation 
as  the  occasional  asking  permission  would  be."    And  so  it  was  decided 

G  2 


84  PROOF    OF    USER. 

by  the  Coui-t  of  Common  Pleas  in  BattisliiU  v.  Read  that  the  enjoyment 
of  an  easement  as  of  right,  for  20  (or  40)  years  next  before  the  com- 
mencement of  tlie  suit,  within  stat.  2  &  3  Will.  IV.,  c.  71,  means  a 
conlinuous  enjoyment,  as  of  riylit,  for  20  (or  40)  years  next  lefore  the 
eommoncoment  of  the  snit,  of  the  easement  as  an  easement,  withont 
interruption,  acquiesced  in  for  a  year  ;  and  such  right  is  defeated  by 
unity  of  possession  during  all  or  part  of  the  period  of  enjoyment, 
though  such  unity  of  possession  has  its  inception  after  the  completion 
of  the  20  (or  40)  years. 

In  Clayton  v.  CorJjij  the  Queen's  Bench  considered  Ongley  v.  Gar- 
diner decisive  on  the  point,  that  unity  of  possession  was  receivable  in 
evidence  under  traverse  of  the  first  plea  (which  pleaded  the  enjoyment 
of  a  right  by  the  defendant  to  dig  clay  for  60  years  in  the  locus  in  quo 
for  the  use  of  the  kiln),  because  it  went  to  show  that  the  enjoyment 
•was  not  as  of  right.  And  in  a  plea  under  this  statute  it  is  sufficient  to 
allege  that  the  user  had  existed  for  40  years  lefore  the  commencement 
of  the  suit,  and  it  need  not  be  alleged  to  have  been  for  40  years  before 
the  act  complained  of  in  the  declaration  ( Wright  v.  Williams) ;  and  a 
replication  of  a  life  estate  to  a  plea  of  enjoyment  for  40  years  under  it, 
must  shoW'  that  the  plaintiff  is  the  person  entitled  to  the  reversion  ex- 
pectant on  the  determination  of  such  life  estate  {ih.)  A  plea  of  20 
years'  enjoyment  of  a  way,  under  stat.  2  &  3  Will.  IV.,  c.  71,  s.  2,  must 
be  supported  by  user  for  that  period  down  to  the  commencement  of  the 
action  {Parlccr  v.  Mitcltcll)  ;  and  proof  of  user  commencing  40  years 
ago,  but  discontinued  four  or  five  years  before  the  commencement  of 
the  action,  is  insufficient  {ih.).  And  to  support  a  plea  framed  on  this 
section,  of  a  right  of  way  enjoyed  for  40  years,  evidence  may  be  given 
of  a  user  for  more  than  40  years  (Lawson  v.  Langley).  When  an 
easement  has  been  enjoyed  for  19  years  and  a  fraction,  and  is  then  in- 
terrupted by  the  owner  of  the  soil,  the  easement  may  still  be  acquired 
under  this  statute  at  the  end  of  the  twentieth  year ;  for  the  interruption 
to  defeat  20  years'  user  must  have  been  acquiesced  in  or  submitted  to 
for  a  whole  year  {Flight  v.  Thomas).  And  as  to  pleading  20  years' 
possession  of  a  mixen,  see  another  case  between  the  same  parties  (10 
Ad.  &  El.  59). 

Warlurton  v.  Parlce  was  a  case  of  replevin  for  taking  the  plaintiff's 
cattle.  To  an  avowry,  damage  feasant,  plaintiff  pleaded  in  bar,  under 
the  above  statute,  a  user  for  30  years  as  of  right,  and  also  of  GO  years 
as  of  right,  of  common  of  pasture  over  the  locus  in  quo.  At  the  trial 
the  fact  of  user  by  the  plaintiff  and  other  occupiers  of  his  farm  was 
proved  ;  but  it  appeared  that  S.,  from  whom  the  ]»laiutiff  and  defend- 
ant derived  their  title,  was  for  more  than  GO  years  before,  and  until 


EIGHT    OF    PASTURE.  85 

within  30  years,  seised  in  fee  of  the  plaintiff's  farm,  and  during  the 
same  period  had  an  estate  for  life  in  the  land  over  which  the  right  of 
common  was  claimed,  bnt  never  had  actual  possession  of  the  dominant 
tenement  except  by  tenants.  More  than  30  years  before  the  action  he 
joined  a  remainderman,  in  a  conveyance  of  the  servient  tenement  to 
make  a  tenant  to  the  proecipe  for  the  purpose  of  suffering  a  recovery 
in  order  to  raise  money  on  mortgage  ;  but  no  recovery  was  suffered, 
and  S.  continued  possessed  until  28  years  before  the  action,  when  the 
property  was  sold,  and  all  community  of  title  ceased.  It  was  held  by 
the  Court  of  Exchequer  that  although  there  was  no  unity  of  seisin  to 
extinguish  an  easement  or  prevent  its  existence,  the  facts  precluded  an 
enjoyment  as  of  right  within  the  meaning  of  the  statute. 

In  Mill  (claimant)  v.  The  Commissioner  of  the  New  Forest  (objector), 
an  allotment  was  made  of  waste  land  to  the  claimant  under  an  in- 
closure  act  passed  in  1810,  in  respect  of  which  he  claimed  a  right  of 
common  of  pasture  in  the  waste  lands,  and  a  right  of  common  of  mast 
in  the  time  of  pannage  for  all  hogs  and  pigs  ringed,  levant  and  conchatif, 
in  the  open  woods  of  the  New  Forest,  showing  an  enjoyment  for  the  full 
period  of  30  years  as  of  right,  and  without  interruption,  mentioned  in 
2  &  3  Will.  IV.,  c.  71,  s.  1  ;  and  it  was  held  by  the  Court  of  Common 
Pleas,  that  the  claim  might  be  defeated  by  showing  the  commencement 
of  the  enjoyment,  and  that  by  reason  of  the  statutes  9  &  10  WiU.  III., 
c.  36,  s.  10.  and  1  A^me,  slat.  1,  c  7,  s.  5,  the  right  claimed  could  not 
have  had  any  legal  origin  in  a  grant  from  the  Crown.  Jervis  C.J. 
observed,  "  The  statute  9  &  10  Will.  III.  c.  36,  in  eff"ect,  says  that  no 
right  of  common  shall  be  created  over  the  New  Forest.  Lord  Tenter  den's 
act  clearly  was  not  intended  to  repeal  that,  and  to  permit  such  a  right 
to  be  acquired  by  30  years'  enjoyment.  But  assuming  that  Lord  Ten- 
terden's  act  does  apply,  still  the  claim  cannot  be  supported.  It  is  not 
sought  to  be  defeated  or  destroyed  by  showing  only  that  the  right, 
profit,  or  benefit  was  first  taken  or  enjoyed  at  any  time  prior  to  the 
period  of  30  years ;  but  by  showing  that  it  never  had  any  legal  exist- 
ence. I  do  not  stop  to  inquire  whether  or  not  there  could  be  a  right  of 
common  as  appurtenant  to  common.  If  it  could  exist  in  point  of  law, 
it  is  untrue  in  point  of  fact  to  say  that  the  right  existed  prior  to  1810, 
because  there  was  no  allotment  until  after  that  date.  We  must,  there- 
fore, take  it  that  the  enjoyment  of  the  right  claimed  commenced  after 
the  year  1810.  Here,  then,  we  have  a  common  inclosed,  which  could 
not  carry  common.  There  could  therefore  be  no  prescription,  nor  could 
there  be  any  grant,  seeing  that  the  Crown  is  by  the  statute  incapacitated 
from  making  a  grant.  The  effect  of  the  argument  on  the  part  of  the 
claimant,  is,  that  you  are  to  get  indirectly  from  the  Crown,  through  the 


S6  IMMEMOEIAL   EIGHT   OF   WAY. 

laches  of  its  officers,  that  which  the  Crown  itself  could  not  confer 
directly.  I  am  clearly  of  opinion  that  Lord  TenterderCs  act  does  not 
give  the  claimant  the  right  he  claims."  And  per  Cresswell  J. :  "  It 
seems  to  be  imagined  that  because  you  caunot  defeat  a  claim  which 
may  be  lawfully  made  at  the  common  law,  by  custom,  prescription,  or 
grant,  to  any  right  of  common  or  t)tlicr  profit  a  prendre,  by  showing 
onJi/  that  such  right  or  profit  was  first  taken  or  enjoyed  at  any  time 
l>rior  to  the  period  of  30  years,  therefore  you  cannot  defeat  it  all.  I  do 
not  find  that  stated  in  Lord  TenterderCs  act.  There  is  no  attempt  in 
this  case  to  defeat  the  claim  by  showhig  only  its  origin,  but  by  showing 
that  it  never  could  have  had  a  legal  origin." 

Under  2  &  3  Will.  IV.,  c.  71,  s.  2,  the  privilege  of  washing  away  sand, 
stone,  and  rubble,  dislodged  in  the  necessary  working  a  tin  mine,  and 
of  having  the  same  sent  down  a  natural  stream,  running  through  the 
plaiatift''s  laud,  may  be  the  subject  of  a  grant,  and  may  be  pleaded  as 
a  prescriptive  right  to  a  declaration  charging  the  defendants  with 
throwing  such  stone,  sand,  and  rubble  into  the  stream,  and  thereby 
filling  up  its  bed  within  the  plaintiff's  land,  and  causing  the  water  to 
flow  over  it  {Carhjon  v.  Lovcring).  Such  privileges  may  also  be  well 
pleaded  as  a  local  custom  {;ib.).  And  see  Murgatroijd  v.  Rolinson, 
where  it  was  doubted  by  the  Court  of  Queen's  Bench,  whether  if  a 
claim  had  been  sufficiently  alleged  in  the  defendant's  plea  to  deposit 
cinders  on  the  plaintiff's  part  of  the  bed  of  the  river  Calder,  it  could  be 
considered  as  a  valid  claim  to  an  easement  within  the  meaning  of  the 
same  section. 

An  immemorial  right  of  way  is  not  lost  hg  non-user  for  upwards  of  20 
years,  the  user  having  been  discontinued  merely  by  reason  of  the  party's 
having  had  a  more  convenient  way  {Ward  v.  Ward) ;  and  per  Alderson 
B. :  *'  The  presumption  of  abandonment  cannot  be  made  from  the  mere 
fact  of  non-user  ;  there  must  be  other  circumstances  in  the  case  to  raise 
that  presumption.  The  right  is  acquired  by  adverse  enjoyment.  The 
non-user,  therefore,  must  be  the  consequence  of  something  which  is 
adverse  to  the  user.  Here  the  owners  of  the  Stubbing  Pits  did  not  use 
the  way  in  question,  for  the  simple  reason  that  they  had  a  more  easy 
and  convenient  means  of  access  to  that  part  of  their  property.  If  the 
owner  of  that  close  were  now  precluded  from  recovering  the  original 
right,  he  would  be  without  any  means  of  access  to  his  property."  And 
per  rattcson  J.:  "If  there  be  10  years'  enjoyment  of  a  right  of  way, 
and  then  a  cessation  under  a  temporary  agreement  for  another  10  years, 
yet  this  may  be  a  sufficient  enjoyment  of  the  old  right  for  20  years  to 
make  it  iudefca-sible  under  Stat.  2  &  3  Will.  IV.,  c.  71 ;  for  the  agree- 
ment to  suspend  the  enjoyment  of  the  right  does  not  extinguish,  nor 


ANNEXATION  OF  NEW  BUETHENS  TO  LAND.      87 

is  it  inconsistent  with  the  right.  So  if  instead  of  the  direct  path  from 
A  to  B,  another  track  over  the  plaintiff's  land  from  A  to  C,  and  thence 
to  B,  had  been  substituted  by  a  parol  agreement  of  the  parties,  for  an 
indefinite  time,  yet  the  user  of  this  substituted  line  may  be  considered 
as  substantially  an  exercise  of  the  old  right,  and  evidence  of  the  con- 
tinued enjoyment  of  it."  {Payne  v.  Sheddcn.)  And  a  parol  agreement 
for  the  substitution  of  a  new  way  for  an  old  prescriptive  way,  and  a 
consequent  discontinuance  to  use  the  old  way,  afford  no  evidence  of  an 
ahandonmmt  thereof  (Lovell  v.  Smith).  But  an  obstruction,  in  its 
nature  permanent,  which  injures  a  right  of  way,  if  acquiesced  in  for  20 
years,  becomes  evidence  of  a  renunciation  and  abandonment  of  the  right 
of  way.  That  is  the  ground  upon  which  a  reversioner  is  allowed  to 
bring  his  action  for  an  obstruction  apparently  permanent,  to  lights  and 
other  easements,  which  belong  to  the  premises  (Bower  v.  Eill) ;  and  see 
Jesse  V.  Gifford;  and  Littkdale  J.'s  judgment  in  Moore  v.  Eawson,  on 
the  material  difference  between  the  mode  of  acquiring  a  right  of  common 
or  of  way,  and  a  right  to  light  or  air ;  the  latter  of  which  is  acquired 
by  mere  occupancy,  and  the  former  only  by  user  accompanied  with  con- 
sent of  the  owner  of  the  land  (8  B.  &  C.  339). 

It  is  not  in  the  power  of  a  vendor  to  create  any  rights  not  connected 
with  the  use  or  enjoyment  of  the  land,  and  annex  them  to  it ;  nor  can 
the  owner  of  land  render  it  subject  to  a  new  species  of  burthen  so  as  to 
bind  it  in  the  hands  of  an  assignee.  Cresswell  J.  said,  "  This  principle 
is  sufiicient  to  dispose  of  the  present  case.  It  would  be  a  novel  incident 
annexed  to  land  that  the  owner  and  occupier  should,  for  purposes 
wholly  unconnected  with  that  land,  and  merely  because  he  is  owner 
and  occupier,  have  a  right  of  road  over  other  land.  And  it  seems  to 
us  that  a  grant  of  such  privilege  or  easement  can  no  more  be  annexed, 
so  as  to  pass  with  the  land,  than  a  covenant  for  any  collateral  matter  " 
(Smitli  V.  Aclcroyd) ;  and  per  Lord  Brougliam  C.  in  Kcippd  v.  Bayley  : 
"  The  covenant  (that  is  such  as  will  run  with  the  land)  must  be  of  such 
a  nature  as  'to  inhere  in  the  kmd,'  to  use  the  language  of  some  cases  ; 
or  '  it  must  concern  the  demised  premises,  and  the  mode  of  occupying 
them,'  as  it  is  laid  down  in  others  :  '  it  must  be  qiwdammodo  annexed 
and  appurtenant  to  them,'  as  one  authority  has  it ;  or  as  another  says, 
*  it  must  both  concern  the  thing  demised,  and  tend  to  support  it,  and 
support  the  reversioner's  estate.'  Incidents  of  a  novel  kind  cannot  be 
devised  and  attached  to  property,  at  the  fancy  or  caprice  of  any  owner." 

"  A  ivay  of  necessity  is  when  there  be  but  one  road  to  a  place,  and 
no  other  way  of  going  "  (Willes,  71) ;  and  in  Shury  v.  Piyott,  a  way  to 
church  or  market  is  classed  under  this  head.  And  per  Parlie  B. :  "  If 
a  way  granted  by  a  lease  cannot  be  used,  by  reason  of  its  passing  over 


8S  WAY    OF   NECESSITY. 

the  land  of  third  persons,  and  there  is  no  other  way  to  the  lessee's 
house,  he  is  entitled  to  a  way  of  necessity  to  the  nearest  public  high- 
way by  the  shortest  line  across  the  grantor's  land;  and  the  law  is  that 
the  grantee  of  a  private  way  is  to  make  it"  {Oshorn  v.  Wise).  It  cannot 
be  pleaded  generally,  without  showing  the  manner  in  which  the  land 
over  which  it  is  claimed  is  charged  with  it  {Bullnrd  v.  Harrison).  A 
man  cannot  prescribe  for  a  way  or  other  easement  over  his  own  soil,  for 
the  two  rights  are  perfectly  inconsistent,  and  even  a  way  of  necessity 
cannot  be  so  claimed  {Larrjp  v,  PiU).  If  the  origin  of  a  way  of  necessity 
cannot  any  longer  be  traced,  but  the  way  has  been  used  without  inter- 
ruption, it  must  then  be  claimed  as  a  way  either  by  grant  or  prescrip- 
tion, according  to  the  circumstances  of  the  case.  Where  the  fact  is, 
that  there  existed  at  one  period  a  unity  of  possession,  it  must  then  be 
claimed  as  a  way  by  grant  (Williams  n.  1  Saund.  323  a).  But  where 
there  has  been  no  unity  of  possession,  and  the  way  has  been  used  imme- 
morially,  it  must  then  be  claimed  as  a  way  by  prescription  {Keijmrr  v. 
Summer).  TJmt  unity  of  jjossession  exfinguislies  a  presaijML'e  rigid  of 
irmj,  see  Wright  v.  Rattray,  and  Hinchcliffe  v.  Earl  of  Kinnoul.  A 
unity  of  possession  of  the  land  a  qua  and  of  the  land  in  qua  an  ease- 
ment exists,  does  not  extinguish  but  only  suspends  the  easement,  where 
the  party  is  seised  in  fee  of  the  one  parcel  and  possessed  for  the  residue 
of  a  term  of  the  other  {Thomas  v.  Thomas,  2  C.  M.  &  E.  34). 

A  way  of  necessity  exists  after  unity  of  possession  of  the  close  to 
which,  and  the  close  over  which,  it  leads,  and  after  a  subsequent  sever- 
ance ;  hence,  if  a  person  purchases  close  A,  with  a  way  of  necessity 
thereto  over  close  B,  a  stranger's  land,  and  afterwards  purchases  close 
B,  and  then  purchases  close  C,  adjoining  to  close  A,  and  through  which 
lie  may  enter  close  A,  and  then  sells  close  B,  without  a  reservation  of 
any  way,  and  then  sells  close  A  and  C,  the  purchaser  of  close  A  shall 
nevertheless  have  the  ancient  way  of  necessity  to  close  A,  over  close  B 
(Bucksby  V.  Cotes). 

In  Holmes  v.  Goring,  Best  C.  J.  thus  stated  the  law  as  to  a  way  of 
necessity:  "On  the  part  of  the  plaintiff  the  case  has  been  put  on  its 
right  ground.  If  I  have  four  fields,  and  grant  away  two  of  them,  over 
which  I  have  been  accustomed  to  pass,  the  law  will  presume  that  I 
reserve  a  right  of  way  to  those  I  retain;  but  what  right  ?  the  same  as 
existed  before  ?  No  :  the  old  right  is  extinguished,  and  the  new  right 
arises  out  of  the  necessity  of  the  thing.  The  passage  which  has  been 
cited  from  1  Wms.  Saunders,  323,  note  6,  contains  a  complete  answer  to 
the  argument  on  the  part  of  the  delcndant :  '  A  way  of  necessity,  when 
the  nature  of  it  is  considered,  will  be  found  to  be  nothing  else  than  a 
way  by  grant  ; '  but  a  grant  of  no  more  than  the  circumstances  which 


WAY    OF   NECESSITY.  89 

raise  the  implication  of  necessity,  require  should  i^ass.  If  it  were  otlier- 
wise,  this  inconvenience  might  follow,  that  a  party  might  retain  a  way 
over  1000  yards  of  another's  land,  when  by  a  subsequent  purchase  he 
might  reach  his  destination  by  passing  over  100  yards  of  his  own.  A 
grant,  therefore,  arising  out  of  the  implication  of  necessity  cannot  be 
carried  fartlier  than  the  necessity  of  the  case  requires,  and  this  principle 
consists  with  all  the  cases  which  have  been  decided.  It  has  been  argued 
tliat  the  new  grant  operates  as  a  prevention  of  the  extinguishment  of 
the  old  right  of  way ;  but  there  is  not  a  single  case  which  bears  out  that 
proposition,  or  which  does  not  imply  the  contrary.  Serjeant  Williams 
says,  '  Where  a  man  having  a  close  surrounded  with  his  own  lands,  grants 
the  close  to  another,  tlie  grantee  shall  have  a  way  to  the  close  over  the 
grantor's  land,  as  incident  to  the  grant :  for  without  it  he  cannot  derive 
any  benefit  from  the  grant.  So  it  is  where  he  grants  the  land  and 
reserves  the  close  to  himself.'  What  way  is  it  the  grantee  shall  have  ? 
not  the  old,  but  a  new  way  limited  by  the  necessity  "  (2  Bing.  76). 

Hence  a  way  of  necessity  is  limited  l)ij  the  necessif/j  which  created  it, 
and  it  ceases  if  at  any  subsequent  period  the  party  entitled  to  it  can 
approach  the  place  to  which  it  led,  by  passing  over  his  own  land.  And 
where  A,  the  owner  of  a  close  within  a  close  of  B's,  had  a  prescriptive 
right  of  way  through  B's  close,  to  his  own,  and  24  years  ago  B  stopped 
up  the  old  way  and  made  a  new  one,  which  A  had  used  ever  since,  but 
it  also  was  stopped  up  by  B,  it  was  held  in  an  action  by  B  against  A 
for  going  over  the  new  way,  that  A  could  not  justify  using  it  as  a  way 
of  necessity,  but  that  he  should  have  either  gone  the  old  way,  and 
thrown  down  the  inclosure,  or  brought  an  action  against  B  for  stopping 
up  the  old  way.  The  new  way  was  only  a  way  of  sufferance  during  the 
pleasure  of  both  parties;  and  B  by  stopping  it  up  determined  his 
pleasure  {Reignolds  v.  Edwards).  Parlce  B.  thus  observed  upon  Holmes 
V.  Goring,  in  Proctor  v.  Hodgson :  "  The  extent  of  the  authority  of 
Holmes  v.  Goring  is,  that  admitting  a  grant  in  general  terms,  it  may  be 
construed  to  be  a  grant  of  a  right  of  way  as  from  time  to  time  may  be 
necessary.  I  should  have  thought  it  means  as  much  a  grant  for  ever, 
as  if  expressly  inserted  in  the  deed,  and  it  struck  me  at  the  time  that 
the  Court  was  wrong."  AJdcrson  B.  also  considered  that  Holmes  v. 
Goring  was  open  to  review  in  a  court  of  error.  And  per  Parke  B. : 
"  All  ways  of  necessity  arise  from  a  presumed  grant,  all  the  precedents 
allege  a  grant ;  but  the  lords  of  the  manors  are  not  grantees.  Even 
assuming  that  escheat  is  equivalent  to  a  grant,  the  only  ground  on  which 
the  lord  of  the  manor  can  claim  a  way  of  necessity,  is  that  he  has  no 
other  way"  (10  Exch.  824;  24  L.  J.  Ex.  195;  see  also  Pearson  v. 
S})encer,  1  B.  &  S.  571,  584). 


00  EIGHT   OF   WAY. 

A  riglifc  of  way  of  necessity  can  only  arise  ly  grant,  express  or  implied 
(Proctor  V.  Hoihjson) ;  and  no  right  of  way  of  necessity  can  exist,  where 
the  title  of  the  parties  is  by  escheat.  It  must  be  shown  that  the  party 
to  whom  the  hind  was  granted  or  escheated,  supposing  escheat  were 
equal  to  a  grant,  had  no  other  way  {il)).  If  one  sells  lauds,  and  after- 
wards the  vendee  by  reason  thereof  claims  a  way  over  part  of  the 
l)laintilF's  land,  there  being  no  other  convenient  way  adjoining,  this  is 
a  lawful  claim  because  it  is  a  thing  of  necessity,  otherwise  he  could  have 
no  profit  of  his  land  {Clarke  v.  Cogge).  And  c  converso :  "  If  a  man 
hath  four  closes  lying  together,  and  sells  three  of  them,  reserving  the 
middle  close,  and  hath  not  any  laud  thereto,  but  through  one  of  those 
wliich  he  sold,  although  he  reserved  not  any  way,  yet  he  shall  have  it  as 
reserved  unto  him  by  the  law,  and  there  is  not  any  extinguishment  of  a 
way  by  having  both  lands  "  (ib.).  And  jw  Lord  Kenyon  C.  J. :  If  A 
grants  a  close  surrounded  by  his  other  land  to  B,  the  law  would  presume 
a  right  of  way  {Large  v.  Piit).  In  Dcnne  v.  Light,  the  owner  of  a  piece 
of  arable  land  lying  in  Ham  Common  field,  surrounded  by  land  belong- 
ing to  other  persons,  and  to  which  arable  laud  there  was  no  apparent 
road  or  footway,  contracted  to  sell  the  land,  no  mention  of  a  right  of 
way  being  made  in  the  contract.  The  purchaser  required  a  right  of 
carriage  or  roadway,  and  a  good  title  to  such  way  to  be  shown,  in 
def\iult  of  which  he  refused  to  complete.  The  vendor  filed  a  bill  for 
specific  performance,  which  was  decreed  by  V.  C.  Stuart;  but  on  appeal 
to  the  Lords  Justices  it  was  held  that  such  a  contract  could  not  be 
enforced  against  the  purchaser  without  proof  of  a  right  of  way ;  and 
unless  the  plaintiff  elected  to  take  an  inquiry  as  to  the  execution  of  such 
right  the  bill  must  be  dismissed  with  £40  costs.  Among  the  deposi- 
tions was  the  evidence  of  one  Davis,  Avhose  suggestion  was,  that  by 
non-user  or  neglect,  the  owners  of  the  inclosed  pieces  of  land  in  Ham 
Common  field  had  lost  their  right  of  passing  over  the  neighbouring 
land,  to  reach  the  roadway.  It  was  observed  by  TimM  C.  J.  in  his 
judgment  in  Walt  is  v.  Harrison,  and  Durham  and  Sunderland  Railway 
Company  v.  WalJcer,  in  the  Exchequer  Chamber,  "that  a  right  of  way 
cannot  in  strictness  be  made  the  subject  either  of  exception  or  reserva- 
tion ;  it  is  neither  parcel  of  the  thing  granted,  nor  is  it  issuing  out  of 
the  thing  granted  :  the  former  being  essential  to  the  exception,  and  the 
latter  to  the  reservation.  A  right  of  way  reserved  (using  that  word  in 
a  somewhat  popular  sense)  to  a  lessor,  as  in  the  present  case,  is  an  ease- 
ment newly  created  by  way  of  grant  from  the  grantee  or  lessee,  in 
the  same  way  as  a  right  of  sporting  or  fishing,  which  has  been  lately 
very  much  considered  in  Doe  dem  Douglas  v.  Lock,  and  Wickham  v. 
Uawker;'  7  M.  &  W.  63. 


DEDICATION   OF   A   WAY   TO   THE   PUBLIC.  91 

There  may  be  a  dedicalioii  of  a  ivay  to  tlie  public,  for  a  limilcd 2ni.rpose, 
as  for  a  foot-way,  horse-way,  or  drift-way ;  but  there  cannot  be  a  dedi- 
cation to  a  limited  j^art  of  the  public,  as  to  a  parish.  Such  a  partial 
dedication  is  simply  void,  and  will  not  operate  in  law  as  a  dedication  to 
the  whole  public  (Foote  v.  IlicsJcissoi,  11  M.  &  W.  827).  And  per 
ParJce  B. :  "  In  order  to  constitute  a  \a\\d  dedication  to  the  puljlic  of  a 
highway,  there  must  be  an  animus  dedicandi,  of  which  the  user  by  the 
public  is  evidence  and  no  more :  and  a  single  act  of  interruption  by  the 
ownei-  is  of  much  more  weight  upon  a  question  of  intention  than  many 
acts  of  enjoyment."  It  was  decided  on  the  authority  of  this  case  in 
Reg.  V.  Inhabitants  of  East  MarTc,  that  public  user  of  a  road  for  50  years 
is  evidence  from  which  a  jury  may  infer  a  dedication,  thougli  it  may  not 
be  clear  in  whom  the  ownership  of  the  soil  is  invested.  In  Rex  v.  Petrie, 
which  the  Court  of  Queen's  Bench  could  not  distinguish  from  the  above, 
it  was  also  held  that  public  user  of  a  road  for  some  time  is  sufficient  ^^rma 
facie  evidence  of  a  dedication  to  the  public  by  an  owner  of  the  freehold, 
and  it  is  not  necessary  to  show  by  whom  the  dedication  was  made.  And 
per  Baijleij  J.  in  Harper  v.  Chartesworth,  where  a  public  footway  over 
crown  land  was  extinguished  by  an  inclosure  act,  but  for  20  years  after 
the  inclosure  took  place  the  public  continued  to  use  the  way,  this  user 
was  not  evidence  of  a  dedication  to  the  public,  as  it  did  not  appear  to 
have  been  with  the  knowledge  of  the  Crown,  who  had  the  riglit  of  soil. 
Wood  V.  Veat  is  an  express  autliority  to  show  that  the  consent  of  the 
lessee  is  not  sufficient  for  that  purpose,  because  it  cannot  bind  the  owner 
of  the  inheritance.  It  was  there  held  that  the  owner  of  the  fee  when 
the  lease  expired  had  a  right  to  prevent  the  public  fi'om  going  along 
the  road,  notwithstanding  it  had  been  used  by  the  public  during  the 
term.  In  Harper  v.  Charlesivorth,  moreover,  there  was  not  sufficient 
evidence  to  warrant  the  conclusion  that  the  road  was  used  with  the 
consent  of  any  person  in  the  occupation  of  the  land  (4  B,  &  C.  57-4). 

A  right  of  ivay  for  agricultural  purposes  is  a  limited  and  qualified 
right  of  way,  and  does  not  necessarily  confer  a  right  to  use  such  way 
for  general  and  universal  purposes.  Therefore  it  does  not  follow  that 
because  the  defendant  proves  a  right  to  carry  corn  and  manure  over  the 
locus  in  quo,  he  has  a  general  and  unlimited  right  to  carry  lime,  or  the 
produce  of  a  quarry  over  it  at  all  times  and  for  all  purposes :  per  Wood, 
B.  {JacJcson  v.  Staccy).  Proof  of  "  a  free  right  of  way  on  foot,  and  for 
horses,  oxen,  cattle,  and  sheep,''  does  not  confer  a  right  to  lead  and  carry 
away  manure,  for  leading  implies  drawing  in  a  carriage,  and  the  plain- 
tifPs  themselves  admitted  that  they  had  no  right  to  "lead"  in  that  sense 
(Brunton  v.  Hall).  The  disturbance  complained  of  in  this  action,  was 
that  a  person  wheeling  manure  in  a  wheelbarrow  from  the  plaintiffs' 


91  rREScraPTTVE  PvTGHt  of  way. 

premises,  nndcr  their  direction,  was  prevented  from  wheeling  it  through 
a  certain  entry  by  the  defendant.  CoJn-iiVjo  J.  said,  "If  a  grant  had 
been  put  in,  confessing  a  right  to  '  lead  manure,'  the  term  would  have 
been  construed  according  to  the  usnal  mode  of  leading ;  that  is,  by 
drawing  in  a  cart.  The  verdict  here  if  undisturbed  would  be  evidence 
in  a  future  action  of  right  to  lead  in  that  manner."  So  in  Higham  v. 
liahhif,  the  Court  of  Common  Pleas  held  that  the  finding  by  the  jury 
that  the  defendant  had  a  limited  right  of  way  only  for  the  purpose  of 
carting  away  timber  from  the  wood  to  the  highway,  did  not  support  a 
]ilea  of  a  general  right  of  way  on  foot  with  horses,  cattle,  carts,  waggons, 
«tc.,  at  all  times  of  the  year  at  his  free  will  and  pleasure,  and  that  the 
rules  of  Hilary  Term  (-1  Will.  IV.  ss.  4,  5,  G)  did  not  admit  of  their 
entering  the  verdict  distributive  for  the  defendant  on  it. 

Evidence  of  a  prcscn'pfire  right  of  way  for  all  manner  of  carriages  does 
not  necessarily  prove  a  right  of  way  for  all  manner  of  cattle,  but  it  is 
evidence  of  a  drift-way  for  the  jury  to  consider,  togetlier  with  the  other 
evidence,  and  the  extent  of  the  usage  is  evidence  of  a  right  only  com- 
mensurable with  the  user  {Ballard  v.  Dgson).  It  was  here  in  evidence 
that  the  preceding  occupier  had  been  accustomed  to  drive  fat  hogs  that 
■way  to  his  slaughter-house ;  and  that  the  plaintiff  had  been  accustomed 
to  drive  a  cart,  the  only  carriage  which  he  possessed,  usually  drawn  by 
a  horse,  but  sometimes  by  an  ox,  along  the  passage  in  question  to  the 
barn,  where  he  kept  his  cart,  but  there  was  then  no  other  w'ay  to  it. 
He  had  lately  begun  to  drive  fat  oxen  that  way  to  the  premises,  for  the 
purpose  of  killing  them  there,  but  there  was  no  evidence  of  any  other 
usage  than  this  of  the  way  for  the  cattle.  No  deed  of  grant  was  pro- 
duced, and  the  defendant  brought  no  evidence  that  he  had  ever  inter- 
ru])ted  the  occui)iers  of  plaintiffs'  premises  in  driving  cattle  there,  nor 
that  they  had  been  usually  possessed  of  horned  cattle  which  had  not 
been  driven  that  way,  and  he  admitted  that  there  was  sufficient  evidence 
of  a  right  of  Avay  for  all  manner  of  carriages.  It  was  contended  for  the 
I)laintilf  in  replevin,  that  a  way  for  all  manner  of  carriages  necessarily 
included  a  right  of  Avay  for  all  manner  of  cattle,  and  therefore  proved 
the  prescription.  The  jury  found  for  the  defendant,  and  a  new  trial 
was  refused.  Heath  J.  said,  "  This  is  a  prescription  for  a  way  for 
cattle,  and  a  carriage-way  is  proved.  A  carriage-way  will  comprehend 
a  horse- way,  but  not  a  drift- way.  All  prescriptions  are  stricti  juris. 
Some  prescriptions  are  for  a  way  to  market,  others  for  a  way  to  church, 
and  in  the  ancient  entries,  both  in  Jlasiat  and  Clift,  the  pleadings  are 
very  particular  in  stating  these  claims.  Sometimes  there  is  a  carriage- 
way qualified.  One  claim  is  remarkable,  fugare  qiiadraginia  averia. 
The  usage  then,  in  this  case,  is  evidence  of  a  very  different  grant  from 


WAY    FOR   FARMING   PURPOSES.  93 

that  which  is  claimed,  viz.,  to  drive  fat  oxen,  animals  dangerons  in  their 
nature,  and  which  there  might  be  very  good  reason  to  except  out  of  a 
grant  of  a  way  through  a  closely-inhabited  neighbourhood."  Chamhre 
J.  differed  from  the  Court  in  refusing  a  new  trial,  and  thought  that  the 
driving  of  hogs  was  very  strong  evidence  of  a  grant  of  a  way  for  cattle. 
"  Suppose,"  said  his  lordship,  "  any  new  species  of  cattle  is  introduced 
into  this  country,  shall  the  grantees  of  private  ways  have  no  passage  for 
them  to  their  lands  ?  Is  it  to  be  contended,  for  instance,  that  no  ancient 
private  way  in  the  kingdom  can  be  used  for  Spanish  sheep  ?  Much  of 
the  argument  has  been  built  on  their  being  horned  cattle.  Many  heads 
of  kine  have  no  horns,  may  the  grantee  drive  those  ?  "  A  claim  of  a 
way  for  cattle  and  carts  may  be  proved  by  showing  constant  use  for  cattle, 
and  a  user  for  less  than  20  years  for  carts,  the  claimant  not  having 
possessed  carts  for  the  whole  period  {Dare  v.  Heathcote,  25  L.  J.  Ex.  245). 

In  Cowling  v.  Higginson  defendant  justified  his  trespass  by  a  plea  of 
user,  under  2  &  3  Will.  IV.  c.  71,  of  a  right  of  way  for  20  years  as 
occupier  of  a  close,  for  horses,  Avaggons,  and  carriages,  at  their  free  will 
and  pleasure.  The  replication  traversed  the  right,  and  it  w^as  held — 
firstly,  that  under  this  issue  the  plaintiff"  might  show  that  the  defendant 
had  a  right  of  way  for  horses,  carts,  waggons,  and  carriages,  for  certain 
purposes  only,  and  not  for  all,  and  was  not  compelled  to  new  assign, 
and  that  he  might  show  that  the  purpose  for  which  the  defendant  had 
used  the  road,  and  in  respect  of  which  the  action  was  brought,  was  not 
one  of  those  to  which  his  riglit  extended ;  and  secondly,  that  evidence 
of  a  user  of  a  road  with  horses  and  carriages,  iov  farming  purposes,  does 
not  necessarily  prove  a  right  of  road  for  all  purposes  (such,  for  instance, 
as  leading  coal  from  a  mine  under  defendant's  land),  but  that  the  extent 
of  the  right  is  a  question  for  the  jury,  nnder  all  circumstances.  And 
Lord  Macdonald  C.B.  ruled  in  Cohl  {Cleric)  v.  Selhj,  that  where  there 
was  a  private  road  through  a  farm  used  by  the  owner  of  the  land,  for 
agricultm-al  and  other  purposes,  the  parson  had  a  right  to  use  it  for  the 
purpose  of  carrying  away  his  tithes,  as  long  as  it  existed,  although  the 
owner  of  the  road  might  shut  it  up  by  planting  trees,  or  any  other  such 
means.  But  the  farmer  acting  honct  fide  has  a  right  to  alter  the  line  of 
road  for  his  own  convenience,  and  the  tithe-owner  must  use  the  road 
thus  substituted  {James  v.  Dods). 

One  tcho  has  a  grant  of  an  occupation  vay,  may  declare  in  case  against 
the  owner  of  the  land  over  which  the  way  leads  for  obstructing  it, 
although  it  be  proved  that  the  public  had  used  the  way  without  denial 
for  the  last  12  years  {Allen  v.  Ormond).  And  p)er  Lord  Denman  C.J. 
BiNisi  Prius :  "There  may  be  an  occupation  way  and  a  irablic  highway 
over  the  same  road,  for  it  does  not  on  becoming  a  highway  cease  to  be 


9-i  OBSTRUCTION    OF    FOOTWAY. 

an  occupation  Avay  (BroiruJoir  v.  Tomlinsoii).     A  person  "who  prescribes 
ill  a  que  estate  for  a  private  ^Yay  cannot  justify  going  ont  of  it  on  the 
ailjoining  land,  because  tlie  way  is  impassable  {Bullard  v.  Harrison). 
2\tyhr  v.  Whiichead  has  settled  the  distinction,  that  the  right  of  going 
on  the  adjoining  land  under  such  circumstances  does  not  extend  to 
private  as  well  as  public  ways.     However,  the  grantor  of  a  private  way 
may  be  bound,  either  by  express  stipulation  or  prescription,  to  repair  it. 
But  in  an  action  upon  the  case  against  him  for  neglecting  to  do  so,  it  is 
sufBcient  to  allege  generally  in  the  declaration,  that  he,  hy  rcasoti  of  Ms 
posses.-<ioii  of  the  close  in  which  the  way  is,  oiff/hf  to  repair  it ;  and  the 
special  matter  of  the   obligation   shall  be  given  in  evidence  on  the 
general  issue  (Pomfref  v.  Rkrofi).     WJiere  flicre  was  a  j^i'l'Hc  foolway 
from  one  field  of  the  plaintiff's  to  another,  and  the  defendant  obstructed 
the  way  by  constructing  or  keeping  a  reservoir  of  water  on  it,  whereby 
the  plaintiff  and  his  servants  employed  in  the  management  of  his  lands 
and  tending  his  cattle  were  obliged  to  go  by  a  longer  route,  and  their 
work  and  labour  were  necessarily  consumed  to  a  greater  extent,  and  the 
plaintiff  was  prevented  from  employing  them  during  such  excess  as  he 
otherwise  would  have  done,  it  was  held  that  this  was  sufficient  allegation 
of  peculiar  damage  to  support  an  action  {Blagrave  v,  Bristol  Watcrwm'lcs 
Company).     But  it  is  no  ground  of  action  that  a  person  by  stopping  up 
on  his  own  land  the  continuation  of  a  public  footway  over  his  neigh- 
bour's land  causes  the  public  to  trespass  on  other  parts  of  his  neighbour's 
land,  to  his  damage,  forming  a  beaten  track  and  wearing  off"  in  a  perma- 
nent manner  the  grass  and  herbage  from  such  beaten  track  (/&.).     A 
man  may  not  plough  up  a  public  footpath  across  his  field  (2  Rolle  Abr. 
Nusans  \)  PI.)  ;  and  he  must  not  erect  a  gate  across  such  footpath  (Sir 
AV.  Jones,  R.  221).     It  has  also  been  ruled  by  Parle  J.  in  Baieman  v. 
Burge,  where  the  plaintiff  and  defendant  owned  adjoining  lands,  and 
the  way  had  always  been  a  public  footway,  with  a  stone  wall  two  feet 
high  across  it,  that  the  defendant  had  no  right  to  remove  the  stile,  and 
put  up  a  high  five-bar  gate  with  a  step  in  its  place.     "  If  there  had 
been  20  gates,"  said  his  lordship,  "  across  the  footway  in  other  places 
before  it,  that  will  not  justify  you  in  putting  up  this  one  to  give  people 
the  trouble  of  getting  over  it." 

A  reversioner  cannot  maintain  an  action  on  the  case  against  a  stranger 
Jor  merely  entering  upon  his  land  held  by  a  tenant  on  lease,  though  the 
entry  be  made  in  exercise  of  an  alleged  right  of  way,  such  an  act  during 
the  tenancy  not  being  necessarily  injurious  to  the  reversion  {Baxter  v. 
Tayl(/r).  Parhe  J.  said :  "  My  notion  is  that  there  must  be  some 
destruction  of  the  land  to  enable  the  reversioner  to  maintain  this  action. 
No  case  has  ever  gone  so  far  as  to  constitute  a  simple  trespass,  like 


FEEE    PASSAGE    OF   AIR    TO    A    WINDMILL.  95 

this,  an  injury  to  tlic  reversion."  IJanle  J.  thus  remarked  on  tliis 
case  in  Knlgill  v.  Moor :  "  My  brother  Parlce  does  not  say  that  it  would 
not  be  evidence  if  the  party  claimed  a  right  of  way,  and  meant  to  assert 
it."  And  i^cr  Mauh  J. :  "  To  entitle  the  reversioner  to  maintain  this 
action,  must  not  the  two  things  concur,  viz.,  an  injury  of  such  a  nature 
as  will  be  presumed  to  be  permanent,  and  the  fact  of  its  being  evidence 
against  him  on  a  claim  of  right"  {ib).  Crcssicell  J.  also  cited  Baxter  v. 
Taylor  as  one  in  point,  as  well  as  Miimford  v.  Oxford,  Worcester  and  Wol- 
verham])to)i  Railway  Comjiany,  in  his  judgment  in  Simpson  v.  Savayc, 
where  it  was  decided  that  an  action  cannot  le  maintained  for  an  injury  to 
a  reversion  ivMcJi  is  not  of  a  permanent  nature,  although  it  makes  the 
reversion  of  a  less  marketable  value  (26  L.  J.  C.P.  50  ;  1  C.  B.K  S.  347). 

In  Kidgill  v.  Moor  the  declaration  in  case  by  a  reversioner  alleged 
that  the  plaintiff  was  entitled  to  a  right  of  way  for  his  tenants  over  a 
certain  close  of  the  defendant  ;  and  charged  that  the  defendant  wrong- 
fully hclced,  chained,  shut  and  fastened,  a  certain  cjcde  standing  in  and 
across  the  way,  and  wrongfully  kept  the  same  so  locked,  &c.,  and 
thereby  obstructed  the  way  ;  and  that  by  means  of  the  premises  the 
plaintiff  was  injured  in  his  reversionary  estate.  It  was  held  by  the 
Court  of  Common  Pleas,  on  a  motion  in  arrest"  of  judgment,  that  the 
declaration  was  sufficient,  inasmuch  as  such  an  obstruction  7niyU  occa- 
sion injury  to  the  reversion,  and  it  must  be  assumed  after  verdict  that 
evidence  to  that  effect  had  been  given.  Cressivdl  J.  said  :  "  Jackson  v. 
Pesked  decides  that  a  delaration  of  this  sort  is  insufficient  unless  it 
contain  an  averment  that  the  acts  charged  injured  the  plaintiff's 
reversionary  interest.  That  case,  however,  undoubtedly  recognizes  the 
validity  of  a  declaration  which  contains  such  an  averment,  and  states 
facts  which  may  or  may  not  amount  to  such  injury  of  the  reversion. 
Here  the  declaration  alleges  certain  things  to  have  been  done  by  the 
defendant,  so  as  to  occasion  injury  to  the  plaintiff's  reversionary  in- 
terest. I  agree  with  my  brother  MauJe  that  that  is  an  allegation  of 
fact,  and  that  wc  must  take  it  to  have  been  proved  if  the  facts  stated 
could  so  operate.  It  is  impossible  to  say  that  a  gate  may  not  be 
so  fastened  as  to  enure  as  an  injury  to  the  reversion."  But  qnare 
per  MauJe  J.  :  "  Could  the  landlord  bring  an  action  alleging  an 
injury  to  the  reversion,  where  there  has  been  no  actual  obstruction 
of  the  tenant  ? "  (9  C.  B.  364  ;  19  L.  J.  C.  P.  177). 

Free  passage  of  air  to  a  windmill.  It  was  held  in  error,  affirming  the 
decision  of  the  Court  of  Common  Pleas,  that  a  right  of  free  passage  of 
air  is  not  an  easement  within  the  meaning  of  section  2  of  the  Prescription 
Act,  2  &  3  Will  IV.  c.  71.  A  grant  of  a  free  passage  of  air  to  a  wind- 
mill over  the  soil  of  another  cannot  le  presumed  from  20  years'  use  of  the 


96  PRESCRIPTIVE   EIGHT   TO   LIGHT   FOR   WINDOWS. 

■windmill,  for  the  pi-csumption  of  a  grant  only  arises  in  cases  where  the 
owner  of  the  servient  tenement  had  it  in  his  power  to  prevent  the  enjoy- 
ment, and  did  not ;  and  it  is  not  practically  in  the  power  of  an  owner 
of  neitjhbouring  land  to  preclude  the  passage  of  air  to  a  windmill.  And 
})er  Wiiihlman  J.  :  "  We  think,  in  accordance  with  the  judgment  of  the 
Common  Pleas  and  Chascmore  v.  Richards  (7  H.  L.  Cas.,  349,  and  29 
L.  J.,  N.S.,  Ex.,  81)  [see  Law  of  the  Farm,  pp.  176,  177],  that  the 
presumption  of  a  grant  from  long-continued  enjoyment,  only  arises 
where  the  person  against  whom  the  right  is  claimed  might  have  inter- 
rupted or  prevented  the  exercise  of  the  subject  of  the  jn-oposed  (jrant.  As 
was  observed  by  Lord  Wenslej/dale,  it  was  going  very  far  to  say  a  man 
must  go  to  the  expense  of  putting  up  a  screen  to  window-lights  to 
prevent  a  light  being  gained  by  20  years'  enjoyment  "  {Webb  v.  Bird). 
The  ruling  of  the  Court  of  Common  Pleas  was  affirmed  in  the  Exchequer 
Chamber  (31  L.  J.  C.  P.  335,  Ex.  Ch.). 

Prescriptive  right  to  light  for  ivindows. — A  and  B  occupied  adjoining 
houses,  as  tenants  to  the  same  landlord,  under  long  leases,  which  were 
made  on  the  same  day,  and  to  expire  at  the  same  time.  B,  by  building 
on  his  own  premises,  obstructed  the  access  of  light  to  a  window  in  A's 
house,  through  which  the  light  had  passed  without  interruption  for 
more  than  20  years ;  and  it  was  held  by  the  Court  of  Exchequer 
Chamber  that  A,  by  the  20  years'  user,  liad  acquired  a  right  to  the 
light,  and  might  maintain  an  action  against  B  for  obstructing  it,  though 
they  occupied  these  premises  as  tenants  and  under  the  same  landlord  ; 
and  the  observations  of  Coleridge  J.  and  Cresswell  J.,  speaking  of  the 
3rd  section  of  the  Prescription  Act  in  Truscott  v.  Merchant  Taglors' 
Compang  (11  Ex.,  8G3;  and  21  L.  J.,  N.S.,  Ex.,  173),  were  cited  in 
support  of  their  views.  The  former  learned  judge  observed :  "  The 
third  section  seems  to  simplify  and  almost  new  found  the  mode  of  acquir- 
ing the  right  to  access  of  light.  It  founds  it  on  actual  enjoyment  for 
the  full  period  of  20  years  without  interruption,  unless  that  enjoyment 
is  sliown  to  have  been  hy  consent  or  agreement  expressly  made  by  deed 
or  writing,  thus  putting  the  right  on  a  simple  foundation,  and  with  the 
simplest  exception"  {Frewen  v.  FhiUips,  30  L.  J.  C.  P.  35G). 

Ancient  windows  restored  after  improper  enlargemoit  to  their  original 
size  resume  tlieir  original  easenumt.  If  ancient  windows  which  look  over 
the  land  or  upon  the  premises  of  another  are  enlarged,  and  are  com- 
plained of,  the  Court,  upon  their  being  restored  to  their  original  dimen- 
sions, will  restrain  the  owner  of  the  adjoining  property  from  obscuring 
such  restored  windows ;  and  if  an  owner  of  land  complains  of  an  ease- 
ment usurped  over  his  property,  and  delays  his  application  for  relief,  a 
court  of  equity  will  not  interfere  until  he  has  established  his  right  at 


NEW    LTGHTS    NOT    COR  RESPONDING    WITH    OLD.  97 

law  to  an  abatement.  If  tlie  owner  of  a  tenement  has  windows  looking 
upon  the  premises  of  another,  he  cannot  increase  their  size  or  number, 
or  claim  more  extensive  rights.  Per  Sir  J.  Romillij  M.R.  {Cooper  v. 
Huhbuclc,  31  L.  J.  Ch.  123). 

Twenty  years'  enjoyment  of  liyht,  how  calcuMed. — The  period  of 
twenty  years'  enjoyment,  which  confers  a  right  to  the  access  of  light 
under  2  &  3  Will.  IV.  c.  71,  s.  3,  is,  by  s.  4,  the  period  of  twenty  years 
next  before  any  suit  or  action  wherein  the  claim  to  the  right  was  brought 
into  question ;  and  is  not  limited  to  the  period  of  twenty  years  next 
before  the  pending  suit  or  action.  Per  Erie  C.J.,  WUles  J.  andi>yfes  J,; 
Williams  J.  diss,  {ih.,  31  L.  J.  C.  P.  323). 

Ancient  riyhts  may  he  altered,  provided  they  are  not  made  more  extensive. 
— In  Turner  v.  Spooner,  the  plaintiff  was  the  owner  of  a  house  abutting 
upon  a  back-yard  in  the  occupation  of  the  defendants,  and  possessed 
two  ancient  lights  overlooking  such  yard,  which,  for  the  greater  acquire- 
ment of  light  and  air,  he  modernized  by  removiny  the  old  casements,  and 
substitutiny  new  ones  of  a  liyhter  construction,  but  not  extending  the 
aperture  occupied  by  their  frames.  The  defendants  then  proceeded  to 
erect  and  glaze  with  opaque  glass  a  framework  close  to  these  improved 
windows;  and  a  bill  was  filed  for  an  injunction  to  restrain  such  pro- 
ceedings. It  was  held  by  Kindcrsley  V.C.  that  a  party  possessed  of 
ancient  lights  has  a  right  to  acquire  an  increased  access  of  light  and  air 
if  he  can  do  so  without  altering  the  aperture,  and  this  does  not  create  a 
new  easement ;  that  the  owner  of  an  ancieut  light  is  entitled  to  use  it 
in  any  manner  he  pleases,  by  obstructing,  opening,  or  protecting  it,  or 
by  taking  away  old  window-frames  and  substituting  new  ones  of  a  much 
less  size  and  thickness,  so  that  he  does  not  extend  the  aperture  itself, 
and  that  the  intrusion  upon  a  neighbour's  privacy  is  not  a  ground  for 
interference,  either  at  law  or  in  equity  {ih.,  30  L.  J.  Ch.  801). 

Neio  liyhts  not  corresimndiny  ivith  old. — The  warehouse  of  the  plain- 
tiffs, which  had  ancient  windows,  having  been  burnt  down,  was  rebuilt 
by  them.  In  the  new  warehouse,  the  windows  were  placed  in  different 
situations  and  were  of  different  sizes,  and  altogether  occupied  more 
space  than  the  windows  of  the  old  building.  Some  parts  of  some  of  the 
new  windows  coincided  with  some  parts  of  the  old,  but  a  greater  portion 
of  the  old  and  new  windows  did  not  coincide.  The  defendants,  who 
had  premises  on  the  other  side  of  the  street,  raised  their  own  house,  and 
so  obstructed  the  access  of  light  to  the  new  windows.  They  could  not 
have  obstructed  the  passage  of  light  to  such  portions  of  the  windows  as 
were  new  without  at  the  same  time  obstructing  its  passage  to  such 
portions  of  the  new  windows  as  were  on  the  sites  of  the  old  windows. 
It  was  held  by  the  Exchequer  Chamber,  confirming  the  judgment  of  the 

H 


9S  RIGHT   TO    DIG    BRICK    EARTH. 

Coiuraon  l^leus  on  a  special  case,  that  the  pkiiutiffs,  under  tliese  Circum- 
stances, could  not  maintain  an  action  against  the  defendants  for 
obstructing:  the  passage  of  light  to  their  warehouse  windows,  as  no  one 
of  the  existing  windows  substantially  corresponded  with  any  of  the 
ancient  lights ;  and  per  Channell  B.  and  Blackburn  J.,  that  it  was  not 
necessary  in  the  present  case  to  decide  whether  there  is  a  right  to  block  up 
a  new  window,  if  it  cannot  be  done  without  also  blocking  up  an  ancient 
unaltered  one.  And  jwr  Curiam  :  "■  We  entirely  concur  in  the  judg- 
ment of  Patlerson  J.,  in  Bhtnchard  v.  Brt/dges  (4  Ad.  &  E.  176),  that 
lights  in  respect  of  which  the  right  of  action  is  sought  to  be  enforced 
must  be  substantially  the  same  as  the  lights  which  have  been  gained 
by  user  or  grant,  and  that  no  new  light  can  be  substituted  without  the 
consent  of  ihe  owner  of  the  servient  tenement "  {Hutchinson  and  Others 
V.  Copestahe  and  Otheis,  31  L.  J.  C.  P.  19  Ex.  Ch.). 

Bight  of  digging  for  hrick  earth  to  he  talcen  into  consideration  under  the 
General  Inclosure  Act.  —  Where  proceedings  were  taken  under  the 
General  Inclosure  Act,  8  &  9  Vict.  c.  118,  for  the  inclosure  of  certain 
land  at  the  instigation  of  persons  who  claimed  rights  of  common  over 
the  same,  and  the  owner  of  such  land  was  interested  therein  in  respect 
of  brick-earth  which  he  could  get  from  it  without  interfering  with  the 
rights  of  common,  it  was  held  that  the  interest  of  such  owner  in  respect 
of  the  brick-earth  ought  to  be  taken  into  consideration  by  the  Assistant 
Commissioner  in  calculating  the  interests  of  the  assenting  and  dissenting 
parties,  under  sec.  27,  notwithstanding  all  "  mines,  minerals,  stones,  and 
other  substrata "  had  been  expressly  reserved  to  such  owner  by  the 
provisional  order;  and  the  Court  granted  a  prohibition  against  the  Com- 
missioners proceeding  with  the  inclosure  without  the  consent  of  such 
owner,  or  taking  the  value  of  his  interest  in  the  brick-earth  into  account 
in  reckoning  the  assents  and  dissents  {Church  v.  Inclosure  Commissioners). 

Custom  to  dig  clag  in  a  cojnjliold  not  unreasonable. — A  custom  in  a 
manor  that  copyholders  of  inheritance  may,  without  licence  of  the  lord, 
break  the  surface  and  dig  and  get  clay  without  stint  out  of  their  copy- 
hold tenements,  for  the  purpose  of  making  bricks  for  sale  oif  the  manor, 
is  good  in  law.  This  was  decided  in  error  on  a  bill  of  exceptions  to  the 
ruling  of  Bgles  J.,  and  the  judgment  of  the  Exchequer  affirmed.  It 
was  contended  that  the  custom  to  take  the  soil  and  surface  without  stint 
tends  to  the  destruction  of  the  inheritance,  and  is  unreasonable  and 
void  in  law,  but  per  Curiam .-  "  We  are,  however,  unable  to  draw  any 
sound  distinction  between  a  custom  lor  copyholders  to  take  all  the 
timber  or  trees,  or  all  the  minerals,  in  their  cop}h()lds,  and  such  a 
custom  to  take  clay  as  that  in  question.  It  aj)poars  to  us  that  the 
cases  of  jJrofil  ajjrendre  or  easement  on  the  waste  of  the  lord  or  in  alieno 


DEFINITION    OF    SURFACE    DAMAGE.  99 

solo,  liave  no  application  to  the  present  question.  A  copyholdei-  may, 
by  custom,  not  only  have  a  possessory  but  a  proprietory  right  in  the 
trees  and  minerals  in  his  copyhold  tenement.  In  the  case  of  minerals, 
the  taking  them  is,  in  effect,  a  taking  of  a  portion  of  the  corjjus  of  the 
copyhold  tenement.  There  appears  to  be  no  doubt  but  that  a  copy- 
holder of  inheritance  may  not  only,  by  custom,  work  old  mines  already 
opened,  but  that  he  may  also  by  custom  dig  within  his  tenements  for 
new  ones,  and,  if  successful,  work  them.  The  case  of  the  Bishop  of 
Winchester  v.  Knight  (2  Ld.  Eaymond,  1056  ;  and  1  P.  Williams,  40G), 
[see  Laiv  of  the  Farm,  p.  307]  is  an  authority  for  the  proposition  that 
by  custom  a  copyholder  of  inheritance  may  open  and  work  new  mines. 
GiWert  C.B.,  in  his  treatise  on  tenures,  p.  827,  says  that  a  copyholder 
of  inheritance  cannot  without  a  custom  dig  for  mines  ;  obviously  mean- 
ing that  with  a  custom  he  could.  In  Scriven  on  Cojnjholds,  p.  420,  it  is 
said  that  by  custom  a  copyholder  of  inheritance  may  be  entitled  to  the 
trees  and  mines  in  his  copyhold.  The  plaintiff's  counsel  in  his  argu- 
ment did  not  doubt  but  that  a  custom  for  a  copyholder  to  have  and 
work  quarries  and  mines  might  be  good,  but  contended  that  the  sur- 
face must  be  left.  But  no  case  was  cited  to  warrant  such  a  con- 
clusion. It  may  l)e  that  the  mine  or  minerals,  or  a  quarry  of  stone, 
might  occuiDy  the  whole  surface  of  the  particular  copyhold  tenement, 
and  that  a  general  right  to  take  stone  or  minerals  would  necessarily 
involve  the  taking  of  the  surface.  But  in  the  present  case  there  is 
nothing  to  show  that  the  taking  the  clay  would  necessarily  involve  the 
taking  of  the  surface.  All  the  clay  might  be  so  situate  as  to  be  capable 
of  being  got  at,  as  coals  or  other  minerals.  But  however  that  may  be, 
we  think  there  is  nothing  to  show  that  such  a  custom  as  that  in  ques- 
tion is  unreasonable  or  bad  in  point  of  law ;  and  we  may  further  ob- 
serve that  it  is  said,  in  Scriven  on  Copyholds,  p.  26,  that  a  custom  is 
not  unreasonable  because  it  is  prejudicial  to  or  diminishes  the  lord's 
casualty  profit  as  to  escheat.  For  these  reasons,  we  think  the  defend- 
ant is  entitled  to  our  judgment "  (JIarquis  of  SalisJ)ury  v.  Gladstone). 
DefiniUon  of  surface  damage. — The  words  "surface  damage"  in  the 
Forest  of  Dean  Act  (1  &  2  Yict.  c.  43,  s.  68)  do  not  include  damage 
to  buildings  on  the  land,  by  reason  of  the  subsidence  occasioned  by 
underground  workings.  This  "  surface  damage  "  is  damage  to  the 
mere  surface,  injury  to  the  crops,  or  destruction  of  the  grass,  com- 
pensation for  which  can  be  ascertained  by  computation,  and  deter- 
mined upon  by  the  gaveller.  To  cause  a  subsidence  of  the  soil,  par- 
tially or  wholly  destroying  the  future  fertihty  of  it,  is  not  a  surrace 
damage ;  it  may  be  damage  to  the  hoase  and  land,  but  it  is  not  sur- 
face damage  {Allaway  v.  Wagslaff). 

H    2 


100  DAMAGE    TO    SUKFACE. 

Support  to  taiul  from  drownnt  mine— Mi\\o\\i^\i  as  between  conter- 
minous owners  the  lateral  support  of  a  neighbour's  soil  can  only  be 
claimeil  for  the  surface  of  the  land  in  its  natnral  state,  yet  where  a 
person  sells  land  to  another,  to  be  used  for  an  express  purpose,  he  will 
not  be  allowed  to  derogate  from  his  own  grant  by  doing  anything  on 
tlie  adjacent  soil,  which  unfits  the  land  sold  for  the  purpose  for  which 
it  is  sold ;  and  it  makes  no  dillerence  that  the  land  so  sold  was  taken 
under  compulsory  powers;  but  the  purchaser  is  not  entitled  to  any 
additional  supj^ort  afforded  by  the  accidental  state  in  which  the  adja- 
cent soil  ha[>pens  to  be,  at  the  time  of  the  purchase,  however  long  it 
may  have  Ijeen  in  that  state  prior  to  the  purchase.     Thus  where  the 
owner  of  a  drowned  mine  sold  land  to  a  railway  company  for  the  pur- 
pose of  building  a  bridge,  and  the  land  sold  derived  additional  sup- 
port from  the  water  in  the  mine,  it  was  held  that  the  railway  company 
were  not  entitled  to  restrain  him  from  pumping  out  the  water,  and 
restorhig  the  mine  to  a  working  condition,  although  the  mine  had 
continued  in  its  drowned  state,  and  the  works  had  been  abandoned  for 
a  period  of  forty  years  prior  to  the  purchase  {North  Eastern  Railway 
Company  v.  Elliot). 

Rigid  of  railway  to  support  from  ailjoining  lands. — A  railway  company 
is  entitled  to  the  vertical  and  lateral  support  of  the  adjoining  lands  of 
the  proprietor  from  whom  the  lands  or  casements  required  for  the  rail- 
way were  purchased;  and  such  i)ro[)rietor  is  not  at  liberty  to  work  the 
minerals  adjoining  the  railway  in  such  a  way  as  to  cause  damage  to  it; 
and  in  the  absence  of  statutory  provisions  he  cannot  compel  the  com- 
pany to  purchase  them  {North  Eastern  Railway  Comiiany  v.  Crosland). 
Title,  of,  owner  of  ancient  house  to  lateral  support  from  adjoininy 
land. — '^tanble  hy  Wood  V.C. :  "  The  owner  of  an  ancient  house  is  en- 
titled to  the  lateral  support  of  his  neighbour's  land,  as  well  for  the  house 
as  for  the  surface  of  tlie  soil  itself"  {Hunt  v.  Peeh). 

Statute  of  limitations  in  case  where  damage  has  been  done  to  the  surface 
by  mininy. — The  judgment  in  Bonomi  v.  Backhouse,  (27  L.  J.  (N.  S.) 
Q.  B.  378,)  and  that  in  Nicldin  v.  Williajns  (10  Ex.  259),  [see  Law  of 
the  Farm,  pp.  80,  81,]  on  which  it  w-as  based,  were  over-ruled  in  Error. 
In  the  former,  the  defendant,  owner  of  certain  mines  in  1849,  with- 
drew the  pillars  of  coal  which  had  been  left  as  supports  to  roofs  in 
some  of  the  old  workings.  The  consequence  was  that  the  roof  of  the 
mine  fell,  the  adjacent  strata  subsided  one  after  the  other  in  slow  suc- 
cession, and  at  last,  in  1854,  the  support  of  the  intermediate  strata 
having  given  way,  the  plaintiff's  land,  which  was  280  yards  off  de- 
fendant's mines,  sank,  and  tlic  house  on  it  was  injui-ed.  The  plaintiff 
brought  his  action   in   185G.     It  was  ultimately  held,  reversing  the 


EVIDENCE    OF    EXISTENCE    OF    HIGHWAY.  ]01 

judgment  of  the  Queen's  Bench  in  tliis  case,  and  Nkldui  v.  Williams 
as  well,  that  the  Statute  of  Limitations  was  no  bar  to  the  action,  as  no 
cause  of  action  arose  to  the  iDlaintififs  by  the  mere  excavation  by  the 
defendant  of  the  pillars  of  plaintiff's  coal  in  his  own  land,  so  long  as  it 
caused  no  damage  to  the  plaintiffs,  and  that  the  cause  of  action  firs^ 
accrued  when  the  plaintiffs  received  actual  damage. 

Compensation  for  Injury  to  Buildings  hg  Subsidence  of  Soil. — When 
the  working  of  mines,  in  however  careful  a  manner,  has  occasioned 
the  subsidence  of  the  land  of  another,  although  not  immediately  ad- 
joining, damages  may  be  recovered  in  respect  of  injury  to  buildings 
thereon  erected  or  enlarged  within  twenty  years,  provided  their  weight 
did  not  occasion  or  contribute  to  the  subsidence;  and  the  action  is 
maintainable  for  damage  to  the  possession  and  the  reversion  {Earner 
and  Strogan  v.  Knoivles). 

Right  of  soil  to  supjwrt  for  additional  weight  of  huildings. — A  right 
to  support  for  additional  weight  of  buildings  may  be  acquired  as  an 
easement  by  twenty  years  of  uninterrupted  enjoyment  {Partridge  v. 
Scott,  3  M.  &  W.  220),  and  after  twenty  years  a  house  acquires  a 
right  to  the  lateral  support  of  soil  round  it  [Browne  v.  Rohins). 

Three-fourtlis  of  a  right  of  common. — A  plea,  of  prescriptive  right  to 
three-fourths  of  a  right  of  common  of  pasture  for  one  cow  is  bad 
{Nichols  V.  Chapman). 

Evidence  of  existence  of  highwag. — In  an  action  of  trespass  for 
breaking  and  entering  the  plaintiff's  land,  on  an  issue  raised  whether 
there  was  a  highway  over  the  locus  in  qua,  there  was  evidence  that 
there  had  been  a  highway  over  the  adjacent  land,  which  was  then, 
together  with  such  locus  in  quo,  an  open  common.  There  was  also 
evidence  that  for  many  years  the  highway  was  obstructed  by  part 
of  it  being  included  in  an  enclosure,  which  had  been  illegally  made 
on  such  common;  and  that  during  twenty  years  of  that  time,  the 
public  had  deviated  a  little  from  the  line  of  way,  by  going  outside 
such  enclosure,  and  on  the  locus  in  (luo.  At  the  end  of  such  time, 
and  before  the  plaintiff  became  the  owner  of  the  locus  in  quo,  the 
use  of  such  substituted  line  of  way  was  discontinued  by  reason  of 
a  new  road  having  been  laid  out  in  a  diflFerent  direction  by  an  ad- 
joining land  proprietary.  Afterwards,  the  obstruction  to  the  old  road 
was  removed,  and  the  original  line  of  way  was  reopened  to  the  public. 
It  was  held  by  Erie  C.J.  and  Bgles  J.  {Williams  J.  diss.),  that  there 
was  no  reasonable  evidence  on  the  above  facts,  on  which  a  jury  might 
find  that  there  was,  in  addition  to  any  other  highway,  a  highway  run- 
ning over  the  locus  in  quo  {Dawes  v.  Hawkins,  29  L.  J.  C.  P.  343). 

Evidence  of  user  and  dedication. — Although  a  cut  de  sac  may  be  a 


lO-Z  EIGHT    OF   JUSTICE    AS    TO    HIGHWAY. 

highway,  and  although  the  old  doctrine  that  a  higliway  must  lead 
from  one  public  place  to  another  may  not  be  strictly  correct,  yet 
where  a  road  leads  to  a  place  which  is  not  public,  and  which  the 
public  enter  only  by  permission  (as  where  it  leads  to  the  gates  of  a 
park),  the  user  of  the  road  by  all  persons  who  seek  such  entry  with- 
out evidence  of  nser  for  any  other  purpose,  is  not  a  user  surEcient 
to  warrant  the  conclusion  of  a  dedication  to  the  public  as  a  highway 
and  a  liability  in  the  pai-ish  to  repair  (Reg.  v.  Parish  of  Hawlchurst). 

For  right  of  jnihlic  to  eujogmcnt  of  highicag. — Wliere  an  ordinary 
highway  runs  between  fences,  one  on  each  side,  the  right  of  the  pass- 
age which  the  public  have  along  it  extends  primS,  facie,  and  unless 
there  be  evidence  to  the  contrary,  over  the  whole  space  between  the 
Jeuces ;  and  the  public  are  entitled  to  the  use  of  the  entire  space  {Reg. 
V.  U.K.  Electric  Telegraph  Company  {limited),  31  L.  J.  M.  C.  166). 

Enclosing  to  within  fifteen  feet  of  centre  of  highway. — The  common 
notion  that  owners  of  land  on  the  sides  of  a  highway  may  encroach 
or  enclose  up  to  within  fifteen  feet  of  the  centre  is  an  error,  and  the 
question  will  always  be  as  to  the  extent  of  the  highway  by  user :  per 
Erie  J.  {Reg.  v.  Johnson). 

Rit/hf  of  Justices  to  determine  ichether  road  is  a  highway. — On  the 
hearing  of  a  complaint  under  5  &  6  Will.  IV.  c.  50,  sec.  73,  for 
leaving  rubbish  on  a  highway,  after  notice  to  remove  it,  the  defendant, 
who  was  the  owner  of  the  land  on  both  sides  of  the  alleged  highway, 
denied  it  to  be  the  highway,  and  as  he  claimed  the  soil  subject  to  a 
private  right  of  way  only,  he  contended  that  the  justices  ought  not  to 
adjudicate  in  the  matter,  on  the  ground  tliat  title  to  land  came  in 
question ;  and  it  was  held  that  the  objection  was  untenable,  for  that 
the  justices  had  jurisdiction  under  the  statute  to  determine  whether 
the  road  was  a  highway  or  not.  And  per  Wightman  J.,  the  question 
of  title  to  the  land  does  not  properly  arise ;  and  per  Compton  J.  "  I  was 
struck  by  the  way  the  point  was  raised,  viz.,  that  the  matter  of  title 
comes  into  question,  because  the  appellant  claims  the  land  subject 
only  to  the  easement  of  a  private  right  of  road.  As  a  general  rule, 
no  doubt,  justices  are  not  to  decide  on  summary  conviction,  the  title 
to  land;  and  as  I  said  in  Reg.  v.  Cridland  (27  L.  J.  (N".  S.)  M.  C.  28), 
this  docs  not  depend  on  any  exception  in  the  particular  statute,  so 
much  as  on  the  principle  generally  applicable  to  summary  convictions. 
But  in  this  particular  case,  the  magistrates  were  to  decide  on  theques- 
tion  whether  the  alleged  highway  was  a  highway  or  not;  this  in  some 
sort  may  be  said  to  involve  a  question  connected  with  title  to  land,  but 
that  consideration  cannot  oust  them  of  jurisdiction  where  they  are  the 
tribunal  appointed  to  decide  that  very  question,  highway  or  no  highway. 


DISTINCTION    BETWEEN    A    PRIVATE    AND    PUBLIC    WAY.      103 

The  very  foundation  of  their  jurisdiction  in  the  matter  depends  on  this 
question,  and  the  very  first  step  is  to  ascertain  whether  the  locus  in  quo 
is  a  highway.  They  are  nob  really  trying  a  question  as  to  any  title  to 
land;  in  this  case  the  title  to  the  land  was  admitted,  and  the  only 
question  was,  is  the  road  a  highway  or  not  ?  That  is  the  very  thing 
which,  as  to  any  other  individual,  the  justices  are  to  try,  and  why  not 
when  the  person  guilty  of  the  alleged  nuisance  is  the  owner  of  the  land  ? 
My  notion  is  that  if  an  Act  of  Parliament  gives  jurisdiction  to  justices 
or  other  inferior  tribunal  over  a  matter  connected  with  land,  there  must 
be  a  special  exception  to  the  Act,  in  order  to  oust  their  jurisdiction, 
where  the  title  comes  in  question,  as  in  the  County  Courts  and 
]\ralicious  Trespass  Acts.  The  appellant  seeks  to  oust  the  magis- 
trates' jurisdiction,  by  alleging  that  the  road  is  not  a  highway;  any 
other  person  might  set  up  this  defence,  and  it  is  a  question  of  user 
by  the  public,  and  is  not  founded  on  title,  but  arises  just  as  much  as  to 
any  one  of  the  public,  as  to  the  particular  owner  of  the  land ;  and  this 
question  of  highway  is  the  very  question  which  the  Legislature  says  the 
justices  are  to  decide"  {Williams  (appt.)  v.  Adams). 

Distinction  between  a  private  and  a  public  ivaij. — "  It  appears  to  me 
that  there  is  this  distinction  between  a  private  and  a  public  right  of 
way,  that  the  former  is  not  necessarily,  as  the  latter  is,  over  every  iiart 
of  the  land,  to  which  people  have  access,  or  along  which  there  is  the 
right  of  way  :"  per  Gochburn  C.J.  {Hulton  v.  Hamboro'). 

Duty  of  surveyor  to  protect  foot-causeways  ayainst  carriages. — The  24th 
section  of  the  General  Highway  Act  (5  &  6  Will.  IV.  c.  50),  which 
requires  the  parish  surveyor  to  secure  horse  and  foot  causeways  from 
being  passed  over  by  carriages,  applies  only  to  such  as  are  by  the  side  of 
carriage-ways ,-  and  therefore  such  surveyor  is  not  bound  by  that  statute 
to  protect  horse  and  foot-causeways  againsc  carriages  at  the  extremities 
of  such  ways  {Ellis  (appt.)  v.  Woodbridye). 

Surveyor  of  hiyhways  not  liable  for  accident  caused  by  nonrqyair  of 
lload. — A  surveyor  of  highways  appointed  under  .5  &  (5  Will.  IV.  c. 
50,  is  not  liable  to  an  action  for  damages  resulting  from  an  accident 
caused  by  the  non-repair  of  the  highway,  as  was  substantially  decided 
in  error  in  McKinnon  v.  Pcnson  (9  Ex.  609,  and  23  L.  J.  (N.  S.)  M. 
C.  97)  {Youny  v.  Davis). 

Presump)tion  of  property  on  soil  of  private  road. — The  presumption 
which  prevails  in  the  case  of  a  public  highway,  that  the  soil  usque  ad 
medium  filum  vice  belongs  to  the  owner  of  the  adjacent  land,  prevails 
also  in  the  case  of  a  private  way  ;  provided  that  there  be  no  other 
evidence  of  owncrshi]>  to  rebut  such  presumption  {Holmes  v.  Belling 
Jiam,  29  L.  J.  C.  P.  132). 


104  ETGHT    OF    WAY. 

Ril/hf  of  icaij  aj^pur tenant. — A  plot  of  building  ground  liaving  been 
conveyed  v>itli  a  right  of  way  over  a  new  road  leading  thereto  from  a 
high  road,  it  was  held  by  the  Court  of  Common  Pleas  that  if  that  plot 
of  land  is  subsequently  demised  by  parol,  the  right  of  way  passes  also, 
although  not  specially  mentioned  {Skull  v.  Gtenister,  33  L.  J.  C.  P.  185). 

Imptieil  grant  of  way  of  necesfiitij. — Where  the  owner  of  a  farm  severed 
it  by  will  among  his  two  sous,  and  the  moiety  devised  to  one  son  was 
landlocked,  except  where  it  abutted  on  the  moiety  devised  to  the  other, 
yet  the  will  made  no  mention  of  any  ways  whatsoever,  it  was  held  by 
ihe  Exchequer  Chamber,  atiirming  the  decision  of  the  Court  of  Queen's 
Bench,  that  some  way  passed  by  implication  under  the  will,  and  that 
the  Court  would  look  at  the  previous  occupation  of  the  testator's  pro- 
perty to  see  what  way  was  meant  by  him  to  pass.  Under  these  circum- 
stances, where  the  access  to  the  landlocked  premises,  and  to  the  farm 
buildings  upon  them,  had  been  in  the  testator's  lifetime  by  one  par- 
ticular road  across  the  moiety  devised  to  the  other  son,  and  the  enjoy- 
ment of  the  landlocked  premises  in  the  state  they  were  in  when  devised 
was  not  complete  without  this  particular  road,  the  Court  held  that  this 
particular  road  passed  under  the  will,  and  not  merely  "  a  way  of 
necessity  ; "  and  semhic,  that  if  a  way  of  necessity  only  had  passed,  the 
way  would  have  been  limited  by  the  necessity  (Reff.  v.  Pearson). 

Conveyance  of  a  dose  adjoininy  highway  implies  that  of  hiyhway  vsque 
ad  mcditan  Jihnn  vice.. — Where  a  close  of  land  adjoins  a  highway,  the 
presumption  of  law  is  that  half  of  such  highway,  vsque  ad  medium  filum, 
passes  with  the  conveyance  of  the  close  ;  and  such  presumption  is  not 
rebutted  by  the  fact  that  the  close  is  separated  from  the  highway  by  a 
fence,  and  is  defined  in  the  conveyance  by  admeasurement  and  reference 
to  a  plan  which  did  not  include  such  highway,  and  the  cases  of  Simpson 
V.  Dendy  (8  C.  B.  433),  and  Lord  v.  tJie  Commissioners  of  the  City  of 
Sydney  (12  Moo.  473),  arc  authorities  to  that  effect  {Jjerridge  v. 
Ward,  30  L.  J.  C.  P.  218). 

Map  held  inadmissihle  under  certain  circumstances  to  prove  rights  of 
iray. — To  prove  that  there  was  a  public  right  of  way  over  certain 
closes,  part  of  a  manor,  the  defendant  put  in  evidence  a  map  used  by 
a  deceased  stewai'd  of  the  manor  at  the  Manor  Courts,  for  the  purpose 
of  defining  the  copyholds.  In  it,  there  appeared  a  space  marked  out 
by  two  lines  crossing  the  closes  in  question,  and  called  Mellow  Lane. 
There  were  occupation  ways,  as  well  as  public  highways,  marked  upon 
the  map,  but  there  was  nothing  to  distinguish  one  from  another,  nor 
was  there  anything  to  show  that  the  space  marked  out  as  above 
mentioned  was  a  public  liighway  at  all.  The  map  was  held  inadmis- 
sible :  the  deceased  steward  did  not  make  the  map,  nor  was  it  proved  to 


rJGHT    OF    WAY    UNDER    DEED    OF    PARTITION.  105 

have  been  made  by  any  one  who  had  knowledge  of  the  facts  (P/};e  v. 
Fukher,  28  L.  J.  Q.  B.  12). 

Order  of  Justices  to  stojj  up  a  puhlic  carriage-road  under  an  Inchsure 
Act,  implied  ly  long  acquiescence. — An  award  made  in  1830,  under  an 
Inclosure  Act,  which  empowered  the  Commissioners  to  stop  up  high- 
ways, subject  nevertheless  to  the  order  and  concurrence  of  two  justices, 
directed  a  certain  public  highway  for  carriages  to  be  stopped  up.  Ever 
since  the  award  {i.e.  for  28  years)  the  road  had  been  stopped  up  by  a 
gate,  and  had  never  been  used  by  the  public,  with  carriages  or  horses. 
There  had,  however,  been  some  user  by  foot  passengers.  No  proof  was 
given  that  the  requisite  order  of  justices  had  ever  been  made.  It  was 
held  by  the  Exchequer  Chamber,  confirming  the  decision  of  the  Court 
of  Exchequer,  that  from  the  non-user  of  the  road  for  so  long  a  period, 
the  jury  might  presume  that  there  was  such  an  order  (Williams  v. 
Fi/tm,  28  L.  J.  Ex.  146). 

Poiver  of  Inclosure  Commissioners  to  set  out  private  road. — Where  a 
provisional  order  has  been  made  under  the  Inclosure  Acts,  ordering 
certain  land  therein  described  to  be  allotted  to  an  individual,  in  lieu  of 
his  right  in  the  lands  to  be  enclosed,  and  the  order  does  tiot  eaprcsstij 
exempt  such  allotment  from  having  a  right  of  way  reserved  over  it,  the 
Inclosure  Commissioners  have  power,  in  proceeding  with  the  inclosure, 
to  order  the  valuer  to  set  out  a  private  road  over  such  land,  for  the  use 
of  another  landowner;  and  per  Erie  C.J.,  "The  words  of  11  &  12 
Vict.  c.  99,  s.  4,  giving  the  valuer  power  to  set  out  private  roads,  are 
extremely  wide,  and  give  the  Commissioners  jurisdiction  in  the  matter" 
{Gruhh  V.  Inclosure  Commissioners).     AfRrmed  in  Error. 

Apip)ropriation  of  a  private  right  of  uuiy  lij  Private  Estates  Act. — A 
Private  Estate  Act  (6  117//.  IV.  c.  13)  enables  tenants  for  life  to  grant 
building  leases,  and  empowers  the  lessors  to  lay  out,  and  appropriate 
any  part  of  the  land  authorised  to  be  leased,  as  for  a  way,  street, 
square,  passage,  or  sewer,  or  other  conveniences  for  the  general  im- 
provement of  the  estate,  and  the  accommodation  of  the  tenants  and 
occupiers.  It  was  held  that  extensive  private  rights  of  way  over  such 
appropriated  land  might  be  granted  to  particular  lessees,  as  such  appro- 
priation did  not  confer  a  right  of  user  by  all  the  tenants  and  occupiers 
(White  V.  Leeson). 

Right  of  way  under  deed  of  partition. — Pger  v.  Cartel'  was  quite  dis- 
tinguished from  Worthington  v.  Gimson,  in  which  there  is  no  ground 
for  saying  that  there  was  any  necessity  at  all  for  the  way  claimed. 
There  H.  and  P.  being  seised  of  undivided  moieties  in  the  N.  and  N".  V. 
estates,  entered  into  a  deed  of  partition,  by  which  tiie  N.  V.  estate  was 
conveyed  to  tl.,  and  the  K".  estate  to  P.     A  way  had  existed  for  many 


100  PLOUGHIXG  Ur  FOOTPATHS. 

years,  leading  from  a  farm  on  the  N.  estate,  occupied  by  the  plaintifT 
over  his  land,  and  over  land  oeenpicd  by  the  defendant  on  the  N.  V. 
estate.  The  way  had  been  used  l)y  the  occupier  of  the  plaintiff's  farm 
before  and  after  tlie  "iOth  of  January,  in  which  month  the  deed  of  par- 
tition was  executed.  By  the  deed,  H  conveyed  his  undivided  moiety  in 
the  N.  estate  to  P.,  and  as  part  of  the  farm  occupied  by  the  plaintiff 
with  others,  "  with  their  and  every  of  their  rights,  members,  easements, 
and  appurtenances."  P.  also  conveyed  his  undivided  moiety  in  the  N.  V. 
estate  to  H.  The  plaintilf  and  his  predecessors  used  the  way  up  to 
January  1859,  when  it  was  obstructed  by  the  defendant.  It  was  held 
in  an  action  brought  by  the  plaintiff  in  respect  of  such  obstruction, 
that  the  way  in  question  did  not  pass  under  words  used  in  the  deed 
of  partition,  and  that  the  plaintiff  could  not  recover  ( Worthington  v. 
Gimson.     For  Pyer  v.  Carier,  see  2%  L.  J.  Ex.  25S). 

Eridcnces  of  dedication  of  jmvate  farm  road  to  the  jjuUic — The  occa- 
sional user  of  a  farm  road  by  strangers  chiefly  for  purposes  of  pleasure 
is  evidence  of  a  public  rather  than  a  private  way,  and  may  be  evidence 
of  a  dedication  to  the  public  as  a  highway,  but  must  be  well  weighed 
with  reference  to  permission,  repair,  and  all  other  circumstances  tending 
to  show  whether  the  owner  ever  intended  such  a  dedication,  especially 
if  it  leads  to  a  place  of  resort  for  mere  purposes  of  pleasure  :  per  Erie 
C.J.  {JlildredY.  Weaver). 

Mere  tracJrs  in  wood  not  proof  of  highwaij. — The  mere  use  of  tracks  in 
a  wood  by  people  where  they  were  free  to  wander  about  as  they  pleased, 
is  not  necessarily  enough  to  show  a  dedication  of  such  tracks  to  the 
public  as  public  footways  :  per  ErU  C. J.,  Chapman  v.  Crijips  and  Others 
(2  V.  &.  F.  8G4)  ;  and  evidence  that  in  a  place  of  resort  for  pleasure,  as 
a  wood  or  the  hke,  people  have  gone  about  wherever  they  pleased,  there 
being  no  definite  enduring  trackway  in  any  particular  direction,  but 
merely  temporary  and  transitory  tracks,  not  passable  in  wet  weather, 
varying  every  season  and  never  proved  to  be  repaired,  was  held  by 
Wifjhiman  J.  not  to  be  evidence  on  which  a  jury  could  properly  find 
either  a  public  highway  or  a  public  ri;jht  of  resort  for  air  and  exercise, 
or  a  prescriptive  right  of  way  (Srha'inr/e  v.  iJouvIt). 

Charging  settled  estate  icith  expense  of  road  through  another  p)art  of  the 
estates. — The  court  will  not  sanction  the  sale  of  any  part  of  settled 
estates,  that  the  purchase-money  may  be  applied  in  laying  out  and 
making  roads  through  another  part  of  the  estates  :  jier  RomiJlg  M.E. 
{In  re  Chambers's  Settled  Estates). 

Ptoiigliing  up  footpaths. — In  Bright  v.  Hireet,  which  was  tried  at 
Taunton  Assizes  some  years  since,  the  /-•///.•  as  to  ptoaghing  vp  footpaths 
was  thus  laid  down  :  "  In  tin's  case,  which  wa,,  an  indictnient  brought 


DISCHAKGING   WATER    FROM    EAVES.  107 

by  ccrtiornri  from  the  Quarter  Sessions,  it  appeared  that  tliere  was  a 
pubUc  footpath  across  the  hinds  of  the  defendant,  who  had  been  accus- 
tomed to  plough  up  the  paths,  to  the  great  inconvenience  of  the  public. 
The  right  of  way  being  established  by  undisputed  evidence,  the  learned 
judge  declared  the  law  to  be  :  That  if  the  public  were  entitled  to  a  road 
(or  footway)  at  all,  they  were  entitled  to  a  good  one,  and  that  either 
the  parish  or  the  person  occupying  the  field,  as  the  custom  might  be, 
was  bound  to  keep  it  in  a  proper  state  for  the  use  of  the  public ;  that  if 
the  road  (or  path)  led  from  a  village  to  the  church,  he  apprehended  the 
proper  persons  to  repair  were  the  parish  officers  or  way  wardens  ;  that 
it  was  easy,  if  the  farmer  chose,  to  plough  up  the  field  without  ploughing 
up  the  footpath,  and  if  he  did  plough  it  up  he  was  liable  to  fine  and 
imprisonment  for  destroying  the  road  (or  path) ;  that  the  King's  subjects 
were  not  to  be  put  to  inconvenience,  merely  because  he  would  not  give 
himself  a  little  additional  trouble  in  passing  the  plough  parallel  with 
the  path  ; "  and  the  defendant  was  find  40s. 

Discharging  water  from  eaves  on  t-o  land  sifhject  of  action  hg  reversioner. 
— Building  a  roof  with  eaves,  which  discharge  rain-water  on  to  the 
land,  may  be  injurious  to  the  reversion,  and  will  warrant  the  jury  in 
finding  that  the  act  alleged  is  an  injury  of  a  permanent  character  to  the 
land.  But  if  the  act  be  done  merely  with  the  view  to  establish  an  ease- 
ment on  the  land,  and  is  not  in  fact  injurious  to  the  reversion,  the 
action  will  not  lie.  The  action  by  the  reversioner  is  independent  of 
that  by  the  tenant  for  damage  to  his  possession.  The  Prescription  Act 
(2  &  3  Will.  IV.  c.  71,  s.  8),  reserves  to  the  reversioner  three  years 
for  resisting  any  claim  after  his  estate  has  come  into  possession, 
though  the  full  period  of  prescription  has  previously  elapsed  {Tucker  v. 
Newman,  11  Ad.  &  E.  40). 

Rule  as  to  going  100  gards  through  turn-pike  gate. — A  person  who 
had  here  come  on  to  the  turn-pike  road  20  yards  below  the  gate,  and 
passed  300  yards  through  it,  is  liable  to  pay  toll  at  a  toll-gate,  on  a 
turnpike  road,  though  he  has  not  travelled  100  gards  on  the  road  before 
coming  to  the  gate,  if,  after  passing  through  the  gate,  he  uses  the  road 
for  a  space  which  together  tvith  that  he  has  passed  over  previouslg  exceeds 
in  all  the  distance  of  100  gards  {Horivood  v.  Powell). 

Composition  for  tolls  made  hg  lessees  are  fiof  illegal  (Stott  v.  Clegg). 
ConstrKction  of"  other  thing"  in  Turnpike  Roads  Act. — The  words  "■  other 
thing"  in  3  Geo.  lY.  c.  126,  s.  121,  which  imposes  a  penalty  on  persons 
drawing  "  any  timber,  stone,  or  other  thing  "  on  a  turnpike  road  other- 
wise than  on  a  wheeled  carriage,  were  held  to  apply  {Cockhitrn  C.J. 
d'ulh)  only  to  things  ejusdem  generis,  and  therefore  not  to  a  load  of 
straw.     Judgment  was  therefore  for  the  respondent,  and  the  view  of 


108  TURNPIKE    EOADS    ACT. 

the  magistrates  who  had  dismissed  the  information  iipiield.  He  had 
used  a  vehicle  on  two  wheels,  so  constructed,  that  when  going  down 
liill  the  front  part  of  the  vehicle  came  into  contact  with  the  road,  and 
ploughed  it  up,  acting  as  a  kind  of  drag,  but  it  was  only  laden  with 
straw.  The  Court  thought  that  this  was  a  sledge,  and  not  a  carriage 
on  wheels  within  the  act,  as  the  magistrates  had  decided  ;  but  they 
agreed  with  them  that  the  general  words  in  the  section  must  be  limited 
to  things  of  the  same  nature,  and  calculated  to  produce  the  same  mis- 
chief as  those  enumerated,  and  dismissed  the  appeal  {Couabj  Road 
Board  of  Radnor  v.  Evans). 


CHAPTER    IV. 

TREES    AND    FENCES. 

The  general  projpeiiy  in  trees  is  in  the  landlord,  and  that  in  bushes 
in  the  tenant,  even  where  they  are  cut  down  by  a  stranger  {Berrmian  v. 
Peacock).  Where  trees  are  excepted  in  a  lease,  the  land  on  which  they 
grow  is  necessarily  excepted  also,  and  if  therefore  the  tenant  cut  down 
the  trees  the  landlord  has  trespass  for  breaking  his  close,  and  cutting 
them  down  {per  Prohyn  J.  ;  Rolls  v.  RocTc).  By  Liford's  case  the  soil 
on  which  timber  trees  grow  is  not  excepted  by  the  words  "  all  timber 
trees,"  but  only  nutriment  out  of  the  land  SQfiicient  to  sustain  the 
vegetative  power  of  the  trees.  Where,  however,  there  was  a  lease  of 
the  site  and  demesne  of  a  manor,  ^'  except  is  ct  semper  reservatis  omnihus 
loscis  subboscis,"  &c.,  it  was  held  that  the  soil  itself  was  excepted 
(Whistler  v.  Pcisloiv).  Hence  it  is  observed  in  a  note  to  Pomfret  v. 
Ricroft,  "  that  there  is  a  distinction  between  an  exception  of  woods  and 
unclerwoods,  and  an  exception  of  all  timber  trees ;  for  by  the  former  the 
soil  itself  on  which  the  woods  and  underwoods  grow  is  excepted."  But 
it  has  been  held  otherwise  where  the  words  "woods  and  underwoods" 
follow  the  words  "  timber  and  other  trees "  in  the  same  clause  of 
exception  {Leigh  v.  Heald).  "All  manner  of  timber  trees  and  great 
ivoods"  are  excepted  in  a  lease,  and  it  was  held  by  three  judges  out  of 
four,  that  the  phrase  did  not  include  underwood  or  herbage  of  the 
woods  (1  Dy.  79  a). 

By  a  general  demise  of  lands  on  ivhich  there  are  timber  trees,  without 
any  exception,  the  timber  trees  are  demised  as  well  as  the  lands,  and  in 
Doe  dem.  Douglas  v.  Lock  the  Court  of  Queen's  Bench  considered  that 
the  same  rule  would  hold  with  regard  to  the  tops  of  trees  lilcelg  to  i^rove 
timber. 

Where  a  declaration,  as  in  Hurst  v.  Hurst,  stated  that  the  defendants 
covenanted  that  they  "  would  not  lop  or  top  ang  tree  without  the  assent 
in  writing  of  the  plaintiff,  under  a  penalty  of  £20  for  each  tree  which 
should  be  so  lopped  or  topped,  over  and  above  the  actual  value  of  the 
tree,"  and  the  breach  laid  was  that  the  defendants  lopped  twenty  trees 
of  the  value  of  £80,  without  the  consent  in  writing  of  the  plaintiif,  and 


]10  WASTE    OF    TIMBER. 

tliei-eupon  became  liable  to  pay  such  £80,  and  also  the  further  sura  of 
£20  for  each  tree  so  lopped,  being  the  amount  of  penalties  so  incurred 
and  forfeited ;  it  was  held  by  the  Court  of  Exchequer  that  assuming  the 
£20  penalty  to  be  liquidated  damages,  the  plaintiff  could  not  recover  it 
on  this  breach,  inasmuch  as  it  did  not  allege  that  the  penalty  was  not 
paid.  It  is  a  question  for  the  jury  whether  the  cutting  done  to  a  tree 
is  a  lopping  within  the  meauhig  of  the  covenant  {Lowe  v.  Peers). 

Timber  while  standing  is  part  of  the  inheritance  :  but  whenever  it  is 
severed,  either  by  the  act  of  God,  as  by  tempest,  or  by  a  trespasser,  and 
by  wrong,  it  belongs  to  him  who  has  the  first  estate  of  inheritance, 
whether  in  fee  or  in  tail,  who  may  bring  trover  for  it ;  and  this  was  so 
decided  upon  occasion  of  the  great  windfall  of  timber  on  the  Cavendish 
estate  per  Lord  Talbot  C.  {Beioiclc  v.  Whitfield).  A  tenant  in  tail  after 
possibility  of  issue  extinct  is  entitled  to  the  timber  he  cuts  (Wilh'ams  v. 
Williams)  ;  but  a  tenant  in  tail  expectant  on  the  determination  of  an 
estate  for  life,  without  impeachment  of  waste,  cannot  recover  in  trover 
for  timber  which  grew  upon,  and  had  been  severed  from  the  estate, 
because  such  an  action  must  be  founded  on  the  property  of  the  plaintiff, 
whereas  a  tenant  for  life  without  impeachment  of  waste  has  a  right  to 
the  trees  the  moment  they  are  cut  down  (Fyne  v.  JDor).  The  right  to 
trees  severed  by  the  tenant  of  a  copyhold  or  customary  freehold  hprimd 
facie  in  the  lord,  and  in  general  he  may  maintain  trover  for  them  when 
so  severed  (Ladi/  Fleminrj  v.  Simpson).  And  so  where  large  masses  of 
rocks  had  fallen  ii'om  time  to  time,  and  from  beyond  the  time  of  memory, 
from  some  cliffs  above,  which  did  not  belong  to  the  lord  of  the  manor, 
into  the  field  of  a  copyholder,  which  was  within  the  manor,  and  the 
copyholder  had  removed  portions  of  them  from  his  field,  and  sold  them, 
he  was  held  by  the  Court  of  Exchequer  to  be  liable  for  so  doing  in  an 
action  of  trover  by  the  lord,  as  they  had  become  a  portion  of  the  soil, 
there  being  no  evidence  to  show  that  they  had  fallen  since  the  copy- 
holder was  admitted.  And  p)cr  Parlce  B.  :  "  He  may  remove  them  for 
the  benefit  of  his  agriculture,  but  it  is  a  different  thing  if  he  proceeds  to 
sell ;  though  a  copyholder  may  cut  down  trees  for  purposes  of  repair, 
the  lord  may  bring  trover,  if  he  sells  them  "  {Deardm  v.  Evans). 

Although  no  action  of  waste  lies  where  there  is  an  intermediate  estate, 
yet  if  waste  be  done  by  felHng  timber  trees,  the  person  entitled  at  that 
time  to  the  inheritance  in  fee  or  in  tail  may  seize  them,  or  bring  an 
action  of  trover  for  the  recovery  of  them.  A  tenant  lor  life  has  but  a 
special  interest  in  the  trees  growing  on  the  land,  so  long  as  they  are 
annexed  to  it ;  but  if  he  or  any  one  else  severs  them  from  the  land,  his 
interest  in  them  is  determined  thereby,  and  they  become  the  property 
of  the  o^-ner  of  the  inheritance.    But  the  words  "  wilkout  impeacliment  of 


CUTTING    TIMBER    BY    TENANT    FOR    LIFE.  Ill 

waste"  give  to  the  tenant  for  lile  the  riglit  to  fell  timber,  and  also  the 
property  of  all  timber  trees  felled  or  blown  down,  and  also  of  all  timber 
parcel  of  a  bnilding  blown  down.  It  has,  however,  been  held  {Pvjot  v. 
BuUocTc)  that  a  tenant  for  life  without  i/npeachraent  of  waste  cannot 
maintain  trover  for  timber  cut  daring  the  existence  of  a  prior  estate; 
but  that  it  vests  immediately  in  the  owner  of  the  inheritance.  The 
power  such  a  tenant  for  life  without  impeachment  of  waste  has  over  his 
estate,  with  respect  to  cutting  down  timber,  must  be  exercised  during 
his  life,  and  cannot  be  delegated  to  any  other  person,  so  as  to  enable 
such  person  to  execute  it  after  his  death.  The  tenant  for  life  may  cut 
down  timber  trees  at  seasonable  times  for  the  reparation  of  houses  or 
fences  ;  but  he  cannot  cut  down  timber,  to  build  new  houses,  or  to 
repair  those  that  he  himself  has  improperly  suffered  to  fall  into  decay. 
And  where  he  cuts  down  more  timber  than  is  necessary  it  is  waste, 
though  he  asserts  that  he  cut  it  down  to  employ  it  on  future  repairs 
(Cruise,  vol.  1,  Tit.  III.,  ch.  1,  i^. 

Effect  of  sale  of  timher  by  tenant  for  Ife  to  trustees  of  remainderman. — • 
If  a  tenant  for  life,  without  impeachment  of  waste,  sells  for  value  "  all 
and  singular  the  timber  and  timber-like  trees  then  gi'owing  or  being,  or 
which  should  thereafter  grow  or  be,  upon  settled  estates  "  to  trustees, 
for  the  benefit  of  those  in  remainder,  he  will  be  restrained  from  cither 
cutting  or  thinning  the.  timher:  pen'  Romilly  M.  R.  {Gordon  v.  Woodford). 

Cutting  of  timber  by  tenant  for  life. — Where  timber  ripe  for  cutting 
is  cut  by  a  tenant  for  life  impeachable  for  waste,  he  is  entitled  to  the 
income  of  the  fund  produced  by  tlie  sale  thereof:  and  the  first  person 
taking  an  estate  unimpeachable  for  waste  will,  on  coming  into  posses- 
sion, be  entitled  to  the  capital.  Where  the  timber  so  cut  is  not 
ripe  for  cutting,  semble  the  produce  belongs  immediately  to  the  first 
person  having  an  estate  of  inheritance,  passing  over  all  the  intermediate 
life  estates,  whether  impeachable  for  waste  or  not.  But  whether  it 
belongs  to  him  or  to  the  first  tenant  for  life  unimpeachable  for  waste, 
the  cutting  being  a  tort,  the  remedy  is  by  action  at  law,  and  not  in  this 
court.  Therefore  under  no  circumstances  can  a  tenant  for  life  unim- 
peachable for  waste,  be  entitled,  on  coming  into  possession,  to  back 
interest  on  the  produce  of  timber,  whether  properly  or  improperly  cut 
by  a  previous  tenant  for  life,  impeachable  for  waste  :  per  Wood  V.O. 
{Oent  V.  Harrison). 

Tenant  for  life  barred  by  lapse  of  time  from  receiving  proceeds  of  timber 
cut  down  by  previous  tenant. — A  tenant  fur  life  cut  timber  in  excess  of 
what  he  was  entitled  to  cut ;  nearly  20  years  after  his  death,  the  suc- 
ceeding teuant  for  life  filed  a  bill  for  an  account,  and  to  make  the  estate 
of  the  deceased  tenant  for  life  liable  for  the  timber  cut  in  excess;  and 


112  DEFINITTOX    OF    TIMBER. 

it  was  hcUl  by  Sir.  J.  Roiu'dhj  'M.W.,  that  the  phn'nlif  trtis  harred  lij 
lapse  of  time,  and  the  bill  was  ciismisseil  with  costs.  Roherls  v.  TimstaU 
(4  Hare,  2bl,  U  L.  J.Ch.  Ibl) ;  Prijcc  v.  Burn  (cited  by  Lord  Alvcm- 
Uij,  5  Ves.  681);  Gregory  v.  Gregory  (G.  Cooper,  201,  s.  c,  Jacob,  631), 
were  cited  for  the  plaintiffs  on  the  question  of  waste  ;  and  Sihlering  v. 
The  Earl  of  Balcarras  (3  De  G.  and  Sm.,  735,  and  19  L.  J.  Ch.  252)  ; 
and  Picker  my  v.  Lord  Stamfm-d  (2  Yes.  Jun.  272),  cited  by  the  defen- 
dants on  the  question  of  delay  in  filing  the  bill,  were  thus  referred  to 
by  His  Honour  in  his  judgment.  In  Fie  Jeering  v.  Lord  Stamford,  the 
Master  of  the  Rolls  observed  that  "  the  very  forbearance  to  make  the 
demand  affords  a  presumption  either  that  the  claimant  is  conscious  it 
was  satisfied,  or  that  he  intended  to  relinquish  it.  Here  the  claim  is 
made  in  respect  of  timber  cut  during  sixteen  years'  enjoyment  of  the 
property  by  a  tenant  for  life,  who  died  in  March  1838,  and  all  this  was 
at  the  time  within  the  knowledge  of  the  present  plaintiff,  who  seeks 
redress  in  March  1858"  {Harcoiirt  v.  White). 

Permissive  icaste  hy  tenant  for  life.—T\iQ  court  in  Warren  v.  Rudall 
(29  L.  J.  (N.  S.)  Ch.  543),  quoted  Pmvys  v.  Blayrave  (24  L.  J.  (JST.  S.)' 
Ch.  142),  as  a  proof  that  the  court  will  not  interfere  in  a  case  of  per- 
missive waste  by  tenant  for  life. 

Prohibition  against  timber  cutting.— Yreehold,  copyhold,  and  leasehold 
estates  were  devised  and  bequeathed  to  A.  B.  in  fee  simple,  subject  to  a 
limitation  over,  by  way  of  executory  devise,  in  the  event  of  A.  B.  dying 
without  leaving  issue  male  liviug  at  his  death,  with  a  prohibition  agaitist 
his  cutting  timber,  and  with  a  discretion  as  to  the  copyhold  and  leasehold 
estates  (held  upon  leases  determinable  with  lives)  that  such  property 
should  be  kept  "  fully  estated "  with  three  lives.  A.  B.  died  without 
issue  male,  and  during  his  life  committed  various  acts  of  waste  by  cut- 
tin  «•  down  timber  and  allowing  the  property  to  become  dilapidated.  He 
also  omitted  to  keep  the  copyholds  and  leaseholds  "  fully  estated."  It 
was  held  by  Kijidcrsley  V.C.,  that  it  was  competent  for  the  testator  to 
impose  upon  A.  B.  the  obligation  not  to  cut  timber,  although  without 
such  prohibition  he  could  have  done  so  ;  and  also  that  A.  B.  was  under 
no  obligation  to  repair,  and  was  not  liable  for  permissive  waste,  but  all 
losses  consequent  upon  his  omission  to  keep  the  property  fully  estated 
with  three  lives  must  be  borne  by  the  estate  {Blalce  v.  Peters). 

Dffinition  of  "timber"  in  a  valuation.— The  defendant  having  told  the 
plaintiff,  a  land  surveyor,  that  he  was  tenant  for  life  of  an  estate,  and 
wanted  to  sell  every  stick  of  timber  on  it,  gave  him  an  order  signed  by 
himself  to  value  it  at  a  certain  rate  per  cent.  The  witnesses  on  both 
sides  agreed  that  timber  ordinarily  meant  trees  of  a  certain  yroivth,  and 
the  valuation  included  mere  saplings,  so  that  it  did  not  show  the  value 


CUTTING   DOWN    ORNAMENTAL    TIMBER.  113 

of  the  timber,  and  it  was  held  by  Cocldmrn  C.J.  that  there  was  nothing 
to  show  that  the  word  "timber"  was  not  used  in  its  ordinary  sense,  and 
that  therefore  the  jury  might  find  the  valuation  to  be  valueless  {Whiiti/ 
V,  Lo7-d  Dillon). 

Fences  and  frees  in  churchyard. — At  common  law  the  parishioners  are 
bound  to  repair  the  fences  of  the  churchyard,  although  custom  may  in 
particular  cases  throw  the  obligation  upon  either  the  parson  or  the 
owners  of  particular  estates.  But  the  parishioners  have  no  power  to  cut 
down  trees  or  mow  the  grass  in  the  churchyard,  without  the  consent  of 
the  parson,  to  whom  they  belong.  He  can,  however,  only  cut  down  the 
trees  (unless  they  are  decayed)  for  the  repair  of  the  church  or  parsonage 
house  {Holdsworth's  Handy  Boole  of  Parish  Lair,  p.  IC), 

Cutting  down  ornamental  timber  or  immature  trees  hy  devisee  in  fee. — 
A  devisee  in  fee,  subject  to  an  executory  devise  over,  is  not  impeachable 
for  waste,  but  the  Court  will  restrain  him  from  committing  equitable 
waste,  by  cutting  down  ornamental  timber  or  immature  trees  :  per  Wood 
V.C.  This  decision  was  affirmed  by  Lord  Chancellor  Campbell.  His 
Lordship  stated  that  he  was  quite  willing  with  Wood  V.C,  to  accept 
the  clue  by  which  Lord  Justice  Turner  in  Miclclethwait  v.  Micldetliwait 
(1  De  Gex.  &  Jo.  504,  and  2G  L.  J.  Ch.  (N.  S.)  721,)  proposed  to  solve 
the  difficulty.  "  If  a  devisor  or  settler  occupies  a  mansion-house,  with 
trees  planted  or  left  standing  for  ornament  round  or  about  it,  or  keeps 
such  a  mansion-house  in  a  state  for  occupation,  and  devises  or  settles  it 
so  as  to  go  in  a  course  of  succession,  he  may  be  reasonably  presumed  to 
anticipate  that  those  who  are  to  succeed  him  will  occupy  the  mansion- 
house  ;  and  it  cannot  be  presumed  that  he  meant  it  to  be  deprived  of 
that  ornament  Avhich  he  himself  enjoyed.  The  tenant  for  life  sans 
waste  is  as  much  owner  of  the  timber  as  the  tenant  in  fee  ;  their  legal 
rights  in  this  respect  are  identical  "  {Turner  v.  Wright).* 

Claim  of  right  to  enter  close  of  another  and  cut  down  trees. — To  an  action 
of  trespass  for  cutting  down  and  carrying  away  trees  growing  in  the 
close  of  the  plaintiff,  the  defendant  pleaded  an  immemorial  enjoyment 
of  a  right  in  one  A.  B.,  the  owner  in  fee  of  a  close,  and  all  those  whose 
estate  he  had,  and  his  ^and  their  tenants,  to  enter  on  a  part  or  strip  of 
the  said  close  of  the  plaintiff,  and  to  cut  down  and  convert  to  their  own 
use  the  trees  growing  there,  such  right  being  claimed  as  appurtenant  to 
the  close  of  the  said  A.  B.,  but  the  plea  did  not  allege  that  the  timber  so 
taken  was  not  to  be  used  in  any  way  in  or  about  the  said  close  of  A.  B. 
Averment  that  the  defendant  was  tenant  to  A.  B.  of  the  said  close,  and 
that  the  trees  were  cut  down  by  the  defendant  in  exercise  of  the  said 
righft  There  were  other  pleas,  which  set  up  the  enjoyment  of  a 
precisely  similar  right  for  60  years  and  30  years  respectively  ;  and 


Ill  CUSTOM   OF   COPYHOLDERS   TO    FELL   TIMEEn. 

also  a  plea  alleging  a  grant  by  deed,  wliieh  was  lost,  by  the  then  owner 
in  fee,  of  tlie  close  of  the  plaiiitiif  to  the  then  owner  in  fee  of  the  close 
of  the  defendant,  of  the  right  now  claimed.  It  was  held  by  the  Court 
of  Common  Pleas,  that  all  the  pleas  were  bad,  as  the  right  claimed  being 
a  right  in  gross  could  not  pass  with  the  occupation  of  the  land.  SemlU 
also  that  such  a  right  could  not  pass  with  the  ownership  of  land  ;  and 
per  WUks  J.,  "  Except  in  the  case  of  landlord  and  tenant,  in  order 
tiiat  rights  over  the  land  of  one  may  be  attached  to  the  land  of  another, 
so  as  to  pass  with  the  omicrship  of  the  laud,  they  must  be  such  rights 
as  are  beneficial  to  the  owner  of  the  dominant  tenement,  only  so  long 
as  he  remains  owner  of  that  tenement,  and  to  other  persons  are  of  no 
benefit  whatever  "  (^Bailey  v.  Stevens.) 

liovglis  overhanging  land. — It  is  a  nuisance  if  a  man  allows  the  boughs 
of  his  trees  to  grow  so  that  they  overhang  his  neighbour's  land  {Earl  of 
Lonsdale  v.  Kelson). 

Tahing  timher  for  honse-lote. — In  a  lease  for  lives  of  a  manor  and 
demesne,  the  lessee  covenanted  to  repair,  and  keep  the  premises  in  all 
needful  and  necessary  reparations,  having  or  taking  in  and  upon  the 
demised  premises  competent  and  sufficient  house-bote  for  the  doing 
thereof,  without  committing  waste,  and  it  was  held  by  the  Court  of 
Queen's  Bench  that  the  covenant  was  an  absolute  and  not  a  conditional 
covenant  to  repair  with  a  license  to  take  timber  for  house-bote  {Dean 
and  Chapter  of  Bristol  v.  Jones  and  others). 

Evidence  of  conversion  of  tree. — In  the  case  of  {Bird  y.  Bond)  A.ha\mg 
sold  to  B.  some  growing  trees,  B.  entered  to  cut  them  down,  whereupon 
C,  who  was  on  the  land  as  a  trespasser,  served  B,  with  a  notice  not  to 
fell  any  of  the  timber.  B.  having  desisted,  C.  subsequently  cut  down 
the  tree  but  did  not  remove  it.'  It  was  held  by  the  Court  of  Exchequer 
that  C.  had  not  been  guilty  of  a  conversion  of  the  tree. 

Custam  for  copyholdeis  to  fell  timher  without  license  from  Lord.  — A 
custom  for  copyhold  tenants  to  fell  timber  or  other  trees  upon  their 
customary  lands,  and  to  retain  the  same  for  their  own  use,  without  license 
from  the  lord,  although  such  timber  may  not  be  felled  for  necessary 
repairs,  was  held  by  the  Court  of  Common  Picas,  not  to  be  unreasonable, 
and  such  a  custom  is  not  the  less  admissible  in  evidence  because  it  also 
professes  to  entitle  the  customary  tenants  to  plough  up  meadow  land, 
and  to  suffer  their  houses  to  decay,  which  might  be  a  bad  custom  if 
pleaded  {Blewett  app.  v.  JenJcins  resp.). 

In  iJoe  dem.  liogers  v.  Price,  a  lease  contained  a  demise  of  land  and 
quaiTies,  with  power  to  open  and  work  them  at  a  certain  rent  and 
royalties,  with  an  exception  of  the  trees  on  the  premises.  The  lessee 
covenanted  not  to  commit  waste  by  cutting  the  trees,  &c.,  and  there 


INTEREST    IN   TIMBER    OF    LESSOR    AND    LESSEE.  115 

was  a  proviso  for  re-entry  in  case  the  lessee  should  commit  any  waste 
by  any  of  the  means  aforesaid.  He,  however,  cut  down  trees  which  it 
ivas  necessarij  to  remove  in,  order  to  ivork  the  quarries,  and  the  Court  oi 
Common  Pleas  held  that  this  was  not  a  breach  of  the  covenant  working 
a  forfeiture,  and  that  the  covenant  meant  that  the  lessee  was  not  to  cut 
down  the  trees  excepted  so  as  that  the  cutting  should  amount  to  an 
excess  of  the  rights  which  it  was  intended  that  he  should  exercise. 
The  case,  Coiirthorpe  v.  Maplesden,  in  which  the  Court  of  Chancery 
granted  an  injunction  against  a  trespasser  cutting  timter  i?j  cotlusion 
v'ith  the  tenant,  is  the  strongest  case  in  which  it  has  interfered  to  re- 
strain waste,  and  there  is  no  case  in  which  it  has  interfered  to  restrain 
the  acts  of  a  mere  trespasser  ;  but  seml)Ie,  if  the  acts  complained  of  are 
such  flagrant  acts  of  malicious  waste  as  to  indicate  fraud,  that  would  be 
a  case  for  interference  ;  'pc^'  Wood  V.C.  {Earl  Talbot  v.  Hope  Scott), 
And  a  party  in  possession  of  lands  and  proceeding  to  cut  timber  waste- 
fully,  will  be  restrained  by  injunction  from  doing  so  at  the  instance  of 
another  claiming  under  a  title  at  law  {Neale  v.  Gripps). 

The  trustees  of  an  estate  pur  autre  vie  cannot  bring  trover  for  trees 
felled  on  the  estate ;  they  have  a  special  property  in  them  while  standing, 
but  on  severance  they  belong  to  the  owner  of  the  inheritance  {BlaJcer  v. 
Anscomte).  But  a  lessor  has  such  a  possession  of  timber  cut  down 
during  the  continuance  of  a  lease  as  to  maintain  trover  for  it,  for  a 
lessee's  interest  in  the  timber  determines  upon  severance  [Berry  v.  Herd), 
a  case  which  Lawrence  J.  cited  in  Gordon  v.  Harper,  as  decisive  upon 
this  point.  So  he  may  maintain  trover  for  harlc  of  trees  cut,  and  for  the 
trees  though  they  be  cut  into  boards,  for  the  jDrincipal  substance  re- 
mains. The  landlord  of  a  tenant  from  year  to  year,  though  there  is  no 
reservation  of  the  timber  on  the  premises,  may  support  trespass  vi  et 
arjnis  against  a  third  person  for  carrying  it  away  after  it  has  been  cut 
down  ( Ward  v.  Andrews).  Lawrence  J.  decided  in  Evans  v.  Evans  that 
the  tenant  for  years  could  not  maintain  trespass  de  ion  asp  for  timber 
cut  down  on  the  demised  premises ;  he  had  no  property  or  interest  what- 
soever in  the  trees  after  they  were  severed  from  the  freehold,  and  they 
were  then  in  the  legal  possession  of  the  reversioner,  and  he  alone  could 
maintain  trespass  for  the  asportation.  Where  the  trees  are  excepted  in 
the  lease,  the  lessee  has  no  manner  of  interest  whatever  in  them,  and 
the  lessor  may  have  an  action  for  trespass  against  him  if  he  either  fells 
or  damages  them  (Ashniead  v.  Rcmger,  1  Ld.  Eaym.  552). 

Where  there  is  no  exception  of  them  in  the  lease,  loth  lessor  and  lessee 
have  an  interest  in  the  trees,  and  therefore  if  a  stranger  cuts  them  down, 
each  of  them  shall  have  an  action  against  him  to  recover  their  respective 
loss :  the  lessee  in  respect  of  his  loss  of  their  mast  and  fruit  and  shade 


116  TENANTS   IN   COMMON    OF   TIMBER. 

for  his  cattle.  A  lessee  for  life  or  years  has  only  a  special  interest  and 
property  in  timber  trees  so  long  as  they  are  annexed  to  the  land,  and 
may  lop  them  if  the  body  of  the  trees  is  not  thereby  injured.  There- 
fore if  the  lessor  fells  them,  the  lessee  has  trespass  against  him,  and  will 
be  entitled  to  recoTer  damages  adequate  to  the  loss  of  his  particular 
interest,  and  also  for  the  entiy  into  his  land.  But  the  interest  in  the 
body  of  the  trees  remains  in  the  lessor,  as  parcel  of  his  inheritance, 
who  may  punish  the  lessee  in  an  action  of  waste,  if  he  fells  or  damages 
any  of  them.  The  lessee  has  a  general  propertij  in  hedges,  hushes,  and 
trees  which  are  not  timber,  and  may  have  them  if  he  cuts  them  down. 
So  he  may  claim  dotards,  which  have  no  timber  in  them,  if  they  are 
thrown  down  by  a  tempest,  but  not  trees  for  which  the  lessor  may  have 
trover  {HcrlaTcendcn's  case).  Where  the  lease  of  a  farm  contained  the 
following  exception,  "  except  also  all  and  all  manner  of  timber,  timber 
trees,  &c.,  wood,  underwood,  topwood,  bushes,  and  thorns,  otheo'  than 
such  hushes  and  f  horns  as  shall  he  necessary  for  the  repairs  of  the  fences  ; 
as  well  as  covenants  that  the  lessee  would,  during  the  continuance  of 
the  term,  keep  the  gates,  &c.,  and  fences  belonging  to  the  premises,  in 
a  good  and  proper  state  of  repair,  finding  all  materials  except  as  therein 
mentioned,  the  lessor  finding  rough  wood  for  making  such  repairs,  if 
growing  upon  the  premises  ;  and  that  the  lessor  would,  during  the 
lease,  find  and  provide,  if  growing  on  the  premises,  sufficient  rough 
timber,  stakes,  and  bushes,  for  doing  such  repairs, — it  was  held  in 
Error,  PolJoclc  C.B.  duh.,  that  all  trees  and  all  bushes,  whether  forming 
part  of  the  fences  or  not,  or  necessary  for  repairs  or  not,  were  excepted 
from  the  demise  ;  and  as  timber  trees,  though  in  hedge-rows  (and 
though  the  body  of  the  tree  might  form  part  of  the  fence),  would  not 
probaljly  pass  to  the  tenant,  but  may  be  cut  down  by  the  landlord, 
leaving  the  tenant  under  the  obligation  to  repair  the  gap  thereby  made 
in  the  i'ences  ;  so  in  like  manner  bushes  and  thorns  might  be  cut  down 
and  removed  {Jenny  and  Eunnacles  v.  Broolc). 

It  was  decided  in  Waterman  v.  Soper,  that  if  there  be  two  tenants  in 
commoji  of  a  tree,  and  one  cuts  the  whole  tree,  the  other  may  not  have  an 
action  for  the  tree,  but  for  the  special  damage  sustained  by  the  mis- 
feasance of  cutting,  as  where  one  tenant  in  common  destroys  the  whole 
flight  of  pigeons.  And  according  to  Martin  v.  KnoUgs,  an  action  on 
the  case  in  the  nature  of  waste  ivill  not  lie  ly  one  tenant  in  common  against 
another  tenant  in  common,  fm-  cutting  trees  of  a  pro2m-  age  and  growth. 
In  this  case,  the  defendant  occupied  the  whole  of  the  land,  having  a 
demise  fi'om  the  plaintiff  of  his  moietj'.  Heath  J.  directed  a  verdict  to 
be  taken  by  the  plaintiff  for  the  value  of  half  the  trees  growing,  with 
leave  to  move,  but  the  verdict  was  ordered  to  be  entered  for  the  defen- 


PROPERTY    IN   A    TREE.  117 

daiit  by  the  Court  of  King's  Bench,  Lord  Kenyon  C.J.  said,  "  This 
verdict  has  neither  principle  nor  authority  for  its  support.  The  defen- 
dant cannot  be  in  a  worse  situation  by  being  tenant  to  the  plaintiff  of 
his  moiety,  tlian  he  would  have  been  if  the  plaintiff'  had  not  demised  to 
him,  and  considered  iu  that  point  of  view  this  action  ex  delicto  cannot 
be  supported.  If  one  tenant  in  common  misuse  that  which  he  has  in 
common  with  another,  he  is  answerable  to  the  other  in  action  of  mis- 
feasance. But  here  it  does  not  appear  that  the  defendant  committed 
anything  like  waste  :  no  injury  was  done  to  the  inheritance  ;  no  timber 
was  improperly  felled,  the  defendant  only  cut  those  trees  that  were  fit 
to  be  cut.  And  if  he  were  liable  in  such  an  action  as  this,  it  would 
have  the  effect  of  enabling  one  tenant  in  common  to  prevent  the  other's 
taking  the  fair  profits  of  their  estate.  In  another  form  of  action  the 
plaintiff  will  be  entitled  to  recover  a  moiety  of  the  trees  that  were  cut" 
(I  Ld,  Raym.  737  ;  B.  N,  P.  85  ;  2  Roll.  Rep,  255). 

The  following  rule  was  laid  down  in  Waterman  v.  Soper  as  to  the 
properti/  in  a  tree.  If  A,  plants  a  tree  upon  the  extremest  limits  of  his 
land,  which  in  course  of  time  extends  its  root  into  the  land  of  B.  next 
adjoining.  A,  and  B,  are  tenants  in  common  of  the  tree  ;  but  if  all  the 
root  grows  into  the  land  of  A.,  though  the  boughs  overshadow  the  land 
of  B.,  yet  the  branches  follow  the  root,  and  the  property  of  the  whole  is 
in  A,  This  question  was  re-opened  in  Holder  v,  Coaies.  There  the 
plaintiff's  and  defendant's  land  adjoined,  the  former  being  the  higher  of 
the  two,  and  the  plaintiff's  hedge  separated  them,  standing  on  the  edge 
of  the  plaintiff's  ground,  on  the  bank  or  declivity  descending  to  that  of 
the  defendant.  The  trunk  of  the  tree  stood  in  the  defendant's  land,  but 
some  of  the  lateral  or  spur  roots  grew  into  the  land  of  both  parties,  and 
evidence  was  given  on  the  part  of  the  plaintiff  to  show  that  there  was 
no  tap  root,  and  that  all  the  principal  roots  from  which  the  tree  derived 
its  main  nourishment  were  those  which  grew  into  the  plaintiff's  land. 
The  defendant,  on  the  contrary,  gave  evidence  that  there  was  a  tap  root, 
growing  entirely  in  his  land,  and  that  the  spur  roots  grew  alike  in  the 
lands  of  both  parties  ;  and  urged  that  at  all  events  he  was  a  tenant  in 
common  of  the  tree,  and  that  trespass  could  not  be  supported,  according 
to  the  rule  in  Waterman  v.  Soper.  Littledale  J.  said  that  there  was 
another  case  on  the  subject,  Masters  v.  Pollie,  in  which  it  was  considered 
that  if  a  tree  grows  in  A.'s  close,  though  the  roots  grow  in  B.'s,  yet  the 
body  or  main  part  of  the  tree  being  in  A.'s  soil,  all  the  residue  of  the 
tree  belongs  to  him,  and  he  intimated  to  the  jury  that  he  thought  this 
doctrine  the  preferable  one  of  the  two.  His  lordship  then  advised  them 
to  ascertain  if  possible  in  whose  land  the  tree  w^as  first  sown  or  planted. 
The  jury  said  they  could  not  tell,  and  a  verdict  for  the  defendant  was 


lis  DEFINITION   OF   TLMDEll   TllEES. 

taken  by  consent  (M.  &  M.  112  ;   for  Masters  v.  Polite,  see  2  Roll. 
Rep.  111). 

A  very  complicated  case  of  this  kind,  Dixon  v.  Geldard,  was  tried  at 
the  "Westmoreland  Summer  Assizes,  1857.  The  tree  in  question  was 
nearly  one  hundred  years  old,  and  grew  in  a  fence  dividing  the  land  of 
the  phiintiff  from  the  land  of  the  defendant.  The  fence  had  always  been 
repaired  by  the  plaintiff,  and  was  admitted  to  belong  to  him.  It  was 
an  old  one  made  up  of  dry  materials,  the  part  near  to  the  tree  being 
what  is  called  a  "  copped  "  fence,  and  the  tree  in  question,  a  large  oak, 
stood  apart  from  it,  rather  more  to  the  side  of  the  field  belonging  to  the 
defendant  than  to  the  side  of  the  field  belonging  to  the  plaintiif.  On 
the  defendant's  side  of  the  hedge,  close  to  it,  a  short  distance  from  the 
oak,  some  ash  trees  were  growing,  which,  being  in  the  defendant's  field 
and  forming  no  part  of  the  hedge,  it  was  conceded,  belonged  to  him. 
Tiie  evidence  for  the  plaintiff  also  went  to  show  that  the  heart  of  the 
tree  was  a  foot  nearer  the  defendant's  land  than  the  plaintiff's.  There 
was  also,  close  by  the  tree,  a  thorn  growing  further  into  the  field 
than  the  tree,  wliich  thorn,  wlien  the  hedge  was  repaired,  was  always 
cut  at  the  bottom  and  laid  back  in  the  hedge.  The  defence  was  that 
the  tree  was  originally  planted  on  the  defendant's  land,  which  gave 
him  a  right  to  cut  it  down,  and  that  supposing  it  did  form  part  of 
the  fence,  if  it  was  originally  so  planted,  the  fact  of  its  becoming 
part  of  the  fence  would  not  alter  the  ownership.  In  May,  1857,  the 
plaintiff  thought  about  felling  the  tree,  and  spoke  to  Mr.  John  Nelson, 
a  carpenter  and  wood  merchant,  about  it.  No  bargain  was  come  to, 
but  the  price  named  was  £10.  This  circumstance  reached  the  ears  of 
the  defendant  on  a  Saturday,  and  he  immediately  employed  two  men 
to  cut  down  and  bark  the  tree  as  soon  as  possible  after  12  o'clock  on 
Sunday  night,  and  an  action  of  trespass  was  brought.  After  a  great 
deal  of  contradictory  evidence  on  both  sides,  the  plaintiff  had  a  verdict 
of  £10. 

Timhcr  trees  are  those  wliich  serve  for  building,  or  reparation  of 
houses  ;  such  as  oak,  ash,  and  elm,  of  the  age  of  20  years  and  upwards ; 
but  by  the  custom  of  some  countries  certain  trees  not  usually  considered 
as  timber  are  deemed  to  be  such,  being  there  used  for  building.  Beech, 
or  buck  as  it  was  once  termed,  was  admitted  in  Aubrey  v.  Fisher  to  be 
timber  by  the  custom  of  the  countiy  (Bucks),  like  oak  and  ash,  and 
hence  the  general  rule  of  law,  applicable  to  timber  trees,  attaches  to  it 
so  as  to  give  it  the  property  and  privileges  of  timber  at  20  years'  growth. 
No  evidence  was  allowed  to  qualify  its  character  as  such,  where  the 
trees  were  more  than  20  years  old,  as  for  instance  that  by  the  custom  of 
the  country  it  was  not  deemed  timber  unless  it  contained  10  feet  of  solid 


SALEABLE   UNDERWOODS.  119 

wood.  But  in  Rex  v.  3Imchinhampton,  Lord  Mansfield  C.J.  said,  "  Beech 
is  certainly  not  timber  by  the  general  law  of  the  land,  yet  it  may  be  by 
the  particular  custom  of  the  place.  I  do  not  mean  of  the  county 
(Gloucester),  but  that  particular  part  of  the  country  where  the  trees 
grow.  It  is  not  the  use  it  is  put  to  that  makes  it  either  timber  or  not 
timber  ;  its  being  or  not  being  timber  depends  upon  the  custom  of  the 
country.  And  if  it  be  timber  by  the  custom  of  the  comitry,  it  must  be 
presumed,  and  it  may  be  true  in  fact '  that  it  was  timber  before  the  time 
of  Queen  Ehzabeth.' "  Mr.  White,  in  a  note  to  his  edition  of  "  Cruise's 
Digest,"  vol  i.  116,  says,  "Birch  trees  are  considered  timber  in  York- 
shire and  Cumberland  ;  hccch,  cherry,  and  asi)en  in  Buckinghamshire  ; 
beech  also  in  Gloucestershire  and  Bedfordshire  ;  beech  and  willow  in 
Hants  :  in  some  places,  white  thorn,  holly,  black  thorn,  horse  chestnut, 
lime,  yew,  crab,  and  hornbean :  in  other  districts,  jwllards,  or  other 
timber  trees  which  have  been  lopped,  are,  contrary  to  genei'al  estimation, 
also  considered  timber."  Lord  Kiny  held  ivalnut  trees  to  be  timber,  and 
pollards,  if  their  bodies  are  sound. 

Fir  and  larches  planted  with  oalcs,  for  the  purpose  of  sheltering  the 
latter,  and  cut  from  time  to  time,  as  the  oaks  grew  larger  and  required 
more  space,  but  once  cut  not  growing  again,  and  some  of  them  yielding 
a  profit  by  sale,  were  held  in  Rex  v.  Inhabitants  of  Ferrybridye  not  to  Ije 
saleable  underwoods  within  the  43  Eliz.  c.  2,  the  primary  object  of 
planting  them  being  to  protect  the  oaks,  and  not  to  derive  a  profit  from 
them|;er  se  by  sale.  And  per  Baylcy  J. :  "  Generally  speaking,  the  term 
'  underwood  '  is  applied  to  a  species  of  w^ood  w^hich  grows  expeditiously 
and  sends  up  many  shoots  from  one  stool,  the  root  remaining  perfect 
from  which  the  shoots  are  cut,  and  producing  new  shoots,  and  so  yield- 
ing a  succession  of  profits.  It  is  probable  that  this  is  the  description 
of  underwood  to  which  the  statute  of  EUzaMh  applies.  But  it  is  not 
necessary  to  decide  that,  inasmuch  as  that  statute  also  requires  that  it 
should  be  saleable  underwood,  and  the  word  saleable  in  Rex  v.  Inhabi- 
tants of  Mirfield  has  been  held  to  denote  such  as  is  intended  or  destined 
for  sale,  in  contradistinction  to  such  as  is  to  supply  the  land  with 
estovers  for  fuel  and  other  purposes  of  the  estate.  It  does  not,  there- 
fore, come  within  the  description  of  saleable  underwood,  unless  the 
prospect  of  deriving  a  profit  by  sale  was  the  main  object  of  the  proprietor 
when  the  plantation '  was  made."  In  Rey.  v.  Inhabitants  of  Narbcrth 
North,  a  wood  consisting  of  oak  gi-owing  from  old  stools,  with  a  few  ash, 
alder,  and  beech  trees,  had  not  been  felled  for  50  years,  until  three  years 
before  it  was  rated.  During  the  last  three  years,  the  owner  had  annually 
cut  the  worst  shoots,  selling  the  poles  by  the  dozen  for  colliery  purposes 
and  firewood,  and  the  bark  by  the  ton  ;  the  wood  was  also  occasionally 


120  RATING   OF   COPROLITES. 

waste-M-ecded  to  improve  the  plantation,  and  the  waste  wecdings  were 
allowed  to  lie  on  the  ground  to  rot.  The  Court  of  Queen's  Bench  con- 
firmed the  finding  of  the  sessions,  that  the  wood  was  not  saleable  under- 
wood within  stat.  43  Eliz.  c.  2. 

LMeduU  J.  said,  "  The  first  question  is  whether  this  wood  is  under- 
wood ?  Small  wood  never  likely  to  be  used  for  timber  may  be  called 
underwood ;  so  may  plantations  of  timber  trees  not  intended  for  per- 
manent growth,  but  to  be  cut  at  stated  intervals  for  use  as  hop-poles,  or 
for  other  similar  purposes.  Here  the  poles  were  never  meant  for  growth 
as  timber,  and  may  therefore  be  properly  called  underwood.  Then  are 
they  saleable  underwoods  ?  A  capacity  of  being  sold  for  profit  belongs 
to  all  wood  ;  the  statute  must  therefore  be  taken  to  mean  underwoods 
cut  down  for  sale  at  regular  and  calculable  periods.  The  question, 
therefore,  becomes  one  of  fact,  which  the  justices  at  sessions  must 
decide,  taking  into  consideration  the  mode  of  managing  that  sort  of 
property,  the  time  of  cutting,  and  other  circumstances."  And  in  Eex  v. 
Inhabitants  of  Jlirfield,  the  Court  of  Queen's  Bench  intimated  that  the 
fair  mode  of  rating  saleable  nndcricoods  would  be  to  rate  them  yearly  at 
such  a  sum  as  a  tenant  would  be  willing  to  give  them  annually  upon  a 
21  years'  lease. 

The  question  whether  coprolites  were  rateable  or  not  was  a  most 
important  one,  and  was  first  raised  in  the  case  of  Eoads  v.  T/ie  Overseeis 
of  Tnnnpington,  5  L.  R.  Q.  B.  5G. 

The  appellant  was  rated  as  occupier  of  five  acres  of  land  on  a  gross 
estimated  rental  of  £431  10s.,  and  a  rateable  value  of  £256  lOs. 

The  Court  of  Queen's  Bench,  without  expressing  any  opinion  as  to 
the  amount  of  the  rate,  which  was  a  matter  not  in  dispute  in  the  case, 
decided  that  as  the  a^jpellant  was  in  occupation  of  the  laud  in  respect  of 
which  he  was  rated,  he  was  properly  rated. 

The  Court  of  Queen's  Bench  having  thus  decided  that  coprolite  pits 
were  rateable,  another  question  arose  as  to  the  principle  on  which  they 
were  to  be  rated,  and  this  was  decided  in  the  case  of  Reg.  v.  Overseers  of 
Whaddon,  10  L.  Pt.  Q.  B.  230. 

The  Assessment  Committee  rated  the  appellant  in  respect  of  ten  acres 
of  coprolite  land  at  a  gross  rental  of  £840  and  a  rateable  value  of  £630. 
By  an  agreement  with  the  Earl  of  Hardwicke,  the  appellant  contracted 
to  pay  £115  an  acre  for  the  coprolite  land,  and  to  dig  sufficient  land  to 
l)ay  the  Earl  £1000  per  annum  at  least,  such  sum  to  be  paid  quarterly, 
whether  sufficient  land  was  dug  over  in  any  one  year  to  amount  to  that 
sum  or  not. 

It  was  argued  on  the  part  of  the  appellant  that  he  was  never  in 
beneficial  occupation  of  more  than  three  and  a  half  acres  at  any  one 


APPLE-FARM   LEASE.  121 

time,  and  that  he  could  not  be  rated  in  any  one  rate  for  more  than  that 
amount. 

It  was  held  by  Jlcl/or,  Lush,  and  Archihald,  JJ.  (disscnticnte,  Cock- 
burn,  C.J.)  that  the  appellant  ought  to  be  rated  in  each  rate  in  respect 
of  ten  acres  at  their  enhanced  value. 

A  bill  will  lie  to  restrain  a  tenant  for  life  from  cutting  clown  underwood 
and  timber  generally  of  an  insufficient  growth  {Bnjdijes  v.  Stcpliens)  ; 
and  according  to  Picjoi  v.  Bulloclc,  he  has  no  property  in  the  underwood 
till  his  estate  comes  into  possession,  and  therefore  he  cannot  have  an 
account  of  what  was  cut  wrongfully  by  a  preceding  tenant.  In  Gcdwatj 
V.  Baher  it  was  held  by  the  House  of  Lords,  affirming  the  judgment  of 
the  Court  below,  that  a  clause  in  an  indenture  of  lease  reserving  out  of 
the  demise  to  the  lessor  "  all  wood  and  underwood,  timber  and  timber 
trees  standing,  growing,  or  being  thereon,  or  at  any  time  thereafter  to 
stand  or  grow  thereon,  with  full  and  free  liberty  of  ingress  and  egress  to 
take  and  carry  away  the  same,"  applies  only  to  trees  standing  when  the 
lease  was  granted,  and  not  to  those  afterwards  planted  by  the  tenant. 
Its  operation  is  so  restricted  by  the  23  &  24  Geo.  III.  c.  39. 

In  a  Devonshire  apple  farm  lease,  by  an  exception  of  "  all  trees, 
woods,  coppice,  wood  grounds,  of  Avhat  kind  or  growth  soever,"  apple 
trees  are  not  excepted  {WijndJumi  v.  Way).  In  Bullen  y.  Denning  it 
was  held  by  the  Court  of  King's  Bench  that  where  in  a  cider  county  a 
lessor  demises  "  all  timber  and  other  trees,  but  not  the  annual  fruit 
thereof,"  apple  trees  are  not  within  the  exception.  This  was  a  case  of 
trespass  for  felling  the  plaintiff's  apple  trees,  and  a  verdict  having  been 
found  for  the  plaintiff,  the  Court  made  the  rule  absolute  to  enter  a 
nonsuit.  Littlcdale,  J.  said,  "  The  word  trees,  generally  speaking, 
means  wood  applicable  to  buildings,  and  does  not  include  orchard  trees. 
The  words  'not  the  annual  fruit  thereof  may  apply  either  to  the 
produce  of  orchard  or  to  that  of  timber  trees.  Those  words  may  there- 
fore be  satisfied  without  holding  them  to  apply  to  the  produce  of 
orchard  trees.  And  as  it  is  doubtful  whether  it  was  intended  to  except 
fruit  trees,  the  words  of  the  exception  must  be  construed  favourably  for 
the  lessee.  I  think  we  are  therefore  bound  to  hold  that  fruit  trees  do 
not  come  within  it."  Baijley  J.  also  observed  in  the  course  of  his  judg- 
ment that  "  the  term  fruit  in  legal  acceptation  is  not  confined  to  the 
produce  of  those  trees  which  in  popular  language  are  called  fruit  trees, 
but  applies  also  to  the  produce  of  the  oak,  elm,  and  walnut  trees.  In 
the  old  books  the  lessee  is  stated  to  have  an  interest  in  the  trees  in 
respect  of  the  shade  for  cattle  and  the  fruit  thereof.  Looking  at  the 
nature  of  the  subject-matter  of  demise,  which  is  land  situate  in  a 
county  where  cider  is  made,  and  where  apples  constitute  a  great  part  of 


1-2 -Z  ACTS    OF   WASTE. 

the  annual  produce,  I  think  it  is  not  very  likely  tliat  the  lessor  Avould 
make  apple  trees  the  subject  of  an  express  exception."  A  covenant  in 
a  lease  to  deliver  up  at  the  end  of  the  term  all  the  trees  standing  in  an 
orchard  at  the  time  of  the  demise,  ''reasonable  use  and  ivear  onhj  cx- 
cepfed,''  is  not  broken  by  removing  trees  decayed  and  past  bearing  from 
a  part  of  the  orchard,  which  was  too  crowded  {Boe  dem  Jones  v.  Crouch). 
Here  nine  trees  had  been  cut  down,  and  nine  planted,  and  Lord 
EUenloromjh  held  that  the  above  was  "  a  reasonable  use  of  the  orchard 
and  the  trees.-"  A  tenant  of  a  nurscr//  //round  and  garden  may,  at  the 
expiration  of  his  tenancy,  remove  such  trees  as  are  saleable  l)y  him  in 
his  trade  as  a  nurseryman,  but  not  such  as  are  only  cultivated  with  a 
view  to  the  fruit  they  yield,  and  are  used  by  him  as  a  market  gardener  ; 
and  it  is  entirely  a  question  for  the  jury,  whether  they  come  under  one 
description  or  the  other  (Wardell  v.  Uslter). 

Alderson  B.  in  Fhittips  v.  Smith  thus  defined  Waste:  "The  destruc- 
tion of  germens  or  young  plants  destined  to  become  trees  (Co.  Litt.  43), 
which  destroys  the  future  timber,  is  waste ;  the  cutting  of  apple  trees 
in.  a  garden  or  orchard,  or  the  cutting  down  a  quickset  hedge  of  thorns 
(Co.  Litt.  53  a),  which  changes  the  nature  of  the  thing  demised  ;  or  the 
eradicating  or  unseasonable  cutting  of  white  thorns  (Vin.  Abr.  "Waste, 
E),  which  destroys  the  future  growth,  are  all  acts  of  waste.  On  the 
other  hand,  those  acts  are  not  waste  which,  as  Richardson  C.J.  in 
Barrett  v.  Barrett  says,  are  not  prejudicial  to  the  inheritance,  as,  in  that 
case,  the  cutting  of  sallows,  maples,  beeches,  and  thorns,  those  alleged 
to  be  of  the  age  of  33  years,  but  which  were  not  timber  either  by  the 
general  law  or  particular  local  custom.  So  likewise  cutting  even  of 
oaks  or  ashes,  where  they  are  of  seasonable  wood,  i.e.,  where  they  are 
cut  usually  as  underwood,  and  in  due  course  are  to  grow  up  again  from 
the  stumps,  is  not  waste."  It  is  laid  down  in  Co.  Litt.  53  a,  that 
"waste  properly  is  in  timber  trees  (oak,  ash,  and  elm,  and  these  be  timber 
in  all  places),  either  by  cutting  of  them  down,  or  topping  of  them,  or 
doing  any  act  whereljy  the  timber  may  decay.  Also  in  countries  where 
timber  is  scant,  and  beeches  or  the  like  are  converted  to  buildings  for 
the  habitations  of  man  or  tlie  like,  they  are  all  accounted  timber  :  "  and 
that  "  cutting  down  of  wittows,  beech,  birch,  ash,  maple,  or  the  like, 
standinfj  in  tlie  defence  and  safecjuard  of  the  house,  is  destruction." 

In  PMJlips  V.  Smith,  the  only  acts  proved  against  the  defendant  Avere 
cutting  down  for  sale  several  2)ollard  willow  trees,  of  a  considerable 
size,  u'hicli  grew  on  the  side  of  a  broolr,  but  were  not  shown  to  be  of  any 
service  as  a  support  of  the  bank  against  the  water,  nor  to  be  of  any 
protection  to  the  farmhouse,  and  also  some  trivial  injuries  to  the  fences. 
The  willows  were  cut  close  to  the  ground,  leaving  the  stools  or  butts, 


CUTTING    WILLOW   POLLAEDS.  3  23 

from  which  fresh  'shoots  grew  again.  It  was  contended  for  the 
defendant,  that  such  cutting  down  of  these  trees  was  not  a  breach  of 
the  implied  agreement  to  cultivate  according  to  good  husbandry  and  in 
a  tenant-like  manner,  while  the  plaintiff  asserted  it  was  positive  waste. 
Mauh  J.  reserved  the  point,  and  the  jury  having  assessed  the  value  of 
the  willows  cut  down  at  £64,  gave  the  defendant  leave  to  move  to 
reduce  the  damages  {£%%  4.s.  Cc/.  in  all)  by  that  sum.  The  Court  of 
Exchequer  decided  that  it  was  not  waste,  Rolfe  B.  intimating  that  he 
considered  that  cutting  down  a  fir  tree  would  be  waste  because  it 
would  not  grow  again.  And  per  curiam,  "  Applying  the  principles  to 
be  extracted  from  all  the  authorities  to  the  present  case,  we  have  no 
difficulty  in  saying  that  the  cutting  of  these  willows  does  not  amount 
to  waste.  They  are  not  timber  trees,  and  when  cut  down  they  are  not, 
so  far  as  appears  by  the  evidence,  destroyed,  but  grow  up  again  from 
their  stumps,  and  produce  again  iheir  ordinanj  and  usual  profit  by  such 
growth ;  therefore  neither  is  the  thing  demised  destroyed,  nor  is  the 
thing  demised  changed  as  to  the  inheritance,  for  profit  remains,  as 
before,  derivable  from  the  reproduction  of  the  wood  from  the  stump  of 
the  willow  cut  down.  Nor  are  the  trees  in  such  a  situation  as  to  make 
the  cutting  of  them  waste,  by  reason  of  what  is  called  collateral  respect; 
as  where  trees  not  timber  are  situated  so  as  to  be  useful  for  protection 
of  a  house  (Co.  Litt.  53),  and  so  become,  as  it  were,  part  of  the  house  ; 
as  in  Hob.  219,  willows  growing  within  the  site  of  the  house.  Xor  are 
they  willows  within  view  of  the  manor  house,  which  defend  it  from  the 
Avind,  or  in  a  bank  to  sustain  the  bank  (12  H.  8,  1);  or  like  white- 
thorns used  for  the  like  purpose,  or  where  they  stand  in  a  field  depastured, 
and  are  used  for  the  shade  of  the  beasts  depasturing,  and  so  are  intended 
permanently  to  remain  in  that  particular  form,  for  the  advantage  of 
those  to  Avhom  the  inheritance  may  thereafter  come"  (14  M.  &  W.  589). 
This  case  was  referred  to  by  Willes  J.,  in  his  summing  up  in  Viscount 
Hood  V.  Ivendall,  which  was  an  ash-pole  case.  The  defendant  held  a 
farm  as  tenant  from  year  to  year,  upon  a  written  agreement,  by  which 
it  was  stipulated  amongst  other  things  that  he  should  cultivate  the 
farm  "in  the  same  way  and  manner,  or  as  near  thereto  as  circumstances 
would  admit  of,  as  one  Henry  Parsons  (the  outgoing  tenant)  used,  and 
cultivated  the  same  during  his  occupation  thereofj  and  in  all  events 
according  to  the  rules  of  good  husbandry,  used  and  accustomed  in  the 
neighbourhood."  In  an  action  against  the  outgoing  tenant,  alleging 
for  breach  amongst  others,  the  cutting  and  carrying  away  of  ash-poles 
(such  user  not  being  as  near  to  the  way  and  manner  in  which  Parsons 
used  and  cultivated  the  farm  as  circumstances  admitted,  and  being 
contrary  to  the  rules  of  good  husbandry  used  and  accustomed  in  the 


124.  CUTTING   ASH-POLES. 

ueighboui-hood),  it  ai)pcared  that  the  poles  in  question  consisted  of 
shoots  til-owing  from  old  stools,  which  were  seasonable  and  fit  for 
cutting  about  every  17  or  18  years,  that  by  invariable  custom  they 
belonged  to  the  landlord  in  the  absence  of  a  special  agreement  to  the 
contrary;  that,  whilst  Parsons  held  the  farm,  these  poles  had  never 
been  in  a  fit  state  for  cutting;  that  two  tenants  who  had  preceded 
Parsons  in  the  occupation  of  the  farm  had  cut  and  sold  them  as  crops, 
and  that  Kendall  had,  Avhilst  he  occupied,  paid  the  rates  for  the  whole 
farm,  including  the  wood  or  spinney  in  which  the  poles  grew.  When 
Parsons  became  the  tenant,  the  spinney  was  valued  as  between  him 
and  the  outgoing  tenant  at  £50  9s.  Gd. :  the  valuation  describing  it  is, 
*'  Twelve  acres  of  spinney,  some  of  them  of  three  and  some  of  four  years' 
growth;"  but  there  was  no  evidence  that  it  was  valued  from  Parsons  to 
the  defendant's  father  when  he  became  the  tenant  (17  C.  B.  2 GO). 

W/lles  J.  finally  left  three  questions  to  the  jury,  the  third  being 
whether  the  landlord  or  tenant  was  entitled  to  the  poles.  His  lordship 
told  them  that  he  thought  ash,  oak,  and  elm  were  jn-imd  facie  timber 
trees ;  that  they  might  assume  the  character  of  a  crop,  and  be  cut  by 
the  tenant,  if  the  usage  had  for  a  series  of  years,  and  through  a  suc- 
cession of  tenancies,  been  to  cut  them  from  time  to  time,  as  such,  and 
allow  them  to  grow  up  again  from  the  old  stumps ;  and  that  if  there 
was  a  custom  of  the  country  for  the  landlord  to  be  entitled  to  the  poles, 
though  of  that  character,  such  custom  would  take  away  the  right  of  the 
tenant.  And  he  left  it  to  them  to  say  what  was  the  character  of  the 
poles,  and  whether  there  was  a  custom  for  the  landlord  to  have  them, 
and  whether  this  case  was  within  the  custom.  The  jury  found  for  the 
plaintiff  as  to  the  poles,  damages  £74  3s.  dil,  saying  that  there  is  a 
universal  cmlom  that  such  poles  are  not  crops,  but  belong  to  the  land- 
lord, unless  there  is  a  special  agreement.  His  lordshijD  reserved  leave 
to  the  defendant  to  move  to  enter  a  verdict  for  him,  if  the  Court  should 
be  of  opinion  that  notwithstanding  the  custom  the  defendant  had  a 
riglit  to  the  poles.  The  Court  of  Common  Pleas  held  that  it  was  im- 
portant to  consider  on  wliat  terms  Parsons  had  held  the  farm,  and  that 
as  this  question  was  not  left  to  the  jury,  there  should  be  a  new  trial. 
The  case  was,  however,  settled.  And  where  a  purchaser  of  a  field 
entered  into  possession  under  the  contract,  and  filled  up  a  pond  and 
stubbed  up  an  osier  bed,  Knirjlit  Bruce  V.C.  held  that  these  acts  did 
not  amount  to  a  waiver  of  title,  but  that  the  purchaser  would  not  be 
allowed  the  usual  reference  for  title,  unless  he  paid  the  purchase-money, 
and  all  the  interest  accrued  due  on  it,  into  Court  within  three  weeks 
{Osborne  v.  Hurvcij). 

A  ienani's  rit/hl  to  dotards  was  fully  discussed  in  Channon  v.  Patchy 


tenant's  right  to  dotards.  ]25 

where  a  lessor  during  the  term  cut  down  two  decayed  oak  pollards 
growing  upon  the  demised  premises,  which  were  only  fit  for  firewood. 
The  third  resolution  in  Herlalcenden^s  case,  that  if  trees  'being  thnher 
ivere  hloirn  down  hy  the  wind  the  lessor  shall  have  them  (for  they 
are  parcel  of  his  inheritance),  and  not  the  tenant  for  life  or  tenant  for 
years;  but  if  they  be  dotards  without  any  timber  in  them,  the  tenant 
for  life  or  years  shall  have  them,  was  held  to  be  an  authority  that  this 
action  of  trespass  against  tlie  tenant  was  not  maintainable.  For  if  the 
lessor  would  have  had  no  right  to  the  trees  if  they  had  been  severed 
from  the  inheritance  by  the  act  of  God,  neither  he  nor  his  vendee  (the 
plaintiff),  who  claimed  under  him,  could  have  any  right  to  them  when 
they  had  been  severed  by  his  own  wrongful  act.  If  these  trees  had 
been  blown  down,  they  would  have  belonged  to  the  tenant  {Countess  of 
Cumberland's  case),  and  the  landlord  could  not  by  wrongfully  cutting 
down  the  trees  acquire  a  right  to  them,  so  as  to  entitle  him  to  maintain 
trespass  against  tlie  tenant  for  taking  them  away.  That  would  be 
allowing  him  to  take  advantage  of  his  own  wrong,  for  the  lessee  during 
the  terra  being  entitled  to  the  usufruct  of  the  trees  might  have  main- 
tained an  action  on  the  case  against  the  landlord  for  wrongfully  cutting 
them  down. 

Lord  Denman  C.J.  ruled,  in  Doe  dem  Wetherell  v.  Bird,  that  a  covenant 
"  not  to  remove  or  (jruh  up  or  destroy  "  trees,  is  broken  by  removing 
trees  from  one  part  of  the  premises  to  another ;  and  so  it  is  by  taking 
away  trees,  even  if  the  lessee  plant  a  greater  quantity  than  he  takes 
away,  unless  those  taken  away  were  dead.  In  Woodliouse  v.  Sti'ift 
evidence  was  given  to  prove  that  the  timber  removed  was  not  wholly 
sound,  that  a  small  part  of  one  tree  was  rotten,  and  that  four  other 
trees  were  "  shaky,"  which  one  of  the  witnesses  said  amounted  to  un- 
soundness. Alder  son  J.  allowed  the  plaintiff'  to  show  that  the  word 
^'^  sound"  had  a  technical  meaning  in  the  timber  trade,  but  the  case 
failed  upon  the  facts.  A  tenant  for  years  of  a  garden  has  no  right  to 
remove  a  border  of  box  planted  by  himself;  and  ParJie  J.  said  it  might 
as  well  be  contended  that  a  tenant  could  take  up  hedges  {Em])son  v. 
Soden). 

In  Michlethwait  v.  MicJdetliirait  an  injunction  was  granted  to  restrain 
the  defendant,  who  was  under  the  testator's  will  tenant  for  life,  without 
impeachment  for  waste,  of  two  estates,  Beeston  and  Taverham  Hall, 
within  eight  miles  of  each  other,  from  cutting  down  trees  in  the  avenue 
or  park  at  Beeston.  Wood  V.C.  did  not  consider  the  circumstances  of 
the  testator  pulling  down  the  mansion  at  Beeston,  where  he  had  ceased 
to  reside  33  years  before  his  death,  and  felling  some  of  the  trees, 
added  to  the  leasing  power  in  the  will  over  all  the  real  estate,  except 


120  ORNAMENTAL   TIMBER. 

tlie  mansion  at  Taverhum  Hall,  as  well  as  a  power  of  sale  and  exchange, 
sufficient  to  deprive  the  timber  upon  the  estate  of  its  ornamental 
character.  This  ex  2Mrtc  injunction  was,  however^  dissolved  by  the 
Lords  Justices,  who  held  that  timber  to  be  ornamental,  so  as  to  entitle 
it  to  the  protection  of  the  Court  against  equitable  waste,  must  be  con- 
nected with  or  adjacent  to  a  residence.  Beeston  had  been  wholly  dis- 
mantled; the  wire  fence  protecting  the  ornamental  garden  had  been 
removed  to  Taverham  ;  the  gardens  and  pleasure-grounds  were  suffered 
to  grow  wild,  with  the  exception  of  the  kitchen-garden,  which  was  let 
to  a  market-gardener;  and  the  testator,  who  was  fond  of  shooting, 
seemed,  after  his  removal,  to  have  regarded  the  whole  estate  merely  as 
a  preserve  for  game. 

Where  the  owner  of  an  estate  with  residence  purchases  the  adjoining 
lands  with  ornamental  /roods,  the  Court  Avill  not,  from  that  fact  alone, 
infer  that  he  intended  to  be  left  standing  for  ornament  all  such  trees  as 
he  did  not  in  his  lifetime  cut  down  ;  there  must  be  some  act  of  dedica- 
tion, e.ff.  planting  an  avenue,  cutting  a  vista,  erecting  obelisks,  &c.; 
per  Sir  W.  P.  Wood  Y.C.  {HalUiveJl  v.  Phillips).  A  tree  or  trees  may 
be  highly  ornamental,  and  yet  not  be  entitled  to  the  protection  of  the 
Court,  as  being  planted  or  left  standing  for  ornament ;  but  saplings 
and  hedgerow  trees,  or  any  trees,  however  ornamental,  if  planted  also 
for  profit,  are  not  within  tlie  doctrine  {ib.).  A  tenant  for  life  sans  waste 
will  not  be  interfered  with  in  the  exercise  of  his  legal  powers,  unless  he 
is  proceeding  to  use  those  legal  powers  in  a  manner  inequitable  towards 
those  in  remainder  ;  and  therefore  he  may  fell  and  sell  trees  planted  for 
ornament  if  done  in  a  proper  course  of  husbandry  (//>.),  and  an  injunc- 
tion restraining  a  tenant  for  life,  without  impeachment  of  waste,  from 
cutting  timber  growing  for  ornament  or  shelter,  extends  to  clumps  of 
furze  on  a  common  two  miles  from  the  house  which  had  been  planted 
for  ornament  {Marquis  of  Doiun shire  v.  Lady  Sandys,  6  Ves,  107). 

"Where  an  estate  was  limited  to  one  for  life,  with  a  clause  of  forfeiture 
and  a  oift  over  on  his  cutting  timber,  and  there  was  on  it  timber,  and 
other  trees,  not  being  in  any  rookery,  or  serving  for  ornament,  shelter, 
or  protection  to  a  mansion  house,  which  required  feMig ,  Lord  Lanydale 
M.Pt.,  on  a  bill  filed  for  that  purpose  by  the  tenant  for  life,  authorized 
the  same  to  be  cut  down,  and  directed  a  reference  to  the  Master  for  the 
purpose,  the  money  arising  from  the  timber  in  such  case  to  be  settled 
on  trusts  similar  to  those  on  which  the  estate  stood  limited  {Peters  v. 
Blake).  And  see  DeJapole  v.  Detapolc,  Hussey  v.  Hussey,  and  Wirkham 
V.  WicJcham.  "Where  an  estate  was  devised  to  A.  for  life,  impeachable 
for  waste,  remainder  to  B.  for  life  without  impeachment  of  waste,  with 
remainder  to  C.  in  fee,  and  it  became  necessary  in  A.'s  lifetime  to  cut 


LANDLORD    ENTERING    TO    CUT   TREES.  127 

timber,  the  proceeds  of  which  were  invested  and  the  interest  paid  to 
him  for  life,  and  on  A.'s  death  B.  claimed  the  proceeds  of  the  timber 
for  his  own  use,  and  C.  the  reversioner  in  fee,  resisted  the  claim,  on 
the  ground  that  they  formed  part  of  the  corpus  of  the  estate,  it  was 
held  by  Shadivell  V.C,  in  conformity  with  Waldo  v,  Waldo,  that  B.  was 
entitled  to  receive  the  proceeds  {Phllipps  v.  Barlow). 

In  an  action  of  waste  for  cutting  timber,  the  defendant  cannot  give 
in  evidence,  even  in  mitigation  of  damages,  that  the  timber  ivas  cut  for 
the  purpose  of  neccssarij  repairs,  but  turning  out  unfit  for  the  purpose 
was  exchanged  for  other  timber,  which  was  applied  to  the  repairs 
{Simmons  v.  Norton).  He  should  have  specially  pleaded  that  he  cut  it 
for  repairs,  and  he  was  bound  to  confine  himself  to  fell  such  trees  as 
were  proper  for  repairs.  And  per  Bosajiquet  J.,  though  the  tenant  may 
fell  trees  for  necessary  botes,  he  must  at  his  own  peril  select  such  as  are 
fit  for  the  purpose,  and  employ  them  accordingly. 

Such  a  clause  in  a  lease  as  "all  the  hedges,  trees,  thorn  hushes,  fences, 
ivith  the  lop  and  top,  are  reserved  to  tlie  landlord,"  was  decided  in 
Hewitt  V.  Sir  G.  Ishcwi  to  afford  evidence  of  leave  and  licence,  if  tlie 
landlord  enters  and,  having  cut  down  some  trees,  digs  sawpits  in  the 
land  for  the  purpose  of  sawing  the  timber.  Here  the  plaintiff  was 
tenant  to  the  defendant,  of  a  farm  under  a  parol  demise,  which  con- 
tained the  above  stipulation,  on  which  (although  he  gave  evidence  that 
the  act  was  done  with  plaintiff's  permission)  the  cTcfendant  principally 
relied.  Maule  J.  directed  the  jury  that  the  stipulation  in  the  lease 
afforded  evidence  of  leave  and  licence,  and  tlie  Court  of  Exchequer 
refused  to  set  aside  a  verdict  for  the  defendant.  And  per  Farlce  B.  : 
"  This  stipulation  could  not  operate  as  a  grant  or  an  easement,  because 
it  is  not  under  seal.  It  can  only  operate  as  a  licence  from  time  to 
time  to  enter  upon  the  land  {Wood  v.  LeadUtter,  Kavanagh  v.  Gudije). 
In  Liford's  case  (11  Eep.  51  l)  it  was  resolved,  'that  when  the  lessor 
excepted  the  trees,  and  afterwards  had  an  intention  to  sell  them,  the 
law  gave  him,  and  them  who  would  buy,  a  power,  as  incident  to  the 
exception,  to  enter  and  show  the  trees  to  those  who  would  have  them, 
for  without  sight  none  would  buy,  and  without  entry  they  could  not 
see  them.'  So  that,  according  to  the  authority  of  that  case,  wherever 
trees  are  excepted  from  a  demise  there  is  by  implication  right  in  the 
landlord  to  enter  the  land,  and  cut  the  trees  at  all  reasonable  times. 
If,  indeed,  he  leaves  them  on  the  laud  for  an  unreasonable  time,  he 
does  more  than  the  law  authorizes  him  to  do.  But  here  there  was  no 
evidence  of  that." 

Williams  V.  Currie  was  an  aggravated  case  of  trespass  on  the  part 
of  the  defendant,  who  was  landlord  to  the  plaintiff  of  four  grass 


1£S  SALE  OF  TREES  STANDING. 

closes  (37  acres),  which  were  laid  up  for  hay  in  April,  May,  and 
June.  About  100  trees  (oak,  ash,  and  elm)  in  the  hedii^e-rows  and 
the  close  were  cut  down,  and  about  twenty  persons  were  employed  in 
felling,  loppino;,  and  barking  the  trees,  and  stacking  the  fagots  and 
bark,  and  great  damage  was  done  to  the  hedges.  There  were  three 
sales — two  in  May  and  one  in  June ;  and  the  fagots  and  bark  were 
not  wholly  removed  till  the  28th  of  September.  Evidence  was  given 
as  to  the  presumed  value  of  the  first  and  second  crop  of  hay,  and  it 
seemed  that  but  for  such  trespasses  they  might  have  yielded  £200. 
The  defendant  paid  £50  into  Court,  and  pleaded  no  damage  ultra; 
but  the  jury  gave  £250  more,  and  the  Court  refused  to  grant  a  new 
trial,  on  the  ground  of  excessive  damages.  Mmde  J.  said  :  "  If  we 
were  to  hold  that  the  jury  in  estimating  the  damages  for  an  unlicensed 
trespass  of  this  sort  are  to  be  restrained  to  exactly  the  amount  sus- 
tained by  the  plaintiflP,  it  would  in  effect  be  placing  a  wrong-doer 
upon  precisely  the  same  footing  as  one  who  enters  with  the  owner's 
permission.''  And  s^emhle,  in  actions  for  iort,  the  Court  will  not  inter- 
fere with  the  damages  found  by  the  jury,  unless  they  appear  to  be 
grossly  disproportioned  to  the  injury  sustained.  Holt  C.J.  also  decided 
"on  hearing  of  counsel  several  times,"  in  GUnham  v.  Hanlnj,  that  if  A. 
demises  ground  to  B.  which  was  pasture,  except  the  trees,  and  B.  puts 
in  his  caftJf  to  feed,  irltich  harlc  the  trees,  A.  has  no  action  for  trespass. 

In  Knowles  v.  Mkhet,  it  was  proved  that  the  plaintiff  had  sold  to  the 
defendants  some  standing  trees,  which  the  defendants  had  afterwards 
procured  to  ie  felted  and  taken  away.  When  the  writ  was  served  on 
Micliel,  both  defendants  admitted  they  had  bought  the  trees  jointly 
for  9  guineas  ;  but  Michel  said  he  would  pay  no  more  than  half.  On 
this  evidence  it  was  objected  that  the  action  was  not  maintainable, 
the  contract  being  for  standing  trees,  which  were  part  of  the  reality. 
To  this  it  was  answered  that  the  acknowledgment  of  the  price  to  be 
paid  for  the  trees,  made  after  they  were  felled  and  applied  to  the  use 
of  the  defendants,  was  sufficient  to  support  the  account  stated,  though 
there  was  no  other  item  of  account  between  the  parties.  The  plaintiff 
was  nonsuited  ;  but  the  Court  of  King's  Bench  held  that  if  there  were 
an  acknowledgment  by  the  defendant  of  a  debt  due  on  any  account,  it 
was  sufficient  to  enable  the  plaintiff  to  recover  on  an  account  stated, 
though  not  for  goods  sold  and  delivered.  And  see  Smith  v.  Sitjrman, 
ante,  p.  55.  In  Bragej  y.  Cole,  the  defendant  agreed  to  purchase  a  lot 
of  ash  trees  for  a  certain  sum,  and  pay  for  them  according  to  the 
conditions  of  the  sale,  but  afterwards  felled  and  carried  away  seven  of 
them  without  making  such  payment,  and  refused  to  pay  till  the  other 
three  had  been  delivered.     It  was  held   that  the  executors  having 


ENTIRE   TIMBER   CONTRACT.  129 

failed  to  establish  the  count  on  'the  special  contract  might  recover 
the  value  of  trees  taken  by  the  defendant  as  goods  sold  and  delivered, 
as  defendant  by  such  taking  had  disaffirmed  the  entirety  of  the 
contract.  Holrotjd  J.,  who  tried  the  case,  at  first  thought  that  the 
plaintiffs  could  not  recover  on  the  counts  for  trees  sold  and  delivered 
by  the  testator  in  his  lifetime,  but  observed  that  delivery  might  be 
satisfied  by  the  vendor's  allowing  part  of  the  trees  to  be  cut  down  and 
carried  away  by  the  defendant,  and  that  the  contract  being  for  a  mere 
chattel  interest  was  not  Avithin  the  4th  section  of  the  Statute  of  Frauds 
(6  B.  Moore,  114). 

The  question  of  an  entire  timber  contract  arose  in  Bigg  v.  ]\liisMng 
(14  C.B.  195),  where  the  plaintiff  and  defendant  (who  was  exceedingly 
illiterate)  went  to  several  places  a  few  miles  distant  from  each  other  in 
one  day,  and  agreed  for  the  purchase  and  sale  of  several  lots  of  timber. 
At  the  last  place,  where  they  dined,  the  plaintiff,  at  the  request  of  the 
defendant,  who  said  he  should  like  him  "■  to  jnit  down  ivMt  we  have  been 
doing,''  drew  out  and  signed  a  memorandum  of  the  whole  transaction. 
The  defendant  received  several  consignments  of  timber  in  London, 
advancing  money  for  the  carriage,  which  was  to  be  allowed  him  by  the 
plaintiff.  When  the  residue  arrived  at  the  London  terminus,  the  defen- 
dant objected  that  some  portion  of  it  was  unsound,  and  the  other  portion 
not  the  timber  contracted  for,  and  ultimately  he  refused  to  receive  it. 
For  the  plaintiff  the  after-dinner  memorandum  was  relied  on  as  binding 
upon  him  by  reason  of  his  signature,  and  upon  the  defendant  by  reason 
of  his  acceptance  of  part  of  the  timber  under  it.  Cressivell  J.  ruled,  on 
the  authority  of  Elliot  v.  lliomas,  that  the  whole  transaction  amounted 
to  one  entire  contract,  and  that  as  part  of  the  timber  had  been 
received  by  the  defendant,  and  money  paid  on  account,  the  provisions 
of  the  statute  29  Car.  II.  c.  3,  s.  17,  were  satisfied,  and  the  Court 
discharged  a  rule  for  a  new  trial.  It  was  clearly  one  transaction, 
regard  being  had  to  the  peculiar  nature  and  situation  of  the  bulky 
articles  which  formed  the  subject  of  the  contract.  And  ^jer  Willianis 
J.  :  "  Baldcg  v.  FarJrcr,  and  Elliot  v.  Thomas,  govern  this  case.  Tlie 
transaction  amounted  to  a  joint  contract  for  all  the  timber"  (3  M.  &  W. 
170). 

Acraman  v.  Morrice  also  turned  upon  what  was  a  sufficient  delivcrg 
and  acceptance  under  the  statute.  The  defendant  was  a  timber-merchant, 
and  the  action  was  one  of  trover  for  oak  timber,  which  had  been  pur- 
chased of  Swift  (the  bankrupt)  by  the  defendant,  and  marked,  measured, 
and  paid  for  before  the  date  of  the  Jiat,  but  not  actually  delivered  at  the 
appointed  place.  The  first  count  alleged  a  conversion  before,  and  the 
second,  one  after  the  bankruptcy  of  Swift.    To  this  defendant  pleaded 


ioO  DELIVERY    AND    ACCEPTANCE    OF    TIMBER. 

— 1st..  To  the  whole  declaration,  not  guilty  ;  and  2ndly  and  ordly,  to 
the  first  and  second  counts,  that  Swift,  and  the  plaintiffs,  respectively, 
were  not  possessed,  &c.  The  parties  had  long  dealt  together,  and  when 
trees  were  felled  the  defendant's  agent  marked  and  selected  what 
would  suit  him.  Swift  then  cut  off  the  rejected  parts,  and  at  his  own 
expense  floated  the  trunks  down  the  Severn  to  Chepstow.  The  timber 
in  this  action  had  been  measured  and  marked  by  the  defendant's 
agent,  but  the  rejected  portions  had  not  been  severed  by  Swift  before 
the  issuing  of  the  Jiat.  After  that  date  the  defendant  sent  some  work- 
men to  sever  the  rejected  portions,  and  carry  the  rest  away,  and  con- 
sidered that  the  measuring  and  mai'king  of  the  timber  by  his  agent 
was  a  suflicicnt  delivery  and  acceptance  within  the  Statute  of  Frauds, 
and  passed  the  property  in  it  to  him.  Under  Coleridge  J.'s  direction 
the  jury  found  for  the  plaintiff  for  £95,  the  agreed  value  of  the  timbei' 
so  taken,  and  the  Court  refused  to  set  the  verdict  aside. 

Wilde  C.J.  said  :  "  Upon  a  contract  for  a  sale  of  goods,  so  long  as 
anything  remains  to  be  done  to  them  by  the  seller  the  property  does 
not  pass,  and  the  seller  has  a  right  to  retain  them.  In  the  present  case 
several  things  remain  to  be  done  :  the  buyer  having  selected  and 
marked  the  particular  parts  of  the  trees  which  Jie  wished  to  purchase, 
it  became  the  seller's  duty  to  sever  those  parts  from  the  rest,  and  to 
convey  them  to  Chepstow,  and  there  deliver  them  at  the  purchaser's 
wharf.  Xow  that  which  the  buyer  does  for  the  purpose  of  enabling 
the  seller  to  perform  his  part  of  the  contract,  cannot  be  considered  as 
an  acceptance  of  the  article.  The  selection  and  marking  must  of 
necessity  precede  the  delivery.  What  I  understand  by  acceptance  is 
an  act  done  by  two  parties,  one  of  whom  is  content  to  deliver,  and  the 
other  to  receive  the  subject-matter  of  the  contract.  The  evidence  here 
is,  that  the  seller  engaged  that  he  would  sever  the  tops  and  sidings, 
and  after  he  had  incurred  the  expenses  of  severing,  he  would  incur 
the  further  expense  of  conveying  the  trunks  to  Chepstow,  and  that  the 
buyer  undertook  to  accept  the  trunks  when  severed,  and  delivered  to 
him  at  Chepstow.  That  is  the  contract  which  was  proved.  This 
being  the  state  of  things,  the  seller  becomes  bankrupt,  and  the  buyer 
anxious  to  get  possession  of  the  timber — which  it  appears  he  had  paid 
for — goes  to  a  place  where  he  had  no  right  to  go,  and  takes  upon 
himself  to  sever  and  carry  away  that  which  does  not  belong  to  him. 
The  property  clearly  had  not  passed  to  the  defendant,  and  he  was 
guilty  of  a  trespass  and  conversion  in  possessing  himself  of  it  in  the 
way  he  did."  Again,  in  TcuihIcij  y.  Turner  the  plaintiff  sold  Jenkins 
all  the  ash  trees  on  one  Buckly's  lands,  where  they  had  grown,  at 
Is.  l\d.  per  cubic  foot,  on  credit.     Some  trees  were  measured  and 


PROPERTY    IN    HEDGE    AND    DITCH.  1:31 

talven  away,  then  all  the  residue  were  marked,  and  the  length  and 
girth  of  each  tree  were  taken  ;  but  the  total  cubic  contents  of  them 
was  not  ascertained.  When  Jenkins  became  a  bankrupt  the  plaintiff 
prevented  his  servants  from  drawing  any  more  trees,  and  Jenkins 
acquiesced.  Some  time  after  the  plaintiif  drew  the  residue  of  the 
trees,  which  were  lying  where  they  had  been  felled,  to  his  own  saw- 
pits,  from  which  the  defendant,  after  notice  not  to  do  so,  took  away 
two  loads.  It  W'as  held  by  the  Court  of  Common  Pleas,  on  an  action 
of  trespass,  that  as  nothing  remained  to  be  done  but  the  adding 
together  of  the  different  measurements,  the  property  passed  to  the 
vendee,  and  that  the  defendant,  as  the  vendee's  assignee,  was  entitled 
to  the  possession  of  the  trees,  they  having  been  fully  delivered  by  the 
vendor,  and  the  vendee  not  having  any  right  to  relinquish  the  contract, 
as  he  was  at  the  time  in  a  state  of  insolvency. 

Where  two  adjacent  fields  are  separated  ly  a  hedge  and  ditch,  the 
liadigQ  primd  facie  belongs  to  the  owner  of  the  field  in  which  the  ditch 
is  not.  If  there  are  two  ditches,  one  on  each  side  of  the  hedge,  the 
ownership  of  the  hedge  must  be  proved  by  showing  acts  of  ownership. 
Per  Bayley  J.  in  Guy  v.  West  (Som.  Ass.  1808).  His  lordship  thus 
referred  to  the  subject  in  Noye  v.  P\.eed,  where  the  landlord  said  that 
he  had  let  the  lane  jointly  to  both  plaintiff  and  defendant,  as  much  to 
one  as  the  other:  "I  admit  that  where  there  are  separate  owners  of 
adjacent  lands,  the  presumption  is  that  a  ditch  between  those  lands 
belongs  to  the  owner  of  the  hedge ;  but  this  is  the  rule  of  presumption 
only,  and  applies  only  in  cases  of  separate  ownership  ;  and  therefore 
where  the  lands  on  each  side  are  the  property  of  the  same  landlord,  as 
he  may  let  them  as  he  thinks  fit,  and  confine  the  rights  of  his  tenants, 
the  onus  of  making  out  that  the  spot  in  question  was  his,  was  here 
cast  upon  the  plaintiff.  He  proved  his  possession  of  the  close  up  to 
the  hedge  of  the  lane,  but  he  proved  nothing  more." 

This  case  decided  that  where  adjacent  lands  l)elong  to  two  distinct 
owners,  the  legal  presumption  is  that  the  ditch  which  divides  them  is  a 
part  of  the  soil  of  him  to  whom  the  hedge  belongs  ;  and  where  a  road 
was  between  those  lands,  the  owner  on  each  side  has  a  right  of  use  ad 
medium  fikan  vice.  But  semhte,  that  such  presumption  will  not  arise 
where  the  entire  property  of  such  lands  is  in  one  landlord,  who  has  let 
them  out  to  different  tenants  ;  but  that  it  will  be  incumbent  upon 
either  tenant  who  shall  bring  trespass  against  the  other  to  prove  his 
right  of  exclusive  possession  of  the  ditch,  or  the  half  of  the  road  next 
to  his  close,  in  order  to  sustain  the  action  (ih.). 

According  to  Ellis  v.  Arnison,  a  ditch  which  had  been  immemorially 
the  only  fence  between  the  commons  and  adjoining  townships,  was  con- 

K  2 


loH  DITCHES. 

siikted  a  fence  Avitliin  the  provisions  of  tlie  Geueral  Euclosure  Act,  41 
Geo.  III.  c.  109  (U.K.). 

Vowles  V.  Miller,  wliicli  is  a  leading  case  on  the  law  of  ditches,  was  an 
action  by  the  tenant-in-fec  of  a  close  against  the  tenant-for-j-ears  of  an 
adjoining  close,  for  an  injury  to  the  plaintiff's  reversion.  The  plaintiff 
proved  that  the  defendant  had  a  close  contiguous  to  a  certain  close  of 
the  plaintiff's,  and  surrounded  by  a  fence  (which  the  defendant  was 
bound  to  keep  in  repair),  consisting  of  a  bank  and  ditch,  and  that  in 
scouring  the  ditch  the  defendant  had  dug  into  the  hard  unmoved  virgin 
soil  of  the  plaintiff's  close.  The  defendant,  on  the  contrary,  proved 
that  this  fence  had  been  imniemorially  a  bank  with  a  ditch  on  the  out- 
side of  it,  and  not  a  bank  only ;  and  he  contended  that  consequently 
he  was  entitled  at  common  law  to  have  a  width  of  eight  feet,  as  the 
reasonable  width  for  the  base  of  the  bank  and  the  area  of  his  ditch 
together,  which  width,  measured  from  the  interior  line  of  the  base  of 
his  bank,  he  proved  that  he  had  not  exceeded,  admitting  that  if  the 
fence  were  a  bank  only,  he  was  entitled  only  to  four  feet.  It  was  there- 
upon contended  for  the  plaintiff  that  whether  the  defendant's  fence 
were  a  bank  only,  or  a  bank  and  a  ditch,  the  action  would  lie,  as  the 
ditch  was  cut  by  the  defendant's  express  directions  into  the  soil  of  the 
plaintiff's  close,  so  that  it  was  made  wider  than  ever  it  was  before. 
The  jury  found  for  the  defendant;  and  a  rule  nisi,  for  a  new  trial,  on 
the  ground  that  the  verdict  was  against  evidence,  was  discharged. 
Lawrence  J.  thus  stated  the  rule  about  ditching  :  "No  man  making  a 
ditch  can  cut  into  his  neighbour's  soil,  but  usually  he  cuts  it  to  the  very 
extremity  of  his  own  land.  He  is  of  course  bound  to  throw  the  soil 
which  he  digs  out  upon  his  own  land ;  and  often,  if  he  likes  it,  he  plants 
a  hedge  on  the  top  of  it.  Therefore,  if  he  afterwards  cuts  beyond  the 
edge  of  the  ditch,  which  is  the  extremity  of  his  land,  he  cuts  into  his 
neighbour's  land,  and  is  a  trespasser.  No  rule  about  four  feet  and  eight 
feet  has  anything  to  do  with  it.  He  may  cut  the  ditch  as  much  wider 
as  he  will,  if  he  enlarges  it  into  his  own  land"  (3  Taunt.  138). 

An  action  on  the  case  for  not  repairinf/ fences,  yfhevehj  another  party  is 
damaged,  can  only  be  maintained  against  the  occupier,  not  against  the 
owner  of  the  fee  not  in  possession,  unless  the  owner  was  bound  to  repair 
(Cheetham  v.  Ham])so?i).  And  2^cr  Lord  Kenyan  C. J. :  "It  is  so  noto- 
riously the  duty  of  the  actual  occupier  to  repair  the  fences,  and  so  little 
the  duty  of  the  landlord,  that  without  any  agreement  to  that  effect  the 
landlord  may  maintain  an  action  against  his  tenant  for  not  so  doing, 
upon  the  ground  of  the  injury  done  to  the  inheritance."  And  see 
Payne  v.  Rogers  (2  H.  Bl.  349). 

If  two  iiersons  are  iwssessed  of  adjoining  closes,  neither  leing  wider  any 


REPAIRING    PRIVATE    ROADS.  133 

ohUgatioii  to  fence,  eucli  must  take  care  that  his  cattle  do  not  enter  the 
land  of  the  other.  The  one  cannot  distrain  the  cattle  of  the  other 
damage  feasant  {Ghurcldll  v.  Evans).  And  ^^^r  curiam  in  the  case  of 
Tenant  v.  Golchvin  :  ''-  There  is  a  great  diversity  between  a  prescrii^tion 
to  put  a  charge  upon  a  man  to  repair  his  fence,  and  to  excuse  one  from 
trespass,  for  such  cliarge  must  be  bj  prescription.  Every  one  must  use 
his  own,  so  as  thereby  not  to  hurt  another ;  and  as  of  common  right  one 
is  bound  to  keep  his  cattle  from  trespassing  on  his  neighbour,  so  he  is 
bound  to  use  anythiug  that  is  his  so  as  not  to  hurt  another  by  such 
user.  Suppose  one  sells  a  piece  of  pasture,  lying  open  to  another  piece 
of  pasture  which  the  vendor  has,  the  vendee  is  bound  to  keep  his  cattle 
from  running  into  the  vendor's  piece  ;  so  of  dung,  or  anything  else." 

In  an  action  on  the  case  for  not  repairing  a  private  road  leading 
through  the  defendant's  close,  it  is  sufficient  for  the  plaintiff  to  allege 
that  the  defendant  as  occupier  of  the  close  is  bound  to  repair  {Rider  v. 
Smith).  But  if  the  defendant  prescribe  in  right  of  his  own  estate,  he 
must  show  the  estate  in  right  of  which  he  claims  the  privilege  {ih.). 
The  Court  of  King's  Bench  here  were  clearly  of  opinion  that  the  decla- 
ration sufficiently  charged  the  defendant  by  reason  of  his  possession. 
And  jjcr  Buller  J. :  "  The  distinction  Avas  between  cases  where  the 
plaintiff  lays  a  charge  upon  the  right  of  the  defendant,  and  where  the 
defendant  himself  prescribes  in  right  of  his  own  estate.  In  the  former 
case  the  plaintiff  is  presumed  to  be  ignorant  of  the  defendant's  estate, 
and  cannot  therefore  plead  it ;  but  in  the  latter  the  defendant,  knowing 
his  own  estate,  in  right  of  which  he  claims  a  privilege,  must  set  it  forth. 
In  Rex  V.  Buclnudt,  Lord  Holt  O.J.,  said  :  '  Where  a  man  is  obliged  to 
make  fences  against  another,  it  is  enough  to  say  omnes  occupatores  ought 
to  repair,  &c.,  because  that  lays  a  charge  upon  the  right  of  another, 
which  it  may  be  he  cannot  particularly  know.'  And  notwithstanding 
two  out  of  the  three  judges  were  of  a  different  opinion  in  Holhatch  v. 
Warner,  yet  several  subsequent  cases  have  been  determined  on  the 
distinction.  In  1  Yentr.  264  an  anonymous  action  on  the  case  against 
a  defendant  for  not  repairing  a  fence,  where  the  allegation  was  that  the 
tenants  and  occupiers  of  such  a  parcel  of  land  adjoining  the  plaintiff's 
have  time-out-of-mind  maintained  it,  &e.,  Holt  moved  in  arrest  of  judg- 
ment *  that  the  prescription  is  laid  in  occupiers,  and  not  shown  in  their 
estates;  and  that  hath  been  judged  naught  in  1  Cro.  155,  and  2  Cro. 
665.'  But  the  Court  said :  '  It  is  true  there  have  been  opinions  both 
ways,  but  'tis  good  thus  laid,  for  the  plaintiff  is  a  stranger  andpre- 
sumed  ignorant  of  the  estate ;  but  otherwise  it  is,  if  the  defendant  had 
prescribed.'" 

It  was  held  hy  Erle^.,  and  Crompton  J.,  in  Reg.  v.  Sir  John  Ramsdcn, 


13i.  REPAIR   OF   FENCES. 

principally  on  the  authovit}'  of  Ilex  v.  Flcclowic,  that  tlie  Uahirdy  to 
repair  a  hiylacay,  ratione  ckmsurm,  is  only  on  the  occupier  of  the  lands 
inclosed,  and  not  on  the  owner.  And  ^w  Erie  J.,  the  liability  does  not 
attach  -where  the  way  is  not  immemorial,  or  where  the  land  inclosed  has 
not  been  used  for  passage  before  the  iuclosure.  In  Rex  v.  Fkdcnow,  the 
parish  was  indicted,  and  pleaded  that  AYatson,  by  reason  of  the  tenure 
of  lands  inclosed  by  him,  ought  to  repair,  and  the  prosecutor  replied 
that  this  laud  was  inclosed  under  an  Inclosure  Act,  and  that  Watson 
was  allottee  of  an  allotment,  and  therefore  made  the  inclosure ;  and  it 
was  decided  that  as  Watson  had  a  lawful  right  to  inclose  he  incurred  no 
liability  to  repair  by  reason  of  doing  so.  And  semhU  there  is  no  general 
rule  of  law,  imposing  the  obligation  on  the  owner  or  occupier  of  lands 
alutiing  on  a  jmdlic  road,  to  keep  up  the  fences.  Fer  Kinder sley  Y.C. 
{Potter  V.  Parry). 

In  Boyle  v.  Tanilyji  the  whole  subject  of  the  ohliyation  to  fence  was 
much  considered.  Tlie  plaintiff  owned  The  Deans,  and  the  defendant  a 
close  adjoining  it,  called  Deadmoor,  which  was  separated  from  The 
Deans  by  a  fence  with  a  gate,  erected  on  the  defendant's  land.  They 
formerly  belonged  to  one  Coffin,  who  thirty  years  since  sold  The  Deans 
to  the  plaiutifi''s  father,  and  two  years  afterwards  Deadmoor  to  the 
defendant.  The  gate  in  the  fence  was  repaired  by  the  tenant  of  Dead- 
moor whilst  Coffin  owned  all  the  lands.  In  those  two  years  the  cattle 
of  Fry,  the  tenant  of  Deadmoor,  trespassed  upon  The  Deans,  and  the 
plaintiff's  father  gave  Fry  notice  that  unless  he  repaired  the  gate  he 
would  impound  his  cattle.  Fry  did  repair  it,  and  so  did  the  defendant 
on  a  similar  request  from  the  plaintiff's  father.  Littledale  J.  thought 
that  there  was  some  evidence  to  go  to  the  jury,  from  which  they  might 
l)resume  that  there  had  been  an  agreement  between  the  plaintiff's  father 
and  the  defendant  that  the  gate  should  be  kept  up  by  the  latter  for  the 
benefit  of  the  plaintiff,  telling  them  that  in  point  of  law  the  obligation 
to  repair  the  gate,  if  any,  could  only  be  created  by  special  agreement 
between  the  parties,  regard  being  had  to  the  fact  that  the  land  of  each 
party  had  originally  belonged  to  Coffin.  The  jury  found  that  the 
defendant  was  bound  by  agreement  to  repair  the  gate,  a  verdict  at 
which  the  learned  judge,  in  Banco  (who  had  pointed  their  attention  to 
the  fact,  that  in  no  instance  had  the  defendant  permitted  the  plaintiff  to 
do  any  act  upon  the  defendant's  land,  and  that  he  might  fairly  say  that 
he  repaired  the  gate  for  his  own  benefit,  to  prevent  his  own  cattle  from 
trespassing  on  the  plaintiff's  land),  expressed  his  surprise,  and  leave  for 
a  nonsuit  having  been  reserved,  a  new  trial  was  granted  without  costs. 

Baytcy  J.  remarked  that  "  a  man  is  under  no  ohliyation  to  Tceejj  v/p 
fences  let  ween  adjoininy  closes  of  vhicJt  he  is  owner;  and  even  where 


CUTTING   HEDGES.  135 

adjoining  lands,  which  have  once  belonged  to  different  persons,  one  of 
whom  was  bound  to  repair  the  fences  between  the  two,  afterwards 
become  the  property  of  the  same  person,  the  pre-existing  obligation  to 
repair  the  fences  is  destroyed  by  the  unity  of  ownership.  It  follows 
also  that  where  the  person  who  has  so  become  the  owner  of  the  entirety, 
afterwards  parts  with  one  of  the  two  closes,  the  oVliyation  to  repair  the 
fences  will  not  revive,  unless  express  words  are  introduced  into  the  deed 
of  conveyance  for  that  purpose."  "  As  the  deed  of  conveyance  irom 
Coffin  to  Boyle  was  not  produced  at  the  trial,  the  fair  inference  is  that 
Coffin  did  not  bind  himself  by  it  to  keep  up  the  fence  between  the  two 
closes.  I  agree  if  there  was  proof  of  any  such  stipulation  it  would 
support  the  allegation  that  the  defendant  '  by  reason  of  his  possession ' 
was  bound  to  repair,  for  then  the  gi*ant  would  be  evidence,  only  of  the 
liability.  Such  a  right  to  have  fences  repaired  by  the  owner  of  adjoin- 
ing lands,  is  in  the  nature  of  a  grant  of  a  distinct  easement,  affecting 
the  land  of  the  grantor.  The  authorities  referred  to  show  that  it  is 
usual  in  such  cases  to  allege  that  the  occupier  is  '  by  virtue  of  his 
possession'  bound  to  repair"  (6  B.  &  C.  329). 

Wilmot  O.J.  observed  (3  Wils,  Anon.  126) :  "  If  a  man  turn  his  cattle 
into  BlacJcacre,  where  he  has  no  right,  and  the?/  escape  and  stray  into  my 
field  for  want  offences,  he  cannot  excuse  himself  or  justify  ibr  his  cattle 
trespassing  in  my  field,"  See  Sir  F.  LeaMs  case,  and  Poole  v.  Longuc- 
ville  (2  Saun.  285  V).  In  Dovaston  v.  Payne,  on  a  plea  of  bar  in  avowry 
for  taking  cattle  damage  feasant,  viz.,  that  the  cattle  escaped  from  a 
public  highway  into  the  field  through  the  defect  of  the  fences,  it  was 
held  that  such  plea  should  show  that  the  cattle  were  passing  on  the 
highway  when  they  escaped.  And^^^r  Eyre  C.J. :  "  A  party  who  would 
take  advantage  of  fences  being  out  of  repair  as  an  excuse  for  his 
cattle  escaping  from  a  way  into  the  land  of  another,  must  show  that  he 
was  lawfully  using  the  easement  when  the  cattle  so  escaped."  Heath  J. 
added:  "The  law  is  that  if  cattle  of  one  man  escape  into  the  land  of 
another,  it  is  no  excuse  that  the  fences  were  out  of  repair,  if  they  were 
trespassers  in  the  place  from  whence  they  came.  If  it  be  a  close,  the 
owner  of  the  cattle  must  show  an  interest  or  a  right  to  put  them  there. 
If  it  be  a  way,  he  must  show  that  he  was  lawfully  using  the  way,  for  the 
property  is  in  the  owner  of  the  soil,  subject  to  an  easement  for  the 
benefit  of  the  public"  (2  Smith's  Lead.  Cases). 

One  tenant  in  common  may  sue  another  for  destroying  but  not  for 
clipping  a  hedge  {Voyce  v.  Voyce).  In  this  action  of  trespass,  the  defen- 
dants, who  were  tenants  in  common  with  the  plaintiff  of  the  hedge  and 
the  close  of  land  on  which  it  stood,  had  grubbed  it  up ;  and  Holroyd  J. 
ruled  that  a  tenancy  in  common  could  not  be  given  in  evidence  under 


136  PROPERTY    IN    HEDGE    CUTTINGS. 

the  plea  of  Uhcnon  tenemcntnm,  but  that  it  would  have  been  receivable 
iu  evidence  as  a  justilieation,  under  the  general  issue,  if  the  defendants 
had  merely  exercised  that  right  of  ownership  over  the  subject  matter  of 
the  tenancy  in  common,  -which  every  tenant  in  common  may  lawfully 
do,  such  as  clipping  the  hedge.  As,  however,  iu  (his  case,  the  hedge 
itself  had  been  destroyed,  the  act  of  destruction  rendered  it  impossible 
for  the  plaintiff  to  exercise  his  rights  as  co-tenant  in  common  with  the 
defendants,  and  therefore  it  could  not  be  justified.  The  plaintiffs  had 
the  verdict. 

Gazdec  J.  in  Berriman  v.  Pcacocl:  thus  stated  the  rule  with  regard  to 
hedge  ndiings :  "  The  tenant  has  a  general  property  in  the  cuttings  of  a 
hedge,  whoever  cuts  it.  If  by  his  permission  a  stranger  cuts  it  impro- 
perly, so  as  to  damage  the  fence,  that  may  give  the  landlord  a  ground  of 
action  on  the  case."  Here  the  defendant  Peacock  occupied  land  next  a 
field  let  by  the  plaintiff  to  one  AYardell  for  a  term  of  j^ears,  and  requested 
the  latter  to  lower  a  fence  between  the  two  properties.  Some  delay 
occurring,  the  defendant  lopped  the  fence  himself,  but  carried  the 
cuttings  to  Wardell,  the  plaintiff's  tenant,  who  said  at  the  trial,  that 
according  to  the  custom  of  the  country  he  believed  he  was  entitled  to 
them.  Defendant  cut  the  hedge  unskilfully,  but  the  tenant  said  it  was 
a  good  job,  and  the  fence  the  better  for  it.  The  action  was  for  trespass 
(k  hon  asj),  and  a  verdict  was  found  for  the  plaintiff,  with  nominal 
damages ;  but  the  Court  made  a  rule  absolute  to  enter  a  nonsuit,  and 
considered  that  as  the  tenant  adopted  the  acts  of  the  defendant,  no 
action  could  lie  by  him  against  Peacock.  Tindal  C.J.  thought  that  "  it 
would  be  over-refinement  to  say  that  because  a  small  ])ortion  more  of  a 
fence  has  been  cut  than  the  tenant  is  entitled  to  cut,  the  landlord  has  a 
right  to  claim  it.  Here,  indeed,  the  complaint  was  rather  as  to  the 
mode  than  the  amount  of  the  cutting ;  but  the  question  now  is,  whether 
the  property  in  the  cuttings  belonged  to  the  landlord.  Now,  according 
to  the  old  authorities,  the  general  property  in  trees  is  in  the  landlord, 
and  the  general  property  in  bushes  is  in  the  tenant ;  although  if  he 
exceeds  his  right,  as  by  grubbing  up  or  destroying  fences,  he  may  be 
liable  to  an  action  of  waste.  We  should  be  introducing  a  distinction 
never  drawn  befoi-e,  if  we  were  to  decide  that  when  a  tenant  cuts  rather 
more  than  he  ought,  the  property  in  bushes  so  cut  passes  to  the 
landlord"  (9  Bing.  384). 

With  respect  to  stealing  or  injurwg  trees  and  shrnhs  of  different  values, 
roots  and  vegetables,  as  well  as  fences  and  gates  and  stiles,  see  7  &  8 
Geo.  lY.  c.  29,  ss.  38-43,  and  7  &  8  Geo.  IV.  c.  30,  ss.  19-24.  It  was 
lield  in  lifg.  v.  WJi'deman,  that  section  19  of  the  latter  act  (The  Malicious 
Trespass  Act)  does  not  apply  to  consequent ial  injury,  but  means  injury 


MALTCIOUS   INJURY    TO    TREES,    ETC.  137 

to  the  tree  itself  ;  and  hence  where  prisoners  were  indicted  for  maliciously 
damaging  trees  cjroicing  in  a  licdgc,  to  an  amount  exceeding  £5,  and  it 
was  proved  they  had  injured  trees  to  the  amount  of  £1,  and  that  to 
repair  the  injury  it  was  necessary  to  stub  up  the  old  hedge,  and  further, 
that  putting  in  and  protecting  a  new  hedge  would  cost,  including  the 
£1  for  injury  to  the  ti-ees,  a  sum  exceeding  £5,  it  was  held  that  there 
was  no  evidence  of  injury  to  the  trees  to  the  amount  of  £5.  The  above 
section  makes  it  felony  unlawfully  and  maliciously  to  cut  up  and  destroy 
■  trees  growing  in  a  ijanlcn,  &c.,  if  the  injury  exceed  £1. 

Section  20  of  this  act  inflicts  a  fine  not  exceeding £5  beyond  the  injury 
done,  for  unlawfully  and  maliciously  cutting  up  and  destroying  ireets 
wherever  fjrou'lngi^  the  injury  amount  to  Is.,  upon  conviction  before  a 
justice  ;  section  21  inflicts  imprisonment  or  forfeiture  not  exceeding 
£20  beyond  the  injury  done,  for  unlawfully  and  maliciously  destroying 
or  damaging  with  intent  to  destroy  any  vegetahle  production  growing  in 
ang  garden,  &c.,  upon  like  conviction  :  section  22  inflicts  imprisonment 
for  a  shorter  term  or  forfeiture  (not  exceeding  20.s-.),  as  before,  fur 
unlawfully  and  maliciously  destroying,  damaging  with  intent  to  destroy, 
ang  cultivated  root,  plant,  dr.,  used  for  food,  medicine,  or  manufacture 
growing  in  tlie  land  not  being  a  garden,  upon  like  conviction  ;  and  section 
24  inflicts,  upon  conviction  before  a  magistrate,  a  forfeiture  of  such  sum 
not  exceeding  £5,  as  shall  appear  to  the  magistrate  a  reasonable  com- 
pensation for  wilfully  or  maliciously  committing  any  damage,  injury,  or 
spoil  to  or  upon  ang  real  or  personal  propertg,  public  or  private,  for 
which  no  remedg  or  punishme?it  is  in  the  act  before  provided.  And  senible, 
section  24  is  inapplicable  to  damage  to  growing  trees  ;  but  neither  under 
that  nor  any  other  section  is  a  committal  or  conviction  good  which 
states  the  offence  to  be  wilfully  and  maliciously  cutting  up  and  destroy- 
ing fruit  trees  in  a  garden,  or  wilfully  and  maliciously  committing 
damage,  injury,  and  spoil  to  real  property,  to  wit,  fruit  trees,  without 
a  finding  as  to  the  amount  of  damage  (Charter  v.  Graeme  and  Simpson). 

Tfw  occupier  of  land  is  bound  to  fence  off  ang  hole  on  it  which  adjoins 
or  is  close  to  a  public  way,  and  he  is  prima  facie  liable  for  any  accident 
which  may  happen  from  his  negligence  in  this  respect  {Barnes  v.  Ward). 
One  of  the  first  reported  cases  of  this  kind  was  that  of  Bhjthe  v.  Topham, 
where  it  was  held  that  if  A,,  seised  of  a  waste  adjacent  to  a  highway, 
digs  a  pit  in  the  waste  within  3G  feet  of  the  highway,  and  the  mare  of 
B.  escapes  into  the  waste  and  falls  into  the  pit,  and  dies  there,  yet  B. 
shall  nob  have  an  action  against  A.,  because  the  making  of  the  pit  in  the 
waste  and  not  in  the  highway  was  not  any  wrong  to  B.,  but  it  was  the 
default  of  B.  himself  that  his  mare  escaped  into  the  waste.  The 
existence  of  the  pit  in  the  waste  adjoining  the  road  was  clearly  not 


138  FENCING   OFF   CANALS. 

dangerous  to  the  persons  or  cattle  of  those  who  passed  along  the  road, 
if  ordinary  caution  "were  employed.  Syhratj  v.  ]Vhiie  differed  consider- 
ably in  its  facts.  The  plaintiff  was  possessed  of  a  close,  in  which  there 
was  an  unfcnccd  shaft,  leading  to  a  mine  which  had  been  covered  up 
for  many  years,  the  top  of  which  gave  way  under  his  mare,  who  fell 
down  and  it,  was  killed. ,  The  defendant  denied  that  the  shaft  was  his, 
but  agreed  to  pay  if  a  miner's  jury  of  five  should  find  that  it  was. 
This  finding,  coupled  with  his  declaration,  was  held  to  be  admissible  in 
evidence  against  him  in  an  action  for  compensation,  and  a  verdict  for 
£lh  being  returned  for  the  plaintiff,  the  Court  refused  a  new  trial,  and 
also  decided  that  as  the  finding  of  the  miner's  jury  did  not  on  the  face 
of  it  appear  to  be  an  award,  it  was  receivable  in  evidence  without  a 
stamp  (1  M.  &  W.  435). 

Ckoial  near  jMhJic  foot ivay. — Where  a  canal  had  been  made  in  land 
along  which  ran  an  ancient  footway,  and  between  the  canal  and  footway 
was  a  towing-path  nine  feet  wide,  and  a  strip  of  grass  several  feet  in 
breadth,  and  the  public  were  permitted  to  pass  over  the  whole  inter- 
vening space,  which  was  left  unguarded  and  unlighted,  it  was  held  by 
the  Court  6f  Queen's  Bench  that  the  canal  was  not  so  "  near  to  "  or 
"  adjoining"  the  footway  as  to  be  a  nuisance  or  to  impose  on  the  pro- 
prietors the  duty  to  fence,  light,  or  protect  it ;  and  that  if  a  person 
had  gone  astray  and  fallen  into  the  canal,  the  canal  company  were  not 
liable,  under  Lord  Campbell's  Act,  to  the  representative.  And  per 
Curiam:  "We  adopt  on  this  subject  the  law  as  laid  down  in  Hoiinsell 
V.  Smyih  (7  C.B.  N.S.  731),  that  to  throw  upon  the  owner  the  obliga- 
tion of  fencing  an  excavation  on  land  adjoining  a  public  road  or  way,  it 
ought  to  be  shown  that  the  excavation  is  '  so  near  thereto  as  to  be 
dangerous  to  persons  using  the  road  in  the  line  of  the  road.'  In 
Uardcadlc  v.  tiouih  Yorlcsltire  and  River  Dun  Cumjmny  (4  H.  &  N., 
07),  it  was  laid  down  that  the  excavation  must  be  so  adjohiing  the 
public  way  as  that  a  false  step  might  cause  a  person  using  the  way  to 
fall  into  the  excavation;  and  it  seems  but  reasonable  that  in  such  a  case 
the  owner  of  the  land  should  be  liable.  But.  where,  as  here,  the  excava- 
tion is  at  some  distance  from  the  public  way,  the  case  is  very  diflfereut 
(Binks  adx.  v.  Soulk  Yorlcshirc  and  River  Dun  Navigation  Gonqxuiij)." 

In  Rooth  V.  Wilson,  a  horse,  the  property  of  the  plaintiff's  brother, 
was  sent  over  to  the  plaintiff  one  evening,  who  kept  it  in  his  stable  for 
a  short  time,  and  turned  it  out  after  dark  into  the  close  where  his  cattle 
usually  grazed.  On  the  following  morning  it  was  foimd  dead  in  the 
dffendant's  close,  having  fjillen  from  the  one  to  the  other.  The  liability 
to  repair  was  admitted,  and  the  defence  was,  that  the  plaintiff  (wliose 
horse  it  was  stated  to  be  in  the  declaration)  had  not  such  a  property  in 


LIABILITY    TO    MAINTAIN    FENCES.  130 

it  as  to  'iiititle  him  to  maintain  tlic  action.  Tlic  jury  found  for  the 
plaintiff,  aud  the  Court  of  King's  Bench  refused  a  new  trial,  and  per 
Curiam :  "  The  plaintiff  although  receiving  the  horse  as  a  gratuitous 
bailee,  became  accountable  to  the  owner  for  any  damage  to  it,  if  he  did 
not  exercise  a  proper  degree  of  care,  Avliich  he  had  certainly  not  done 
here,  and  such  liability  was  sufficient  to  enable  him  to  maintain  the 
action.  Having  an  interest  in  the  integrity  and  safety  of  the  animal, 
he  might  sue  for  a  damage  done  to  that  interest,  and  the  same  posses- 
sion which  would  enable  him  to  maintain  trespass,  would  enable  him  to 
bring  case  against  the  defendant  for  the  defects  and  insufficiences  of 
the  fences.  He  was  entitled  to  the  benefit  of  the  field  not  only  for  the 
nse  of  his  own  cattle,  but  for  putting  in  the  cattle  of  others  ;  and  by  the 
negligence  of  the  defendant  in  rendering  the  field  unsafe,  he  is  deprived 
in  some  degree  of  the  means  of  exercising  his  right  of  using  that  field. 
Whether,  therefore,  the  damage  accrues  to  his  own  cattle,  or  those  of 
others,  he  may  maintain  the  action." 

Again  in  Powell  v.  Salisliury,  the  plaintiff  declared  against  the  defen- 
dant in  case  for  not  repairing  his  fences,  per  quod  the  plaintiff''s  horses 
escaped  into  the  defendant's  close,  and  were  there  killed  by  tlio  falling  of 
a  luuj-siaclc.  The  damage  was  held  not  to  be  too  remote,  and  the  action 
maintainable.  Holhatdt.  v.  Warner  was  principally  relied  upon,  whicli 
was  an  action  on  the  case  against  the  defendant,  for  neglecting  to  repair 
his  fences,  whereby  his  cattle  escaped  into  the  close  of  the  plaintiff,  and 
from  thence  into  the  close  of  W.,  who  sued  the  plaintiff'  and  recovered 
against  him  in  trespass ;  as  well  as  an  anonymous  case,  1  Vent.  2^1, 
which  was  an  action  on  the  case  for  not  repairing  fences,  jjer  quod  a 
mare  of  the  plaintiff's  went  through  a  gap,  and  fell  into  a  ditch  and 
was  drowned.  On  these  cases  Hulloclc  B.  thus  remarked  :  ^'  In  Holbakh 
V.  Warner  the  damage  was  equally  remote  as  in  this  case,  but  there  no 
objection  was  made  upon  this  ground.  In  that  cited  from  Ventris 
upon  motion  in  arrest  of  judgment,  the  declaration  was  held  to  be  good, 
but  no  objection  like  the  present  was  taken.  There  is  no  distinction 
for  the  purposes  of  the  action  between  the  falling  of  a  hay-stack  and  the 
drowning  of  the  cattle  in  a  ditch,  for  by  each  the  death  is  occasioned." 

Lialilitij  to  maintain  fences. — Lawrence  v.  Jenlcins,  8  L.R.  Q.B.  274. 
This  was  an  action  brought  in  the  County  Court  at  Newport,  in  Mon- 
mouthshire, to  recover  the  value  of  two  cows,  which  Avere  killed  by 
eating  the  cuttings  of  a  yew  tree.  The  defendant  occupied  a  close 
adjoining  a  close  occupied  by  plaintiff.  The  defendant  sold  some  trees 
to  one  Higgins,  who  so  negligently  felled  a  beech  tree  that  it  made  a 
considerable  gap  in  the  hedge  Avhich  divided  plaintiff's  close  from  defen- 
dant's.    Two  cows  of  the  plaintiff''s  went  through  the  gap  in  the  hedo-e, 


MO  RAILWAY   FENCES. 

ate  some  yew  cuttings  whieli  were  lying  in  defcudant's  close,  and  died 
in  consequence.  Tliere  Avas  evidence  to  show  that  defendant  and  his 
predecessors  had  repaired  the  fence  in  question  for  more  than  forty 
years,  and  that  for  the  last  nineteen  years  the  fence  had  been  repaired 
by  defendant  and  his  predecessors  upon  notice  by  the  occupier  for  the 
time  being  of  the  plaintiff's  close.  The  County  Court  judge  non-suited 
the  plaiutill",  but  the  Court  of  Queen's  Bench  held  that  the  evidence 
showed  a  prescriptive  obligation  on  the  part  of  the  defendant  to  main- 
tain the  fence  so  as  to  keep  in  the  cattle  in  the  plaintiff's  close  :  that 
the  obligation  was  absolute  to  keep  up  a  sufficient  fence  at  all  times,  the 
act  of  God  or  vis  major  only  excepted,  without  any  notice  of  want  of 
repair  ;  that  the  damage  was  not  too  remote,  and  that  the  defendant 
Avas  tlierofore  liable  for  the  loss  of  the  cows,  distinguishing  this  case 
from  Longmekl  v.  HolUdcuj,  20  L.J.  Ex.  430  ;  and  Buf/cr  v.  Hunter, 
ol  L.J.  Ex.  214.  In  the  case  of  Dawson  v.  The  MiiUaiid  Railwaij  Com- 
jianij,  8  L.R.  Ex.  8,  the  plaintiff  hired  of  the  occupier  of  land  adjoin- 
ing the  railway,  a  stable :  he  also  had  permission  from  the  occupier  to 
turn  his  horse  into  the  field  during  the  day-time  to  graze.  Through 
the  defect  of  the  defendant's  fence,  the  horse  got  on  to  the  railway  and 
was  killed  :  held  that  the  Company  were  liable  to  pay  i)laintiflF  the  value 
of  the  horse. 

In  the  case  of  Sncoslij  \,  Lancaslilre  and  Yorkshire  Railway  Company, 
the  plaintiff  sent  a  drove  of  twenty-nine  beasts  by  rail  for  Wakefield 
market ;  arriving  at  Wakefield  on  the  night  before,  they  were  driven  at 
about  eleven  at  night  along  an  occupation  road  to  a  field  where  they 
"were  to  remain  for  the  night  ;  the  road  crossed  some  sidings  of  defen- 
dants' railway  on  a  level,  and  while  the  cattle  were  crossing  the  sidings, 
the  defendants'  servants  negligently,  and  without  warning  to  the  per- 
sons in  charge  of  the  cattle,  let  some  trucks  run  violently  down  an 
incline  into  the  sidings  :  this  separated  tlie  cattle  into  two  divisions, 
and  so  frightened  them  tliat  they  escaped  from  the  control  of  the  drovers 
and  rushed  away.  The  drovers  succeeded  in  recovering  most  of  the 
cattle,  but  six  or  seven  of  them  were  not  discovered  till  between  three 
and  four  the  next  morning,  when  they  were  found  dead  upon  another 
jjart  of  defendants'  line.  Their  tracks  were  traced  from  the  sidings ; 
and  it  appeared  that  they  had  gone  along  the  occupation  road  for  about 
a  quarter  of  a  mile,  and  had  then  got  into  an  orchard  and  garden 
belonging  to  the  defendants,  the  fences  of  which  were  defective,  and 
thence  on  to  the  railway,  where  they  were  found  :  held  that  the  damage 
was  not  too  remote,  and  that  defendants  were  liable. 

In  Lee  v.  Riley,  34  L.J.  X.S.  C.P.  212,  the  plaintiff  and  defendant 
occupied  adjoining  farms,  and  an  occupation  road  extended  from  a  high- 


PLANTING   TUBES    ADJACENT    TO    HIGHWAY.  LiL 

way  through  defendant's  form,  of  whicli  it  formed  part,  into  the  plaintiff's 
farm,  where  it  formed  part  of  plaintiflf's  farm.  There  was  a  gate  across 
the  occupation  road  at  the  point  where  the  farms  adjoined,  and  it  was 
the  duty  of  defendant  to  keep  this  gate  in  repair.  Tliis,  however,  the 
defendant  had  neglected  to  do,  and  in  consequence  of  this  neglect,  a 
grey  mare  of  his  strayed  through  the  gateway  into  a  field  of  the  plain- 
tift^'s,  and  inflicted  such  injuries  upon  plaintiff's  horse  that  the  latter 
had  to  be  killed.  Held  that  the  defendant  was  liable  for  the  trespass 
by  his  horse,  and  that  it  was  not  necessary  for  the  maintenance  of  the 
action  that  the  defendant's  horse  was  vicious  and  that  defendant  was 
aware  of  the  fiict.  See  also  Ellis  v.  The  Loflus  Iron  Com})any,  10  L.E. 
C.P.  10,  where  the  above  case  is  cited. 

By  section  64  of  the  Highway  Act,  5  &  G  Will  IV.  c.  50,  no  tree, 
bush,  or  shrub  sMll  he  planted  in  any  carriage-icaij  or  cart-icai/,  or 
within  15  feet  from  the  centre  thereof,  under  a  penalty  of  10s.  if  it  be 
not  cut  down  by  the  owner  or  occupier  of  the  land  within  21  days  after 
receiving  notice  from  the  surveyor.  Sections  65  and  QQ  direct  the 
cutting,  pruning,  and  plashing  of  hedges,  and  the  pruning  and  lopping 
of  trees.  By  the  latter  section,  hedges  need  only  be  pruned  between  the 
last  day  of  September  and  the  last  day  of  March,  and  oak  trees  in  hedges 
are  only  obliged  to  be  felled  (except  when  the  highway  requires  widen- 
ing) in  April,  May,  or  June  ;  and  ash,  elm,  and  other  timber  trees,  in 
December,  January,  Februarj^,  or  March. 

By  3  Geo.  IV.  c.  126,  s.  113,  it  is  enacted  "  That  ditches,  &c.,  of  a  suffi- 
cient depth  shall  be  made,  &c.,  and  sufficient  trucks,  tunnels,  &c.,  shall 
be  made  where  carriage-ways  or  footways  lead  out  of  the  said  turnpike 
roads  into  the  lands  or  grounds  adjoining  thereto  by  the  occupiers  of 
such  lands  or  grounds  : "  held  that  the  words,  "  occupiers  of  the  lands 
adjoining "  apply  only  to  the  latter  part  of  the  section.  Merivale  v. 
Exeter  Road  Trustees,  3  L.E.  Q.B.  149. 

Section  72  of  5  &  G  T17//.  IV.  c.  50,  imposes  a  penalty  upon  any  one 
"  Who  shall  wilfully  ride  upon  any  footpath  or  causeway  by  the  side  of 
any  road,  &c. :"  in  the  case  of  Rer/.  v.  Pratt,  3  L.R.  Q.B.  G4,  it  was  held 
that  this  Act  was  intended  to  apply  only  to  footpaths  or  carriage-ways 
by  the  side  of  the  road,  and  not  to  footpaths  generally. 

The  case  of  Jenneij  and  Runnacles  v.  Brooh  turned  on  the  construc- 
tion of  sec.  65.  An  order  luas  there  served  on  an  oivner  to  cut  a  hedge, 
and  he  did  cut  some  part ;  but  the  surveyor  thought  the  order  not 
properly  complied  with,  summoned  him  before  two  justices,  and  had 
him  fined,  and  after  ten  days  cut  the  hedge  himself.  The  Court  of 
Queen's  Bench  held  the  order  to  be  bad,  for  not  specifying  more  par- 
ticularly in  what  manner  and  to  what  extent  the  hedge  was  to  be  cut. 


li.3  CUTTIXG    HEDGES    BY    SURVEYOPv. 

This  'was  a  substautial  defect,  and  not  one  of  form,  and  the  snrveyor 
was  held  liable  in  trespass  for  cutting  the  hedge,  though  (as  the  jury 
found)  he  had  not  cut  more  thau  the  order  required,  and  the  owner  had 
not  cut  so  much,  and  though  the  latter  had  acquiesced,  as  was  contended, 
in  the  goodness  of  the  order  by  partially  obeying  it.  The  surveyor  had 
no  power  to  act  except  in  the  owner's  default,  which  could  not  take  place 
without  a  valid  order.  Lord  Dcnman,  C.J.  said,  "  The  attention  of  the 
owner  ought  to  be  called  to  the  manner  in  which  he  is  required  to  do 
what  is  ordered.  It  is  not  enough  to  call  upon  him  to  cause  the  hedge 
to  be  cut,  pruned,  aud  plashed,  when  he  may  well  be  in  doubt  what 
those  words  mean,  nor  to  direct  him  to  remove  the  said  obstruction 
complained  of,  without  pointing  out  Avhat  the  obstruction  is,  nor  whether 
it  is  specifically  limited  to  the  exclusion  of  the  sun  and  wind."  On  the 
second  trial  the  verdict  was  for  the  plaintiff,  and  judgment  being  signed, 
a  writ  of  error  was  brought  in  the  Exchequer  Chamber,  which  awarded 
a  venire  cle  novo.  It  was  held,  inier  alia,  that  the  exclusion  of  the  sun 
and  wind  beiug  one  of  the  injuries  complained  of,  the  order  was  bad  in 
part  as  not  stating  the  extent  to  which  cutting,  &c.,  should  take  place 
with  reference  to  that  injury.  And  semlle  to  cut,  &c.,  so  as  to  prevent 
the  sun  and  wind  from  being  excluded,  would  have  been  sufficient 
without  any  more  precise  order  as  to  the  extent  of  cutting.  And  ^vr 
Curiam,  the  order,  though  informal,  is  good  in  part,  and  gave  authority 
to  the  defendants  to  cut,  pinine,  and  plash  the  hedges,  so  as  to  remove 
the  actual  obstruction  to  the  carriage-way,  occasioned  by  the  branches 
of  the  thorns,  bushes,  and  shrubs  forming  part  thereof,  but  no  further. 

On  the  new  trial  the  jury  had  to  inquire  whether  the  defendants  did 
more  than  this,  and  assess  the  damages  incurred  by  the  plaintiff  if  they 
did.  In  ex  parte  Whitemarsli  the  Court  refused  to  grant  a  rule  nisi  for 
a  mandamus,  to  compel  justices  to  issue  their  warrant  to  levy  the 
expenses  of  cutting  a  hedge,  pursuant  to  this  section,  unless  it  appears 
that  a  demand  has  been  made  of  the  expenses  from  the  person  sought  to 
be  charged,  and  that  the  justices  were  informed  of  that  demand. 

To  justify  a  surveyor  of  hiyhivays  {Evans  v.  Oaldey)  in  talcing  dmvn  a 
fence,  under  the  statute  5  &  6  ^Yilt.  IV.  c.  50,  s.  G9,  two  things  must 
concur — 1st,  the  fence  must  be  within  15  feet  of  the  centre  of  the  road  ; 
aud  2nd,  it  must  be  on  the  road.  Here  the  two  places  enclosed  never 
were  part  of  the  road,  as  no  carriage  ever  did  or  could  go  along  the  steep 
bank  at  the  pound  (where  the  road  was  22  feet  wide),  or  over  the  rough, 
uneven  ground  at  Nichol's  (where  the  road  was  only  9  feet  wide) ;  and 
MauU  J.  ruled  that  if  these  two  places  at  which  the  fences  were  put  up 
had  never  l)een  used  l)y  the  public  as  a  part  of  the  road,  the  surveyor 
had  no  right  to  pull  down  the  fences  because  they  were  within  15  feet 


TAKING    DOWN    HIGHWAY    FENCE.  ll:3 

of  the  centre  of  tlie  road.  Lowm,  v.  Kay  was  also  a  case  on  the  con- 
struction of  the  G3rd  section  of  the  Highway  Act,  13  Geo.  III.  c.  78, 
which  was  repealed  by  the  stat.  5  &  6  ^Yill.  IV.  c.  50.  The  language 
of  the  63rd  section  of  the  former  act,  is  that  if  any/^';?fe  (taking  that  as 
the  general  word)  shall  be  placed  on  any  highway,  the  surveyor  shall 
have  power  to  remove  it ;  and  the  question  at  the  trial  was  whether  the 
fence  was  on  the  plaintiff's  own  soil  or  on  the  highway,  and  the  jury 
found  that  it  was  on  the  former.  This  decided  that  where  the  road  is 
not  30  feet  wide,  the  surveyor  may  not  make  it  so  by  removing  tlie 
fences  on  each  side,  unless  the  fence  be  actually  upon  the  highway.  In 
an  action  by  a  reversioner  against  a  surveyor  of  highways,  for  cutting 
away  a  small  portion  of  the  soil  of  a  bank  or  fence  adjoining  the  public 
road,  under  the  supposed  authority  of  13  Geo.  III.  c.  78,  s.  lo,  it  was 
held  to  be  no  answer  that  the  fence  was  thereby  in  fact  improved  {Alston 
V.  Scales).  The  jury  had  to  say  whether  any  part  of  the  plaintiff's  fence, 
which  consisted  of  a  bank  surmounted  by  elder  buslies,  had  been  cut 
away.  Andjj^r  Curiam:  "The  fence  is  not,  as  has  been  contended,  to 
be  confined  to  the  mere  bushes,  but  embraces  also  the  substantial  part 
of  the  enclosure  upon  which  the  hedge  was  supported.  The  removal  of 
the  smallest  portion  of  the  soil  must  in  general  be  esteemed  an  injury 
to  the  land,  because  it  tends  to  alter  the  evidence  of  title." 

The  presumption  of  law  is,  that  ivaste  land  adjoining  the  road  be- 
longs to  the  owner  of  the  adjoining  enclosed  land,  whether  freehold, 
leasehold,  or  copyhold  [Doe  dem.  Pring  v.  Pearseg) ;  and  in  Grove  v. 
West,  Gibbs  C.J.  said,  "  Primd  facie  the  presumption  is  that  a  strip  of 
land  lying  between  a  highway  and  the  adjoining  close  belongs  to  the 
owner  of  the  close,  as  the  presumption  also  is  that  the  highway  itself 
ad  medium  filum  vice  does.  But  the  presumption  is  to  be  confined  to 
that  extent ;  for  if  the  narrow  strip  be  contiguous  to  or  communicate 
with  open  commons  or  larger  portions  of  land,  the  presumption  is 
either  done  away  or  considerably  narrowed,  for  the  evidence  of  owner- 
ship which  applies  to  the  larger  portions,  applies  also  to  the  narrow 
strip  which  communicates  with  them."  Holrogd  J.  remarked  on  tiiis 
point,  in  Doe  dem.  Pring  v.  Pearseg,  "  When  a  grant  of  land  near  to  a 
road  is  made  (even  when  it  is  enclosed  and  separated  from  the  land 
adjoining),  it  appears  to  me  that  the  ])rmd  facie  presumption  is  that 
the  land  on  that  side  of  the  fence  on  which  the  road  is,  passes  likewise 
with  it.  Generally  speaking,  where  an  enclosure  is  made,  the  party 
making  it  erects  his  bank  and  digs  his  ditch  on  his  own  ground,  or  on 
the  outside  of  the  bank.  The  land  which  constitutes  the  ditch  in  point 
of  law  is  a  part  of  the  close,  though  it  be  on  the  outside  of  the  bank. 
And  if  something  further  is  done  for  his  own  convenience,  wh.en  that 


Ml.  CATTLE   STRAYING   ON   HIGHWAY. 

which  constitutes  the  fence  is  dug  out  from  his  land,  as,  for  instance, 
if  ti  small  portion  of  nninclosed  land  near  a  public  or  private  way  is 
left  out  of  the  enclosure,  to  protect  and  secure  the  occupation  of  that 
part  of  the  land  which  is  inclosed,  that  in  point  of  law  is  a  part  of  the 
close  on  which  the  enclosure  is  made.  But  the  presumption  that 
waste  land  adjoining  a  road  belongs  to  the  owner  of  the  adjoining  in- 
closed land,  a])[tlics  only  to  cases  between  the  freeholder  or  copyholder, 
or  those  claiming  under  them,  and  the  lord  and  those  claiming  under 
him  ;  and  does  not  ap[)ly  to  cases  between  freeholder  and  freeholdei-, 
where  both  claim  under  the  same  title  {White  v.  Bill).  Where  the 
occupier  of  a  field  called  The  Hall  Close  took  down  the  old  fence  and 
added  to  the  field  a  strip  of  land  adjoining  a  public  road,  in  an  action 
for  a  trespass  committed  upon  the  strip  of  land  about  a  year  after  it 
had  been  so  taken  in,  the  declaration  described  the  locus  in  quo  as  The 
Hall  Close,  and  it  was  held  that  it  was  properly  described  {Brounilow 
V.  Thomlinson,  1  M.  &  Gr.  484). 

27  &  28  Vict.  c.  101,  s.  25,  repeals  the  74th  section  of  the 
Highway  Act,  5  &  6  Will.  IV.  c.  50,  and  renders  the  owner  liable  to  a 
penalty  if  cattle,  horses,  sheep,  or  swine  are  found  lying  about  a 
highway  "notwithstanding  they  are  under  the  control  of  a  keeper  at 
the  time,"  Lcmrcncc  v.  King,  3  L,  R.  Q.  B.  345  ;  and  an  owner  of 
cattle  is  liable  to  a  penalty  if  his  cattle  are  found  straying  on  the 
metalled  part  of  a  highway  notwithstanding  he' has  a  right  of  pasturage 
on  the  sides  of  it,  Goldinij  v.  Sloclcing,  4  L.  Pt.  Q.  B.  516  ;  and  Freestone 
V.  Casswell,  4  L.  R.  Q.  B.  519. 

The  question  of  raitwdij  fences  was  slightly  touched  upon  in  Sliurrod 
Y.  The  London  and  Xorth  Western  Raihvai/  Comjiany,  where  some  sheep 
got  on  the  railway  after  dark,  in  consequence  of  defect  of  fences,  and 
were  run  over  by  an  express  train.  It  was  lield  that  trespass  did  not 
lie  against  the  company,  and  that  if  the  cattle  had  a  right  to  be  on  the 
railway,  the  plaintiff's  remedy  was  l_)y  action  on  the  case,  for  causing 
the  engine  to  be  driven  in  such  a  way  as  to  injure  that  right  :  but  that 
if  the  cattle  were  altogether  wrong-doers,  there  was  no  neglect  or  mis- 
conduct for  which  the  company  were  responsible.  And  per  Pcirlce  B., 
"  If  the  sheep  had  any  excuse  for  being  there,  as  if  they  had  escaped 
through  defect  of  fences  which  the  company  should  have  kept  up,  they 
were  not  wrong-doers,  though  they  had  no  right  to  be  there  ,••  and 
their  damage  is  a  consequent  damage  from  the  wrong  of  the  defen- 
dants in  letting  their  fences  be  incomplete  or  out  of  repair,  and  may  be 
recovered  accordingly  in  an  action  on  the  case."  This  case  was 
followed  by  Fawcett  v.  Yorlc  cmd  Korth  Midland  Faihrai/  Comjuinij. 
The  plaintiff's*  horses  had  leaped  over  the  fence  of  a  field,  in  which 


CATTLE    STUAYING    ON    RATLWAVS.  143 

lliey  liad  been  placed,  into  a  second  field,  and  from  that  over  a  broken 
gate  into  a  third  field,  all  three  being  the  plaintiff's  fields,  and  had 
strayed  through  an  open  gate  of  the  third  field  into  a  highway  crossed 
by  the  railway  on  a  level.  The  railway-gate,  which  was  placed  as  a 
fence  across  the  highway  where  it  was  so  crossed  by  the  railway,  was 
also  open  ;  and  the  horses,  which  had  strayed  through  this  gate  on  to 
the  railway,  were  there  killed  by  one  of  the  company's  trains.  For 
the  defendants  it  was  contended  that  the  horses  were,  under  the 
circumstance,  trespassers  on  the  highway,  and  that  the  issue  taken  on 
the  principal  plea  (that  the  said  horses  were  not  lairfalhj  in  the  said 
highway  at  the  time  they  so  went,  strayed,  erred,  and  escaped  there- 
from, as  alleged,  &c.)  must  be  found  for  them.  Wighimaii  J.  directed 
that  as  against  the  defendants,  who  were  bound  to  keep  the  railway- 
gate  closed,  the  horses  were  lawfully  on  the  highway  ;  and  a  verdict 
was  found  for  the  plaintiflF.  Leave  was  given  to  move  to  enter  the 
verdict  for  the  defendants  in  case  the  Court  should  be  of  opinion  that 
the  horses  were  not  lawfully  on  the  highway  ;  but  a  rule  nisi  for  that 
purpose  was  discharged  by  the  Court  of  Queen's  Bench. 

Patteson  J.  thus  distinguished  this  case  from.  Sharrod  v.  London  and 
North  Western  Railway  Company :  "  There  the  sheep  got  on  the  line 
without  any  default  on  the  part  of  the  company.  Here  the  company 
did  not  keep  the  -gate  shut."  His  lordship  also  thus  distinguished  it 
from  Dovaston  v.  Payne :  "  The  cattle  there  were  trespassers  prima 
facie;  and  it  lay  on  the  plaintiff  in  replevin  to  excuse  their  presence 
in  the  avowant's  field,  and  show  that  they  were  not  liable  to  be 
distrained.  Besides,  a  person  whose  field  adjoins  the  highway  may 
leave  his  field  open  and  permit  cattle  to  pass  over  it  ;  he  cannot 
distrain  them  if  he  has  sufi'ered  them  to  come  there ;  but  he  commits 
no  breach  of  duty  by  leaving  the  field  open.  Here  there  is  an  obliga- 
tion cast  upon  the  company  by  statute  to  keep  the  gate  shut."  His 
lordship  added,  "  I  think  there  is  no  doubt  in  this  case.  .  The  original 
special  act  of  this  company  provided  that  the  company  should  keep 
the  gates  across  the  railway,  and  should  keep  them  constantly  closed. 
That  enactment,  in  common  with  others  of  the  same  kind,  is  altered 
by  stat.  5  &  6  Vict.  c.  55,  s.  9.  Now  it  is  to  be  observed  that  the 
words  here  used  are,  that  the  gates  sliall  be  such  as  to  '  prevent  cattle 
or  horses  passing  along  the  road  from  entering  upon  the  railway  while 
the  gates  are  closed;'  not  to  'prevent  cattle  lawfuUy  passing,'  &c. 
In  this  declaration  the  pleader  has  inserted  that  word  ^lawfully ;'  and 
there  is  an  express  issue  whether  the  horses  were  lawfully  on  the  road, 
across  which  there  was  a  gate  which  was  left  open.  It  is  contended 
that  though  there  was  a  highway  there,  the  horses  might  have  been 

h 


1  IG  OBLIGATION   OF   COMPANY   TO   FENCE. 

distrained  Ity  the  owner  of  the  soil  (I  may  remark  in  passing,  that  I 
never  heard  of  the  owner  of  soil  which  was  set  aside  as  a  highway 
distraining  cattle  for  trespassing  on  the  hard  snrface  fenced  off,  and  I 
do  not  believe  he  could  do  it),  or  at  least  that  nnder  stat.  5  &  C  117//. 
lY.  c.  50,  s.  74,  they  might  have  been  impounded  by  the  surveyors 
of  the  highway.  Assuming  this  to  be  so,  I  do  not  learn  that  the 
railway  company  are  in  any  way  made  conservators  of  the  highways. 
By  their  neglect  the  gate  was  open.  The  question  comes  to  be,  then, 
Were  the  horses  in  the  road  lawfully  as  against  this  company  ?  I  do 
not  think  it  was  necessary  to  insert  that  word  '  lawfully,'  for  the  act 
directs  that  the  gates  shall  be  constantly  kept  closed  ;  and  I  think 
that  imposes  an  obligation  to  keep  them  closed,  as  against  everything, 
whether  straying  or  passing  :  but  at  all  events  the  horses  were  in  the 
road  lawfully  as  against  the  company,  and  consequently  the  rule  mnst 
be  discharged." 

The  facts  in  liidrlis  v.  'flic  Binniiujhmn  Jiuiction  Railway  Company 
were  nearly  identical  with  those  in  Sharrod  v.  London  and  Norih 
Wesfeni  Railway  Con^mny.  It  was  there  decided  that  the  duty  im- 
posed upon  railway  companies  by  the  Eailway  Clauses  Consolidation 
Act,  1845,  8  &  9  Vict.  c.  20,  s.  G8,  as  to  the  making  and  repairing  of 
fences  between  their  railways  and  the  adjoining  lands,  is  not  more 
extensive  than  that  imposed  upon  ordinary  tenants  by  the  common  law. 
At  common  law  the  comj)any  icouU  only  he  hound  to  fence  ayainst  an 
adjoininy  owner,  and  the  question  which  the  judges  here  decided  in  the 
negative  was,  whether  that  obligation  was  extended  by  the  words  of 
the  Act.  Therefore,  where  50  of  the  plaintiff's  sheep  escaped  from  his 
close,  through  his  own  defect  of  fences,  and  getting  into  the  intervening 
close  of  a  third  party,  escaped  thence  on  to  the  defendants'  railway,  and 
were  killed  by  a  train,  the  company  were  not  liable.  There  was  a 
joinder  in  demurrer.  In  delivering  judgment  for  the  defendants, 
Jervis  C.J.  said,  "  The  admitted  facts  are  these,  that  the  company  were 
bound  to  make  and  maintain  fences  in  the  terms  of  the  statute ;  that 
the  plaintiff  was  the  owner  of  a  close  adjoining  a  close  belonging  to  the 
Great  Northern  Railway  Company,  Avhich  abutted  upon  the  defendants' 
railway  ;  the  fences  of  which  close  of  the  plaintiff,  he,  the  plaintiff,  was 
bound  to  repair  ;  and  that  by  defect  of  his  fences,  the  plaintiff's  sheep 
escaped  into  the  adjoining  close,  and  thence  passed  on  to  the  defendants' 
railway,  in  consequence  of  the  want  of  a  fence  between  it  and  the  close 
of  the  Great  Northern  Railway  Company,  and  were  killed.  There  is  no 
allegation  that  the  action  could  have  been  avoided,  or  that  the  company 
had  by  themselves,  or  their  servants,  been  guilty  of  any  negligence  in 
that  respect.     It  is  admitted  that  the  company  were  bound  to  repair  as 


LIABILITY    OF    RAILWAYS    AS    TO    LEVEL    CROSSINGS.      117 

against  the  owners  of  the  adjoining  lands,  but  it  is  insisted  that  the 
plaintiff  under  these  circumstances  is  not  entitled  to  recover. 

"The  rule  upon  the  subject  is  well  laid  down  in  the  notes  to  Pomfret 
V.  Ricroft :  '  The  general  rule  of  law  is,  that  I  am  bound  to  take  care 
that  my  beasts  do  not  trespass  on  the  land  of  my  neighbour  ;  and  he  is 
only  bound  to  take  care  that  his  cattle  do  not  wander  from  his  land, 
and  trespass  on  mine  (Tenant  v.  Gold/cin ;  Chinrhill  v.  Evans ;  Boyle  v. 
Tamlyn) ;  and  therefore  this  kind  of  action  will  only  lie  against  a  person 
who  can  be  shown  to  be  bound  by  prescription  or  special  obligation  to 
repai«  the  fences  in  question  for  the  benefit  of  the  owner  or  occupier  of 
the  adjoining  land.  And  no  man  can  be  bound  to  repair  for  the  benefit 
of  those  who  have  no  right.  Therefore  the  plaintiff  cannot  recover  for  the 
damage  occasioned  to  his  cattle  by  their  escape  from  the  adjoining  close, 
through  the  defect  of  the  defendants'  fences,  unless  the  plaintiff  had  an 
interest  in  that  close,  or  a  licence  from  the  owner  to  put  them  there.' 
Applying  that  rule  to  the  facts  of  the  present  case,  had  the  i3laiutiff 
any  right  to  have  his  sheep  on  the  land  adjoining  the  defendants' 
railway  ?  It  is  admitted  that  they  were  there  not  by  right,  nor  under 
any  licence  from  the  owners  of  the  close,  but  through  a  breach  of  duty 
on  the  part  of  the  plaintiff  himself.  It  is  clear  that  if  the  defendants 
are  only  liable  to  repair  so  as  to  protect  the  owners  of  the  adjoining 
lands,  the  plaintiff  cannot  maintain  this  action.  The  next  question  is,  in 
^vhat  respect  does  the  statute  vary  the  ordinary  common  law  liability  ? 
It  seems  to  me,  that,  so  far  from  varying  the  responsibility  of  the  defen- 
dants, the  statute  has  most  properly  taken  the  common-law  rule  as  the 
measure  of  their  liability.  The  G8th  section  enacts  that  the  company 
shall  make  and  maintain  '  sufficient  posts,  rails,  hedges,  ditches,  mounds, 
or  other  fences  for  separating  the  land  taken  for  the  use  of  the  railway 
from  tlie  adjoining  lands  not  taken,  and  protecting  such  land  from 
trespass,  or  the  cattle  of  the  owners  or  occupiers  thereof  from  straying 
thereout  by  reason  of  the  railway.'  It  seems  to  me  that  this  liability 
is  not  more  extensive  than  the  ordinary  common-law  one.  It  is  said 
that  in  adopting  this  view  we  shall  be  conflicting  with  the  decision  of 
the  Court  of  Queen's  Bench  in  Faivcdt  v.  Yovli  and  Norih  Midland 
Railvay  Comi)any.  That,  however,  is  not  so.  The  Court  there  held 
that  independently  of  the  common  law,  the  statute  5  &  6  Vid.  c.  55,  s.  9, 
imposed  upon  the  company  an  unqualified  and  unlimited  obhgation  to 
Iccp  the  gates  at  the  end  of  level-crossings  closed  against  all  persons  or 
cattle  upon  the  highway,  whether  lawfully  there  or  not,  and  that  they 
were  liable  to  an  action  for  an  injury  arising  from  a  breach  of  that  duty. 
In  the  third  place  it  was  insisted  that  even  if  there  was  no  common-law 
liability,  and  the  statute  imposed  on  the  defendants  no  additional  duty, 

L  2 


IJ^S      CATTLE   ESCAPING  ON  TO  llAILWAY  THROUGH   STATIONS. 

the  dangerous  nature  of  the  trade  carried  on  by  the  defendants  cast 
upon  them  an  obligation  to  adopt  more  than  ordinary  precautions." 

"  Bex  V.  Pease,  however,  is  a  distinct  authority  the  other  way.  The 
legislature  has  authorised  the  formation  of  the  railway,  and  has  done  all 
it  thought  necessary  to  protect  the  public  and  the  adjoining  land-owners, 
by  requiring  the  company  to  fence  off  the  land  adjoining  the  railway. 
For  these  reasons,  it  seems  to  me  the  defendants  are  entitled  to  the 
judgment  of  the  Court."  Williajns  J.  added,  "The  principle  of  the 
common  law  and  the  authorities  on  this  subject  are  placed  in  a  very 
clear  point  of  view  in  the  case  of  Bovasfon  v.  Payne.  Here  the  plaintiff's 
sheep,  it  is  conceded,  had  escaped  into  an  adjoining  close  through  the 
plaintiff's  own  default,  and  were  there  trespassing.  The  only  question, 
therefore,  is  whether  the  liability  thrown  upon  the  defendants  by  tlie 
statute  is  limited  to  the  common-law  obligation  to  fence  against  the 
adjoining  lands,  or  is  a  general  liability  to  fence  against  the  whole  world, 
so  as  to  bring  this  case  within  the  principle  of  Fawceit  v.  Yorlc  and 
Korili  Midland  Railway  Company.  I  am  of  opinion  that  the  act  of 
parliament  creates  no  such  general  duty,  but  only  a  duty  as  between 
the  company  and  the  owners  of  the  adjoining  lands  and  those  in  privity 
with  them,  and  that  a  stranger  as  this  plaintiff  is  cannot  found  an  action 
upon  an  alleged  breach  of  that  duty."  And  2)er  CressweU  J. :  "  The 
case  of  Pex  v.  Pease  is  a  strong  authority  to  show  that  the  legislature 
having  legalised  railways,  they  are  not  subject  to  any  liability  beyond 
the  ordinary  common-law  liability,  except  where  the  legislature  had 
thought  fit  to  impose  it.  It  seems  to  me  that  the  duty  or  obligation 
cast  upon  this  company  by  the  8  &  9  Vict.  c.  20,  s.  68,  for  the  protection 
of  the  o-miers  or  occupiers  of  the  adjoining  lands,  is  co-extensive  with, 
and  goes  no  further  than  the  prescriptive  liability  of  the  servient  tenant. 
That  being  so,  sheep  trespassing  upon  a  close  adjoining  the  railway  arc 
not  within  the  protection." 

This  case  was  followed  by  the  Manchester,  SlieffieJd,  and  Lincolnshire 
Pailivay  Com])any  (app.)  v.  Wallis  (resp.),  which  was  an  appeal  by  the 
Company,  the  defendants  below,  against  the  ruling  of  the  Leicester 
County  Court  judge  in  an  action  to  recover  damages  for  the  destruction 
of  two  horses  belonging  to  them,  which,  owing  to  the  alleged  neyliymce 
of  Die  comjKiny's  servants  in  leaving  02mn  a  gate  and  other  openings  leading 
on  to  their  railvay,  had  got  upon  the  line  and  been  killed  by  a  train  of 
the  defendants'  running  against  them.  £35  was  claimed  as  the  value 
of  the  horses,  and  £0  for  expenses  incurred  in  attending  on  them  after 
the  accident.  The  plaintiffs,  who  were  two  farmers,  residing  in  Torksey, 
Lincolnshire,  had  two  horses  in  a  close  of  their  occupation,  through 
which  two  public  highways  pass.     At  each  end  of  the  close  there  is  a 


FENCE    BETWEEN    RAILWAY    AND    HIGHWAY.  11-9 

gate  to  prevent  the  cattle  grazing  in  the  close  from  straying  out  of  the 
close,  and  these  gates  are  contiguous  with  and  form  part  of  the  plaintiiTs' 
fence.  It  is  S7q)jwsed  that  one  of  these  gates  was  left  open,  and  that 
the  horses  strayed  through  it  into  the  highway  leading  to  Torksey. 
About  100  yards  from  the  gate  of  the  close,  is  a  swing-gate  leading  into 
the  Torksey  station,  which  is  frequently  propped  open  during  the  day, 
but  closed  and  locked  at  night.  On  the  day  in  question  (January  l.jth, 
1853)  the  horses  strayed  into  the  station,  and  were  turned  out  aljout 
six  o'clock  in  the  evening.  Before  the  gate  was  closed  for  the  night 
they  got  in  again,  when  the  defendants'  servants  accidentally  locked 
them  in.  Their  footmarks  were  traced  through  the  gate  to  the  station- 
yard,  and  thence  through  an  opening  in  the  fence,  which  had  been  made 
by  the  defendants'  servant?,  by  taking  down  the  rails  for  the  purpose  of 
carrying  or  carting  something  from  or  to  the  railway,  and  which  sepa- 
rates the  station-yard  from  the  line  of  railway,  to  and  upon  the  railway, 
where  they  were  killed  by  a  goods  train.  It  seemed  that  the  gate  of 
the  close  had  most  probably  been  left  open  by  travellers  along  the 
highway,  and  evidence  was  given  that  the  gate  into  the  station-yard  was 
frequently  left  open,  and  cattle  had  been  seen  to  stray  through  it,  and 
that  the  defendants,  who  had  kept  it  shut  since  the  accident,  had  often 
been  warned  about  it.  It  was  contended  by  the  plaintiffs,  that  the 
defendants  were  liable  to  make  good  the  loss  of  the  horses  by  reason  of 
the  alleged  negligence  in  permitting  the  gate  of  the  station  to  remain 
open  and  the  defect  in  the  fence  dividing  the  station-yard  from  the  line. 
The  learned  judge  declined  to  nonsuit,  and  put  two  questions  to  the 
jury — first,  whether  they  were  of  opinion  that  there  had  l)een  negligence 
on  the  part  of  the  defendants,  and  that  the  injury  of  which  the  plaintifls 
complained  was  to  be  attributed  to  their  negligence  ;  and  secondly, 
whether  the  plaintiflFs  had  been  guilty  of  any  negligence  which  con- 
tributed in  any  way  to  the  accident.  The  jury  found  the  first  question 
in  the  affirmative,  and  the  second  in  the  negative,  and  gave  £35  damages. 
The  Court  of  Common  Pleas  allowed  the  appeal  with  costs:  and  Jcrvis  C.J. 
thus  delivered  the  judgment  of  the  Court:  "  After  the  finding  of  the 
jury,  we  must  assume  that  the  cattle  of  the  respondents  without  any 
fault  on  their  part  strayed  into  the  public  road  adjoining  the  railway, 
and  through  defect  of  the  appellants'  fences  got  upon  the  railway  and 
were  killed.  The  question  is,  whether  upon  these  facts  the  appellants 
are  liable  in  this  action  ?  We  are  of  opinion  they  are  not.  This  is 
not  the  case  of  a  railway  crossing  a  highway  upon  a  level,  with  a  gate 
on  either  side  of  the  railway,  but  of  a  highway  running  alongside  of  a 
railway.  The  only  enactment  which  is  applicable  to  such  a  case,  is  the 
G8th  section  of  the  Railway  Clauses  Consolidation  Act,  8  &  9  Vicf.  c.  20. 


150  OCCUPATION   EOAD    ACROSS   EATLWAY. 

It  provides  that  the  company  shall  make  and  at  all  times  thereafter 
maintain  the  following  works,  for  the  accommodation  of  the  owners  and 
occnpiers  of  land  adjoining  the  railway — that  is  to  say,  amongst  other 
things,  '  sufficient  posts,  rails,  hedges,  ditches,  momids,  or  other  fences, 
for  separating  the  land  taken  for  the  use  of  the  railway,  from  the 
adjoining  lands  not  taken,  and  protecting  such  lands  from  trespass,  or 
the  cattle  of  the  owners  or  occupiers  thereof  from  straying  thereout  by 
reason  of  tlie  railway,  together  with  all  necessary  gates  made  to  open 
towards  such  adjoining  lands,  and  not  towards  the  railway,  and  all 
necessary  stiles.'  Certainly  this  section  makes  a  very  insufficient  pro- 
vision for  the  protection  of  the  public,  where  a  railway  runs  alongside 
a  public  highway  ;  but,  nevertheless,  it  is  clear  that  it  was  intended  to 
apply  to  such  a  case  ;  for  if  not,  there  is  no  section  which  casts  the 
obligation  to  fence  upon  the  company  in  such  cases. 

"  The  highway,  therefore,  is  to  be  considered  adjoining  land  not  taken, 
and  the  same  construction  must  be  put  upon  the  same  words,  whether 
that  adjoining  land  be  a  public  highway  or  a  jirivate  close.  Wliat,  then, 
is  the  nature  of  the  obligation '  cast  upon  the  railway  company  by  this 
section?  They  are  bound  to  fence  so  as  to  keep  the  cattle  of  the  owners 
or  occupiers  of  the  adjoining  lands  not  taken  from  straying  thereout. 
In  Rk'Tcetts  v.  Birmingham  Junction  Raihoaij,  this  Court  has  already 
determined  that  the  obligation  of  the  railway  company  by  this  section 
is  the  same  as  it  would  have  been  at  common  law,  if  they  had  been 
bound  by  prescription  to  repair  the  fences ;  in  other  words,  that  they 
were  only  bound  to  keep  up  the  fences  against  the  cattle  of  the  owners 
or  occupiers  of  the  adjoining  land.  Were,  then,  the  cattle  of  the 
respondents  at  the  time  they  were  killed  the  cattle  of  the  owners  or 
occupiers  of  the  adjoining  land — the  highway  ?  AYe  think  they  were 
not,  and  the  case  of  Dovaston  v.  Payne  appears  to  us  to  decide  that 
question." 

And  scmlle  the  C8th  section  of  the  8  &  9  Vict  c.  20,  which  provides 
for  the  fencing  of  railways  from  the  adjoining  lands,  is  a  substitute  for 
the  10  th  section  of  the  5  &  6  Vkt.  c.  55. 

FaivccU  V.  The  YorJc  and  North  Midland  Railway  Company  was  relied 
on  by  the  plaintiff  in  Ellis  v.  London  and  South  Western  Railway  Gom- 
pany.  Here  the  plaintijf  had  fields  on  each  side  of  the  defendants' 
railway,  and  an  occupation-way  by  w^hich  his  cattle  were  driven  from 
the  fields  on  one  side  of  the  railway  to  those  on  the  other,  and  along 
which  there  was  an  ancient  public  footpath,  crossing  the  railway  on  a 
level.  The  defendants  erected  lofty  gates  on  each  side  of  the  railway, 
and  gave  each  person  who  had  a  right  to  use  the  occupation-way  a 
key  ;  but  there  was  no  means  of  the  puljlic  using  the  footpath,  and  in 


rOOTPATH   ALONGSIDE   RAILWAY.  151 

fact  the  defendants  were  not  aware  when  the  gates  were  erected  that 
there  was  any  highway.  The  plaintift^'s  key  was  lost,  and  his  men 
used  to  fasten  the  gate  by  thrusting  a  piece  of  wood  through  the  staple. 
There  was  some  evidence  that  a  boy  who  drove  the  pkiintitf's  cattle 
through  the  gates  in  the  evening  had  left  one  of  them  open ;  and  it 
was  also  suggested  that  it  might  have  been  left  open  by  some  careless 
person  using  the  footpath.  Two  of  his  colts  strayed  along  the  occu- 
pation road  through  the  open  gate,  and  were  killed  by  a  train.  Cress- 
well  J.  told  the  jury  that  the  defendants  were  perhaps  not  obliged  to 
substitute  a  key  for  that  which  the  plaintiff  had  lost,  but  there  was  no 
evidence  of  notice  of  the  loss,  or  of  any  request  to  be  supplied  with 
another  ;  and  he  asked  them  whether  they  thought  the  plaintiff  had 
been  guilty  of  negligence,  telling  them  if  his  negligence  had  contributed 
to  the  accident  they  ought  to  find  for  the  defendants,  who  had  a 
verdict.  A  rule  for  a  new  trial,  on  the  ground  that  the  question  of 
negligence  on  the  part  of  the  plaintiff  did  not  arise,  inasmuch  as  the 
defendants  were  guilty  of  a  breach  of  a  positive  duty  in  not  carrying 
the  railway  either  over  or  under  the  footpath,  or  providing  gates  or 
stiles  which  might  be  used  for  passengers,  and  also  that  there  was  a 
breach  of  positive  duty  in  not  keeping  the  gates  closed,  was  dis- 
charged. 

Pollock  C.B.  said :  "  It  was  a  question  for  the  jury,  whether  the 
(.plaintiff  by  his  own  neglect  had  contributed  to  the  accident.  A  foot 
passenger  must  seek  his  remedy  for  an  obstruction  of  this  kind  in  a 
court  of  law,  and  he  Ms  no  right  to  prostrate  the  fence,  a  proceeding 
which  might  be  productive  of  the  most  lamentable  consequences,  lead- 
ing not  only  to  the  destruction  of  any  cattle  which  may  stray  upon  the 
line  of  railway,  but  endangering  the  lives  of  passengers  travelling 
thereon,  as  the  bodies  of  such  animals  may  cause  a  train  to  run  off  the 
line.  Because  the  defendants  have  only  partially  done  that  which  they 
were  empowered  to  do,  it  is  not  therefore  illegal  quasi  ah  initio,  but 
they  may  be  compelled  to  complete  it  by  mandamus:'  And  ]^)er  Martin 
B.  :  "  Assuming  that  there  was  a  public  footway,  and  the  gates  were 
improperly  erected,  the  learned  judge  properly  left  the  question  to  the 
jury.  In  every  case  of  this  description  the  rights  and  obligations  of 
parties  towards  each  other  are  correlative.  Here  the  defendants  deli- 
vered a  key  of  the  gate  to  the  plaintiff,  which  he  accepted,  aud  took 
npon  himself  the  obligation  to  take  care  of  the  gate.  Before  any  obliga- 
tion could  arise  on  the  part  of  the  defendants  to  take  care  of  the  gates, 
there  ought  to  have  been  a  request  from  the  plaintiff  that  they  should 
do  so  ;  and  no  communication  whatever  appears  to  have  been  made 
with  reference  to  the  matter"  (26  L.  J.  Exch.  349). 


15a  COMPANIES   BOUND   TO    LEAVE   GATES   SHUT. 

lu  Fohcrh  V.  77ie  Greed  Western  BaiJwedj  Company  the  question  was 
whether  a  company  were  bound  to  fence  off  one  part  of  their  j^remises 
from  another.  The  declaration  stated  that  the  defendants  were  pos- 
sessed of  a  railway  and  station,  and  yard  adjoining,  through  which 
cattle  carried  by  the  railway  to  the  station  were  obliged  to  pass  in 
going  from  the  station  to  a  highway,  and  that  by  reason  of  the  premises 
the  defendants  were  bound  to  maintain  <70or?  and  sufftcient  fences  hetaren 
the  railwai/  and  the  yard,  so  as  to  prevent  cattle  lawfully  in  the  yard 
from  straying  on  the  railway,  with  a  breach  that  they  did  not  maintain 
such  fences,  whereby  the  plaintiff's  bull  was  killed,  was  held  by  the 
Court  of  Common  Pleas  to  be  insufficient,  as  there  was  no  such  liability 
to  fence  as  alleged.  And  })er  Croivder  J.  :  "  I  see  no  ground  at  all  for 
holding  the  defendants  liable,  for  there  has  been  no  argument,  nor 
reference  to  any  case,  to  show  that  there  was  any  legal  liability  to 
maintain  a  good  and  sufficient  fence  between  the  railway  and  the  yard. 
This  is  a  case  of  not  taking  proper  means  to  prevent  the  cattle  from 
straying,  and  if  there  were  such  a  duty  an  action  would  lie.  But  the 
declaration  rests  on  this,  that  the  defendants  were  bound  to  maintain 
fences,  and  they  clearly  were  not ;  and  as  the  loss  is  said  to  arise  from 
that  want  of  fences,  the  defendants  are  not  liable."  And  per  Willes  J. : 
"  It  is  c[uite  consistent  w'ith  the  declaration  that  the  animal  was 
allowed  to  remain  in  the  yard  till  it  suited  the  owner  to  take  it  on,  and 
that  it  was  not  in  the  charge  of  the  company  at  all.  It  may  be  a 
question  whether  in  respect  of  carrying  on  a  dangerous  trade  the  defen- 
dants would  be  liable,  but  I  say  nothing  as  to  that." 

Necjlect  of  i)laintiff  to  fasten  gate  oi)ening  on  to  railway. — Fawcett  y. 
York  and  North  Midland  Railway  ComjKiny  (16  Q.  B.  610),  was  cited 
in  Haifjh  v.  London  and  North  Western  Railway  ComjKiny,  where 
pony  strayed  on  to  line  and  was  killed.  The  evidence  was  that 
plaintiff's  practice  was  to  fasten  gates  by  a  catch  by  day,  and  a  lock  by 
night  only,  and  that  defendants  knew  it.  The  gate  might  have  been 
blown  open  by  the  wind.  The  Court  of  Queen's  Bench  thought  that 
the  plaintiff  had  the  means  of  making  the  gate  secure,  and  had  not 
used  them,  and  confirmed  the  defendants'  verdict. 

Company  hound  to  leave  gate  shift  where  tramway  adjoins  railivay. — 
In  Marfell  v.  South  Wales  Railway  Comjiani/,  the  defendants'  railway 
ran  for  some  distance  parallel  to  a  tramway,  being  separated  from  it  by 
a  fence,  also  their  property,  down  to  a  point  whore  the  tramway  crossed 
the  railway.  At  this  point  the  defendants  had  placed  gates  which  could 
be  shut,  so  as  to  separate  the  tramway  from  the  railway,  but  which  by 
plaintiff's  evidence  never  were  shut.  The  plaintiff  was  licensed  by 
defendants,  on  payment  of  a  certain  toll,  to  use  the  tramway  with 


SHEEP    KILLED    ON    ItAILWAY.  153 

trucks  and  horses,  one  of  which,  alarmed  at  an  approaching  train, 
swerved  from  the  tramway  through  one  of  the  open  gates  on  to  the 
railway,  and  was  killed  by  the  engine.  It  was  found  that  there  was  no 
negligence  on  plaintiff's  part,  but  on  defendants'  in  leaving  the  gate 
open  ;  and  it  was  held  iier  Williams  J.,  and  ByJes  J.  (Erie  J.C.  diss.), 
that  the  plaintiff  had  a  right  to  expect  ordinary  care  and  diligence  in 
keeping  the  gate  shut,  and  that  the  defendants  were  liable  for  the  value 
of  the  horse.  And  ^j^r  Curiam,  the  8  ti-  9  Vict.  c.  20,  s.  G8,  which  im- 
poses on  railway  com]^)anies  the  obligation  to  fence  as  against  ailjoining 
owners,  does  not  apply  to  cases  like  the  2>ypsent,  where  adjoininy  land 
lielonycd  to  com})any.  And  2^er  Bytes  J.,  "  Suppose  the  defendants  to 
be  owners  of  a  meadow,  in  which  there  is  a  deep  chalk  pit,  fenced  round 
by  them  to  prevent  cattle  falling  in,  but  with  a  gate  in  the  fence  to  be 
used  only  by  the  defendants  when  they  should  desire  to  remove  chalk 
from  the  pit.  Suppose  the  defendants  for  reward  to  take  in  cattle  to 
agist  in  that  meadow  the  same  question  arises.  Are  the  defendants 
under  any  obligation  to  exercise  any  degree  of  care  in  the  use  of  the 
gate  ?  It  is  clear  on  the  authorities,  that  they  are  in  the  supposed  case 
bound  to  exercise  care  in  the  use  of  the  gate,  and  are  responsible  if  they 
leave  the  gate  open." 

Sheep  killed  hy  a  train. — In  Besant  v.  The  London  and  South  Western 
*  Railway  Company,  the  plaintiff  was  a  farmer  having  land  adjoining  the 
defendant's  line,  and  feeding  his  sheep  on  turnips.  For  this  purpose 
he  put  them  into  a  fold  of  which  three  sides  were  formed  by  hurdles, 
whilst  a  quickset  hedge  and  a  small  ditch  belonging  to  the  railway 
made  the  fourth  side.  In  the  night  the  sheep  got  through  the  railway 
hedge  on  to  the  line,  and  25  of  them  were  killed.  Mr.  Baron  Martin, 
in  summing  up,  observed  that  by  the  Act  of  Parliament  a  duty  was 
cast  upon  the  railway  company  of  making,  keeping  and  maintaining  a 
proper  fence  between  the  line  and  the  adjoining  fields  for  the  words 
were,  "  That  the  company  shall  at  all  times  make  and  maintain  suffi- 
cient posts,  rails,  hedges,  ditches,  and  mounds,  or  other  fences,  for 
separating  the  land,  for  the  accommodation  of  the  owners  and  occupiers 
of  the  land  adjoinmg  the  railway,  and  to  prevent  the  cattle  of  the 
owners  from  straying  thereout.''  The  question  in  this  case  was 
whether  this  was  such  a  fence.  If  sheep  strayed  in  search  of  food, 
one  would  suppose  they  would  go  where  there  was  plenty  of  food,  and 
not  upon  a  barren  railway  line.  Was  there  any  proof  of  negliyence  in 
the  plaintiff  in  not  placiny  hurdles  to  protect  the  sheep  from  the  hedge, 
instead  of  iising  the  hedge  as  one  fence  of  the  fold  1  If  not,  the  other 
defences  failed,  and  the  company  would  be  responsible.  It  was  the 
duty  of  the  company,  and  not  of  the  plaintiff,  to  put  up  a  sufficient 


154  HORSES   GEAZING   ON   ROADSIDE. 

fence  for  the  purpose  of  preventing  the  sheep  from  straying.  Why  did 
the  sheep  stray  ?  "Was  it  not  from  the  fence  being  insufficient  ? 
The  jury  must  try  the  question  as  men  of  common  sense.  Probably 
the  sheep  were  alarmed  by  a  dog,  for  sheep  were  not  straying  animals. 
The  jury  found  a  verdict  for  the  plaintiff,  damages  £30,  in  addition  to 
the  £20  paid  into  court,  and  a  rule  for  a  new  trial  was  refused. 

In  Morn'.^  v.  Jeffries  (1  Q.  B.  261),  horses  grazing  on  a  road-sido 
under  the  charge  and  control  of  a  man  duly  authorized  arc  not  liable  to 
be  impounded  as  "  wandering,  straying,  or  lying,"  under  d  Geo.  IV.  c. 
95,  s.  75. 


CHAPTER    V. 

DANGEROUS    ANIMALS. 

Whoever  keeps  an  animal  accustomed  to  attack  and  bite  mankind 
with  knowledge  that  it  is  so  accustomed,  is  iirlmd  facie  liable  in  an 
action  on  the  case,  at  the  suit  of  any  person  attacked  and  injured  by 
the  animal,  without  any  averment  of  negligence  or  default  in  the  securing 
or  taking  care  of  it.  The  gist  of  the  action  is  the  Icccping  the  animal 
after  knowledge  of  its  mischievous  propensities  {Mag  v.  Burdctt).  But 
2Jcr  Curiam  :  "  It  may  be  that  if  the  injury  was  solely  occasioned  by 
the  wilfulness  of  the  plaintiflp,  after  warning,  that  may  be  a  ground  of 
defence,  by  plea  in  confession  and  avoidance  "  {ib.).  In  Leame  v.  Brag, 
Lord  EUenhorough  C.J.  says  :  "  If  I  pat  in  motion  a  dangerous  thing, 
as  if  I  let  loose  a  dangerous  animal,  and  leave  to  hazard  what  may 
happen,  and  mischief  ensue  to  any  person,  I  am  answerable  in  trespass." 
Lord  Eolt  C.J.  also  mentioned  it  as  Lord  Hale's  opinion,  that  if  throu"-h 
negligence  the  beast  go  abroad,  after  the  owner  has  had  notice  of  its 
mischievous  qualities,  and  kill  a  man,  it  is  manslaughter  in  the  owner 
{Rex  V.  Huggins,  2  Ld.  Eaym.  1583). 

The  argument  in  Jenkins  v.  Turner  turned  partly  on  what  were  the 
animals  which  might  be  the  subject  of  biting,  within  an  owner's  coo-ni- 
zance.  This  was  an  action  on  the  case  against  Turner  j;ro  eo  quod 
scienter  retenuit  a  certain  boar  ad  mordendum  et  iwrculicndum  animalia 
consuetum,  and  which  percussit  et  momordd  a  mare  of  the  plaintiff's,  of 
which  bite  she  died.  The  boar  had  bitten  a  child  before,  of  which  the 
defendant  had  notice.  It  was  contended  in  arrest  of  judgment,  that 
"  the  word  animalia  was  too  general  and  uncertain,  for  it  may  be  they 
were  such  animals  as,  though  the  boar  used  to  bite  them,  and  the 
defendant  knew  it,  yet  it  would  be  no  offence  in  the  defendant  to  keep 
the  boar  still ;  as  if  the  boar  bit  frogs  and  mice,  which  are  animals." 
Powell  J.  said,  "that  if  a  man  has  a  dog  which  bites  sheep,  and  the 
man  has  notice  of  it  and  keeps  the  dog,  and  afterwards  it  bites  a  mare, 
an  action  lies,  but  the  declaration  must  be  special."  His  lordship  also 
added,  what  certainly  admits  of  considerable  dispute,  viz.,  that  "  there 
may  be  a  difference  between  a  boar  and  a  dog  ;  for  it  is  the  nature  of  a 


156  FEROCIOUS   BOAR. 

dog  to  kill  animals  wliicli  arc  fcrcr.  nainrcv,  as  hares,  cats,  &c.;  but  it  is 
not  natural  to  a  boar  to  kill  anytliino-  ;  and  therefore  in  the  case  of  a 
dog-  there  might  have  been  a  question  whether  the  word  anhnalia  had 
been  good  in  the  declaration,  because  it  might  have  been  intended  of 
some  such  animals  as  they  naturally  bite  and  kill.  But  since  a  boar 
does  not  naturally  kill  any,  it  shall  be  intended  as  before  is  said." 
And  therefore  the  plaintiff  had  judgment,  as  after  verdict,  the  Court 
intended  that  anhnaUa  were  such  animals  as  could  support  the  action 
(1  Ld.  Raym.  110). 

Ferocious  do//. — To  sustain  an  action  against  a  person  for  negligently 
keeping  a  ferocious  dog,  it  is  not  necessary  to  show  that  the  dog  has 
bitten  another  person  before  it  bit  the  plaintiff :  it  is  sufficient  to  show 
that  the  dog  has  to  the  knowledge  of  the  o^^-ner  shown  a  savage  dispo- 
sition by  attempting  to  bite  (Worth  v.  GiUinff,  2  L.  R.  C.  P.  1). 

In  Fletcher  v.  Fiijlmuh,  1  L.  R.  Ex.  2G5,  it  was  held  that  one,  who, 
fca-  his  own  purposes,  brings  upon  his  land,  and  collects  and  keeps  there, 
anything  likely  to  do  mischief  if  it  escapes,  is,  prima  facie,  answerable 
for  all  the  damage  which  is  the  natural  consequence  of  its  escape.  Sec 
also  Smith  v.  FMclier,  7  L.  R.  Ex.  305. 

But  in  the  case  of  Smith  v.  Great  Eastern,  Railway  Comiiany,  2  L.  R. 
C.  P.  4,  where  a  passenger  was  bitten  by  a  stray  dog  at  defendants' 
station,  the  Court  decided  in  favour  of  the  defendants,  on  the  ground 
that  there  was  no  evidence  of  negligence  on  their  part. 

The  difficulty  in  Emery  v.  Peal^e  seemed  to  be,  whether  the  habits  of 
the  dogs  had  ever  reached  the  defendant's  ears.  This  was  a  Warwick 
Assize  action  against  a  clergyman  for  keeping  a  dog  accustomed  to  bite 
mankind.  His  two  Skye  terriers,  while  in  company  with  Mrs.  Peake, 
who  was  visiting  some  sick  poor,  flew  on  the  plaintiff,  and  bit  him  in 
the  leg  and  ancle,  lie  exclaimed,  "  Oh,  dear  !  I  am  lit !  "  and  the 
lady  expressed  her  sorrow.  The  leg  bled  very  much,  and  became  so 
bad  that  he  could  not  work,  in  consequence  of  the  deep  sore  and  wounds 
BO  occasioned,  and  he  required  medical  attendance  for  two  months. 
The  defendant  refused  to  see  him  when  he  called  at  the  vicarage, 
and  sent  him  half-a-crown.  It  was  proved  that  the  dogs  had  often 
before  attacked  and  bitten  people,  and  that  among  others  the  family 
butcher  and  his  son  had  been  bitten  at,  and  had  their  trowscrs  torn, 
though  their  boots  saved  their  legs.  Both  these  witnesses  had  com- 
plained to  the  servants.  Mr.  and  Mrs.  Peake  gave  the  dogs  a  good 
character:  the  former  had  heard  no  complaints  against  his  dogs, 
though  the  latter  had  heard  of  the  trowser-tearing.  Other  witnesses 
also  deposed  to  the  peaceable  dispositions  of  "Mustard"  and  "Pepper;" 
but  there  was  a  verdict  for  the  plaintiff,  damages  .-EGO. 


FEUOCIOUS   DOG.  157 

In  the  case  of  Gladman  v.  Jolinson,  30  L.  J.  (N.  S.)  C.  P.  153,  the 
plaintiff  was  bitten  by  the  defendant's  dog :  the  defendant  was  a  milk- 
man, and  was  assisted  in  his  business  by  his  wife.  To  establish  the 
scienter  a  witness  was  called,  who  stated  that  she  had  made  a 
formal  complaint  to  defendant's  wife,  for  the  purpose  of  its  being- 
communicated  to  the  husband,  of  the  dog;  haviug  bitten  her  nephew, 
held,  that  there  was  evidence  of  the  husband's  knowledge  of  the  dog's 
propensity  to  bite  ;  and  in  Baldwin  v.  CasMla,  7  L.  R.  Ex.  325,  that  if 
the  owner  of  a  dog  appoints  a  servant  to  keep  it,  the  servant's  know- 
ledge of  the  dog's  ferocity  is  the  knowledge  of  the  master.  See  also 
Ajjplehee  v.  Percy,  9  L.  R.  C.  P.  G47. 

The  Court  of  Queen's  Bench  decided  in  Hartley  v.  Harriman  that 
evidence  of  the  dogs  Veiny  accustomed  to  attacTc  men  did  not  support  a 
scienter  that  they  were  accustomed  to  attack  sheep.  Here  the  plaintiff 
had  sent  the  gardener  with  his  compliments  to  the  defendant,  to  sny 
that  he  feared  there  would  be  danger  if  his  dogs  often  crossed  the  field 
where  his  sheep,  which  were  of  a  peculiar  breed,  were  feeding.  The 
defendant  replied  that  he  kept  dogs  to  defend  his  house,  and  would  if 
he  pleased  keep  fifty  more.  When  the  gardener  took  the  message  he 
also  told  the  defendant  that  he  had  been  attacked  by  the  dogs  at  the 
plaintiff's  own  door.  There  was  other  evidence  that  the  dogs  had 
attacked  men,  and  that  a  voice  had  once  been  heard  on  the  defendant's 
premises  calling  them  off,  and  also  that  they  had  once  or  twice  run 
after  sheep ;  but  there  was  no  proof  that  they  had  ever  bitten  or 
harmed  any  sheep  before  this  event,  and  it  was  contended  that  there 
was  no  evidence  to  support  the  scienter.  Wood  B.  overruled  the  ob- 
jection on  the  ground  that  there  was  evidence  of  the  dogs  having 
attacked  different  men,  and  particularly  the  plaintiff's  gardener,  to  the 
knowledge  of  the  defendant.  The  jury  found  a  verdict  for  the  value 
of  the  sheep,  but  the  Court  made  the  rule  absolute  for  a  new  trial. 
Lord  Etlenlorouyh  said:  "  The  plaintiff  has,  I  fear,  tied  up  his  com- 
plaint by  the  allegation  of  the  particular  habits  of  those  dogs  (viz., 
that  '  they  were  used  and  accustomed  to  hunt,  chase,  bite,  worry,  and 
kill  sheep  and  lambs'),  and  of  the  defendant's  knowledge  of  those 
habits.  For  unless  it  be  inferred  that  a  dog  accustomed  to  attack  men 
is  ipso  facto  accustomed  also  to  attack  sheep,  there  is  no  evidence  to 
support  this  declaration."  But  semble,  that  an  averment  that  the  dogs 
were  of  a  ferocious  and  mischievous  disposition  would  be  sufficient  in 
an  action  brought  for  an  injury  to  plaintiff's  sheep,  without  alleging 
specifically  that  they  were  accustomed  to  bite  and  worry  sheep  (ib.). 

The  Court  of  Session  in  Scotland  held  in  Orr  v.  Fleminy,  by  three 
judges  to  one,  that  no  scienter  need  be  proved  to  make  the  master  of  a 


15S  SHEEP   WORRYIXG. 

dog  who  worries  sheep  liable.  The  defence  was  that  there  was  no  proof 
that  the  foxhound  iu  question  had  shown  any  previous  disposition  to 
attack  sheep,  and  the  Englisli  cases  were  relied  on.  And^w  Lord  Cod- 
hirn :  "  The  law  of  England  allo^YS  each  dog  to  have  one  worry  with 
impunity."  Geftring  x.  Jlorgan  was  a  later  case  of  English  sheep 
worrying.  Upon  the  trial  of  an  action  in  the  Monmouth  County  Court 
for  injuries,  which  were  stated  at  £37  4.s-.,  to  plaintiif's  sheep  hy 
defendant's  dogs,  it  was  proved  that  four  years  before  the  same  dogs 
had,  to  defendant's  knowledge,  bitten  a  child  eight  years  of  age,  who 
was  passing  through  del'endaut's  Ibid  in  the  daytime.  It  was  held  by 
the  Court  of  Queen's  Bench  that  upon  this  evidence  the  judge  was 
justified  in  giving  judgment  for  the  plaintiff,  and  the  judgment  was 
affirmed  with  costs  (5  W.  E.  53G  ;  E.  T.  1857,  Q.  B.).. 

Lord  Cam2)l}€ll  C.J.  said,  "■  I  am  of  opinion  that  our  judgment  should 
be  given  for  the  plaintiff,  even  according  to  the  law  of  England.  Accord- 
ing to  the  law  of  Scotland  there  is  no  occasion  to  show  the  previous 
habits  of  the  animal,  or  the  scienter;  and  when  an  injury  has  been  done 
to  an  innocent  person,  it  certainly  seems  more  reasonable  that  the  loss 
should  fall  upon  the  owner  of  the  animal  which  has  done  the  mischief, 
than  upon  the  person  injured  :  but  Y  confine  myself  now  to  the  law  of 
England,  which  requires  ihe  allegation  and pr oof  of  a  previous  lad  hahit 
hioini  to  the  master.  Now  in  the  County  Court  there  is  no  declaration; 
but  according  to  Hartley  \.  Harriman,  it  would  be  enough  to  allege  that 
the  dogs  were  of  a  ferocious  disposition  to  the  knowledge  of  the  owner. 
Assuming,  then,  the  declaration  to  have  been  in  that  form,  can  it  be 
said  that  there  was  in  this  case  no  evidence  in  support  of  that  allegation, 
when  it  is  found  that  four  years  before  the  dogs  had  bitten  a  child  eight 
years  old,  as  it  was  passing  through  the  fold  in  the  daytime  ?  In  ray 
opinion  that  was  enough  evidence  to  justify  the  judge  in  concluding 
that  the  dogs  were  of  a  ferocious  nature.  According  to  Smith  v.  Pelali, 
one  instance  of  previous  ferocity  is  sufficient,  and  though  I  would  not 
pronounce  judgment  of  svs.jm-  colt,  upon  the  dog  who  had  so  offended, 
I  think  he  should  ever  afterwards  be  cautiously  guarded,  and  that  if  he 
is  again  guilty  of  ferocious  violence,  his  master  must  be  answerable  for 
it."  And  2)er  Cronqdon  J.  :  "I  agree  that  the  question  is,  whether  there 
was  such  evidence  that  a  jury  could  airly  act  upon,  in  finding  for  the 
plaintiff ;  and  I  think  there  was.  In  ordinary  cases  one  previous  act  of 
ferocity  is  enough  to  put  the  owner  on  his  guard;  and  if  he  afterwards 
permits  his  dogs,  with  knowledge  of  their  vicious  disposition,  to  run 
about,  with  tickets  of  leave  as  it  were,  he  must  be  responsible  for  any 
further  damage  which  they  may  do." 

Smith  V.  Petah  (2  Str.  12G4)  was  also  remarked  upon  iu  Charlivood  v. 


FEROCIOUS    DOG.  159 

Greifj,  where  the  declaration  stated  that  the  defendant  wrongfully  and 
injuriously  kept  a  certain  dog  of  a  ferocious  and  mischievous  natiu-e,  and 
prone,  used,  and  accustomed  to  attack,  bite,  and  injure  mankind,  he 
well  knowing  that  the  dog  was  such.  To  this  the  defendant  pleaded  not 
(juiUy,  and  that  the  plaintiflF  annoyed  and  irritated  the  dog,  and  thereby 
caused  him  to  bite,  which  latter  plea  was  traversed  by  the  replication. 
The  plaintiff,  who  was  between  five  and  six  years  old,  and  the  child  of 
a  hairdi'csscr,  had  put  his  arms  round  the  neck  of  the  defendant's 
Danish  dog,  which  had  accompanied  the  servants  to  the  shop  on  an 
errand.  It  was  shown  that  the  dog  had  bitten  persons  twice  before,  but 
only  once  to  the  defendant's  knowledge.  The  latter  insisted,  in  an  inter- 
view with  the  plaintiff's  father,  that  it  was  the  child's  fault,  and  said, 
"  I  want  to  impress  upon  you  that  dogs  are  uncertain  things,  and  that 
children  should  be  kept  from  them."  To  this  the  plaintiff  replied  that, 
"  if  they  were  such  uncertain  things,  they  ought  to  be  muzzled ;  "  and 
Cresswell  J.  said,  "  I  am  inclined  to  agree  with  him  in  that  answer." 
The  plaintiff's  witnesses  had  seen  the  dog  run  about  Clapham  Common 
for  years,  but  had  never  seen  him  fly  at  any  one.  His  lordship  observed, 
in  summing  up,  "  The  question  is,  was  it  a  savage  dog  and  accustomed 
to  bite  mankind  ?  If  you  find  a  dog  from  time  to  time  biting  people 
under  circumstances  which  could  not  excite  a  dog  of  good  temper,  you 
will  say  whether  such  a  dog  is  a  savage  dog  or  not.  There  is  a  case 
{Smith  V.  Pelah)  which  decides  that  '  if  a  dog  has  once  bit  a  man,  and 
the  owner  having  notice  thereof  lets  him  go  about  or  lie  at  his  door,  an 
action  will  lie  against  him  by  a  person  who  is  bitten,  though  it  ha]3pened 
by  such  person  treading  on  the  dog's  toes;  for  it  was  owing  to  the 
defendant  not  hanging  the  dog  on  the  first  notice,  and  the  safety  of  tlie 
king's  subjects  ought  not  to  be  endangered,'  Our  criminal  code  has 
been  much  modified  since  that  time,  and  that  would  not  now  be  con- 
sidered as  a  proper  mode  of  proceeding.  In  the  present  case  th  master 
certainly  knew  of  one  instance  in  which  the  dog  had  bitten  a  person 
before,  and  you  will  say  whether,  after  that,  he  ought  not  to  have  taken 
more  care  with  respect  to  it.  It  is  not  necessary  that  the  dog  should  run 
about  and  show  a  disposition  to  snap  at  and  bite  everybody ;  a  man  of 
a  bad  temper  is  not  always  in  a  bad  temper.  You  will  say  first  whether 
the  dog  was  a  savage  dog,  and  if  so,  whether  the  defendant  knew  it." 
There  was  a  verdict  for  the  plaintiff  for  £25  (3  Car.  &  K.  4G). 

The  decision  of  the  Court  of  Exchequer  in  Hudson  v.  Roberts  turned 
upon  rather  a  fine  point  as  to  lohat  constituted  evidence  for  the  jury  of  a 
scienter.  The  plaintiff,  who  was  going  on  his  lawful  affairs,  and  wore  a 
red  handkerchief,  was  attacked  and  severely  injured  by  a  bull  which  was 
passing  with  cows  of  the  defendant's  along  the  highway.     After  the 


IGO  EVIDENCE   OF   SCIENTER. 

accident  occurred,  the  defendant  said  to  one  of  the  witnesses  that  he 
knew  a  bull  would  run  at  anything  red,  and  to  another  he  knew  Uw  bull 
would.  The  bull  had  often  run  at  people  in  red  garments,  but  it  was 
not  shown  that  the  defendant  knew  of  these  occurrences.  FuUock  C.B. 
considered  that  if  there  was  any  evidence  of  a  scienter  the  case  could  not 
be  withdrawn  irom  the  jury,  who  found  a  verdict  of  £20  for  the  plaintiff. 
The  Court  discharged  a  rule  to  enter  a  nonsuit,  and  thought  the  verdict 
a  temperate  one.  Parke  B.,  in  delivering  judgment,  said,  "As  the  cir- 
cumstance of  persons  carrying  red  handkerchiefs  is  not  uncommon,  and 
it  is  reasonable  to  expect  that  in  every  public  street  persons  so  dressed 
may  not  unfrequently  be  met  with,  we  think  it  was  the  duty  of  tlie  de- 
fendant not  to  suffer  such  an  animal  to  be  driven  in  the  public  streets, 
possessing,  as  he  did,  the  knowledge  that,  if  it  met  a  person  -^ith  a  red 
gaiTOent,  it  was  likely  to  run  at  and  injure  him.  If  there  be  any  evidence 
of  a  scienter  it  could  not  be  withdrawn  from  the  jury"  (20  L.  J.  Ex.  G97). 

The  point  in  Judge  v.  Cox  was  whether  a  caution  from  the  defemlant  to 
the  person  bitten  was  sufficient  proof  that  the  dog  had  bitten  some  one 
before  to  the  defendant's  knowledge.  The  dog  which,  as  the  declaration 
alleged,  the  defendant,  Mrs.  Cox,  "  knew  to  be  accustomed  to  bite  man- 
kind," was  on  the  premises  when  she  took  a  ready-furnished  house  at 
Harrow,  and  one  of  the  witnesses  stated  that  slie  had  warned  him  to 
take  care  lest  he  should  be  bitten.  It  wrenched  the  staple  from  the 
tree  to  which  it  was  tied,  and  bit  the  plaintiff  and  a  child  subsequently  ; 
but  there  was  no  evidence  of  anterior  biting.  Allot  J.  intimated  that 
but  for  the  warning  given  by  the  defendant  he  would  have  nonsuited 
the  plaintiff,  and  added,  "  That  in  order  to  warrant  a  verdict  for  the 
plaintiir  on  such  a  declaration,  they  must  be  satisfied  both  that  the  dog 
had  before  bitten  some  person,  and  that  the  defendant  knew  it."  He 
thought  sufficient  caution  had  not  been  used  to  secure  the  dog,  and  the 
jury  ibund  a  verdict  for  the  plaintiff  with  £55  damages.  Referring  to 
this  case  in  Hartley  v.  Harriman,  his  lordship  said,  "  I  left  it  to  the 
jury  in  that  case,  to  say  whether  the  expression  proved  to  have  been 
used  by  Mrs.  Cox,  cautioning  a  person  not  to  go  near  the  dog  lest  he 
should  be  bitten,  was  not  evidence  from  which  they  might  infer  that  to 
her  knowledge  the  dog  had  previously  bitten  some  person"  (1  Stark.  285). 

Lord  Kenijon  C.J.  admitted,  in  Jones  v.  Perry  (2  Esp.  482),  evidence 
of  a  report  that  the  doy  had  leen  litten  ly  a  mad  doy  previously,  to  sup- 
port the  second  count  of  the  declaration,  whicli  charged  the  defendant 
with  knowingly  keeping  a  fierce  and  savage  dog  without  being  properly 
secured.  The  dog  had  been  tied  up  in  a  cellar  by  a  rope  of  such  length 
that  he  reached  the  kerb-stone  on  the  opposite  side  of  the  street,  and 
tore  the  plaintiff's  child,  who  was  carried  to  the  salt  water,  but  died  of 


SHOOTING   DOG   WHEN   JUSTIFIABLE.  161 

liydropliobia  on  its  return.  His  lordship  thought  it  was  not  a  case  for 
vindictive  damajrcs.  "  Report  having  said  the  dog  had  been  bitten  by 
a  mad  dog,  it  became  the  duty  of  the  defendant  to  be  very  circumspect. 
Whether  the  dog  was  mad  or  not  was  a  matter  of  suspicion ;  but  it  is 
not  sufficient  to  say,  '  I  did  use  a  certain  precaution.'  He  ought  to  use 
such  as  would,  put  it  out  of  the  animal's  poM'er  to  do  hurt.  Here,  too, 
the  defendant  showed  a  knowledge  that  the  animal  was  fierce,  unruly 
and  not  safe  to  be  permitted  to  go  abroad,  by  the  precaution  he  used  to 
tie  him  up.  That  precaution  has  not  been  sufficient ;  for  a  want  of  it 
the  injury  complained  of  has  happened.  I  am  clearly  of  opinion  that 
the  plaintiff  should  recover."  Damages  £30.  His  lordship  also  ruled 
in  McKone  v.  Wood,  an  action  against  a  party  for  keeping  a  dog  also 
accustomed  to  bite  mankind,  that  it  is  not  essential  that  the  dog  should 
be  his,  if  he  liarhours  or  allows  it  to  resort  to  his  2)remiscs.  Here  the  dog 
had  bitten  tw^o  persons  before  the  plaintiff ;  and  when  a  complaint  had 
been  made,  the  defendant  said  that  the  dog  (which  was  seen  about  the 
premises  both  before  and  after  the  time  when  the  plaintiff"  was  bitten) 
belonged  to  a  person  who  had  been  his  servant  and  left  him. 

In  Ckirk  v.  Webster  and  Salt,  Park  J.  ruled  that  the  first  special  plea, 
viz.,  that  the  dog  was  accustomed  to  attack  and  bite  mankind,  and  that 
the  defendant  and  his  gamekeeper  shot  him  when  he  left  his  owner's 
waggon,  and  ran  into  a  field  where  they  were  shooting,  in  order  to  save 
themselves,  was  not  supported  by  evidence,  which  only  went  to  show 
that  the  dog  had  once  been  muzzled,  had  growled  at  people  as  they 
passed  along  the  road,  and  pushed  down  a  man  who  was  carrying  a 
pack.  The  plaintiff"  had  a  verdict  for  £5,  though  his  lordship  animad- 
verted severely  on  the  fact  of  his  calling  seven  witnesses  to  meet  the 
first  special  plea,  by  giving  evidence  as  to  the  dog's  quiet  habits.  The 
second  special  plea  was  to  the  effect  that  the  defendant  and  his  game- 
keeper shot  it  because  it  attacked  their  dogs,  and  to  save  the  lives  of 
the  latter,  but  nothing  turned  upon  that. 

Lord  Denman  C.J.  ruled  that  to  justify  shooting  another  person's 
dog  it  is  not  sufficient  to  show  that  it  was  of  a  ferocious  disposition  and 
was  at  large,  but  it  must  he  actuathj  attaclcimj  the  party  at  the  time ;  and 
that  therefore  Avhere  the  plaintiff's  dog  ran  at  and  bit  the  defendant's 
gaiter  as  he  was  passing  the  house,  and  then  ran  away,  and  the  defen- 
dant shot  him  at  the  distance  of  five  yards,  he  was  not  justified  in  doing 
so  (J/oms  V.  Nugent).  It  was  also  ruled  by  Lord  Ellenloroiajli  C.J. 
that  if  defendant  justify  shooting  a  dog  because  it  was  worrying  his 
fowl,  he  must  prove  that  ivhen  he  fired  the  dog  ivas  in  the  very  ad,  and 
could  not  be  prevented  from  effecting  his  purpose  by  any  other  means 
{Janson  v.  Broini).    And  so  where  it  was  proved  that  the  owner  of 


162  FEROCIOUS   BULL. 

sheep  shot  a  dog  which  had  been  worrying  them,  after  it  had  run  two 
JieMsfrom  the  spot,  Alderson  B.  held,  in  an  action  by  the  owner  of  the 
dog,  that  the  defendant  was  not  justified  in  shooting  it,  as  it  was  not 
shot  in  protection  of  his  property,  though  the  habits  of  the  dog  might 
be  considered  in  mitigation  of  damages  {Wells  v.  Head). 

In  Broclc  \.  Coj^eland,  where  the  decLaration  also  stated  that  the  de- 
fendant knowingly  kept  a  dog  used  to  bite,  Lord  Kenjjon  C.J.  decided 
that  under  the  circumstances  the  action  would  not  lie,  and  nonsuited 
the  plaintiff.  The  defendant's  foreman  (who  was  the  plaintiff)  had 
gone  into  the  wood-yard  after  it  was  shut  at  night ;  and  the  dog,  which 
was  very  quiet  and  gentle,  and  tied  up  all  day,  was  let  out  to  guard  the 
premises,  and  had  bitten  him.  His  lordship  considered  that  the  dog 
had  been  properly  let  loose,  and  the  injury  had  arisen  from  the  plain- 
tiff's own  fault  in  incautiously  going  into  the  defendant's  yard  after  it 
had  been  shut  up.  In  a  previous  action  (cited  1  Esp.  203)  for  keeping 
a  mischievous  bull  that  had  hurt  the  plaintiff  as  he  was  crossing  a  field 
of  the  defendant's  in  which  it  was  kept,  the  defendant's  counsel  con- 
tended that  the  plaintiff  having  gone  there  of  his  own  head,  and  having 
received  the  injury  from  his  own  fault,  an  action  could  not  lie.  As, 
however,  it  also  appeared  in  evidence  that  there  was  a  contest  concerning 
a  right  of  way  over  this  field,  wherein  the  bull  was  kept,  and  that  the. 
defendant  had  permitted  several  persons  to  go  over  it  as  an  open  way, 
his  lordship  ruled,  and  the  Court  of  King's  Bench  concurred  in  opinion 
Avith  him,  that  the  plaintiff  having  gone  into  the  field,  supposing  that 
lie  had  a  right  to  go  there,  and  the  defendant  liav in g permitted iier sons  to 
go  there  as  over  a  legal  icag,  the  defendant  should  not  then  be  allowed 
to  set  up  in  his  defence  the  right  of  keeping  such  an  animal  there,  as  in 
his  own  close,  but  that  the  action  was  maintainable. 

Blachnan  v.  Simmons  (3  C-  &  P.  138)  was  a  case  of  much  more  modern 
date,  and  of  tlie  character  of  the  one  alluded  to  by  his  lordship.  The 
bull  Avas  kept  on  some  marsh  land  near  Tottenham,  where  the  inha- 
bitants at  a  certain  season  of  the  year  had  a  right  of  common  for  cattle. 
The  plaintiff,  who  was  a  cowkeeper,  and  had  cattle  on  the  marsh,  was 
driving  one  of  his  cows  to  the  bull  at  a  neighbouring  farm.  There  was 
only  a  shallow  ditch  between  the  field  and  the  marsh,  which  the 
defendant's  bull  crossed  and  went  to  the  cow.  He  was  struck  on  the 
head  l^y  the  plaintiff,  whose  stick  broke  short,  and  the  bull  then  threw 
him  down,  and  broke  two  of  his  ribs.  The  defendant  had  had  notice 
of  his  having  run  at  a  man  previously,  and  at  the  time  of  the  accident 
a  strap  and  chain  were  fastened  round  the  bull's  neck,  but  so  loosely  as 
not  to  prevent  liis  running.  It  was  proved  that  \\hen  the  defendant 
bought  the  bull  he  was  told  that  it  was  very  mischievous,  to  which  he 


OBLIGATION   AS   TO    VICIOUS   ANIMALS.  163 

replied  it  would  suit  liim  all  the  better,  as  he  was  troubled  by  people 
fishing  in  his  meadow.  In  reply  to  an  observation  that  he  would  not 
surely  turn  the  bull  into  the  meadow  without  giving  notice  to  the 
l^ublic,  he  replied,  '^  Let  kim  give  notice  himself." 

Best  C.J.  remarked  in  strong  terms  on  the  "  gross  and  wicked  con- 
duct," of  the  defendant,  and  said  that  if  the  plaintiff  had  died  it  would 
have  been  "  an  aggravated  species  of  manslaughter."  It  was  contended 
for  the  defendant,  that  the  plaintiff  had  acted  imprudently  in  attacking 
the  bull,  whereas,  he  ought  to  have  permitted  him  to  go  near  the  cow, 
and  that  hence  the  plaintiff  was  not  injured  by  the  vice  of  the  bull  as 
charged  in  the  declaration.  Of  such  vice  it  was  also  urged,  that  the 
sight  of  the  strap  and  chain  was  sufficient  notice  to  the  public.  His 
lordship  advised  the  jury  to  give  considerable  damages,  and  they 
assessed  them  at  £105.  Hence  the  owner  of  a  vicious  animat,  after 
notice  that  he  has  done  an  injury,  is  lyouml  to  secure  Myn  at  all  events,  and 
is  liable  in  damages  to  a  party  subsequently  injured  if  the  mode  he  has 
adopted  to  secure  it  proves  insufficient.  As  to  prospective  damages  see 
Hodsoll  V.  Stallehrass.  There  Littledale  J.  said :  "  You  may  show  an 
injury  of  a  permanent  nature  beyond  the  time  at  which  the  action  is 
brought ;  as  in  the  case  of  a  policy  of  insurance  and  other  like  instances. 
Then,  can  prospective  damages  be  given  ?  It  appears  to  me  that  they 
may;  for  this  arises  from  one  injury:  if  they  arose  from  various  injuries 
that  would  be  different.  The  case  of  Malachg  y.  Soper  (3  N.  C.  371) 
has  been  referred  to,  but  that  is  not  an  authority  to  bind  the  present 
case.  It  is  from  the  consequence  of  one  unlawful  act.  You  cannot 
have  a  fresh  action  unless  there  is  a  fresh  unlawful  act  done,  and  fresh 
damages  also  sustained  as  resulting  from  that  act." 

The  right  of  any  one  to  recover,  who  is  injured  hy  an  animal  on 
ground  ivhcre  he  is  entitled  to  he  going  ahout  his  lawful  husiness,  was 
upheld  by  Tindal  C.J.  in  Sarch  v.  BlacMurn.  The  plaintiff  was  a 
Avatchman ;  and  the  dog  wliich  bit  him  was  tied  to  his  kennel  by  a  four- 
yard  chain  near  a  piggery  and  chicken-house  and  a  cowshed,  and  just 
under  a  board  which  said  in  three-inch  letters — "  Beware  of  the 
Dog."  There  were  three  entrances  to  the  house  and  premises,  one  of 
them,  more  public  than  the  rest,  having  a  spring  gate ;  another,  called 
the  middle  entrance,  across  a  field ;  and  a  third,  where  the  dog  was,  an 
entrance  across  the  cow-yard,  and  through  a  private  gate  and  another 
yard  to  the  house.  One  of  the  plain tiff"s  witnesses  said  that  he  had 
been  bitten  three  years  before,  as  he  was  passing  through  a  private  way 
to  the  premises,  and  that  the  defendant  had  rubbed  his  leg  with  brandy. 
He  added  that  the  family  only  used  that  way,  but  he  had  been  there 
before  with  defendant's  son. 

M  2 


IC-i  KEEPING   WATCH-DOGS. 

His  lordship  observed  that  if  a  man  Iceops  a  dog  in  a  garden  walled  all 
rojoid,  any  one  going  in  does  so  at  his  })eril.  "  Undoubtedly  a  man  has 
a  rig-ht  to  keep  a  fierce  dog  for  the  protection  of  his  property ;  but  he 
has  uo  right  to  put  the  dog  in  such  a  situation,  in  the  way  of  access  to 
his  house,  that  a  person  innocently  coming  for  a  lawful  purpose  may  be 
injured  by  it,  I  think  he  has  no  right  to  place  a  dog  so  near  to  the 
door  of  his  house,  that  any  person  coming  to  ask  for  money  or  on  other 
business  might  be  bitten.  And  so  unlh  respect  to  a  footpath,  tliough  it  he  a 
jyrivate  one,  a  man  has  no  right  to  2^ul  «  dog  with  such  a  length  of  chain, 
that  he  could  lite  a  jJcrson  going  along  it.  As  to  the  notice,  it  does  not 
appear  to  me  that  a  painted  notice  is  sufficient,  unless  the  party  is  in 
such  a  situation  in  life  as  to  be  able  to  avail  himself  of  it.  It  does  not 
appear  to  me  that  this  notice  is  sufficient  so  as  to  bar  the  action,  if  the 
plaint ilf  had  any  right  at  all  to  be  on  the  spot,  for  it  seems  that  he  was 
not  able  to  read.  Then  was  there  anything  in  the  appearance  of  the 
dog  which  would  lead  the  plaintiff  to  suppose  that  the  dog  would  bite 
liim  ?  It  seems  that  the  injury  happened  in  the  middle  of  the  day,  in 
July,  and  that  the  plaintiff  was  a  person  employed  as  a  watcher  in  the 
neighbourhood  ;  and  as  no  suspicion  has  been  thrown  upon  him  by  the 
other  side,  you  may  presume  he  was  going  to  the  house  for  a  lawful 
purpose.  The  only  way  in  which  I  can  leave  the  question  (which  I 
admit  is  one  of  considerable  nicety)  for  your  consideration,  is  to  leave 
it  to  you  to  say  on  which  side  was  the  negligence  on  this  occasion.  If 
there  was  negligence  on  the  part  of  the  plaintiff,  he  cannot  recover  for 
an  injury  which  he  has  in  part  brought  upon  himself;  but  if  there  was 
no  negligence  on  his  part,  and  there  was  negligence  on  the  part  of  the 
defendant,  the  plaintiff  will  be  entitled  to  your  verdict."  The  plaintiff 
obtained  a  verdict  for  £20,  and  a  rule  nisi  to  set  aside  the  verdict  was 
granted,  but  the  case  was  settled  before  it  came  on  for  argument 
(M.  &  M.  505). 

Again,  Crowdcr  J.  ruled,  on  Besozzi  v.  Harris,  where  the  defendant 
owned  a  bear,  which  was  fastened  by  a  chain  six  feet  long,  on  a  ])art 
of  his  premises  accessible  to  excursionists  (one  of  whom  it  seized)  fre- 
quenting his  house  on  the  Steep  Holms  in  the  Bristol  Channel,  that  a 
person  keeping  an  animal  of  a  fierce  nature  is  bound  so  to  keep  it  that 
it  shall  not  commit  injury;  and  when  therefore,  such  an  animal  does 
damage,  the  owner  is  liable,  though  it  be  shown  that  it  never  had 
evinced  any  fierceness,  but  evidence  of  its  tameness  is  received  under 
particular  circumstances,  in  reduction  of  damages.  The  evidence  was 
contradictory,  as  to  the  lady's  knowledge  of  tlie  bear  being  there,  and 
there  was  no  notice  or  caution,  written  or  verbal,  to  those  visiting  the 
premises. 


LACK    OF    CAUTION    IN    TKIiSON   BITTEN.  165 

Curtis  V.  Mills  was  a  miicli  stronger  case  than  either  of  the  above. 
The  defeudant,  who  kept  a  fierce  dog  so  tied  up  that  he  cotfld  still 
reach  anyone  going  from  the  yard  gates  to  the  stable,  was  being  assisted 
by  the  plaintiff  to  carry  some  planks  he  had  purchased  from  his  master, 
a  wood-merchant,  down  the  yard.  The  dog  took  no  notice  of  his 
master  as  he  passed,  but  severely  bit  the  plaintiff"  who  followed  him. 
It  was  in  evidence  that  on  other  occasions  the  plaintiff!'  had  been 
warned  not  to  go  near  the  dog,  though  never  on  the  day  of  the  acci- 
dent ;  but  there  was  no  evidence  that  the  dog  had  ever  bitten  a  person 
before.  Tindal  C.J.  held  that  under  these  circumstances  the  plaintiff 
was  entitled  to  recover,  if  the  jury  thought  that  he  did  not,  as  it  were, 
run  himself  into  the  mischief  hy  his  own  carelessness  and  want  of  caution; 
and  the  plaintiff  had  a  verdict  for  £20. 

Read  v.  King  was  a  case  of  dogs,  described  "  as  ferocious  and  mis- 
chievous "  in  the  declaration,  attackinrj  a  mare  of  the  plaintiff's  as  he 
was  driving  her  in  a  phaeton.  On  passing  the  defendant's  house  four 
little  wire-haired  Skye  terriers  rushed  out  and  attacked  the  mare  by 
barking  and  snapping  at  her  heels.  The  animal,  according  to  the 
plaintiff's  account,  bore  it  very  well  for  some  time,  but  at  last  she 
took  fright,  and  after  plunging  and  kicking,  whilst  the  plaintiff  tried 
to  control  her  and  to  drive  away  her  assailants,  she  fell  down  and  was 
severely  injured.  The  veterinary  surgeon's  bill  was  £7,  the  repairs  to 
the  phaeton  cost  £13,  and  eventually  the  animal  was  sold  at  Aldridge's 
for  £33,  and  plaintiff"  now  sought  compensation  for  loss  and  damages. 
The  defence  was  that  the  dogs  were  perfectly  mild  and  harmless ;  one 
being  totally  blind,  while  in  another  the  senses  of  seeing  and  hearing 
were  considerably  impaired.  A  host  of  witnesses,  amongst  whom  was 
a  police  constable  who  had  known  the  dogs  for  several  years,  were 
examined  as  to  character ;  and  some  of  them  who  had  witnessed  the 
occurrence,  attributed  the  damage  sustained  by  the  plaintiff  to  the  fact 
that  he  had  endeavoured  to  whip  the  first  dog,  which  barked  as  the 
vehicle  passed  by.  The  defendant  also  swore  that  he  did  not  know 
they  were  in  the  habit  of  attacking  horses. 

Bramwell  B.,  in  summing  up,  said  the  jury  should  find  for  the  plain- 
tiff if  they  considered  the  dogs  were  mischievous,  and  that  the  defendant 
knew  it,  and  that  the  mischief  resulted  therefrom.  If  they  were  of 
opinion  that  they  had  a  mischievous  tendency,  and  the  defendant  did 
not  know  it,  or  that  if  they  had  and  he  did  know  it  and  the  mischief 
was  brought  about  by  some  act  of  the  plaintiff",  then  they  must  find  for 
the  defendant.  The  jury  found  a  verdict  for  the  plaintiflF,  damages 
£53  10s. ;  but  a  rule  to  set  aside  the  verdict  on  the  ground  of  misdirec- 
tion, improper  reception  of  evidence,  and  that  the  verdict  \Yas  against 


1G6  SCIENTER    PUT    IN    ISSUE    BY    "  NOT    GUILTY." 

evidence  was  made  absolute  by  the  Court  of  Exchequer.  PoUoch  C.B. 
aud  Jfffrfi/i  B.  were  of  opinion  that  there  was  no  evidence  to  go  to  the 
juiT  to  show  that  the  dogs  were  mischievous  to  the  knowledge  of  the 
defendant,  and  that  the  rule  should  tlierefore  be  made  absolute.  Bram- 
tvell  B.  thought  that  the  evidence  justified  the  jury  in  exercising  their 
discretion  in  arriving  at  a  conclusion  of  what  the  four  dogs  had  done, 
although  one  might  be  harmless,  and  that  the  verdict  was  right ;  and 
Channel  B.  considered  there  ^^•as  some  evidence  to  be  left  to  the  jury, 
but  not  sufficient  to  show  tliat  the  dogs  were  mischievous  to  the  know- 
ledge of  the  defendant. 

Not  Guiliy  jmts  in  issue  the  scienter,  and  defendant's  conditional  offer 
to  pay  is  slight  evidence  of  it  {Thomas  y.  Morgan,  2  C.  M.  &  R,  496). 
The  declaration  here  alleged  that  the  defendant  "knew  that  the  dogs 
Avere  of  a  ferocious  and  mischievous  disposition,  and  accustomed  to  attack, 
chase,  bite,  worry,  and  kill  cattle."  It  was  proved  that  they  had  killed 
some  of  the  plaintiff's  sheep,  as  well  as  the  cattle  of  other  people,  and 
that  when  the  defendant  was  told  that  his  dogs  had  killed  three  of  the 
plaintiff's  sheep,  he  promised  to  settle  if  it  could  be  proved  they  had 
done  it.  The  witness,  Protheroe,  whose  cattle  had  also  been  worried 
(and  to  whom  he  offered  satisfaction),  deposed  that  the  defendant  told 
him  (about  three  days  after  the  sheep  were  worried)  that  he  could  not 
help  it,  and  had  ordered  his  dogs  to  be  kept  up.  Williams  J.  thought 
there  was  not  sufficient  evidence  of  the  scienter  to  make  the  defendant 
lialde,  and  nonsuited  the  plaintiff,  with  leave  to  move  to  enter  a  verdict 
for  £11  105.,  the  value  of  the  sheep.  The  Court  discharged  the  rule, 
and  held  that  the  plea  of  Not  Guilty  put  in  issue  the  scienter,  it  being 
of  the  substance  of  the  issue,  and  also  that  the  defendant's  conditional 
offer  to  iiaij  for  the  damafie  was  some  slight  evidence  for  the  jury  of  the 
scienter.  Protheroe's  evidence  here  referred  to  a  time  subsequent  to 
the  act  laid  in  the  declaration,  and  it  was  no  evidence  of  it.  The  offer 
to  pay  might  have  been  made  from  motives  of  charity  in  the  first 
instance,  and  without  any  admissive  liability  at  all ;  and  if  it  had  been 
submitted  to  the  jury  the  Court  felt  that  it  should  have  been  done 
with  such  strong  observations  against  its  weighing  much  for  the  plain- 
tiff, that  they  declined  to  disturb  the  nonsnit.  Again  in  Hogan  v. 
Sharjje,  where  the  declaration  stated  that  the  defendant  kept  a  dog 
"of  a  ferocious  and  mischievous  disposition,  well  knowing  him  to  be 
so,"  Lord  Alinger  C.B.  lield  that  the  plaintiff  must  be  nonsuited  if 
the  defendant  never  knew  the  dog  to  bite  any  one  before,  and  that  he 
might  avail  himself  of  such  want  of  knowledge  under  the  plea  of 
Not  Guilty.  And  in  Ckird  v.  Case,  where  a  dog  belonging  to  the 
dfilendant  had  chased  and  killed  certain  sheep  and  lambs  of  the  plain- 


DEPASTURING    VICIOUS    HORSE.  167 

tiff's,  but  there  was  no  evidence  that  the  defendant  knew  that  the  doi,' 
was  accustomed  to  bite  sheep,  V.  WiUknm  J.  nonsuited  the  phiintifF, 
with  leave  to  move  to  enter  a  verdict  for  £9  14s.,  if  the  Court  should 
be  of  opinion  that  tlie  scienter  was  not  put  in  issue  by  Not  Guilty 
(.5  C.  B.  G22). 

The  question  here  was,  as  to  the  effect  of  the  plea  of"  Not  Guilty  "  in 
an  action  for  damage  done  to  the  plaintiff's  sheep  by  a  ferocious  dog,  as 
regulated  and  restricted  by  the  new  rules?  The  Court  of  Common 
Pleas  discharged  the  rule  on  the  ground  that  the  scienter  was  clearly 
put  in  issue  by  that  plea,  and  that  the  plaintiff  was  bound  to  prove  it ; 
and  2^c>'  Maute  J.:  "  If  several  unlawful  acts  are  alleged  in  the  same 
declaration,  Not  Guilty  will  put  them  all  in  issue.  The  cases  of  May  v. 
Burdett  and  Jaclcsoti  v.  Smithson,  and  the  general  course  of  precedents 
and  authorities  referred  to  in  May  v.  Burdett  prove  that  the  wrongful 
act  is  the  keeping  of  the  ferocious  dog,  knowing  its  savage  disposition, 
and  that  an  action  of  this  sort  may  be  maintained  without  alleging  any 
negligence.  The  allegation  of  duty  in  the  defendant  to  use  due  and 
reasonable  care  and  precaution  in  keeping  the  animal,  is  quite  immaterial 
{Brown  v.  Mallet).  The  utmost  diligence  will  not  excuse  him  if  the 
dog  was  of  a  ferocious  disposition,  and  the  defendant  knew  it.  The 
ground  of  action  is  the  keeping  of  a  ferocious  dog  knowing  his  dis- 
position. Not  Guilty  cannot ])ut  the  litiny  in  issue  :  that  is  the  act  of  the 
doy."  The  decision  in  May  v.  Burdett,  as  well  us  that  in  Jackson  v. 
Smithson,  which  was  argued  in  the  Court  of  Exchequer  a  few  days 
after,  and  entirely  governed  by  it,  are  binding  authorities  to  show  that 
neyliyence  is  to  he  presumed  without  express  averment.  The  former  of 
these  two  was  the  case  of  a  person  keeping  a  monkey  Avhich  he  knew  to 
be  accustomed  to  bite,  and  which  bit  the  female  plaintiff.  In  Jadcson 
V.  Smithson  (15  M.  &  W.  563),  where  the  defendant  "  wrongfully  and 
injuriously  kept  a  ram,  well  knowing  he  was  prone  and  accustomed  to 
attack,  butt,  and  injure  mankind,"  the  plaintiff  had  a  verdict  for  £10, 
and  the  Court  refused  to  arrest  the  judgment  for  lack  of  an  express 
averment  that  the  defendant  negligently  kept  the  ram.  In  reference 
to  May  V.  Burdett,  Alderson  B.  said:  "In  truth  there  is  no  distinction 
between  the  case  of  an  animal  which  breaks  through  the  tameness  of  its 
nature  and  is  fierce,  and  known  by  the  owner  to  be  so,  and  one  which 
is  ferce  naturae  (9  Q.  B.  101). 

Depasturinij  a  vicious  horse. — In  the  case  o?  Reg.  v.  Dant,{\\Q  prisoner 
had  turned  out  upon  a  common  a  horse  which  he  knew  to  be  vicious  ; 
the  horse  kicked  and  killed  a  little  child  which  had  strayed  off  the  path 
on  to  the  common,  and  the  prisoner  was  tried  and  convicted  of  man- 
slaughter :  held  that  the  conviction  was  right.     34  L.  J.  M.  C.  119. 


]6S  LANDS   GAINED    FIIOM   THE   SEA. 


CHAPTER    VI. 

WATER. 

It  was  decided  {Rex,  2)lainiiff  in  error  v.  Lord  Yarlorovgh)  by  the 
House  of  Lords,  in  concurrence  with  the  unanimous  opinion  of  the 
judges,  that  lands  farmed  shtvly,  (jradualhj,  and  im^jcrceptihhj,  Inj 
aUuvion  on  the  sea  shore,  belong  by  general  immemorial  custom  to  the 
owner  of  the  adjoining  lands,  and  not  to  the  Crown.  The  owner  of  the 
shore  between  high  and  low  water-mark  is  entitled  to  such  parts  of  the 
adjoining  soil  as  by  the  gradual  and  imperceptible  encroachments  of 
the  sea  have  been  brought  within  those  limits  ;  while  the  owner  of  the 
land  next  adjoining  high-water-mark  is  entitled  to  all  the  soil  that  is 
added  to  his  land  by  the  imperceptible  retiring  of  the  sea  ;  and  the 
same  rule  holds  good  for  rivers.  In  re  Hull  and  SeUnj  Raihcay,  Lord 
Ahinrjer  C.B.  referred  in  his  judgment  to  the  case  of  a  ]\Ir.  Adam, 
where  a  river,  containing  a  salmon  fishery  belonging  to  him,  was 
suddenly  transferred  to  the  land  of  his  neighbour,  who  enjoyed  it  with 
the  valuable  right  attached  to  it.  Afterwards,  by  another  violent  effort 
of  nature  the  river  returned  to  its  former  channel ;  yet  in  neither  case 
did  the  owner  of  the  bed  of  the  river  lose  his  right  to  the  soil. 

Lands  gained  from  ilie  sea. — In  Tlie  Attorney  General  y.  Chamlcrs, 
d-c,  the  Crown  claimed  to  have  the  medium  line  (the  boundary  of  the 
rights  of  the  Crown  on  the  sea-shore)  laid  down  as  it  would  have  existed 
but  for  artificial- causes  ;  and  it  \\as  held  on  appeal  by  Lord  Chancellor 
Chelmsford  thai;  lands  imperceptibly  gained  from  the  sea  by  a  party's 
lawful  use  of  his  own  laud,  belong  to  the  owner  of  the  land  adjoining, 
unless  it  can  be  shown  that  the  operations  were  intended  to  produce 
this  gradual  acquisition  of  the  sea-shore.  And  where  a  party  claimed 
the  sea-shore  in  front  of  his  property,  on  the  ground  that  he  had  turned 
his  cattle  upon  the  marsh,  and  that  they  had  crossed  the  boundary 
separating  the  marsh  from  the  sea-shore,  and  that  he  had  done  this  for 
sixty  years  without  interruption,  it  was  held  that  where  property  is  of  a 
nature  that  cannot  easily  be  protected  against  intrusion,  and,  if  it  could, 
it  would  not  be  worth  the  trouble  of  preventing  it,  mere  user  is  not 
feufficieut  to  establish  a  right  («&,). 


ACCEETION    OF    LAx\D.  1C9 

Incidents  of  the  sea-shore. — The  sea-shore  below  high  water-mark,  and 
without  inhabitants,  is  an  extra-parochial  place,  having  a  population 
less  than  two  hundred  persons  within  the  meaning  of  sec.  6  of  18  &  19 
Vict.  c.  121  {Rcij.  on  'proson.  of  Earl  Derlnj  v.  Gee  and  Others).  Part  of 
sea-shore  between  high  and  low  water-mark  is  within  and  part  of  the 
adjoining  county  ;  so  that  the  justices  of  the  county  have  jurisdiction 
to  take  cognizance  of  ofPences  committed  therein,  whether  land  be 
covered  with  water  or  not  at  the  time  the  offence  is  committed.  And 
per  Gockburn  C.J. :  "It  is  clear  upon  the  authorities,  as  also  upon  Reg.  v. 
Musson  (27  L.  J.,  N.  S.,  Q.  B.,  222),  where  it  was  distinctly  held  that 
such  part  of  the  sea  was  within  the  county,  that  the  justices  had  juris- 
diction to  entertain  this  matter,  and  that  that  jurisdiction  ought  to  be 
exercised  "  (Embteton  appt.  v.  Brown  resp.). 

Projterf//  in  accretions  from  a  non-navi gable  river. — Accretions  from 
the  gradual  change  of  the  course  of  a  non-navigable  river,  where  there 
are  no  fixed  boundaries,  will  become  the  property  of  the  owner  of  the 
adjoining  land  {Ford  v.  Lacey). 

But  in  cases  of  gradual  accretion,  the  land  gained  belongs  to  the 
proprietor  of  the  adjacent  soil.  Parlcc  B.  held  it  as  settled  that  en- 
croachments made  by  a  tenant  are  for  the  benefit  of  the  landlord,  unless 
it  appear  clearly,  by  some  act  done  at  the  time  of  the  making  of  the 
encroachments,  that  the  tenant  intended  the  encroachments  for  his  own 
benefit,  and  not  to  hold  them  as  he  held  the  farm  to  which  the  encroach- 
ments were  adjacent  {Doe  dcm.  Lewis  \.  Bees).  This  action  was  one  of 
ejectment  by  the  lessor  of  the  plaintiff,  to  recover  from  the  defendant  a 
piece  of  laud  encroached  from  the  sea  coast  by  the  defendant,  while 
tenant  to  the  lessor  of  the  plaintiff  of  his  farm,  which  did  not  extend 
quite  down  to  the  sea  shore,  till  the  defendant  made  the  encroachment 
in  question.  There  is  no  obligation  on  a  parish  to  repair  a  road  when  it 
is  washed  awag  bg  the  sea  {Reg.  v.  Inhabitants  of  Hornsea)  ;  and  ^^er 
Maule  J.,  "  There  is  no  such  thing  as  an  absolute  right  of  the  public 
against  the  act  of  God  and  the  processes  of  nature.  The  repairs  to 
roads  which  the  common  law  contemplated,  were  repairs  which  could 
be  done  by  the  farmers  and  their  labourers.  Here  to  repair  the  road, 
you  must  begin  by  restoring  the  cliff." 

A  grant  by  the  Crown  of  "  all  coals  under  the  commons,  waste 
grounds,  or  marshes  "  of  a  certain  manor,  was  held  by  Stuart  V.C.  and 
Watson  B.  to  pass  coal  Iging  under  the  fore-shore  of  the  estuary  of  the 
river  Dee,  between  high  and  low  water-marks,  and  forming  part  of  such 
manor  {The  Attorney-General  v.  Hanmer).  If  the  officers  of  a  parish 
claim  a  right  to  rate  a  person  occupying  that  part  of  the  sea-shore  which 
lies  between  high  and  low  water-marks,  the  onus  lies  upon  them  to  show 


170  EIGHT   OF   FISHING. 

by  evidence  that  such  part  is  Avitliin  the  parish,  and  in  the  absence  of 
evidence  it  must  be  presumed  that  tlic  hmd  is  extra-parochial,  and 
therefore  not  liable  to  be  rated  {Rffj.  v.  JIusson). 

Where,  in  trespass  qu.  cl.  freg.  {Jones  v.  Williams)  the  plaintiff 
claimed  the  whole  bed  of  a  river  flowing  between  his  land  and  the 
defendant's  who  contended  that  each  was  entitled  ad  medium  fllum 
aquiT,  it  was  held,  on  the  principle  laid  down  in  Doe  v.  Kemp,  that 
evidence  of  acts  of  ownershij)  exercised  hy  the  plaintiff  on  the  bed  and 
hanJcs  of  f/ie  river  on  the  defendant's  side,  lower  down  the  stream,  and 
where  it  flowed  between  the  plaintiffs  land  and  a  farm  adjoining  the 
defendant's  land  ;  and  also  of  repairs  done  by  the  plaintiff  to  a  fence, 
which  divided  that  farm  from  the  river,  and  was  in  continuation  of  a 
fence  dividing  the  defendant's  land  from  the  river — was  admissible  for 
the  plaintifi'.  Such  acts  of  ownership  in  another  part  of  one  continuous 
hedge,  and  in  the  whole  bed  of  the  river,  adjoiuing  the  i)laintiff's  land, 
are  admissible  in  evidence,  on  the  ground  that  they  are  such  acts  as 
may  reasonably  lead  to  the  inference  that  the  entire  hedge  and  bed  of 
the  river,  and  consequently  the  part  in  dispute,  belonged  to  the  plaintiff'. 
Andyw  Parlce  B.,  "Acts  of  o^vnership  are  not  admitted  in  evidence  on 
the  ground  of  acquiescence  ;  that  goes  only  to  the  value  of  the  evidence; 
but  as  showing  possession,  and  so  proving  title"  (2  N.  C.  102,  Ex.  Ch.). 

On  a  grant  of  a  certain  water,  the  ri/jht  ofjishinfj  passes  to  grantee,  but 
not  the  soil  (Co.  Litt.  4  h.).  An  injunction  goes  to  restrain  defendants 
from  injuring  fish  ponds  by  obstructing  them,  and  not  keeping  the  sills 
in  repair  {Earl  Bathurst  v.  Burden).  The  right  of  the  fioiv  of  water  to 
a 'pond  was  greatly  considered  in  Hale  v.  Oldroyd,  in  which  the  plaintiff 
alleged  a  reversionary  interest  in  three  closes  of  land,  to  wit,  three  jmnds 
filled  with  water,  one  on  each  close,  and  a  right  to  the  overflow  of  a 
certain  stream  of  water  from  an  ancient  public  well  in  the  defendant's 
close  into  the  plaintiffs  three  closes,  to  water  his  cattle,  which  stream 
the  defendant  had  diverted.  The  defendant,  in  addition  to  his  j)lea  of 
Not  (juiltij,  traversed  the  right  of  the  tenant  to  such  overflow.  The 
plaintiff  had  enjoyed  an  immemorial  right  to  the  overflow  of  this  water 
into  an  ancient  pond  in  one  of  these  closes ;  but  more  than  tliirty  years 
before,  he  had  made  a  new  pond  in  each,  and  the  old  one  had  gradually 
got  filled  up  with  rubbish  and  grass.  This  right  in  respect  to  the  three 
ponds  was  defeated  by  proof  of  an  outstanding  life  estate,  under  2  &  3 
Will.  IV.  c.  71,  s.  7.  It  was  held  that  he  Avas  entitled  under  this  decla- 
ration to  recover  in  respect  of  his  right  to  the  overflow  of  water  to  the 
oWpond  (14  M.  &  W.  789). 

Parke  B.  said,  "  The  use  of  the  old  pond  was  discontinued,  only 
because  the  plaintiff  obtained  the  same  or  a  greater  advantage  from 


RIPARIAN    RIGHTS.  171 

the  use  of  the  three  new  ones.  He  did  not  thereby  abandon  his  right  : 
he  only  exercised  it  in  a  different  spot,  and  a  substitution  of  that  nature 
is  not  an  abandonment.  He  has  a  right,  therefore,  under  this  declara- 
tion, to  recover  in  respect  to  the  old  pond.  The  right  alleged  is  a  right 
to  have  the  uninterrupted  flow  of  certain  surplus  water  into  a  pond  ; 
and  that  right  is  equally  proved,  w^hethcr  it  be  by  prescription,  or  lost 
grant,  or  under  Lord  Tenterden's  act.  The  declaration  means  no  more 
than  this,  that  the  plaintiff"  has  a  right  to  the  overflow  of  water  either 
in  one  pond  or  three  ponds."  And  ^m'  Rolfe  B.  :  "  The  declaration 
means  only  that  the  plaintiff'  has  a  right  to  have  certain  land  covered 
with  water,  and  no  abandonment  of  the  right  has  been  proved.  If  the 
plaintiff  had  even  filled  up  the  pond,  that  would  not  in  itself  amount  to 
an  abandonment,  although,  no  doubt,  it  would  be  evidence  of  it."  If 
one  has  ?a\Q'\Q,\\i\y  cattk  i)oiHh  which  are  replenished  by  a  rivulet,  he  may 
cleanse  them,  hut  he  cannot  change  or  cnJarge  them  so  as  to  divert  the 
water  from  its  ancient  course  to  the  damage  of  another  {Brown  v.  Best). 
And  so  a  person  whose  Jand  is  occasionally  liable  to  injury  hy  the  over- 
floiv  of  river  ?mi'«-,hasno  right  in  his  mode  of  protecting  himself  against 
that  injury  to  produce  injury  or  damage  to  his  neighbours  in  respect  of 
the  course  of  the  same  water  {Rex  v.  Trafford).  And  the  case  of  {Frcmhmi 
V.  Earl  Falmouth  shows  that  Not  guilty  only  puts  in  issue  the  actual 
diversion  of  the  water. 

A  right  to  mtter  is  not  destroyed  because  the  plaintiff  had  three  years 
before  slightly  altered  the  course  of  the  stream  at  a  point  between  its  exit 
from  the  defendant's  land,  where  the  obstruction  took  place,  and  its 
entrance  upon  his  own  land  ;  neither  is  the  ancient  right  lost  by  desue- 
tude, because  more  than  twenty  years  before,  the  stream  had  ceased 
to  flow  to  the  plaiutiff^'s  lane,  and  had  resumed  its  ancient  course  only 
nineteen  years  before  the  commencement  of  the  action  {Hall  v.  Stvift). 
Tindal  C.J.  observed  that  it  would  be  very  dangerous  to  hold  that  a 
party  should  lose  his  right  in  consequence  of  such  an  interruption  ;  and 
that  if  such  were  the  rule,  the  accident  of  a  dry  season,  or  causes  over 
which  the  party  could  have  no  control,  might  deprive  him  of  a  right 
established  by  the  longer  course  of  enjoyment. 

The  right  of  landoivners  on  the  banlcs  of  a  stream  to  appropriate  u-cder, 
was  first  specially  considered  in  Bealey  v.  Shaw.  That  case  established 
the  principle  that  the  owner  of  land  through  which  a  river  runs  cannot, 
by  enlarging  a  channel  of  certain  dimensions  through  which  the  vrater 
had  been  used  to  flow  before  any  appropriation  of  it  by  another,  divert 
more  of  it,  to  the  prejudice  of  any  other  landowner  lower  down  the 
river,  who  had  at  any  time  before  such  enlargement  appropriated  to 
himself  the  surplus  water  which  did  not  escape  by  the  former  channel. 


172      WATER    FLOWING   IN   A   STREAM,   PUBLICT   JURIS. 

And  per  Lo  Blanc  J. :  "  The  true  rale  is  that  after  the  erection  of 
■works,  and  the  appropriation  by  the  owner  of  the  land  of  a  certain  quan- 
tity of  the  water  flowing  over  it,  if  a  pro}n-ietor  of  other  land  afterwards 
take  what  remains  of  the  water  before  unappropriated,  the  first-mentioned 
owner,  however  he  might  before  such  second  appropriation  have  taken 
to  himself  so  much  more,  cannot  do  so  afterwards"  (6  East.  215). 

This  rule  was  cited  by  Holroijd  J.,  in  Saunders  v.  Newman,  which 
decided  :  That  the  occupier  of  a  mill  may  maintain  an  action  for  forcing 
bacJc  water  and  injuring  his  mill,  although  he  has  not  enjoyed  it  precisely 
in  the  same  state  for  twenty  years.  And  therefore  it  was  holden  to  be 
no  defence  to  such  an  action,  that  the  occupier  had  within  a  few  years 
erected  in  his  mill  a  wheel  of  different  dimensions,  but  requiring  lesg 
water  than  the  old  one,  although  the  declaration  stated  the  plaintiff  to 
be  possessed  of  a  mill,  without  alleging  it  to  be  an  ancient  mill.  It 
was  laid  down  in  Williams  v.  Morcland,  that  flowing  water  is  publici 
juris,  and  that  an  individual  can  only  acquire  a  right  to  it  by  appro- 
priating so  much  of  it  as  he  requires  for  a  beneficial  purpose,  and  that 
therefore  the  plaintiff  could  not  recover  damages  for  the  mere  erection 
of  a  dam  higher  up  the  stream,  which  prevented  the  water  from  run- 
ning smoothly  in  its  usual  course,  and  caused  it  to  run  in  a  different 
channel,  and  with  greater  violence,  though  it  did  not,  according  to  the 
finding  of  the  jury,  cause  any  damage  to  the  banks  and  premises  of  the 
plaintiff.  Lifllcdale  J.  said  :  "  Water  is  of  that  peculiar  nature  that  it 
is  not  sufficient  to  allege  in  a  declaration  that  the  defendant  prevented 
the  water  from  flowing  to  the  plaintiffs  premises.  The  plaintiff  must 
state  an  actual  damage  accruing  from  the  want  of  the  water.  The  mere 
right  to  use  the  water  does  not  give  a  party  such  a  property  in  the  new 
water  constantly  coming,  as  to  make  the  diversion  or  obstruction  of 
the  water,  per  se,  give  him  any  right  of  action.  All  the  king's  subjects 
have  a  right  to  tlic  use  of  flowing  water,  provided  that  in  using  it  they 
do  no  injury  to  the  rights  already  vested  in  another  by  the  appropria- 
tion of  the  water." 

Tindal  C.J.  said  in  his  judgment  in  Liggins  v.  Inge,  "  Water  flowing 
in  a  stream,  it  is  well  settled,  by  the  law  of  England  is  jwhlici  juris. 
By  the  Roman  Law,  running  water,  light,  and  air,  were  considered  as 
some  of  those  things  which  had  the  name  of  res  communes,  and  which 
were  defined  '  things  the  property  of  which  belong  to  no  person,  but 
the  use  to  all.'  And  by  the  law  of  England,  the  person  who  first 
appropriates  any  part  of  the  water  flowing  through  his  land  to  his  own 
use,  has  the  right  to  the  use  of  so  nmch  as  he  thus  approju-iates,  against 
any  other  {Bealeg  v.  Siuiw).  And  it  seems  consistent  with  the  same 
principle,  that  the  water  after   it   has   been  so  made  subservient  to 


APPROPRIATION   OP   RUNNING   WATER.  173 

private  uses  by  ai^propriation,  should  again  become  puhlici  juris  by  the 
mere  act  of  relinquishment.  There  is  nothing  unreasonable  in  holding 
that  a  right  which  is  gained  by  occupancy  should  be  lost  by  abandon- 
ment. Suppose  a  person  who  formerly  had  a  mill  upon  a  stream 
should  pull  it  down  and  remove  the  works,  w'ith  the  intention  never  to 
return.  Could  it  be  held  that  the  owner  of  other  lands  adjoining  the 
stream  might  not  erect  a  mill  and  employ  the  water  so  relinquished  ?  or 
that  he  could  be  compellable  to  pull  down  his  mill  if  the  former  mill- 
owner  should  afterwards  change  his  determination  and  wish  to  re-build 
his  own?"  (7  Bing.  082). 

In  Mason  v.  Hill  (5  B.  &,  Ad.),  the  proposition  for  which  the  plaintiff 
contended  was,  that  the  possessor  of  land  through  ivMch  a  natural  stream 
runs,  has  a  rigid  to  the  advantage  of  that  stream  ftoicing  in  its  natural 
course,  and  to  use  it  when  he  pleases,  for  any  purposes  of  his  own,  not 
inconsistent  with  a  similar  right  in  the  proprietors  of  land  above  and 
below — that  neither  can  any  proprietor  above  diminish  the  quantity  or 
injure  the  quality  of  the  water  which  would  otherwise  descend,  nor  can 
any  proprietor  below  throw  back  the  water  without  his  licence  or  grant ; 
— and  that  whether  the  loss  by  diversion  of  the  general  benefit  of  such 
a  stream  be  or  be  not  such  an  injury  in  point  of  law  as  to  sustain 
an  action  without  some  special  damage,  yet,  as  soon  as  the  proprietor  of 
the  land  has  applied  it  to  some  purpose  of  utility,  or  is  prevented  from 
so  doing  by  the  diversion,  he  has  a  right  of  action  against  the  person 
diverting.  The  defendants,  on  the  contrary,  maintained  that  the  right 
to  flowing  water  i&puhlici  juris,  and  that  the  first  person  who  can  get 
possession  of  the  stream,  and  apply  it  to  a  useful  purpose,  has  a  good 
title  to  it  against  all  the  world,  including  the  proprietor  of  the  land 
below,  who  has  no  right  of  action  against  him,  unless  such  proprietor 
has  already  applied  the  stream  to  some  useful  purpose  also,  with  which 
the  diversion  interferes  ;  and  in  default  of  his  having  done  so,  may 
altogether  deprive  him  of  the  benefit  of  the  water. 

The  Court  of  Qaeen's  Bench  held  that  the  defendants  did  not  acquire 
a  right  hy  their  appropriation,  against  the  use  which  the  idaintijf  after- 
wards sought  to  make  of  the  under ;  and  hence  the  proprietor  of  lands 
contiguous  to  a  stream  may,  as  soon  as  he  is  injured  by  the  diversion  of 
the  water  from  its  natural  course,  maintain  an  action  against  the  party 
so  diverting  it ;  and  it  is  no  answer  to  the  action  that  the  defendant  first 
appropriated  the  water  to  his  own  use,  unless  he  has  had  twenty  years' 
undisturbed  enjoyment  of  it  in  the  altered  course.  Lord  Tenterden  C.J. 
rested  the  decision  of  the  Court  mainly  on  the  judgment  of  Sir  John 
Leach  V.C,  in  Wright  v.  Howard:  "The  right  to  the  use  of  water 
rests  on  clear  and  settled  principles.     Prima  facie,  the  proprietor  of 


17-i  WATER   NOT   IN   A   FLOWING   STllEAM. 

each  bank  of  a  stream  is  the  proprietor  of  half  the  land  covered  by 
the  stream  ;  but  there  is  no  property  in  the  ^vate^.  Every  proprietor 
has  an  eqnal  right  to  use  the  water  which  Hows  in  the  stream,  and  con- 
sequently no  proprietor  can  have  t/ie  ritjlit  to  use  the  water  to  the  prejudice, 
of  anil  other  proprietor.  AVitliout  the  consent  of  the  other  proprietors, 
who  may  be  affected  by  his  operations,  no  proprietor  can  either  diminish 
the  quantity  of  water  which  would  otherwise  descend  to  the  pro- 
prietors below,  or  throw  the  water  back  upon  the  proprietors  above. 
Every  proprietor,  who  claims  a  right  either  to  throw  the  water  back 
above,  or  to  diminish  the  quantity  of  water  which  is  to  descend  below, 
must,  in  order  to  maintain  his  claim,  either  prove  an  actual  grant  or 
licence  from  the  proprietors  affected  by  his  operations,  or  must  prove 
an  uninterrupted  enjoyment  of  twenty  years,  which  term  is  now  adopted 
on  a  principle  of  general  convenience,  as  affording  conclusive  evidence 
of  a  grant.  An  action  will  lie  at  any  time  within  twenty  years,  when 
injury  happens  to  arise  in  consequence  of  a  new  purpose  of  the  party  to 
avail  himself  of  his  common  right." 

Lord  Dcaman  C.J.  (who  expressed  himself  as  entirely  concurring  in 
Lord  Tenterden's  judgment),  after  reviewing  Bealey  v.  Shaiv,  Saunders 
V.  Kewman,  Wittiams  v.  MoreJand,  and  Liijejins  y.  Inge,  thus  remarked 
on  those  cases  in  Mason  v.  HiJl:  "  Xone  of  these  dicta,  when  properly 
understood  with  reference  to  the  cases  in  which  they  were  cited,  and 
the  original  authorities  in  the  Roman  Law,  from  which  the  position 
that  water  is  jmltici  juris  is  deduced,  ought  to  be  considered  as  autho- 
rities that  the  first  occupier,  or  first  person  who  chooses  to  appropriate 
a  natural  stream  to  a  useful  purpose,  has  a  title  against  the  owners  of 
land  below,  and  may  deprive  him  of  the  benefit  of  the  natural  flow  of 
water." 

In  Dickinson  x.  Grand  Junction  Canal  Gompany  (which,  with  Balston 
V.  Benstead,  arc  the  only  two  cases  in  the  books  which  supjjort  a  claim 
to  icater  not  in  a  ftowing  stream)  the  Court  of  Exchequer  decided  in 
favour  of  the  plaintiffs,  the  owners  of  ancient  mills,  who  were  entitled 
to  the  use  of  two  streams  for  the  working  of  their  mills,  against  the 
defendants,  who  had  abstracted  subterranean  water,  wliicli  had  ncA'cr 
reached  the  streams,  but  would  have  done  so  in  its  natural  course  but 
for  the  excavation  of  a  well  and  pumping  from  it  ;  and  whether  such 
water  was  part  of  an  underground  watercourse,  or  percolated  through 
the  strata,  the  Court  held  that  the  abstraction  Avas  equally  actionable. 
Awd  per  Poltock  C.B. :  "  We  consider  it  as  settled  law,  that  the  right  to 
liave  a  stream  running  in  its  natural  course  is  not  by  a  presumed  grant 
from  long  acquiescence  on  the  part  of  the  riparian  proprietors  above 
and  Ijelow,  but  is  ex  jure  natures  {Shurey  v.  Piyyot,  Tyler  v.  Wilkinson), 


LAW   AS   TO   A    SPRING   OF   WATER.  175 

aud  an  incident  of  property  as  much  as  the  right  to  have  soil  itself  in 
its  natural  state  unaltered  by  the  acts  of  a  neighbouring  proprietor, 
who  cannot  dig  so  as  to  deprive  it  of  the  support  of  his  land.  But  in 
the  much-cousidered  case  of  Acton  v.  BlundeU,  in  the  Court  of  Ex- 
chequer Chamber,  a  distincfioii  is  made  for  ike  first  time  hctivcen  loidcr- 
ground  waters  and  those  wltkh  flow  on  the  surface ;  and  it  was  held  that 
the  owner  of  a  piece  of  land,  who  has  made  a  well  in  it,  and  thereby 
enjoyed  the  benefit  of  under-ground  water,  but  for  less  than  twenty 
years,  has  no  right  of  action  against  a  neighbouring  proprietor,  who,  in 
sinking  for  and  getting  coals  from  his  soil  in  the  usual  and  proper 
manner,  causes  the  well  to  become  dry.  The  decision  goes  no  farther. 
In  the  present  case  the  water  is  proved  to  have  been  taken  ft-om  the 
river  after  it  formed  part  of  its  stream,  not  by  the  reasonable  use  of  it 
l)y  another  riparian  proprietor,  but  by  the  digging  of  a  well,  which  is 
clearly  a  diversion  ;  and  an  action  will  lie  at  common  law  against  the 
Company  for  the  injury  which  has  resulted  from  that  unauthorised  act 
to  the  known  right  of  the  mill-owners.  And  as  to  the  abstraction  of 
the  water,  which  never  did  form  part  of  the  river,  but  has  been 
prevented  from  doing  so  in  its  natural  course  by  the  excavation  of  the 
well,  whether  the  water  was  part  of  an  underground  water-course,  or 
percolated  through  the  strata,  we  are  also  of  opinion  that  an  action 
would  lie.  The  mill-owners  were  entitled  to  the  benefit  of  the  stream 
in  its  natural  course  ;  and  they  are  deprived  of  part  of  that  benefit  if 
the  natural  supply  of  the  stream  is  taken  away"  (7  Exch.  282). 

Lord  Eltcnhorouijh  C.J.  ruled,  at  Nisi  Prius,  in  BaJston  v.  Benstcad, 
that  after  twenty  years  nninterrupted  enjoyment  of  a  sp'iny  of  water  ^  an 
cCbsotute  right  to  it  is  gained  J/y  the  occupier  of  the  close  in  wliich  it  issues 
above  ground ;  and  the  owner  of  an  adjoining  close  cannot  lawfully  cut 
a  drain  whereby  the  supply  of  water  to  the  spring  is  diminished.  In 
Acton  V.  Blundelt,  Tindal  C.J.  said  :  "  The  rule  of  law  which  governs 
the  enjoyment  of  a  stream,  flowing  in  its  natural  course  over  the  sur- 
face of  land  belonging  to  diflFerent  proprietors,  is  well  established  ;  each 
proprietor  of  the  laud  has  a  right  to  the  advantage  of  the  stream  flow- 
ing in  its  natural  course  over  his  land,  to  use  the  same  as  he  pleases, 
for  any  purpose  of  his  own,  not  inconsistent  with  a  similar  right  in  the 
proprietors  of  the  land  above  and  below  ;  so  that  neither  can  any 
proprietor  above  diminish  the  quantity  or  injure  the  quality  of  the 
water  which  would  otherwise  naturally  descend,  nor  can  any  proprietor 
below  throw  back  the  water  without  the  licence  or  the  grant  of  the 
proprietor  above.  The  rule  is  laid  down  in  those  precise  terms  by  the 
Court  of  King's  Bench,  in  Mason  v.  Hitl,  and  substantially  is  declared 
by  Sir  John  Leach  V.C.  in  the  case  of  Wright  v.  Howard,  and  such  we 


176  FLOWING   WATER. 

consider  a  correct  exposition  of  the  law.  And  if  the  right  to  tlie 
enjoyment  of  nndergronnd  springs,  or  to  a  well  supplied  thereby,  is  to 
he  governed  by  the  same  law,  then  undoubtedly  in  this  case  the 
defendants  could  not  justify  the  sinking  of  the  coal-pits  (which  laid  the 
well  dry),  and  the  direction  of  the  learned  judge  Rolfc  B.  would  be 
wrong.  There  is,  however,  a  marked  and  substantial  difference  be- 
tween the  two  cases,  and  they  are  not  to  be  governed  by  the  same  rules 
of  law."  The  Court  then  went  on  expressly  to  state,  that  it  intimated 
no  opinion  whatever  as  to  what  the  rule  of  law  would  be  if  there  had 
been  an  uninterrupted  use  of  the  plaintiff's  right  for  more  than  the 
last  twenty  years.  But  Parlce  B.  observed,  upon  Adon  v.  BlundcU 
being  cited  in  the  argument  in  Broadhcni  v.  Ramshotham  :  "  That  case 
decided  that  there  is  no  right  to  a  well  unless  the  water  has  been  used 
for  twenty  years.  This  Court,  and  I  believe  all  other  courts,  dis- 
a])prove  of  that  part  of  the  judgment  which  denies  the  natural  right  to 
tlie  water."  Coleridge  J.  referred  to  this  dictum  with  approbation,  in 
Chasemore  v.  Richards,  in  order  to  show  that  he  was  not  without 
authority  when  he  "  ventured  to  disagree  with  what  is  laid  down  in 
Actuii  V.  BlandeU,  both  as  to  the  nature  of  the  property  in  subteiTanean 
waters,  and  as  to  the  reasonableness  of  acquiring  a  right  to  use  them, 
as  against  the  landowner  in  the  way  of  a  servitude  upon  his  land." 

The  following  statement  of  the  law  with  regard  to  the  right  to  flowing 
water  in  Emhrey  v.  Owen  was  finally  ado[)ted  by  the  Exchequer  Chamber 
in  Chasemore  v.  Richards:  "  The  laiv  as  to  flowing  ivater  is  now  put  on 
its  right  footing  by  a  series  of  cases,  beginning  with  Wright  v.  Howard, 
followed  by  Mason  v.  Hill,  and  ending  with  that  of  Wood  v.  Waud  (3 
Exch.  773);  and  is  fully  settled  in  the  American  Courts.  The  right  to 
have  the  stream  to  flow  in  its  natural  state  without  diminution  or  altera- 
tion is  an  incident  to  the  property,  in  the  land  through  which  it  passes  ; 
but  flowing  water  is  2mt)Iici Juris,  not  in  the  sense  that  it  is  honum  vacans, 
to  which  the  first  occupant  may  acquire  an  exclusive  right,  but  that  it 
is  public  and  common  in  this  sense  only,  that  all  may  reasonably  use  it 
who  have  a  right  of  access  to  it,  that  none  can  have  any  property  in 
the  water  itself  except  in  the  i)articular  portion  which  he  may  choose 
to  abstract  from  the  stream  and  take  into  his  possession,  and  that 
during  the  time  of  his  possession  only  {Mason  v.  Hill).  But  each 
proprietor  of  the  adjacent  land  has  a  right  to  the  i/sufrwf  of  the  stream 
which  flows  through  it."  "The  right  of  each  proprietor  of  the  adjacent 
land  to  the  usufruct  of  the  stream  which  flows  through  it  is  not  an 
absolute  right  to  the  flow  of  all  the  water  in  its  natural  state  ;  if  it 
were,  the  argument  which  has  been  used  that  every  abstraction  of  it 
would  give  a  cause  of  action  would  be  irrefragable ;  but  it  is  a  right 


EIGHT   TO    SIKK   WELLS.  177 

only  to  the  flow  of  the  water,  and  the  enjoyment  of  it,  subject  to  tlie 
simihar  rights  of  all-  the  proprietors  of  the  banks  on  each  side  to  the 
reasonable  enjoyment  of  the  same  gift  of  Providence." 

The  riijlit  of  siiikbuj  a  well,  and  thcrehj  interfering  with  the  suhfer- 
ranean  supj)Ii/  to  a  stream,  was  much  considered  in  Chascmore  v. 
Richards,  which  decided  that  the  owner  of  a  mill  on  the  banks  of 
a  river  cannot  maintain  an  action  against  a  landowner  who  sinks  a 
deep  well  in  his  own  land,  and  by  pumps  and  steam  engine  diverts 
the  underground  water,  which  would  otherwise  have  percolated 
through  the  soil,  and  flowed  into  the  river,  by  which  for  upwards 
of  sixty  years  the  mill  was  worked.  The  i)laintiff  had  a  mill,  and 
was  entitled  to  the  flow  of  the  stream  of  the  river  Wandle.  For 
more  than  sixty  years  before  the  acts  complained  of,  the  defendant 
had  not  abstracted  any  of  the  water  from  the  stream  itself,  but  con- 
siderable abstraction  had  taken  place  from  one  of  the  sources  of 
supply  to  the  stream.  A  large  quantity  of  rain  falling  in  a  district 
of  many  thousand  acres,  sank  into  the  upper  ground,  and  then  flowed 
and  percolated  through  the  strata  to  the  Wandle,  sometimes  rising  to 
the  surface  in  springs,  and  flowing  as  surface  streams  into  the  river ; 
in  other  instanees  finding  their  whole  way  underground  into  the  river 
by  drains  and  courses,  so  as  to  supply  the  river  above  the  mill.  The 
defendant,  who  could  not  reasonably  foresee  the  precise  eSect,  sunk  a 
74  feet  well  on  a  piece  of  land,  of  his  own,  in  the  district,  a  quarter  of  a 
mile  from  the  commencement  of  the  river,  intercepted  a  portion  of  the 
water,  and  supplied  500,000  gallons  to  Croydon  daily.  Part  of  this 
water  was  flowing,  and  finding  its  way  underground  through  the  strata 
towards  the  river,  and  but  for  its  being  so  intercepted  would  have 
reached  the  river  above  the  plaintiff's  mill,  and  in  sufficient  quantities 
to  have  been  of  sensible  value  in  and  towards  the  working  of  it. 

The  Exchequer  Chamber  held  {Coleridge  J.  diss.)  that  no  action  was 
maintainable.  Cresswell  J.  in  his  judgment  examined  and  commented 
on  Diclcinson  v.  Grand  Junction  Canal  Company.  His  lordship  ob- 
served: "  The  oivner  of  a  mill  on  afloiving  stream  is  in  the  same  j)osition 
as  a  riparian  projyrietor ;  he  can  have  no  larger  right  than  that  which 
he  has  by  nature  against  those  above  or  below  him,  unless  it  has  been 
acquired  by  adverse  user.  A  party,  whether  mill-owner  or  riparian 
owner,  suing  for  abstraction  of  water,  must  establish  a  right  either 
fii/re  naturcB  or  by  user,  and  in  the  latter  case  the  user  must  be  such 
as  to  establish  a  servitude  affecting  the  land  through  which  the  water 
flows.  Every  riparian  owner  is  by  nature  subject  to  the  natural 
rights  of  those  lower  down,  which  are  in  the  nature  of  a  servitude 
imposed  on  the  land — a  servitude  7ie  facias.     Can,  then,  this  servi- 


178  EIGHTS   OP   RIPARIAK   OWNERS. 

tilde,  imposed  by  nature  or  by  user,  extend  to  water  oozing  through 
land  near  a  flowing  stream,  which  if  not  intercepted  would  find  its 
way  into  that  stream  ?" 

"  None  of  the  text-books  or  decisions  in  which  an  attempt  has  been 
made  to  define  the  rights  of  riparian  oicncrs  to  flowing  water  have 
extended  them  beyond  some  definite  ascertained  flowing  stream,  with 
the  exception  of  Dickinson  v.  The  Grand  Junction  Canal  Comjmny.  To 
extend  them  further  would  interfere  with  rights  of  the  landowner, 
which- have  never  yet  been  disputed.  Thus  a  riparian  owner  cannot 
divert  a  flowing  stream  for  any  purpose,  whether  for  irrigation  or 
draining  his  land,  or  any  other,  to  the  prejudice  of  other  riparian 
owners.  But  //  has  never  yet  been  held,  nor  was  it  contended  on  the 
aro-ument  of  this  case,  that  a  man  migld  not  drain  his  land,  and  so 
abstract  iccder  oozing  through  it,  although  such  water  would  have 
otherwise  have  found  its  way  to  a  flowing  stream.  Nor  has  it  been 
contended  that  an  owner  of  land  situate  near  a  flowing  stream  may 
not  make  a  pond  for  use  or  ornament,  although  water  would  ooze 
into  it  which  otherwise  would  have  gone  into  the  stream;  but  he 
could  not  for  any  of  these  purposes  abstract  water  from  a  flowing 
stream.  Again,  the  owner  of  land  near  a  flowing  stream  has  hitherto 
been  supposed  to  have  the  right  of  preventing  water  from  coming  into 
his  land  from  higher  ground,  provided  he  does  not  throw  it  back  upon 
his  neighbours ;  but  he  can  no  longer  do  that,  if  water  so  percolated  is 
to  be  juit  upon  the  same  footing  as  a  natural  flowing  stream ;  for  that 
he  cannot  lawfully  divert,  even  for  the  purpose  of  preventing  injury  to 
his  land.  But  if  he  may  prevent  the  water  from  oozing  into  his  land, 
why  should  he  not  allow  it  to  come,  and  then  collect  and  use  it  ?  And 
to  allow  this,  would  be  in  direct  conformity  with  Raivstron  v.  Taylor, 
and  Broadbent  v.  Eamsbotham.  The  case  of  Dickinson  v.  The  Grand 
Junction  Canal  Compamj  having  been  cited  in  argument  in  Broadbent 
V.  Eamsbotham,  Parke  B.  observed,  '  That  case  only  decided  that  if  a 
person  had  a  right  to  a  stream  jure  ncdurcc,  he  had  a  right  to  its  sub- 
terranean course.'  If  it  went  beyond  that,  it  appears  to  have  been  re- 
pudiated by  the  same  Court  in  both  Rawstron  v.  Taylor  and  Broadbent 
v.  Eamsbotham,  and  I  tliink  rightly.  And  adopting  the  law  laid  down 
in  these  two  latter  cases,  I  am  of  opinion  that  the  action  cannot  be  main- 
tained, and  that  the  judgment  of  the  Court  below  must  be  confirmed." 

This  case  of  Chasemore  v.  Eichards  was  carried  to  the  House  of  Lords 
by  "Writ  of  Error,  but  the  judgment  of  the  Exchequer  Chamber  was 
confirmed. 

Hence,  the  owner  of  an  ancient  water-mill  on  a  river  has  no  right 
of  action  against  an  owner  of  land  adjacent  Avho  digs  a  deep  well  on 


CUTTING    OFF    SPRING    AT   SOURCE.  179 

his  land,  and  thereby  diverts  the  widerground  waters,  not  Icnown  to  le 
formed  into  a  stream,  flowing  in  a  defined  channel,  which  otherwise  would 
have  percolated  into  the  river,  although  the  landowner  does  not  use  the 
water  for  purposes  connected  with  the  land,  but  pumps  it  up  and 
carries  it  off  in  pipes  to  supply  persons  living  in  the  neighbourhood, 
many  of  whom  had  no  right  to  use  the  water  at  all. 

The  above  three  cases  were  the  only  ones  cited  in  the  argument  in 
Dudden  v.  Tlie  Guardians  of  the  Poor  of  Clutton  Union.  There  the  water 
from  a  spring  flowed  in  a  natural  channel  to  a  stream  on  which  was  a 
mill ;  the  sjmng  was  cut  off  at  its  source  hj  the  licence  of  the  owner  of  the  soil, 
in  which  it  rose,  and  it  was  held  that  an  action  lay  against  the  person  so 
abstracting  the  water.  The  plaintiff  was  the  owner  of  a  mill  situated  on 
a  stream  which  rises  near  a  place  called  the  Holly  Marshes.  Prior  to 
1852, "  The  Red  House  Spring,"  which  rose  from  the  earth  in  a  field  of 
Captain  Scobell's,  after  a  short  course  fell  into  the  stream  on  which  the 
plaintiff's  mill  was  situated.  Before  1835,  the  tenant  of  the  field  had 
slightly  altered  the  course,  in  which  the  water  after  rising  from  the 
spring  flowed  to  the  stream,  and  before  such  alteration  the  current 
from  the  spring  flowed  across  the  adjoining  field  to  the  same  stream, 
in  a  crooked  channel  or  gully,  where  watercresses  grew,  and  trout  had 
been  caught  in  summer,  close  up  to  the  spring-head.  The  union  work- 
house is  a  mile  to  the  north  of  the  spring,  and  the  Guardians  in  1852 
got  a  grant  from  Captain  Scobell  of  the  use  of  the  spring,  and  caused 
works  to  be  constructed  to  supply  the  workhouse  with  water  from  it. 
A  tank  was  therefore  sunk  into  the  earth  at  the  mouth  of  the  spring, 
and  at  a  considerable  depth,  and  a  line  of  pipes  took  the  water  fi-om 
thence  to  the  workhouse.  The  overflowing  of  the  tanks  ran  through 
the  channel  to  the  stream.  The  jury  found  a  verdict  for  the  plaintiff, 
leave  being  reserved  for  the  defendants  to  move  to  enter  a  nonsuit,  but 
the  Court  discharged  the  rule. 

Pollock  C.B.  said  :  "  The  real  question  is,  whether  there  is  a  natural 
watercourse,  which,  but  for  the  acts  done  by  the  defendant,  would  have 
conveyed  water  to  the  stream,  and  from  thence  to  the  mill  of  the  plain- 
tiff. If  there  is  a  natural  spring,  the  water  from  which  flows  in  a 
natural  channel,  it  cannot  be  lawfully  diverted  by  any  one,  to  the  injury 
of  the  riparian  proprietors.  Wlien  the  stream  is  above  ground,  a  grant 
must  be  presumed  not  only  of  the  thing  itself,  but  of  all  things  neces- 
sary to  the  complete  enjoyment  of  it.  If  the  channel  or  course  under- 
ground is  known,  as  in  the  case  of  the  river  Mole,  it  cannot  be  inter- 
fered with.  It  is  otherwise  when  nothing  is  known  as  to  the  sources  of 
supply  ;  in  that  case,  as  no  right  can  be  acquired  against  the  owner  of 
the  land  under  which  the  spring  exists,  he  may  do  as  he  pleases  with 


180  ARTIFICIAL   WATERCOURSES. 

it  ;  and  if  in  mining  or  draining  his  land  he  taps  a  spring,  he  cannot 
be  made  responsible.  This  was  a  natural  spring,  which  had  acquired  a 
natural  channel  from  its  source  to  the  river.  It  is  absurd  to  say  that  a 
man  might  take  the  water  of  such  a  stream,  four  feet  from  the  surface." 
Martin  B,  added  :  "  I  am  of  the  same  opinion  ;  the  owners  of  land  ad- 
joining a  stream,  from  its  source  to  the  sea,  have  a  natural  right  to  the 
use  of  the  water.  A  river  begins  at  its  source  where  it  comes  to  the 
surface,  and  the  owner  of  the  land  on  which  it  rises  cannot  monopolize 
all  the  water  at  the  source  so  as  to  prevent  its  reaching  the  lands  of 
other  proprietors  lower  down"  (26  L.  J.  Exch.  146). 

It  was  held  by  the  Court  of  Queen's  Bench  in  Magor  v.  Cliadtvick  (II 
Ad.  ct  E.  571)  that,  in  ihc  ahscnre  of  a  sj)ecial  custom,  artificial  water- 
courses are  not  distinguished  in  taw  from  natural  ones  ;  and  that  a  title 
may  be  gained  by  20  years'  user,  as  well  to  the  former  as  to  the  latter. 
Therefore,  where  owners  made  an  adit  through  their  lands  to  drain  the 
mine,  which  they  afterwards  ceased  to  work,  and  the  owner  of  a  brewery, 
through  whose  premises  the  water  flowed  for  20  years,  after  the  working 
had  ceased,  had  during  that  time  used  it  for  brewing,  he  was  held  to 
have  gained  a  right  to  the  undisturbed  enjoyment  of  the  water,  and  the 
mines  could  not  afterwards  be  worked  so  as  to  polhde  it.  But  qnmrc 
whether  a  universal  practice  in  the  neighbourhood  to  resume  the  use  of 
such  adit  waters  for  mining  purposes  after  a  long  interval  might  not 
have  been  set  up  in  answer  to  the  claim  of  easement,  thereby  raising 
the  inference  that  the  party  claiming  used  the  water,  not  of  right,  but 
only  during  the  accidental  disuse  of  the  adit,  and  with  knowledge  that 
the  mine-owners  reserved  to  themselves  a  power  to  recommence  work- 
ing, and  thereby  disturbing  the  waters.  And  as  to  the  flow  of  water  into 
or  from  collieries,  see  Insole  v.  James,  Smith  v.  Kenrick,  and  Clegg  v. 
Dcarden  (12  Q.  B.  576). 

Wright  V.  Wdliams  (1  M.  &  W.  77)  decided  that  a  claim  by  an  owner  of 
a  copper  mine  to  sinJc  pits  on  his  own  lands,  to  fill  such  pits  with  iron, 
and  to  cover  the  same  with  water  pumped  from  the  mine,  for  the  purpose 
of  precipitating  the  copper  contained  in  such  water,  and  afterwards  to  let 
off  the  water  innn-egnated  with  metallic  suhstances  into  a  watercourse  on 
the  land  of  another,  is  a  claim  to  a  watercourse  within  the  second  section 
of  2  &  3  IIV//.  IV.  c.  71,  and  that  in  a  plea  under  that  statute,  it  is  suf- 
ficient to  allege  that  the  user  had  existed  for  40  years  l)efo^-e  the  com- 
mencement of  Die  suit,  and  it  need  not  be  alleged  to  have  been  for  40 
years  before  the  act  complained  of  in  the  declaration.  The  decision  in 
this  case  was  again  confirmed  by  the  Court  of  Exchequer  in  Ward  v. 
Robins,  and  fully  approved  of  and  acted  upon  by  the  Court  of  Queen's 
Bench  in  Ricliurds  v.  Fry. 


POLLUTION   OF   A   STREAM.  181 

Principally  on  the  .authority  of  Wright  v.  Williams  it  was  held  in 
Carhjon  v.  Lovering,  where  the  declaration  was  for  ivrongfuUy  throwing 
sand,  stons,  ruhhle,  and  other  stuff  (which  became  dislodged  or  severed 
by  the  defendant's  workmen  in  the  course  of  working  his  tin  mine,  and 
using  the  tin  and  tin  ore)  into  a  natural  stream  of  water,  flowing 
through  the  plaintiff's  lands,  whereby  the  channel  was  obstructed,  and 
the  water  flowed  over  and  upon  the  lands  and  destroyed  their  produce, 
that  there  was  no  reason  why  such  privilege,  although  injurious  to  the 
plaintiff  to  a  great  extent,  might  not  be  tJie  subject  matter  of  a  grant. 
"  The  plaintiff,"  said  Watson  B.,  ''  as  a  riparian  proprietor,  has  a  right 
to  have  the  waters  of  this  natural  stream  run  through  his  land  in  its 
accustomed  purity,  without  being  polluted  by  any  riparian  proprietors 
or  others  higher  up  the  stream  ;  but  that  right  he  may  abandon,  by 
allowing  an  user  to  have  continued  for  twenty  or  forty  years  ;  or  he 
may  grant  the  privilege  to  an  owner  higher  up  the  stream,  for  his  ad- 
vantage, of  invading  that  right  to  the  detriment  of  the  water  flowing 
through  the  plaintiff's  lands.  We  can  see  no  reason  why  such  a 
privilege  although  injurious  to  the  plaintiff  to  a  great  extent,  might 
not  be  granted"  (1  H.  &  N.  784 ;  32  L.  J.  Q.  B.  231). 

Jloore  V.  Webb  was  an  action  for  imtluting  a  stream  and  impregnating 
it  with  noxious  substances,  whereby  the  plaintiff's  cattle  were  unable  to 
drink  of  the  water,  and  had  to  be  di-iven  to  a  distance.  The  defendant 
pleaded  an  immemorial  right  to  use  the  water  of  the  stream  for  the 
purposes  of  his  trade  as  a  tanner  and  fellmonger,  and  returning  it  pol- 
luted to  the  stream  when  so  used,  and  also  prescriptive  rights  for  twenty 
and  forty  years  respectively.  The  plaintiff  new-assigned  "  that  he  sued 
not  only  for  the  grievances  in  the  pleas  admitted  and  attempted  to  be 
justified,  but  for  that  the  defendant  committed  the  grievances  over  and 
above  what  the  defences  justified."  At  the  trial  the  presiding  judge 
directed  a  verdict  to  be  entered  for  the  defendant  on  all  the  issues 
except  the  first  and  second  (viz.,  "  Not  guilty  ")  ;  but  the  Court  of 
Common  Pleas  held,  that  whether  the  pleas  were  to  be  understood  as 
claiming  an  immemorial  or  a  prescriptive  right  not  limited  to  the  pur- 
poses of  the  tannery,  or  the  more  limited  right  to  use  the  water  for  the 
purposes  of  the  business  as  carried  on  more  than  twenty  years  ago,  the 
verdict  was  not  warranted  by  the  evidence,  and  also  that  the  new  assign- 
ment was  well  pleaded.     The  rule  was  made  absolute  for  a  new  trial. 

The  declaration  in  Whaleg  v.  Laing,  stated  that  plaintiffs  were  pos- 
sessed of  coal  mines,  and  steam-engines  and  boilers  for  working  the 
same,  and  enjoyed  the  benefit  of  the  waters  of  a  certain  canal  near  the 
said  engines,  &c.,  to  supply  the  same  with  water  for  working  the  same, 
&c.,  and  which  said  waters  then  ought  to  have  flowed  and  been  without 


1S2    DIFFERENCE   BETWEEN   A   DRAIN   AND    A   WATERCOURSE. 

the  fouling  therein  mentioned,  yet  that  tlie  defendant  fouled  the  same, 
&c.  The  facts  only  showed  that  plaintiffs  by  permission  of  a  canal 
company,  made  a  communication  from  the  canal  to  their  own  premises, 
by  which  water  got  to  those  premises,  and  with  which  water  they  fed 
their  boilers ;  and  the  defendant  fouled  the  water  of  the  canal,  and  by 
the  use  of  it  plaintiffs*  boilers  were  injured,  defendant  having  no  right 
or  permission  to  do  this  from  the  canal  owners.  The  Exchequer 
Chamber  decided  that  the  declaration  disclosed  no  cause  of  action, 
reversing  the  decision  of  the  Court  of  Exchequer. 

According  to  all  the  authorities  from  the  Digest  downwards,  there 
is  a  difference  in  point  of  Jaw  hetween  a  drain  and  any  other  tvatercoiirse. 
Mayor  V.  Chadiciclc  (11  Ad.  &  E.  571)  shows  that  the  law  of  easements 
in  respect  of  watercourses  is  generally  the  same  whether  they  are  natural 
or  artificial ;  hwi  that  case  is  not  altogether  satisfactory,  and  inconsistent 
with  Arlacriyht  v.  Gcll  (5  M.  &  W.  203).  The  latter  turned  upon  the 
riykt  of  the  party  receimny  water  drained  from  a  mine  to  compel  the 
owners  of  the  mine  to  continue  such  discharge ;  and  the  court  decided 
that  the  plaintiffs  never  acquired  any  right  to  the  artificial  watercourse 
Avhicli  supplied  their  cotton  mills,  either  by  the  presumption  of  a  grant, 
or  by  2  &  3  117//.  IV.,  c.  71,  s.  2,  as  against  the  owner  of  the  lower  level 
of  the  mineral  field,  or  the  defendants  acting  by  their  authority. 

In  ^Vood  V.  ^Yaud  (3  Exch.  7-48)  the  Court  stated  they  had  again  con- 
sidered that  case  and  were  satisfied  that  the  principles  laid  down  as 
governing  it  were  correct ;  and  that  no  action  lies  for  an  injury  by  the 
diversion  of  an  artificial  watercourse,  where,  from  the  nature  of  the  case, 
it  was  obvious  that  the  enjoyment  of  it  depended  upon  temporary  cir- 
cumstances, and  was  not  of  a  permanent  character,  and  where  the  inter- 
ruption was  by  the  party  who  stood  in  the  situation  of  the  grantor.  The 
Court  added,  in  reference  to  Mayor  v.  ChadwicJc,  "We  entirely  concur 
with  Lord  Denman  C.J.,  that  the  proposition — that  a  watercourse,  of 
whatever  antiquity  and  in  whatever  degree,  enjoyed  by  numerous  persons 
cannot  be  enjoyed  so  as  to  confer  a  right  to  the  use  of  the  water,  if  proved 
to  have  been  originally  artificial — is  quite  indefensible  ;"  but,  on  the 
other  hand,  the  general  proposition  "  that  under  all  circumstances  the 
right  to  watercourses  arising  from  enjoyment,  is  the  same  whether 
they  be  natural  or  artificial,  cannot  possibly  be  sustained."  A  riparian 
proprietor  has  a  right  to  the  natural  stream  of  water  flowing  through 
the  land  in  its  natural  state  ;  and  if  the  irater  lepollided  hy  a  proprietor 
hiyher  up  the  stream,  so  as  to  occasion  damage  in  law,  though  not  in 
fart,  to  the  first-mentioned  proprietor,  it  gives  him  a  good  cause  of 
action  against  the  upper  proprietor,  unless  the  latter  have  gained  a 
right  by  long  enjoyment  or  grant  {Wood  v.  Waud).    Where  the  owner 


FLOW  OF  WATER  FROM  AGRICULTURAL  DRAIN.   183 

of  land  through  which  a  stream  flows  has  within  20  years  built  mills 
upon  its  bank,  and  applied  the  water  of  stream  to  the  working  of 
them,  he  may  recover  upon  an  issue  raised  by  a  traverse  of  an  allegation 
that  his  right  to  the  water  was  "  by  reason  of  the  possession  of  the 
mills."  (ib.)  So  where  water  has  flowed  in  an  artificial  and  covered 
watercourse  for  more  than  60  years  from  a  colliery  into  an  imme- 
morial and  natural  stream,  upon  whose  banks  the  plaintiff's  mills  are 
situated,  the  plaintiff"  in  such  case  has  no  right  for  diversion  of  the 
water  of  such  artificial  watercourse  against  a  party  through  whose  land 
it  passes,  but  who  does  not  claim  under,  or  who  is  unauthorised  by  the 
colliery  owners.  The  case,  however,  would  be  different  if  the  water 
were  polluted  ;  and  the  abstraction  of  water  to  the  amount  of  five  per 
cent.,  or  its  detention  so  as  to  occasion  sensible  inconvenience,  will 
support  an  action  for  such  injury."  (ih.) 

Greatrex  v.  Hayivard  (22  L.  J.  Ex.  137),  which  was  governed  by  the 
above  case,  and  ArJcivright  v.  Gell,  decided  that  the  flow  of  icater  from  a 
drain  made  for  the  jnirposes  of  agrkidtural  imiyrovements  for  twenty  years 
does  not  give  a  right  to  the  neighbour,  so  as  to  preclude  the  proprietor 
from  altering  the  level  of  his  drain  for  the  improvement  of  his  land. 
Here  the  plaintiflF's  two  closes  adjoined  each  other,  and  were  also  adjoin- 
ing to  a  close  in  the  occupation  of  the  defendant.  From  the  year  1796 
till  the  time  of  the  action  (1852),  there  was  a  pit  partly  situate  in  each 
of  the  plaintiff's  closes,  and  during  all  that  time  the  pit  had  principally 
been  supplied  with  water  coming  from  the  defendant's  close.  The  water 
so  supplied  to  the  pit  ran  through  and  by  means  of  an  underground  sougli 
or  drain,  which  had  before  1796  been  by  the  owners  or  occupiers  of  the 
defendant's  close  laid  in,  and  made  to  run  out  of  the  same  into  a  ditch 
of  the  plaintiflF's,  which  bounded  the  defendant's  close,  and  from  and 
out  of  this  ditch  into  the  pit.  This  sough  was  made  for  the  purpose  oi 
carrying  the  water  off"  the  defendant's  close,  and  for  its  better  cultiva- 
tion ;  and  the  water  from  the  sough  usually  flowed  in  a  regular  stream, 
but  was  subject  to  occasional  interruptions  from  the  sough  being  tem- 
porarily choked  up  by  the  roots  of  trees  or  otherwise.  The  pit  was  an 
open  pit,  and  the  water  in  it  had  ever  been,  during  the  above-mentioned 
time,  used  and  enjoyed  by  the  occupiers  of  the  plaintiff''s  two  closes  for 
watering  and  washing  cattle  and  otherwise,  openly  and  without  inter- 
ruption. The  sough  aided  the  general  surface  drainage  of  the  defen- 
dant's close,  which  was  of  a  boggy  nature,  and  the  water  which  passed 
through  the  sough  did  not  come  from  any  defined  or  ascertainable 
source.  In  September,  1851,  the  defendant  made  alterations  in  the 
drainage  of  his  close,  by  constructing  a  new  sough,  and  by  deepening 
the  course  of  the  old  sough,  for  the  purpose  of  more  eff"cctually  draining 


ISi     ESCAPE   OF   LIQUID   MANURE   INTO    NEIGHBOUR'S    FIELD. 

and  cultivating  his  close  ;  and  by  means  of  the  alterations,  the  water, 
which  had  been  accustomed  to  flow  into  the  plaintiff's  pit,  flowed  into 
the  ditch  at  a  lower  level,  whereby  the  plaintiff's  pit  lost  the  water 
which  had  been  accustomed  to  flow  into  it  through  the  said  sough. 

The  plaintiff  had  a  verdict  before  Alderson  B.  for  40s.,  subject  to  a 
special  verdict ;  and  the  Court,  after  a  very  careful  consideration,  gave 
judgment  for  the  defendant.  It  was  contended  for  the  plaintiff  that,  by 
the  uninterrupted  enjoyment  of  the  flow  and  use  of  this  water  for  the 
time  mentioned,  the  plaintiff  had  gained  a  right  to  its  continuance 
either  at  common  law,  by  the  presumption  of  a  grant,  or  by  virtue  of 
the  Prescription  Act  2  &  3  117//.  IV.  c.  71.  Parlce  B.  observed  :  "The 
cases  of  Arlncrtght  v.  GeJl  and  ^Yood  v.  Waucl  are  opposed  to  the 
plaintiff's  claim.  TJie  right  of  a  pciriy  to  an  artificial  water-course,  as 
against  the  party  creating  it,  must  depend  upon  the  character  of  the 
watercourse,  and  the  circumstances  under  which  it  was  created.  The 
watercourse  is  clearly  of  a  temporary  nature  only,  and  is  dependent  upon 
the  mode  which  the  defendant  may  adopt  in  draining  his  land.  This 
is  the  precise  case  M'hich  was  put  by  the  Court  in  Wood  v.  ]Yaud,  where 
it  is  said  by  the  Court  in  their  judgment,  that  '  the  flow  of  water  for 
twenty  years  from  the  eaves  of  a  house  could  not  give  a  right  to  the 
neighbour  to  insist  that  the  house  should  not  be  pulled  down  or  altered, 
so  as  to  diminish  the  quantity  of  water  flowing  from  the  roof.  The 
flow  of  water  from  a  drain  for  the  purpose  of  agricultural  improvements 
for  twenty  years  could  not  give  a  right  to  the  neighbour  so  as  to 
preclude  the  proprietor  from  altering  the  level  of  his  drains  for  the 
greater  imj^rovement  of  his  land.  The  state  of  circumstances  in  such 
a  case  shows  that  one  party  never  intended  to  give,  nor  the  other  to 
enjoy,  the  use  of  the  stream  as  a  matter  of  right:  Alderson  B.  added  : 
'  In  one  sense,  perhaps,  it  may  be  said  that  the  plaintiff  has  enjoyed  the 
use  of  this  water  as  of  right,  because  the  defendant  had  not  in  any 
way  impeded  such  use  ;  but  it  is  not  such  a  user  as  of  right  as  will 
Eer\-e  his  present  purpose,  for  there  has  been  no  adverse  user.  Take 
the  case  of  a  farmer,  who  under  the  old  system  of  farming  has  allowed 
the  liquid  manure  from  his  fold-yard  to  run  into  a  pit  in  ?iis  neighbour's 
field,  but  upon  finding  that  the  manure  can  be  beneficially  applied 
to  his  own  land  has  stopped  the  flow  of  it  into  his  neighbour's 
pit,  and  converted  it  to  his  own  use  ;  could  it  be  contended  that 
the  fact  of  his  neiglibour  having  used  this  manure  for  upwards  of 
twenty  years  would  give  the  latter  the  right  of  requiring  its  con- 
tinuance ?  ' " 

In  liawslron  v.  Taylor  (25  L.  J.  Ex.  33)  it  was  held  that  the  owner  of 
land  has  an  ungiialified  right  to  drain  it  for  agricultural  imr2wses,  in 


EIGHT   TO   DRAIN   FOR   AGRICULTURAL   PURPOSES.      1S5 

order  to  get  rid  of  mere  surface  water,  the  supply  of  the  water  beuif^ 
casual,  aud  its  flow  followiug  no  regular  or  definite  course ;  and  a  neigh- 
bouring proprietor  cannot  complain  that  he  is  thereby  deprived  of  f-uch 
water,  which  would  otherwise  have  come  to  his  land  and  filled  his 
reservoir.  The  land  of  the  plaintiff  and  defendant  was  contiguous,  and 
just  on  the  outside  of  the  defendant's  land  there  was  a  wet  spongy  spot 
(D),  where  at  most  seasons  some  water  rose  to  the  surface,  and  sufficient 
collected  to  flow  down  the  slope  of  the  land.  In  times  of  wet  there 
was  a  great  body  of  water,  but  scarcely  any  after  a  long  drought. 
There  was  no  regularly  formed  ditch  or  channel  for  water,  the  place 
where  it  flowed  being  constantly  troddeu-in  with  cattle.  At  times 
there  was  a  drinking  place  at  the  corner  of  the  field,  near  (D),  but 
unless  it  was  kept  clear  it  was  soon  troddcn-in  with  cattle.  Near  The 
Slacks  farm-house  by  which  it  flowed  there  was  a  channel  cut,  which 
conveyed  the  water  into  a  trough  there,  which  the  water  flowed  through, 
and  supplied  the  house.  xVfter  leaving  the  trough,  the  water  took  no 
particular  direction. 

It  either  flowed  over  the  meadow  down  the  slope  of  the  land,  or  the 
tenant  of  the  Slacks  made  it  flow  through  the  manure-heap,  and  then 
over  the  meadow.  But  whichever  direction  was  given  to  the  water,  so 
much  of  it  as  was  not  absorbed  by  the  land  (and  all  was  not  absorbed 
except  in  times  of  drought)  ran  into  an  old  watercourse  of  the  plain- 
tiff's, which  led  to  a  reservoir  of  the  plaintiff's.  The  water  had  so 
flowed  for  upwards  of  twenty  years,  and  the  defendant,  for  the  purpose 
of  draining  his  land  and  of  supplying  some  part  of  his  property  with 
water,  diverted  this  water  from  the  plaintiff's  reservoir.  At  another 
spot  (K)  on  plaintiff's  land,  as  long  ago  as  one  could  recollect,  water 
had  always  risen  to  the  surface.  There  had  generally  been  a  drinking 
place  for  cattle  formed  with  stones,  and  the  overflow  of  the  water  went 
down  a  ditch,  and  thence  into  a  watercourse,  to  the  plaintiff's  reservoir. 
There  was  also  a  third  point,  which  is  fully  referred  to  in  Parke  B.'s 
judgment.  Speaking  of  spot  D,  his  lordship  said,  "  The  plaintiff  has 
no  right  to  the  rain-water  which  may  flow  from  that  spot  to  his 
land  ;  and  what  authority  is  there  for  saying  that  spring- water  differs 
from  rain-water  ?  "  ''  On  the  question,"  his  lordship  added,  "  as  to 
the  interference  of  the  defendant  Avith  the  Avater  at  the  spot  1),  the 
defendant  is  entitled  to  have  a  verdict.  This  is  the  case  of  common 
surface  water  rising  out  of  spongy  or  boggy  ground,  and  flowing  in  no 
definite  channel,  although  contributing  to  the  supply  of  the  plaintiff's 
mill.  This  water  having  no  defined  course,  and  its  siq^ply  heing  merely 
casual,  the  defendant  is  entitled  to  get  rid  of  it  any  way  he  pleases. 
The  same  observations  apply  to  the  water  rising  at  the  point  Iv.     This 


186  SURFACE   WATER. 

water  has  no  defined  course,  and  the  supply  is  not  constant,  therefore 
the  plaintiff  is  not  entitled  to  it.  The  case  of  Dickinsoji  v.  Grand 
Junction  Canal  Compani/  does  not  apply  ;  and  the  defendant  is  entitled 
to  get  rid  of  this  also,  for  the  purpose  of  cultivating  his  land  in  any  way 
he  pleases. 

"  With  respect  to  the  last  and  most  important  part,  which  relates  to 
the  interference  with  the  flow  of  the  water  to  Lower  Gin  Bank,  we 
must  look  to  the  deed,  for  the  plaintiff's  right  to  that  water  depends 
solely  upon  the  deed.  By  that  instrument  the  defendant  conveys  to 
the  plaintiff  the  Gin  Bank,  together  with  all  ways,  waters,  water- 
courses, liberties,  privileges,  rights,  members,  and  appurtenances'  to 
the  same  close  and  piece  of  land  belonging  or  appertaining.  Now  this 
right  to  this  water  could  not  pass  independently  of  the  deed,  as  the 
plaintiff  could  have  no  right  to  water  in  alieno  solo.  Natural  water- 
courses are  like  ways  of  necessity.  The  right  to  have  a  stream  running 
in  its  natural  direction  does  not  depend  on  a  supposed  grant,  but  is 
jnrc  naturcB  {Skury  v.  Pigott).  But  if  the  stream  is  artificial,  no  such 
right  exists.  This  is  not  a  natural  watercourse  ;  but  the  plaintiff  is 
entitled  to  the  flow  of  this  water  under  the  conveyance  which  gives 
it  to  him  by  the  terms  of  the  grant.  It  is  necessary  to  say  whether 
the  right  passed  under  the  proviso,  which,  however,  throws  light 
upon  the  grant,  and  shows  that  this  water  was  intended  to  be  con- 
veyed. The  proviso  is  for  the  benefit  of  the  defendant,  and  gives  him 
the  right  to  apply  any  water  flowing  through  his  land  for  certain 
specified  purposes  ;  but  when  he  has  taken  such  water,  he  is  bound  to 
return  the  surplus  into  its  usual  channel  in  the  watercourse  at  a  certain 
place. 

"  And  I  am  of  opinion  that  the  defendant  has  no  right  to  make  any 
permanent  diversion  of  the  water.  He  may  take  away  the  water  in 
buckets,  or  by  any  other  mode  of  conveyance,  for  domestic,  agricultural, 
or  manufacturing  purposes  ;  but  when  he  has  taken  what  he  wants,  he 
is  bound  to  return  the  surplus  into  its  usual  channel  at  the  place  men- 
tioned in  the  plan  for  the  use  of  the  plaintiff,  and  he  cannot  divert  the 
water.  It  seems  to  me  clear,  on  looking  at  the  proviso,  what  the  de- 
fendant grants  to  the  plaintiff  by  the  conveyance  ;  and  the  defendant  is 
not  entitled  to  more  than  what  is  reserved  to  him  in  the  proviso.  He 
has  permanently  diverted  the  water  by  placing  it  under  lock  and  key, 
and  by  so  doing  has  deprived  the  plaintiff  of  the  use  of  it.  I  am  there- 
fore of  opinion  that  the  verdict  ought  to  be  entered  for  the  defendant 
as  to  the  two  first  causes  of  action  ;  and  as  to  the  third,  that  the 
verdict  entered  for  the  plaintiff  should  stand."  Piatt  B.  observed, 
•'  As  to  the  two  first  points,  th§  defendant  is  clearly  entitled  to  succeed, 


IRRIGATION.  187 

as  this  was  mere  surface  water  ;  and  the  defendant  had  a  right  to  drain 
his  land,  and  the  pLaiutiff  could  not  insist  upon  the  defendant  main- 
taining his  fields  as  a  mere  water-table.  With  respect  to  the  third 
point,  the  plaintiff  is  entitled  to  retain  his  verdict."  And  per  3Iartm 
B.  :  "  The  proprietor  of  the  soil  has  in-ima  facie  the  right  to  drain  his 
land  ;  and  unless  there  is  some  express  authority  to  show  that  his 
motive  in  so  doing  affected  the  question,  in  my  opinion  the  motive  is 
altogether  immaterial." 

In  some  of  its  points,  Broadlent  v.  Eamsdofham  was  wholly  undis- 
tingnishable  from,  and  governed  by  the  Exchequer  decision  in  the 
above  case.  It  was  here  decided  that  a  lamlowner  has  a  right  to  ap- 
2yrop-iate  surface  ivater  ivhich  flows  over  his  land  in  no  definite  channel, 
although  the  water  is  thereby  prevented  from  reaching  a  watercourse 
which  it  previously  supplied.  Therefore  where  the  plaintiff's  mill  for 
more  than  fifty  years  had  been  worked  by  the  stream  of  a  brook  which 
was  supplied  by  the  water  of  a  pond  filled  with  rain,  a  shallow  well 
supplied  by  subterraneous  water,  a  swamp,  and  a  well  formed  by  a  stream 
springing  out  of  the  side  of  a  hill,  the  waters  of  all  of  which  occasion- 
ally overflowed  and  ran  down  the  defendant's  land  in  no  definite 
channel  into  the  brook,  the  plaintiff  had  no  right  as  against  the  de- 
fendant to  the  natural  flow  of  any  of  the  waters.  The  disputed  water 
in  that  part  of  the  case,  to  which  the  reasoning  in  Ran-stron  v.  Taylor 
especially  applied,  was  only  the  overflow  of  a  well,  which  ran  into  a 
ditch  (the  lowest  adjoining  ground)  made  artificially,  and  for  a  dif- 
ferent purpose,  running  beside  a  hedge. .  After  that  it  was  squandered 
over  a  swamp  made  by  the  feet  of  cattle  treading  about ;  and  not 
till  long  after  this,  what  still  remained  of  it  found  its  way,  with 
other  water,  into  what  might  then  be  called  a  definite  natural  water- 
course. 

Irrigation  is  a  riparian  right,  to  ho  exercised  sulject  to  the  rights  of 
other  riparian  j^ropriefors.  The  riparian  proprietor  above  might,  no 
doubt,  by  grant,  divest  himself  of  his  right  to  use  the  stream  for  the 
purpose  of  irrigation;  but  the  mere  non-user  of  the  right  would  not 
raise  a  presumption  of  a  grant.  Per  Willes  J.  {Sampson  v.  Hoddinott)  : 
"Where  there  is  an  undue  detention  of  ivater  hy  the  riparian  "proprietor 
above,  it  is  not  necessary  in  an  action  to  show  actual  damage  to  the 
plaintiff's  reversionary  interest ;  it  is  enough  to  show  an  obstruction  of 
his  right ;  and  such  obstruction  of  his  right  being  shown,  the  law  will 
infer  damage  {ih.).  The  right  of  the  riparian  propi'ietor  is,  hoivever, 
limited  to  natural  streams,  and  does  not  attach  in  the  case  of  artificial  cuts 
or  drains  {ih.,  26  L.  J.  C.  P.  148). 

It  would  seem  to  be  settled  in  Emhrey  v.  Owen  that  a  ripcwian  prO' 


188  INAPPRECIABLE   ABSTRACTION   OF   WATER. 

priefor  has  ivithhi  certain  hounds  a  r'ujlit  to  use  ivater  for  the  jnirjwse  of 
irriyation.  The  point  was  raised  in  Wood  v.  Waud,  but  it  became  un- 
necessary to  decide  it.  In  Emhrcij  v.  Owen  the  plaintiff  occupied  a 
water  grist-mill  on  tlie  banks  of  the  Rhiew,  and  the  defendant  owned 
land  on  both  sides  of  that  river  above  the  mill.  The  action  was  brought 
against  her  for  diverting  part  of  the  water  of  the  river,  to  irrigate  cer- 
tain meadows  on  the  northern  bank,  in  the  occupation  of  her  tenant 
John  Jones.  The  water  was  diverted  by  means  of  an  iron  trough  or 
aquednct,  placed  near  a  waste  weir,  from  whence  the  surplus  or  waste 
water  was  carried  into  the  trough  or  aqueduct,  and  by  it  over  the  river 
into  the  main  and  floating  gutters  of  the  meadow,  when  required  for 
irrigation.  At  other  times  such  surplus  water  was  discharged  from 
the  trough  or  aqueduct  direct  into  the  bed  of  the  river  by  means  of  an 
iron  flap  or  sluice  in  the  middle  side  of  the  trough,  so  constructed  as 
to  be  opened  for  the  latter  purpose  at  pleasure.  A  portion  of  the  water 
was  lost  by  absorption  and  evaporation  in  the  process  of  irrigation,  but 
the  working  of  the  plaintiff's  mill  was  not  impeded,  and  all  the  wit- 
nesses agi-eed  that  there  was  no  sensible  diminution  of  the  stream  by 
reason  of  the  diversion.  The  verdict  was  for  the  defendant  on  the  first 
issue,  as  to  whether  there  was  any  sensible  diminution  of  the  natural 
flow  of  the  water  by  means  of  the  diversion,  which  they  answered  in  the 
negative  ;  and  also  for  the  defendant  on  the  other  issues,  as  to  whether 
the  quantities  of  water  absorbed  and  evaporated  in  the  process  of  the 
defendant's  irrigation  were  small  and  inappreciahle  quantities,  which 
they  answered  in  the  affirmative.  Talfourd  J.  directed  that  the  verdict 
should  be  entered  on  the  above  issues  for  the  defendant,  reserving  leave 
to  the  plaintiffs  to  move  to  enter  it  for  them  with  nominal  damages.  A 
rule  nisi  was  accordingly  obtained,  but  the  Coui-t  decided  that  the  verdict 
was  properly  entered  for  the  defendant  on  the  issues  above  named. 

Parke  B.  said  in  his  judgment,  "The  most  important  question  is 
that  which  arises  on  the  plea  of  Not  guilty,  the  jury  having  found  that 
no  sensible  diminution  of  the  natural  flow  of  the  stream  to  the  plaintiff's 
mill  was  caused  by  the  abstraction  of  the  water.  That  the  working  of 
the  mill  was  not  in  the  least  impeded  was  clear  on  the  evidence,  and 
on  that  finding  we  think  the  verdict  was  properly  ordered  to  be  entered 
for  the  defendant. 

"  In  America,  as  may  be  inferred  (3  Kent's  Com.  Lect.  52,  439-44G), 
and  as  is  stated  in  the  judgment  of  the  Court  of  Exchequer  in  Wood  v. 
Waud,  a  very  liberal  use  of  the  stream  for  the  purposes  of  irrigation 
and  for  carrying  on  manufactures  is  permitted.  So  in  France,  where 
every  one  may  use  it  en  bonjjcre  de  faniille  et  pour  son  plus  grand  avan- 
tage,  a  man  may  make  trenches  to  conduct  the  water  to  irrigate  his 


DIVERSION   OF   WATERCOUr.SE    FOR   IRRIGATION.         189 

land,  if  he  returns  it  with  no  other  loss  than  that  which  irrigation 
causes.  In  Wood  v.  Waud  it  was  observed  that  in  England  it  is  not 
clear  that  a  user  to  that  extent  would  be  permitted  ;  nor  do  we  mean  to 
lay  down  that  it  would  in  every  case  be  deemed  a  lawful  enjoyment 
the  water  if  it  was  again  returned  into  the  river  with  no  other  dimhmtion 
than  tJmt  which  ivas  caused  hy  the  alsorptwn  and  evajmrition  attendant 
on  the  irrigation  of  the  lands  of  the  adjoining  proprietor.  This  must 
depend  upon  the  circumstances  of  each  case.  On  the  one  hand,  it  could 
not  be  permitted  that  the  owner  of  a  tract  of  many  thousands  of  acres 
of  porous  soil  abutting  on  one  part  of  the  stream  could  be  permitted  to 
irrigate  them  continually  by  canals  and  drains,  and  so  cause  a  serious 
diminution  of  the  quantity  of  water,  though  there  was  no  other  loss  to 
the  natural  stream  than  that  arising  from  the  necessary  absorption  and 
evaporation  of  the  water  employed  for  that  purpose  ;  and  on  the  other 
hand,  one's  common  sense  would  be  shocked  by  supposing  that  a 
riparian  proprietor  could  not  dip  a  watering-pot  into  the  stream  in 
order  to  water  his  garden  or  allow  his  family  or  his  cattle  to  drink  it. 
It  is  entirely  a  question  of  degree,  and  it  is  very  difficult,  indeed  im- 
possible, to  define  precisely  the  limits  which  separate  the  reasonable 
and  permitted  use  of  the  stream  from  its  wrongful  application  ;  but 
there  is  often  no  difficulty  in  deciding  whether  a  particular  case  falls 
within  the  permitted  limits  or  not."  "  There  has  been  no  injury  in 
fact  or  in  law  in  this  case,  and  therefore  the  verdict  for  the  plaintiff 
should  not  be  disturbed."  The  rule  was  discharged,  the  defendant 
consenting  that  on  the  fourth,  seventh,  and  tenth  issues  a  verdict  should 
be  entered  for  the  plaintiff  (20  L.  J.  Ex.  215). 

The  facts  of  Northam  v.  Hurley  may  be  learnt  from  tlie  judgment  of 
Coleridge  J. :  "  In  this  case  the  plaintiff,  occupying  Fourth  Tanner's 
meadow,  complained  that  the  defendant  had  diverted  the  channel  of  a 
watercourse  in  Third  Tanner's  meadow  ;  and  in  support  of  liis  case  he 
relied  upon  a  deed  between  Sylvanus  Fox,  owner  of  Fourth  Tanner's 
meadow,  and  Edward  Fox  and  others  (whose  interest  in  the  soil  had, 
however,  determined  before  the  execution  of  the  agreement),  owners  of 
First,  Second,  and  Third  Tanner's  meadows,  whereby  it  is  stipulated 
that  Edward  Fox  and  others  should  have  the  use  of  a  certain  stream  of 
water  for  irrigation  for  ten  days  in  every  month,  and  that  at  all  other 
times  the  same  stream  should  be  under  the  control  of  Sylvanus  Fox  and 
his  assigns,  and  should  flow  in  a  free  and  uninterrupted  course  through 
a  channel  therein  particularly  described,  into  Fourth  Tanner's  meadow, 
with  an  undertaking  that  the  owners  of  First,  Second,  and  Third 
Tanner's  meadows  should  cleanse  the  channel,  and  with  liberty  to 
Sylvanus  Fox  and  his  assigns  to  do  so  on  their  default. 


]90  RIGHT   TO   WATER   BY   DEED. 

"  This  deed,  in  our  judgment,  operates  as  a  grant  of  the  easement  of 
the  watercourse  therein  described  ;  and  inasmuch  as  the  channel  is 
specified  with  a  right  to  enter  and  cleanse  it,  we  are  of  opinion  that 
Sjdvanus  Fox,  and  those  claiming  under  him,  acquired  a  right  in 
respect  of  that  channel ;  and  that  a  change  of  the  channel  would  be  an 
injury  to  this  right.  And  as  the  plaintitf  claimed  under  Sylvanus  Fox, 
and  the  defendant  claiming  under  the  owners  of  the  First,  Second,  and 
Third  Tanner's  meadows  had  diverted  the  stream  from  the  specified 
channel,  though  without  damage  to  the  plaintiff,  we  think  there  was  a 
cause  of  action  for  injury  to  the  right.  Our  judgment  is  founded  on 
the  eflfect  of  the  deed  which  governs  the  rights  of  the  present  parties  ; 
and  in  so  deciding  we  do  not  intend  at  all  to  limit  the  salutary  principle 
laid  down  in  Emhrcy  v.  Owen,  to  the  effect  that  the  superior  riparian 
proprietors  may  use  the  stream  for  all  reasonable  purposes,  while  in 
their  land,  provided  they  send  it  on,  without  material  diminution  or 
alteration,  to  inferior  proprietors.  It  was  further  objected  that  if  such 
was  the  case  the  plaintiff  could  not  recover  for  it  under  the  present 
declaration,  claiming  the  right  by  reason  of  possession,  without  men- 
tioning or  referring  to  the  deed.  But  this  objection  we  think  unten- 
able. If  the  easement  was  granted  to  the  owners  of  Fourth  Tanner's 
meadow,  we  think  the  precedents  are  clear  that  it  may  be  described  in 
a  declaration  as  an  easement  to  which  the  plaintiff  is  entitled  by  reason 
of  his  possession  of  that  meadow"  (22  L.  J.  Q.  B.  183). 

The  above  case,  which  established  that  where  the  rights  of  the  far  ties 
are  derived  from  a  deed  or  other  instrument,  their  rights  must  he  ascertained 
from  the  instrument  atone,  and  that  general  doctrines  of  law  are  not  aj)j)li- 
cahle,  laid  down  the  principle  on  which  Whitehead  v.  Paries  was  decided 
(27  L.  J.  Ex.  1G9).  In  this  case,  by  lease  dated  1827,  Lord  Derby 
demised  to  one  "Woodcock  a  dwelling-house  and  fifteen  closes  of  land, 
and  granted  all  streams  of  water  that  might  be  found  in  four  of  those 
closes,  called  The  Clough,  The  Moorin  Clough,  The  Brow,  and  The 
Marleds,  excepting  out  of  the  demise  all  timber  and  other  trees,  &c., 
mines  and  minerals,  <tc.,  stone,  gravel,  sand,  and  clay,  &c.,  and  all 
streams  of  water,  except  those  above  granted,  then  being  or  thereafter 
to  be  found  in  or  upon  the  premises  demised,  with  power  for  Lord  Derby, 
his  heirs  and  assigns,  and  his  and  their  servants  and  workmen,  from 
time  to  time  "  to  enter  upon  the  premises,  and  to  crop,  fell,  search  for, 
&c.,  and  make  marketable  all  or  any  of  the  before-mentioned  articles; 
to  make  any  clay  into  bricks  or  tiles  on  the  premises,  &c.,  and  to  divert 
or  alter  the  course  of  any  river,  brook,  spring,  or  water,  &c."  There 
was  a  plan  annexed  to  the  lease  showing  a  stream  of  water  on  the  north 
side  of  the  demised  premises,  and  flowing  through  their  whole  extent 


IRRIGATION   BY   USE   OF   ARTIFICIAL   DAM.  191 

from  east  to  west,  and  the  four  closes  were  situated  on  the  banks  of  this 
stream.  There  was  no  other  stream  on  the  surface,  but  certain  wells 
were  in  existence  in  tliose  closes,  and  others  were  subsequently  found. 
It  was  held  by  the  Court  of  Exchequer  that  the  wells  and  all  water  in 
the  four  closes  passed  by  the  grant  in  question  to  Woodcock,  and  that 
neither  Lord  Derby  nor  his  lessees  could  work  the  mines  so  as  to  cut 
off  the  springs  in  the  closes  in  question.  And  j;«-  Martin  B. :  "  Lord 
Derby  granted  to  Woodcock  all  the  water  which  might  be  found  on  the 
closes  in  question.  Lord  Derby  cannot  derogate  from  his  grant,  and 
the  defendant,  his  lessee,  is  in  the  same  position.  Nortliam  v.  Hurley 
decided  for  the  first  time,  what  appears  to  me  to  be  clear,  viz.,  that  if, 
u]3on  a  question  of  water  rights,  tliere  is  an  agreement  by  deed,  such 
deed  will  regulate  the  rights  of  the  parties"  {Ih.). 

Greenslade  v.  HalUdcuj  was  one  of  the  earliest  cases  on  irrigation. 
The  plaintiff  owned  certain  ancient  meadow  land  near  a  small  stream 
which  flowed  through  defendant's  land.  For  fifty  years  the  tenants  of 
the  plaintiff  and  their  i:)redecessors  had  been  accustomed  to  enter  on 
the  defendant's  land,  and  pen  back  the  water  of  this  stream  by  placino- 
a  row  of  loose  stones  across  it  at  a  certain  point  ;  and  when  the  water 
was  so  penned  back  by  this  dam  or  obstruction,  a  portion  of  it  ran 
through  a  small  archway  along  an  artificial  cut,  which  passed  to  some 
distance  over  the  defendant's  laud,  and  so  irrigated  the  plaintiff's 
meadow.  In  dry  weather  the  tenants,  according  to  the  plaintiff's  wit- 
nesses, placed  a  board  or  fender  across  the  stream,  but  neither  was 
permanently  fixed  till  the  year  before  the  action,  when  the  plaintiff's 
tenant  placed  a  board  in  front  of  the  stones,  and  fastened  it  down  by 
two  stakes  driven  into  the  bed  of  the  stream,  on  the  top  of  which  stakes 
were  crooks  embracing  the  upper  edge  of  the  board.  Whether  this 
board  penned  the  water  higher  than  the  ordinary  dam  of  loose  stones, 
or  whether  a  board  had  ever  been  used  before,  except  at  a  very  remote 
period  when  the  water  meadow  was  in  the  possession  of  the  defendant's 
predecessors,  did  not  satisfactorily  appear  from  the  evidence.  TJie 
defendant,  however,  conceived  that  the  permanency  of  the  dam  mioht 
establish  for  the  plaintiff  a  right  to  a  greater  extent  than  he  had  enjoyed 
before,  and  be  prejudicial  to  her  own  enjoyment  of  a  mill  above  and 
water  meadows  below  the  dam,  and  caused  the  stakes  to  be  pulled  up 
and  the  board  to  be  removed  ;  saying  to  the  tenant,  at  the  same  time, 
that  until  it  was  proved  what  quantity  of  water  ought  to  go,  he  should 
exercise  no  right  there. 

At  the  trial,  Taunton  J.  seemed  to  think  that  the  defendant  had 
denied  the  plaintiff's  right  in  toto,  and  excluded  this  declaration  as  not 
being  admissible  evidence.     But  he  told  the  jury  that  if  the  board 


192    CROSSING  another's  LAND  FOR  PURPOSES  OF  IRRIGATION. 

acted  on  the  stream  in  an  unusual  manner,  and  penned  the  water  higher 
than  it  ought,  the  defendant  was  entitled  to  pull  it  down.  A  verdict 
for  the  i>laintiff  was  confirmed  by  the  Court,  "  on  the  short  ground  that 
the  defendant  had  done  more  than  she  ought  to  have  done."  And  ^^er 
Tindal  C.J. :  "  The  board  in  dispute  was  fastened  by  stakes,  which  was 
not  usual  ;  but  the  defendant,  instead  of  removing  the  stakes  alone, 
removed  the  board  also.  If  a  party  who  had  a  right  to  a  stone  weir 
were  to  erect  buttresses,  one  who  should  oppose  the  erection  of  the  but- 
tresses could  not  justify  demolishing  the  weir  as  well  as  the  buttresses." 
And  see  also  Ward  v.  Rubins  (15  M.  &  W.  237). 

TJie  oMnicUon  of  an  easement  of  going  across  difendanVs  land  to  dam 
vp  water,  and  hring  it  hy  an  artificial  cut  through  the  defendant's  land  to 
the  jilainlifs  far  irrigation  and  the  use  of  his  cattle,  was  the  subject  of 
Beeston  v.  Weafe  (25  L.  J.  Q.  B.  115).     The  defendant  occupied  land 
which  was  bounded  on  the  south  by  land  in  the  occupation  of  the  plain- 
tiff, called  the  Coiv  Pasture.    A  natural  stream  ran  along  the  north  side 
of  the  defendant's  land,  and  there  was  an  artificial  watercourse  passing 
from  this  brook  through  the  defendant's  land  (crossing  a  road  on  the 
same  land)  to  the  land  of  the  plaintiff.    According  to  the  evidence  this 
watercourse  looked  as  old,  sixty  years  ago,  as  at  the  present  time.     For 
more  than  forty  years,  and  as  long  back  as  living  memory  went,  the 
occupiers  of  the  plaintiff's  land  had  been  in  the  habit  of  crossing  the  de- 
fendant's land,  and  of  placing  sods  so  as  to  form  a  dam,  obstructing  the 
course  of  the  water  in  the  natural  brook  immediately  below  the  point  at 
which  the  artificial  watercourse  joined  it.    The  effect  of  this  was  to 
throw  the  water  into  the  artificial  watercourse,  through  which  it  flowed 
across  the  defendant's  land  to  the  land  of  the  plaintiff;  where  it  supplied 
a  pit  or  pond.     This  the  occupiers  of  the  plaintiff's  land  had  constantly 
done  to  supply  their  cattle  with  water,  at  such  times  as  the  lowness  of 
the  water  in  the  brook  rendered  it  necessary.    When  the  water  was 
wanted  by  the  occupiers  of  the  defendant's  land,  as  it  usually  was  at  cer- 
tain seasons  of  the  year  for  the  irrigation  of  that  land,  the  water  did 
not  reach  the  plaintiff's  land.     The  water,  after  being  conducted  on  to 
the  land  of  the  plaintiff,  ran  off  by  another  arm  and  rejoined  the  natural 
brook.     It  was  not  denied  tliat  the  defendant  had  done  the  acts  com- 
plained of.    This  evidence  being  uncontradicted  except  by  an  unsuc- 
cessful attempt  to  prove  an  interruption,  Erie  J.  told  the  jury  that  if 
the  occupiers  of  the  i^laintiff's  land  at  the  proper  season  had  at  their 
will  and  pleasure  turned  the  water  on  to  tlieir  land  for  the  purpose  of 
supplying  the  cattle  with  water,  the  plaintiff  was  entitled  to  a  verdict. 
The  Court  refused  a  new  trial,  and  held  that  the  jury  Avere  warranted 
in  inferring  a  user  as  of  right  by  the  occupiers  of  plaintiff's  land  of  the 


BFJXGIXG    WATER   BY  ArvTIFICIAL    CUT    FOR    IRRTGATIOX.     193 

easoinent  on  the  rlefendani's  land  ;  and  tliat  for  tlie  interruption  of 
sucli  casement  plaintilT  mii^ht  maintain  an  action  against  defendant. 

Lord  CampMl  C.J.  said,  in  delivering  judgment :  "  The  defendant's 
counsel,  in  arguing  that  the  plaintiff  ought  to  have  been  nonsuited, 
relied  mainly  on  ArJcwright  v.  Goll,  Wood  v.  Waud,  and  Greatrex  v. 
Hayiuard.  We  entirely  concur  in  those  decisions,  thinking  that  the 
plaintiif  did  not  in  any  of  them  support  his  allegation  as  to  the  ease- 
ment claimed.  In  none  of  them  was  there  any  reasonable  ground  for 
inferring  that  the  casement  had  been  acquired  by  prescription  or 
grant.  But  we  do  not  consider  that  the  cases  lay  down  any  such  rule 
as  that  enjoyment  and  acts,  which  without  the  existence  of  the  ease- 
ment would  be  tortious  and  actionable,  may  not  be  evidence  of  the 
right  to  the  use  of  water,  although  it  flows  in  an  artificial  cut.  This 
doctrine  would  destroy  the  right  to  the  great  majority  of  mill  leats  all 
over  the  kingdom."  "  In  the  cases  referred  to,  regard  was  had  to  the 
water  being  obtained  artificially  by  the  owner  of  the  servient  tenement, 
rather  than  to  the  water  running  through  an  artificial  cut.  Here  the 
water  in  question  is  part  of  the  water  of  a  stream  which  has  flowed  on 
the  surface  of  the  country  from  the  time  that  onr  globe  took  its  present 
conformation.  But  the  strength  of  the  plaintiff's  case  (distinguishing 
it  from  the  cases  relied  upon  by  the  defendant)  is,  that  here  the  occu- 
pier of  the  dominant  tenement,  for  the  purpose  of  letting  in  the  water 
from  the  natural  current  of  the  river  into  the  artificial  cut,  and  from 
the  artificial  cut  into  his  pond  in  the  Cow  Pasture,  was  constantly 
going  upon  the  servient  tenement,  with  notice  to  the  occupier  of  the 
servient  tenement,  and  doing  acts  which,  without  the  easement,  would 
be  trespasses.  Such  has  been  the  practice  as  far  back  as  living 
memory  goes,  and  may  have  been  the  practice  from  time  immemorial. 
Yet  for  these  acts  no  action  has  been  brought,  nor  has  any  complaint 
been  made.  If  you  are  to  presume  that  they  took  place  by  the  licence 
of  the  occupier  of  the  servient  tenement,  then  by  constant  user  ac- 
quiesced in,  no  easement  can  be  acquired. 

"But,  if  it  were  not  that  the  occupier  of  the  servient  tenement 
has  himself  used  the  water  flowing  through  the  artificial  cut  for 
irrigation,  no  plausible  objection  could  be  made  to  the  easement  which 
the  plaintiff'  claims,  and  we  do  not  see  that  the  use  of  the  water  on  the 
servient  tenement  takes  away  from  the  effect  of  the  use  of  it  for 
the  dominant  tenement,  regard  being  had  to  the  positive  acts  done 
by  the  occupier  of  the  dominant  tenement  upon  the  servient  tenement 
for  the  purpose  of  enjoying  the  easement.  Great  stress  was  laid  by  the 
defendant's  counsel  on  the  often-repeated  assertion,  that  the  artificial 
cut  was  made  for  a  temporary  purpose.     The  water  flowing  through  the 


1P4  IXJUHY    TO    REVERSION 

flit  ]ia?.  as  ftir  Imck  as  livings  memory  goes,  and  prohaMy  much  longer, 
been  constantly  applied  to  two  purposes— the  irrigation  of  the  meadow 
on  one  side  of  the  cut,  and  the  watering  of  the  cattle  pasturing  in  the 
meadow  on  the  other  side  of  the  cut.  These  purposes  cannot  be  con- 
sidered temporary  in  their  nature,  although  there  is  no  certainty  that 
the  meadows  may  not  at  some  remote  time  become  the  sites  of  streets 
and  squares  in  a  town.  The  defendant's  counsel  argued  strongly 
against  the  probability  of  such  a  grant,  whereby  the  owner  of  the 
servient  tenement  would  hare  deprived  himself  of  the  power  of  con- 
verting it  to  any  pui-pose  inconsistent  with  the  easement  granted.  But 
it  is  part  of  the  generally  fictitious  supposition  of  a  grant  that  it 
proceeds  upon  an  adequate  consideration." 

The  latest  case  on  the  subject  of  irrigation  is  Sampson  v.  Hodclinott, 
which  was  an  action  for  cm  injury  to  plahitiff's  reversion  lij  divert  in  cj  a 
stream  of  uriter.  Certain  tenants  of  the  plaintiff  were  possessed  of 
certain  water  meadows,  into  which  meadows  he  claimed  that  a  portion 
of  the  water  of  certain  streams  of  right  ought  to  have  run,  for  watering 
the  same,  and  Avhich  defendant  diverted  and  obstructed.  A  verdict 
was  taken  for  the  plaintiflF  for  £200  damages,  subject  to  a  special  case. 
Judgment  was  given  for  the  plaintiff  in  respect  only  of  the  diversion  of 
the  river  Yeo,  and  for  the  defendant  on  the  alleged  causes  of  action, 
which  related  to  the  diversion  of  a  stream  called  the  Back  Water,  and 
the  obstruction  and  diversion  of  the  Silver  Lake  spring.  The  iDlaintifi" 
had  immemorially  enjoyed  the  benefit  of  irrigating  certain  of  his 
meadows  with  the  water  of  the  river  Yeo,  subject  to  the  right  of  the 
miller  at  "West  Mill  to  detain  the  water  for  the  use  of  his  mill.  The 
natural  flow  of  the  river  was  prevented  by  the  exercise  of  the  miller's 
right,  but  the  water  was  allowed  to  come  down  at  such  times  that  the 
jilaintiflF  was  enabled  to  in-igate  his  meadows  effectually.  The  defendant 
liad,  for  the  purpose  of  irrigating  his  own  adjacent  land,  from  time  to 
time  diverted  the  water  after  it  had  passed  the  mill,  and  before  it 
reached  the  plaintiff's  meadows ;  and  although  it  did  not  appear  that 
the  water  which  ultimately  reached  the  meadows  was  sensibly  dimi- 
nished in  quantity,  yet  the  effect  was  that  the  water  was  detained  by  the 
process  of  irrigation,  and  did  not  arrive  until  so  late  in  the  day  that 
the  plaintiff  was  deprived  of  the  power  to  use  it  fully.  The  water 
was  penned  every  night  at  West  Mill ;  and  when  the  defendant  was  not 
watering  his  new  water-mead,  the  water  generally  came  down  to  the 
].laintiff's  Wyke  farm  about  twelve  at  noon,  and  six  or  seven  acres  of 
the  plaintiff's  water-meads  could  be  watered  at  a  time;  but  when  the 
defendant  was  watering  his  new  water-mead  the  water  did  not  come  to 
the  plaintiff's  farm  until  about  three  o'clock  in  the  afternoon,  and  then 


BY    DIVEETING    STREAM.  195 

only  three  or  fonr  acres  of  tlie  plaintiff's  water-moads  could  be  watered 
at  a  time ;  and  in  winter  it  was  often  dark,  and  therefore  too  tate  to  jnit 
the  water  over  the  plaintlfTs  meads  at  all. 

There  was  evidence  that  in  consequence  of  the  defendant's  watering 
his  new  water-mead  in  the  autumn  and  winter  of  1854  the  plaintiff's 
tenants  could  only  water  some  of  their  meads,  and  lost  some  spring  feed 
of  the  mead ;  but  there  was  also  evidence  on  the  part  of  the  defendant 
that  the  hay  crop  in  the  Dairyman's  Mead  was  as  good  as  ever;  and  it 
was  an  admitted  fact  that  the  defendant  irrigated  his  land  properly 
without  excess  or  unnecessary  waste,  and  that  the  mill  and  wheel  were 
used  for  agricultural  purposes,  for  threshing,  and  grinding  barley,  for 
the  purposes  of  the  defendant's  farm  only ;  and  if  right  existed,  there 
was  no  abuse  or  excess.  The  injury  to  the  plaintiff's  reversionary  in- 
terest in  his  ancient  water  meadows  was  stated  to  be  that  they  were 
deprived  of  the  first  catch  or  use  of  the  water,  the  fertilizing  sediments 
or  properties  of  whicli  were  deposited  on  the  defendant's  new  water- 
mead  ;  secondly,  that  as  such  new  water-mead  was  very  porous  upper 
soil,  consisting  of  a  layer  of  gravel  and  a  subsoil  of  clay,  the  whole  of 
the  river  was  insufficient,  except  in  a  flood,  to  water  even  the  plaintiff's 
ancient  meadows ;  thirdly,  that  it  was  penned  on  this  new  water-mead 
so  late,  that  plaintiff's  tenants  could  not  watch  and  attend  to  the 
watering  of  the  ancient  meadows,  as  they  were  prevented  by  the  pen- 
ning of  the  water  at  the  West  Mill  from  using  it  at  night.  A  verdict 
was  taken  for  the  plaintiff  for  .£200  damages,  subject  to  a  special  case. 

Cresswell  J.  said,  in  delivering  the  judgment  of  the  Court,  "  that 
all  persons  having  lands  on  the  margin  of  a  flowing  stream  have 
by  nature  certain  rights  to  use  the  water  of  that  stream,  whether 
they  exercise  those  rights  or  not,  and  that  they  may  begin  to  exercise 
them  whenever  they  will.  By  usage  they  may  acquire  a  right  to  use 
the  water  in  a  manner  not  justified  by  their  natural  rights ;  but  such 
acquired  right  has  no  operation  against  the  natural  rights  of  a  land- 
owner higher  up  the  stream,  unless  the  user  by  which  it  was  acquired 
affects  the  use  that  he  himself  has  made  of  the  stream  or  his  power  to 
use  it,  so  as  to  raise  the  presumption  of  a  grant,  and  so  render  the 
tenement  above  a  servient  tenement.  If  the  user  of  the  stream  by  the 
plaintiff  for  irrigation  was  merely  an  exercise  of  his  natural  right,  such 
user,  however  long  continued,  could  not  render  the  defendant's  tene- 
ment a  servient  tenement,  or  in  any  way  affect  the  natural  rights  of  the 
defendant  to  use  the  water.  If  the  user  by  the  plaintiff  was  larger  than 
his  natural  rights  would  justify,  still  there  is  no  evidence  of  its  affect- 
ing the  defendant's  tenement,  or  the  natural  use  of  the  water  by  the 
defendant,  so  as  to  render  it  a  servient  tenement.     But  if  the  user  by 

o  2 


]U0    WATER  ESCAnXG  INTO  A  MTXE  FROM  RAILWAY  CUTTINGS. 

ihe  defendant  has  boen  beyond  his  natural  riglit,  it  matters  not  how 
much  the  phiintill"  lias  used  the  water,  or  whether  he  has  used  it  at  all. 
In  either  case  his  right  has  been  equally  invaded,  and  the  action  is 
maintainable. 

"  The  question  between  the  parties  is  thus  reduced  to  this  single 
point — has  the  defendant  used  the  water  as  any  riparian  proprietor 
may  use  it,  or  has  he  gone  beyond  that  ?  The  general  principle 
of  law  may  be  deduced  from  the  decision  of  Embrey  v.  Owen;  and 
the  authorities  cited  by  Parlce  B.,  in  delivering  judgment  in  that 
case,  is  that  every  proprietor  of  lands  on  the  banks  of  a  natural  stream 
has  the  right  to  use  the  water,  provided  he  so  uses  it  as  not  to 
wo7'k  any  material  injury  to  the  rights  of  other  proprietors  above  or 
below  on  the  stream.  In  the  present  case  it  appears  to  us,  on  the 
evidence,  that  the  detention  by  the  defendant,  under  the  circumstances, 
of  the  water  of  the  river  Yeo,  for  the  purposes  of  irrigation,  was  a  use 
of  it  which  in  its  character  was  necessarily  injurious  to  the  natural 
rights  of  the  plaintiff  as  the  proprietor  of  land  lower  down  the  stream. 
The  effect  was  obviously  the  same  as  if  the  defendant  had  placed  a  bar 
or  weir  across  the  river,  and  by  that  means  had  wholly  prevented  its 
natural  course  for  a  certain  number  of  hours.  And  it  appears  to  us 
that  there  is  neither  authority  nor  principle  for  contending  that  such  an 
act  can  be  justified  on  the  ground  that  it  was  done  for  improving  the 
adjacent  land  of  the  defendant,  whether  by  irrigation  or  otherwise." 
The  judgment  of  the  Court  of  Common  Pleas  was  finally  entered  for 
the  plaintiff,  as  to  such  part  of  his  complaint  as  related  to  the  river 
Yeo,  and  as  to  the  rest  of  the  alleged  causes  of  action,  for  the  de- 
fendant (26  L.  J.  C.  P.  148). 

Water  escaping  from  railivaij-cuttings  into  a  mine. — A  railway  company 
is  responsible  for  injuries  sustained  by  reason  of  water  escaping  from  a 
stream  in  flood-time,  or  collected  from  rain  falling  on  the  railway,  and 
flowing  along  a  cutting  of  the  railway,  and  percolating  through  the 
substratum  into  mines  beneath,  although  such  mines  had  not  been 
worked  at  the  time  of  the  formation  of  the  railway  ;  and  such  damage 
is  the  subject  of  an  action,  and  not  the  subject  of  compensation  under 
the  compensation  clauses  {Bagnell  v.  London  and  Norlh-Western  Rail- 
tvag  Company). 

WorJcing  mines  under  water-course. — The  owner  of  freehold  lands 
and  his  lessee  will  be  restrained  from  working  mines  under  a  water- 
course, otherwise  than  in  a  manner  not  likely  to  prevent  the  plaintiff 
from  enjoying  an  uninterrupted  flow  of  water  to  his  works  {Elwell  v. 
Croictluir). 

Siq'jjtying  horses  ivith  water  from  a  imltic  fountain. — A  local  board  of 


SUPPLYING  HORSES  WITH  WATER  FROM  PUBLIC  FOUNTAIN.     107 

health,  empowered  by  their  private  act  to  supply  a  town  with  water  at 
certain  rates,  supplied  an  ornamental  fountain  (which  had  been  pre- 
sented to  the  town  by  one  of  the  inhabitants,  and  erected  in  one  of  the 
public  streets)  with  water  for  the  use  of  cattle  in  the  cattle  market  on 
market  days,  and  for  horses,  if  yol^ed,  ivhen  jiasshig  to  and  fro.  The 
board  had  a  fixed  charge  per  horse  for  water  supplied  to  persons  keep- 
ing horses,  who  might  choose  to  have  water  laid  into  their  stables. 
The  respondent,  in  order  to  evade  payment  of  this  charge,  took  his 
horses  from  his  stahte  to  the  fountain  to  drink.  Upon  a  complaint 
against  him  for  so  doing,  under  the  Water  Works  Clauses  Act,  1847, 
sec.  59,  which  enacts  that  "every  person  who,  not  having  agreed  to  be 
supplied  with  water  by  the  undertakers,  shall  take  any  water  from  any 
place  containing  water  belonging  to  the  undertakers  other  than  such 
as  may  have  been  provided  for  the  gratuitous  use  of  the  public,  shall 
forfeit,"  &c.  ;  the  magistrates  being  of  opinion  that  the  local  board 
had  no  power  to  erect  a  fountain  in  the  public  highway  except  for  the 
gratuitous  use  of  the  public,  and  that  therefore  the  water  supplied  to 
such  fountains  came  within  the  exception  in  the  above  clause,  refused 
to  convict.  It  was  held  by  the  Court  of  Common  Pleas  that  the  deci- 
sion of  the  magistrate  was  -RTong  ;  for  that,  whether  the  fountain  were 
a  public  nuisance  or  not,  the  board  were  at  liberty  to  supply  it  with 
water  on  their  own  conditions.  And  per  WiUiams  J. :  "  It  is  clear, 
upon  the  facts  here,  that  there  was  no  unrestricted  dedication  to  the 
public  at  large,  and  nothing  in  the  act  of  parliament  to  work  that  result. 
Though  there  may  be  a  dedication  for  a  limited  purpose  to  all,  there 
cannot  be  a  dedication  to  a  limited  part  of  the  public  on  the  principle 
which  is  established  in  Poole  v.  Huskisson  (11  M.  &  W.  827),  and  The 
Marquis  of  Stafford  v.  Coyney  (  7  B.  &  0.  257).  The  consequence  is 
not  that  a  partial  dedication  will  operate  as  a  dedication  to  all  the 
public,  but  such  dedication  is  simply  void,  and  no  dedication  at  all. 
And  2)er  ByJes  B. :  "I  am  not  sure  that  the  use  for  which  this  watei' 
is  supplied  was  not  a  public  use.  Anybody's  cattle  and  yoke-horses 
may  drink  at  it ;  and  though  the  time  at  which  the  fountain  may  be 
used,  and  the  class  of  cattle  and  horses,  which  may  use  it  are  limited, 
it  is  not  the  less  for  the  use  of  all  the  public  (see  Rex  v.  Berenger,  3  M. 
&  S.  73).  But  that  by  no  means  justifies  the  respondent  in  using  the 
water  for  other  purposes  than  those  to  which  the  use  is  limited  {Hildrcth 
appt.  V.  Adamson  resp.)— 30  L.  J.  (N.  S.),  M.  C,  204. 

Conveyance  of  right  of  continuance  of  culvert  with  farm — By  permis- 
sion of  the  tenant  for  life  of  farms  A  and  B,  the  defendant  many  years 
ago  made  a  culvert  from  a  brook,  which  in  its  natural  course  flowed  to 
farm  A  for  the  purpose  of  getting  water  for  his  own  premises,  and 


198  USE    OF    CULVEUT. 

for  farm  B.  The  culvert  wliicli  carried  off  nearly  all  the  water  from 
the  brook,  conuuenced  in  some  lands  of  the  del'endant,  which  were 
bounded  by  the  brook,  and  then  passed  through  farm  B,  where  a 
portion  of  the  water  was  drawn  out  of  it  by  means  of  a  small  pipe  for 
the  use  of  farm  B.  The  rest  of  the  water,  viz.,  the  larger  portion, 
flowed  on  down  the  culvert,  which,  after  traversing  farm  B,  ended  in 
other  premises  of  the  defendant,  where  the  water  was  consumed.  In 
September,  185G,  the  then  owners  of  farms  A  and  B  conveyed  farm  B, 
in  fee  to  the  defendant,  together  with  all  waters  and  water  courses  ap- 
pertaining to  the  premises  or  used,  occupied,  or  enjoyed  with  the  same. 
He  afterwards  conveyed  farm  A  to  the  plaintiff,  with  all  waters  and 
water  courses.  It  was  held  in  the  Exchequer  Chamber  affirming  the 
judgment  of  the  Queen's  Bench,  that  as  against  the  owner  of  farm  A 
the  words  of  the  conveyance  of  farm  B  were  sufficient  to  convey  to  the 
defendant  the  right  to  the  continuance  of  the  culvert  and  to  the  accus- 
tomed flow  of  water  down  it,  and  that  his  right  was  not  limited  to  the 
taking  so  much  of  the  water  as  had  heretofore  been  used  for  the  purposes 
of  farm  B  {WardJe  v.  Broddchurst). 

Cotidition  under  tchich  tenant  for  life  received  compensation  for  loss 
of  po7id  u'hich  tvorJced  Ms  mill. — A  pond  which  supplied  a  stream  by 
which  a  flour-mill  was  worked,  was  purchased  by  the  Ordnance  under 
the  Defence  Act,  1842.  Tlie  water  being  diverted,  the  tenant  for  life 
of  the  mill  claimed  compensation ;  and  before  an  award  was  made,  he 
erected  a  steam  engine  and  suitable  buildings  for  the  mill,  expending 
thereon  £1,300.  Compensation  amounting  to  £920  being  awarded  to 
him,  the  Court  of  Appeal,  on  a  question  from  the  Master  of  the  Bolls, 
permitted  this  sum  to  be  paid  to  the  tenant  for  life,  upon  the  under- 
standing that  the  erection  of  the  steam  engine  and  buildings  was  of  a 
substantial  and  permanent  nature  {1)1  re  Duke  of  Wellington's  Settled 
Estates  Ad). 


SUNDAY    HIRING,  199 


CHAPTER    VII. 

SERVANTS. 

A  CONTRACT  of  hiring  made  on  a  Sunday  between  a  farmer  and  a 
labourer  for  a  year,  is  not  "  business  or  work  of  their  ordinary  calling  " 
within  29  Gar.  II.  c.  7,  s.  1,  and  is  therefore  valid  {Rex  v.  Inhabitants 
of  Whitnash).  A  contract  of  hmng  may  be  qualified  Ivj  proof  of  cus- 
tomary Jiolidaijs  {Reg.  Y.  Stoke-on-Trent);  and  proof  that  the  plaintiff 
and  other  workmen  employed  by  the  defendant  came  regularly  to  receive 
their  wages  from  the  defendant,  whose  practice  was  to  pay  every  week, 
and  that  the  plaintiff  had  not  ieen  heard  to  comjylain  of  non-pagment,  u 
presumptive  evidence  of  payment  {Sellen  v.  Norman,  and  see  Lucas  v. 
Novosilieslci). 

In  Cuclison  v.  Stones,  the  Court  of  Queen's  Bench  decided  that  to  a 
claim  for  wages  on  an  agreement  to  serve  the  defendant  during  a  cer- 
tain period  at  a  certain  weekly  sum,  it  is  no  answer  tluit  the  plaintiff 
was  absent  from  the  service  of  the  defendant  during  the  period  in  respegt 
of  which  the  wages  are  claimed  by  reason  of  temporary  illness.  And 
per  Curiam :  "  We  think  that  want  of  ability  to  serve  for  a  week 
would  not  of  necessity  be  an  answer  to  a  claim  for  a  week's  wages.  In 
truth,  the  plaintiff  was  here  ready  and  willing  to  serve  had  he  been 
well,  and  able  to  do  so,  and  was  only  prevented  serving  during  the 
week  by  the  visitation  of  Grod,  the  contract  never  having  been  deter- 
mined "  (ib.). 

Long  continued  service  creates  no  claim  for  remuneration  without  a 
bargain  for  it,  either  express  or  implied  from  circumstances,  showing  an 
understanding  on  both  sides  that  there  should  be  payment  ;  and  so  it 
was  ruled  by  Martin  B.  in  Reeve  v.  Reeve  (on  the  authority  of  Hin- 
geston  v.  Kellg),  when  the  plaintiff  had,  five  years  before  action,  been 
engaged  by  his  nephew,  the  defendant,  to  look  after  his  farm,  and  to 
have  board,  lodging  and  clothing.  The  case  for  the  plaintiff  (for 
whom  the  jury  found),  was  that  there  was  a  further  bargain  for  wages 
at  four  shillings  a-week,  but  this  the  defendant  denied.  A  new  trial 
was  granted  on  the  ground  that  the  evidence  was  not  suiUcient  as  to 
a  bar2;aiu  for  wages. 


^:00       GEXEKAL    HIRING    OF    AGraCCLTUEAL    LABOURER. 

If  a  i/enrJy  servant  irro)i(/fi/I!//  r/uif,  or  le  dismissed  Inj  his  master,  le- 
fore  the  year  expires,  for  such  miscouduct  as  will  justify  the  dismissal, 
the  servant  is  not  entitled  to  any  wages  for  the  time  during  which  he 
served  ('ranter  v.  Euhinson).  The  general  rule  is,  that  //  a  master 
hire  a  servant  without  mentioning  the  time,  that  is  a  general  hiring, 
and  in  point  of  law  a  hiring  for  one  whole  year  ;  and  a  stipulation  that 
there  is  to  be  an  advance  of  so  much  per  annum,  till  the  wages  reach 
a  certain  amount,  does  not  make  it  the  less  a  contract  for  a  year.  In 
the  case  of  domestic  servants,  the  rule  is  well  established  that  the 
contract  may  be  determined  by  a  month's  notice  or  a  month's  wages, 
but  that  depends  upon  custom.  Where  no  such  custom  is  proved,  the 
contract  must  be  taken  to  be  one  for  a  year  {Fmvcett  v.  Cash). 

A  general  hiring  in  the  case  of  an  agricultural  labourer  means,  in 

law,  a  hiring  for  a  year  ;  and  therefore  the  plaintiff  in  Lit  teg  v.  El  win 

failed  on  his  first  count,  which  alleged  a  special  contract  of  hiring, 

determinable  at  any  time  by  reasonable  notice  on  either  side,  and  was 

only  supported  by  proof  of  a  general  hiring  as  to  time.     And  he  could 

not  recover  for  the  time  of  his  actual  service  on  the  indehitatus  count, 

as  he  was  bound  to  give  a  whole  year's  service  before  earning  any 

wages,  and  he  broke  his  contract  by  leaving  that  service  before  the 

year's  end.     In  this  case  nothing  was  said  as  to  notice  of  determining 

the  engagement.     The  defendant,  a  farmer,  hired  the  plaintiff  as  a 

waggoner  for  ten  guineas  a-year,  payable  at  its  expiration.     During 

the  harvest,  he  worked  in  the  field  generally,  and  the  Court  thought 

it  must  be  taken  as  part  of  his  contract  that  he  should  do  so.     At 

that  time  of  the  year  the  practice  was  to  work  till  eight  o'clock  in  the 

evening  ;   but   he   refused   to  work  to  that  hour,  not  as  being  an 

unreasonable  hour,  or  as  not  being  within  the  terms  of  his  contract, 

but  because  strong  beer   of  good   quality   was   not   allowed  to  him, 

according  to  a  custom  which  he  alleged  to  exist ;  the  beer  supplied 

being,  as  he  contended,  very  bad,  and  not  so  good  as  water.     Coleridge 

J.  said  :  "  If  the  discharge  was  not  justifiable,  then  the  plaintiff'  was 

at  liberty  to  treat  that  discharge  as  a  rescinding  of  the  contract  by 

the  defendant,  and  to  adopt  that  rescinding,  and  sue  for  wages  pro 

rata  up  to  the  time  of  the  unjustifiable  discharge,  and  so  to  retain 

his  verdict  on  the  indebitatus  count.     We  do  not  think  it  necessary  to 

go  through  the  authorities  which  establish  this  view  of  the  law  ;  they 

will  be  found  collected  in  Mr.  Smith's  leading  cases  in  the  notes  to 

Cutter  v.  Povell,  vol.  ii.  ca.  1.     The  discharge  in   this  case  was  not 

directly  by  the  master,  the  defendant,  but  by  a  magistrate,  on  the 

statute  4   Geo.  IV.  c.  M,  on  the  complaint  of  the  master.     But  we 

are  of  opuiion  that  it  is  sufficiently  the  act  of  the  defendant  to  entitle 


HUNTSMAN   A    SERVANT.  201 

liini  to  a  Ycrdicfc  on  the  third  plea  (which  stated  a  discharge  by  the 
defendaut,  for  disobedience  of  orders,  in  not  working  during  liarvcst 
till  eight  o'clock  at  night),  supposing  the  alleged  misconduct  of  the 
plaintiff  to  be  established  ;  and  also  to  entitle  him  to  a  verdict  on 
the  plea  of  non  assumpsit  to  the  indehitahis  count,  on  tlie  like  su})p()- 
sition,  because  in  that  case  he  was  never  indebted  to  the  plaintiff 
at  all"  (11  Q.  B.  742). 

By  sec.  3  of  the  statute,  the  magistrates  have  no  jurisdiction  to  dis- 
charge, unless  it  shall  appear  to  them  that  the  servant  "  shall  not  have 
fulfilled  such  contract,  or  hath  been  guilty  of  any  other  misconduct 
or  misdemeanour."  Thcg  may  issue  tvarrants  to  apprehend  servants  in 
husbandry,  &c.,  not  entering  into  service  according  to  their  contract, 
or  absenting  themselves  from  it,  on  complaint  by  oath,  and  commit 
them  to  the  House  of  Correction  for  three  months'  hard  labour,  or  in 
lieu  thereof  abate  the  whole  or  part  of  the  wages,  or  discharge  the 
servant.  And  it  was  decided  by  the  Court  of  Queen's  Bench,  and 
subsequently  by  the  Court  of  Exchequer  (Potlucic  C.B.  diss,  and 
Martin  B.  dut?.),  that  where  a  party  is  convicted  by  a  justice  of  the 
peace,  under  this  section,  for  absenting  himself  from  his  master's 
service,  the  contract  is  not  dissolved ;  and  if,  after  the  expiration  of 
that  term,  he  refuses  to  return  to  the  service,  he  may  be  brought  up 
before  the  justices  and  convicted  a  second  time  (Ex  jjarte  W.  BaJcer). 
So,  by  sec.  5,  they  may  order  payment  of  wages  due  to  servants  within 
such  time  as  they  may  think  fit,  on  complaint  made  pursuant  to  20 
Geo.  11.  c.  19,  and  31  Geo.  II.  c.  11,  which  apply  to  servants  in  hus- 
bandry hired  for  less  than  a  year. 

A  conviction  under  the  Masters'  and  Servants'  Act,  4  Geo.  IV.  c.  34,  s.  3, 
must  state  on  the  face  of  it  an  offence  within  the  act,  and  the  facts  alleged 
must  not  be  consistent  with  the  innocence  of  the  person  charged,  other- 
wise the  conviction  cannot  be  supported.  And  this  is  so,  even  since 
the  passing  of  Jervis's  Act,  11  &  12  Vict.  c.  43,  which  gives  in  sec.  17  a 
general  form  of  conviction  applicable  to  all  cases  {Ex  parte  Gessivood). 

A  huntsman,  though  hired  at  yearly  wages  with  the  right  to  receive 
certain  perquisites,  is  a  menial  servant,  and  subject  to  dismissal  at  a 
month's  notice,  NicoU  v.  Greaves,  33  L.  J.  N.  S.  C.  P.  259. 

A  u'cirrant  of  commitment  issued  under  4  Geo.  IV.  c.  34,  s.  3,  was  held 
to  be  bad  by  Wightman  J.,  for  not  stating  that  the  contract  was  in 
writing,  or  that  the  servant  had  entered  into  the  service  {In  re  J.  Askew) 
on  the  authority  of  Lindsay  v.  Leigh,  which  was  decided  in  the  Ex- 
chequer Chamber,  and  where  the  warrant  was  under  the  same  section, 
and  almost  in  the  same  words  as  in  this  case.  iVo  right  of  appecil  to  the 
Quarter  Sessions  exists  against  an  order  of  justices  made  under  sec.  5  of 


2U:J  EEFUSAL    BY    SERVANT    TO    OBEY    ORDEBS. 

this  Act,  for  the  payment  of  an  amount  of  weekly  wages  adjudged  to  be 
due  from  a  master  to  his  servant,  on  a  complaint  under  20  Geo.  II.  c.  It), 
although  the  justices  in  making  such  order  may  have  acted  without 
jurisdiction  {Beg.  v.  Bcdwell).  In  ex  parte  Hughes,  it  was  decided  that 
t  tea  Justices  niiglit  make  an  order  on  the  master  for  j^ayment  of  a  year's 
wages  to  a  dairgmakl,  as  being  a  servant  in  husbandry,  under  20  Geo.  II. 
c.  19.  Mary  Hughes  was  hired  in  the  above  capacity  to  serve  for  a  year, 
and  to  assist  in  the  harvesting  of  the  hay  and  corn  if  required.  She  had 
also  to  keep  the  house,and  to  cook  for  the  men-servants  and  labourers, 
and  to  make  their  beds;  and  when  the  master,  and  sometimes  his  family, 
visited  the  farm,  which  he  did  weekly,  she  cooked  for  and  attended  upon 
them.  Wigldmau  J. :  "  Suppose  it  were  exclusively  a  dairy  farm,  would 
you  say  there  was  no  servant  in  husbandry  em23loyed  upon  it  ?  "  And. 
jw  Lord  Campbell  C.J. :  "  She  was  employed  with  a  view  to  the  dis- 
charge of  duties  connected  with  husbandry,  and  the  domestic  duties 
performed  by  her  were  ancillary  to  those  she  was  employed  to  discharge, 
A  servant  in  hus])andry  may  serve  iutra  mania.''' 

Spain  V.  Arnott  was  an  earlier  case  of  the  same  class  as  Lilog  v.  Elwin. 
The  plaintiff  was  a  yearly  servant  to  a  farmer,  and  usually  breakfasted 
at  five  and  dined  at  two.  One  day,  when  dinner  was  ready,  he  was 
ordered,  to  go  to  the  Marsh,  which  was  a  mile  off,  with  the  horses.  He 
said  he  had  done  his  due,  and  would  not  go  without  his  dinner,  and  was 
sent  about  his  business  for  the  refusal.  Lord  EUenhoroitgh  C.J.  ruled 
that,  if  the  contract  ivas  for  a  yeafs  service,  the  year  must  he  completed 
before  the  servant  is  entitled  to  be  paid.  If  the  j^laintiff  persisted  in 
refusing  to  obey  orders,  he  was  warranted  in  turning  him  away.  He 
might  have  obtained  relief  by  applying  to  a  magistrate,  but  he  was  not 
bound  to  pursue  that  course  ;  the  relation  between  master  and  servant, 
and  the  laws  by  which  that  relation  is  regulated,  existed  long  before 
the  statute.  There  is  no  contract  between  the  parties  except  that  which 
the  law  makes  for  them  ;  and  it  may  be  hard  on  the  servant,  but  it 
would  be  exceedingly  inconvenient  if  the  servant  were  to  be  permitted 
to  set  himself  up  to  control  his  master  in  his  domestic  regulations.  A 
juror  was  afterwards  withdrawn  by  consent.  It  was  also  ruled  by  the 
Court  of  Queen's  Bench,  in  Turner  v.  Robinson,  in  which  Spctin  v.  Arnott 
was  cited,  that  where  the^w/w^a  facie  presum})tion  was  that  the  plaintiff 
was  hired  for  a  year,  and  there  was  nothing  to  rebut  that  presumption, 
if  he  violated  his  duty  Ix-foi'c  the  year  expired,  so  as  to  i»revent  the 
defendant  from  having  his  services  for  the  whole  year,  he  cannot  recover 
wages  ^?ro  rata. 

The  Court  of  Common  Pleas  also,  in  Ilarmvr  v.  Cornelius,  28  L.  J. 
C.  P.  85  (where  it  was  decided  that  if  a  skilled  person  undeilakc  a 


DISMISSAL    OF    SEIIVAXT.  203 

service  wliicli  requires  the  exercise  of  such  skill,  there  is  an  implie;! 
warranty  on  his  part  that  he  jwssesses  the  sJcill  reqtmite  to  jjeiform  the 
task,  and  if  he  does  not  his  employer  may  dismiss  him  before  the  expira- 
tion of  the  period  for  which  he  was  engaged,  without  incurring  responsi- 
bility) remarked  m  reference  to  Sjmiti  v.  Arnoft,  "  It  appears  to  us  that 
there  is  no  material  difference  between  a  servant  who  will  not  and  a 
servant  who  cannot  perform  the  duty  for  which  he  was  hired."  FarkeJ. 
laid  down,  in  CalJoiv  v.  Brounclcer,  that  to  justify  a  masfe?^  in  dis^rmshuj 
a  yearly  servant  before  the  expiration  of  the  year,  there  must  be  on  tlie 
part  of  the  servant  either  moral  misconduct,  pecuniary  or  otherwise, 
wilful  disobedience,  or  habitual  negligence  ;  aud^xr  Lord  Kenyan  C.J., 
in  Robinson  v.  Hindman,  that  a  servant  being  frequently  absent  when 
his  master  wanted  him,  and  often  sleeping  out  at  night,  would  warrant 
an  instant  dismissal.  Where,  as  in  Specie  v.  Phillips,  the  defendant's 
counsel  offered  to  prove  that  the  defendant  had  discharged  the  plaintiff 
for  drunkenness,  it  was  decided  by  the  Court  of  Exchequer  that  the 
defendant  could  not  give  evidence,  in  mitigation  of  damages,  of  circum- 
stances which  if  pleaded  would  have  been  a  bar  to  the  action,  more 
especially  where  money  is  paid  into  Court. 

Where  an  action  was  brought  for  a  wrongful  dismissal  of  a  servant, 
who  was  hired  under  a  written  agreement  at  a  yearly  salary,  and  a 
custom  to  terminate  the  agreement  at  a  month's  notice  was  pleaded, 
the  jury  found  that  the  custom  existed  but  did  not  apply  to  the  special 
terms  of  the  contract  (or,  as  Byles  J.  observed,  "  in  effect  found  a 
limited  custom  "),  and  it  was  held  by  the  Court  of  Common  Pleas  that 
it  was  for  the  Court  to  look  at  the  contract,  and  to  see  if  the  custom  as 
found  was  excluded  by  it  [ParJcer  v.  Ibbetsoyi).  By  the  agreement  here 
the  plaintiff  was  to  serve  the  defendant  as  agent  at  a  yearly  salary,  with 
a  proviso  that  the  defendant  would  at  the  end  of  the  year,  if  he  found 
the  plaintiff'  had  done  sufficient  business,  give  him  £30  more  ;  and  the 
Court  considered  that  there  was  nothing  in  this  agreement  inconsistent 
with  a  custom  in  the  trade,  to  terminate  the  service  by  either  party 
giving  the  other  a  month's  notice.  And  sembleper  Willes  J. :  "A  stipula- 
tion for  a  do?iation  to  the  servant  at  the  end  of  the  year,  under  certain 
circumstances,  contained  in  a  written  agreement  for  a  yearly  hiring,  does 
not  exclude  either  party  from  setting  up  a  custom  to  terminate  the 
agreement  at  a  month's  notice"  (ib.)  (27  L.  J.  C.  P.  236). 

A  contract  for  service  for  more  tluin  a  year,  but  subject  to  determination 
within  the  j^ear  on  a  given  event,  is  within  the  4th  section  of  the  Statute 
of  Frauds,  and  must  therefore  be  in  writiny  {Dobson  v.  Collis).  The 
Court  thought  that  Birch  v.  Earl  of  Liverpool  which  is  an  authority  to 
show  that  a  contract,  which  by  its  general  terms  is  not  to  be  performed 


201  HIllIXG    BY    PAEOL. 

within  the  year,  is  not  taken  out  of  the  statute,  because  it  may  be 
Jct'eated  on  a  given  event,  was  exactly  in  point.  And^^rv  Aldcrson  B.: 
''  Tlie  Tery  circumstance  that  tlie  contract  exceeds  the  year  brings  it 
within  the  statute.  If  it  were  not  so,  contracts  for  any  number  of  years 
might  be  made  by  parol,  provided  they  contain  a  defeasance,  which 
might  come  into  operation  before  the  end  of  the  first  year.  The  reason 
for  the  enactment  was  tliat  there  might  be  no  dispute  beyond  the  year  as 
to  the  terms  of  the  contract.  Bccston  v.  Colhjer  was  the  case  of  a  yearly 
hiring.  There  was  a  contract  to  be  performed  within  the  year,  and  that 
might  lead  to  another,  which  the  parties  might  or  might  not  make  for  a 
year.  If  they  did  enter  into  it  after  the  first  or  any  subsequent  year, 
it  was  a  fresh  contract ;  but  when  once  the  contract  exceeds  the  year, 
the  circumstance  that  it  is  defeasible  will  not  make  it  other  than  a 
contract  for  more  than  a  year.  See  the  absurdity  of  holding  otherwise : 
at  the  end  of  two  years  and  a-half,  one  of  the  parties  might  claim  a 
right  to  put  an  end  to  a  parol  contract  for  five  years,  by  giving  three 
months'  notice  ;  but  the  very  dispute  might  be  whether  or  not  he  had  a 
right  to  give  such  notice.  That  shows  that  this  is  a  contract  within  the 
statute." 

In  the  case  oi Banks  v.  Crossland,  10  L.  E.  Q.  B.  97,  by  parol  hiring 
on  the  11th  Xovember,  respondent  agreed  to  serve  appellant  for  one  year 
from  November  23rd.  Respondent  did  not  enter  his  service,  and  an 
information  was  taken  out  under  30  &  31  Vict.  c.  141,  by  s.  3  of  which 
nothing  in  this  Act  shall  apply  to  any  contract  of  service  other  than  a 
contract  within  the  meaning  of  the  enactment  of  the  first  schedule  of 
tills  Act,  or  some  or  one  of  them.  By  4  Geo.  IV.  c.  34,  s.  3  (which  is  in 
the  schedule),  proceedings  can  be  taken  against  a  servant  in  husbandry 
who  has  not  entered  into  his  service,  only  if  the  contract  be  in  writing 
signed  by  the  parties  to  it.  Held  that  no  proceedings  could  be  taken 
against  respondent  under  the  Act  1867;  also  that  as  the  contract  was 
not  to  be  performed  witliin  the  year,  and  was  not  in  writing ;  section  4 
of  the  Statute  of  Frauds  would  have  prevented  the  enforcing  the 
contract. 

By  a  parol  agreement  the  defendant  in  Collis  v.  Botthamley  agreed 
with  the  plaintiir  to  serve  him  for  a  year  from  a  future  day,  and  that 
the  service  thenceforth  should  continue  subject  to  be  determined  by 
three  months'  notice.  After  the  expiration  of  the  year  the  defendant 
quitted  the  plaintiff's  service  without  notice,  and  the  Court  of  Exchequer 
held  that  the  jtlaintiff'  might  maintain  an  action  for  this  breach  of  their 
agreement,  notwithstanding  the  Statute  of  Frauds.  And  ^mr  Watson  B. : 
*'  After  the  exjiiration  of  the  year  a  fresh  contract  arose." 

"Where  A  on  July  20th  made  proposals  in  writing  (unsigned)  to  B  to 


JDRISDICTIOX    OF    MAGISTRATES    AS    TO    BATLTFFS.        205 

enter  his  service  as  bailiff  for  a  year,  and  B  took  tlio  proposals  and  went 
away,  and  entered  into  A's  service  on  July  24th,  it  was  held  by  the 
Court  of  Exchequer  that  this  was  a  contract  on  the  20th  not  to  be 
performed  within  a  year  from  the  making  thereof,  and  within  the  4th 
section  of  the  Statute  of  Frauds  {SnelJimj  v.  Lord  Himtinij field). 

A  servant  in  husbandry  being  hired  for  a  quarter  of  a  year,  entered 
the  service  and  was  discharged  before  the  end  of  the  quarter  ;  she 
immediately  sued  her  master  in  the  County  Court  fur  discharging-  her 
without  reasonable  cause,  and  a  verdict  was  given  for  the  defendant. 
After  the  quarter  had  elapsed,  she  took  out  a  summons  before  justices 
against  the  defendant  to  recover  tiie  quarter's  wages.  It  was  held  that 
the  question  to  be  decided  was  essentially  the  same  in  the  two  courts, 
viz.,  whether  the  discharge  was  wrongful,  and  that  the  decision  in  the 
County  Court  was  conclusive  between  the  parties.  And^j^r  CocJrhurn  C.J. : 
"  It  was  admitted,  and,  indeed,  could  not  be  denied  successfully,  that 
the  question  raised  by  the  plaint  and  particulars  in  the  one  case,  and 
the  complaint  on  oath  in  the  other  was  the  same,  viz.,  whether  the  dis- 
charge of  the  respondent  was  without  just  cause.  Varying  the  form  of 
claim,  where  the  claim  itself  is  the  same,  does  not  prevent  the  application 
of  the  rule  of  law  to  which  reference  has  been  made  "  {RoutUdge  appt,  v. 
Hislop  resp). 

Jurisdiction  of  magistrates  does  not  extend  to  haiJiffs. — A  person  engao-ed 
by  the  owner  of  a  farm  from  year  to  year,  subject  to  a  month's  notice, 
and  at  a  salary  of  25s.  per  week,  to  keep  the  general  accounts  belonging 
to  such  farm,  to  weigh  out  the  food  for  the  cattle,  to  set  the  men  to 
work,  to  lend  a  hand  to  anything  if  wanted,  and  in  all  things  to  carry 
out  the  orders  given  to  him,  is  not  a  servant  in  husbandry  within  the 
section  3  of  Geo.  IV.  c.  34,  so  as  to  be  liable  to  conviction  under  that 
section  for  refusing  to  obey  an  order  given  to  him  by  the  owner  of  the 
farm.  The  appellant  had  thrown  back  a  paper  at  the  agent,  declaring 
that  he  would  not  give  information  respecting  the  herd  of  Herefords  at 
Cronkhill  until  a  notice  which  had  appeared  in  the  Shrewsbury  papers 
that  the  appellant  was  not  authorised  to  receive  money  on  behalf  of  the 
defendant  was  cleared  up.  The  appellant  had  certain  information 
requisite  for  identifying  the  calves,  &c.,  partly  in  a  book  and  partly  in 
his  head  ;  but^jer  Curiam,  Cronipton  J.,  and  Hill  J.,  "The  provisions  in 
the  act  apply  to  persons  engaged  in  manual  work,  whereas  the  appellant 
here  was  rather  a  steward  or  bailiff.  The  principal  thing  which  he  had 
to  do,  besides  setting  the  men  to  work  and  weighing  out  the  food  for  the 
cattle,  was  to  keep  the  general  accounts,  and  although  he  was  also  to  make 
himself  generally  useful  that  was  only  accessory  to  his  principal  work. 
If  we  held  that  he  was  a  servant  in  husbandry,  so  as  to  be  liable  to  be 


•2 Of)  MOXTRLY    SERVAXTS. 

convictetl  in  this  way,  ■wc  sliould  have  to  look  into  the  other  question, 
as  to  whetlier  he  had  been  guilty  of  misconduct ;  but  that  is  unnecessary, 
as  we  think  he  was  not  a  servant  in  husbandry  within  the  act  of  parlia- 
ment" {Daries  appt.  v.  Baron  BcrwkJc  resp.). 

Bond  Jide  helief  of  servant  tliat  he  may  quit  his  ])lace. — Although  if  a 
servant  leaves  his  employment,  or  refuses  to  perform  his  own  contract 
under  a  hond  fide  belief  that  he  has  a  right  to  do  so,  he  cannot  be  con- 
victed under  the  statute  ;  yet  to  entitle  the  servant  to  judgment  on  that 
ground  on  a  case  stated  for  the  opinion  of  the  Court,  the  facts  must 
reasonably  show  that  tiie  desertion  or  neglect  complained  of  was  in 
pursuance  of  that  supposed  right,  and  it  is  not  sufficient  that  it  was 
merely  possible  that  he  acted  under  it  [Willett  appt,  v.  Boote  resp.). 

Contracts  of  service  need  not  he  for  any  specified  time  to  give  magistrates 
jurisdiction. — In  order  to  give  justices  jurisdiction  to  hear  a  complaint 
as  to  the  non-payment  of  wages,  under  the  20  Geo.  II.  c.  19,  s.  1,  it  is 
only  necessary  that  the  relation  of  master  and  servant  should  exist 
between  the  parties,  and  the  contract  of  service  need  not  le  for  any  sjMcific 
time  (Alice  Taylor  appt.  v.  Carr  and  Porter  resps.). 

Recovering  a  months  ivages. — A  menial  servant,  entitled  under  the 
hiring  to  a  month's  warning  or  a  month's  wages,  cannot  recover  a 
month's  wages  for  having  been  improperly  dismissed  without  a  month's 
warning  on  the  common  indehitatus  count  for  work  or  labour,  but  must 
declare  specially.  And  ^^er  Curiam :  "  The  month's  wages  are  to  be 
paid,  not  for  the  bygone  services,  but  for  the  improper  dismissal  of  the 
servant.  Eardtey  v.  Price  (2  N.  R.  333)  broke  in  upon  the  rules  of 
law,  perhaps  in  order  to  do  what  happened  to  be  justice  in  that  particular 
case.  Archard  v.  Hornor  (3  C.  &  P.  349),  which  was  afterwards  con- 
firmed by  the  Court  of  Queen's  Bench  in  Smith  v.  Eayward  (7  Ad.  &  E. 
544),  and  also  by  this  court,  governs  this  case.  It  is  not  broken  in 
upon  by  Smith  v.  Kingsford  (3  Scott,  279),  which  was  decided  on  the 
ground  that  there  was  no  dissolution  of  the  contract  of  hiring.  The 
contract  in  the  present  case  is  that  the  service  is  for  the  year,  but  the 
master  is  at  liberty  to  dismiss  the  servant  by  giving  her  a  month's 
wages  or  warning."  And  per  Alderson  B. :  "  When  we  say  that  the 
servant  is  to  have  a  month's  warning  or  a  month's  wages,  it  is  meant 
that  the  payment  to  be  made  for  the  dismissal  without  warning  is  to  be 
by  way  of  composition,  and  that  the  amount  is  to  be  equal  to  a  month's 
wages  "  {Fewings  v.  Tisdal,  1  Exch.  295). 

Gardener  only  entitled  to  a  month's  ivages. — A  gardener  with  £100  a 
year  and  house,  and  two  apprentices  at  £15  a  year,  is  still  only  a  menial 
servant,  and  entitled,  even  after  four  years'  service,  to  only  a  month's 
warning.    And  per  Abingcr  O.B.,  though  he  did  not  live  in  the  house, 


CO^'TEACTOE    NOT   WTTIITN    STATUTE.  207 

or  wiHiiii  tlie  ciiriilage,  he  lived  in  tlie  grounds  on  the  domain  {Noirlan 
X.  Ahlcit,  2  C.  M.  &  R.  54). 

No  contract  for  services. — Where  services  have  been  rendered  witliout 
any  express  contract  for  wages,  bnt  with  board  and  lodging  and  other 
benefits  (here  to  keep  fowls,  bees,  &c.,  for  her  profit,  altliongh  she  paid 
for  their  food  herself),  it  was  ruled  by  Martin  B.  that  a  contract  to  pay 
for  such  service  is  not  to  be  implied  {Foord  y.  MorJey). 

It  is  specially  provided  for  by  section  20  of  the  Truch  Act,  stat.  1  &  2 
Will.  IV.  c.  37,  that  it  shall  not  extend  to  any  domestic  servant  or 
servants  in  husbandry. 

It  was  held  by  the  Exchequer  Chamber,  in  affirmance  of  the  decision 
of  Lord  Camphell  C.J.  and  Coleridge  J.  {Erie  J.  diss.),  that  a  labourer  or 
artificer  ivlio  enters  into  a  contract  to  do  certain  work  (as  hriclc-making)  at 
so  much  per  foot,  or  p)&r  thousand,  or  tJie  like,  under  which  co?itract  M  maij 
get  the  work  done  hj  other  persons,  and  is  not  bound  to  bestow  his  own 
personal  labour,  is  not  within  the  protection  of  the  statute,  so  as  to 
defeat  a  set-off  for  goods  supplied  at  a  shop  in  which  the  employer  is 
interested,  in  part  payment  of  the  wages  or  money  so  to  be  paid  under 
the  contract  {Ingram  v.  Barnes).  Cressivell  J.  said  :  "  I  ground  my 
judgment  on  this  :  that  if  this  were  res  integra,  I  should  be  convinced 
that  the  statute  applied  only  to  cases  where,  by  the  contract,  personal 
service  was  to  be  given  for  wages.  That  was  the  view  taken  in  all  the 
cases  up  to  this.  It  was  so  held  in  Rileg  v.  Warden.  In  Sharman  v. 
Sanders  the  judges  did  not,  as  my  brother  Erie  seems  to  suppose, 
proceed  merely  in  deference  to  the  authority  of  Riley  v.  Warden.  Each 
judge  expressed  his  full  approbation  of  that  decision.  The  Chief 
justice  did  so  ;  my  brother  Maule  puts  it  very  clearly ;  and  I  also 
expressed  my  concurrence  m  it.  In  Bowers  v.  Lovekin  I  find  the  same 
doctrine  acted  upon.  The  ground  of  the  decision  upholding  the  judg- 
ment of  the  County  Court  was,  as  stated  by  Lord  Camphell  C.J.  in  his 
judgment,  that  '  it  is  found  as  a  fact  that  the  defendants  were  bound  to 
give  their  personal  labour  hke  any  other  workman.  It  was  an  oral 
contract;  and  the  County  Court  judge  found  that  such  was  the  contract; 
and  on  his  finding  the  judgment  proceeded.  I  think  the  judgment 
below  right,  and  the  doubt  expressed  unfounded.' "  And  per  Channel  B. : 
"  The  case  seems  to  me  not  to  be  distinguishable  from  Rileg  v.  Warden 
and  Sharman  v.  Sanders.  But  I  do  not  rest  wholly  on  that  ground,  for 
I  entirely  concur  in  the  spirit  of  those  decisions  with  respect  to  Boivers 
V.  Lovekin  and  Weaver  v.  Llogd ;  all  I  think  it  necessary  to  say  is,  that 
our  decision  does  not  clash  with  them."  The  decision  in  Rilcg  v. 
Warden  was  to  the  eflFect  that  a  person  who  takes  a  contract  to  execute 
a  certain  cutting  on  a  railway,  at  a  certain  sum  per  cubit  yard,  and 


208  SETTLEMENT    BY    HTRING    AXD    SEEVICE. 

employs  several  men  under  him  to  assist  in  doino-  the  work,  is  nof  a 
workman  or  labotirer  within  the  tiue  meaning  of  1  &  2  WiU.  IV.  c.  37, 
although  he  does  a  portion  of  the  work  himself. 

^'  If  any  portion  of  the  year,  Iwirover  short,  is  excepted,  during  which  the 
servant  is  not  under  his  master's  control,  whether  that  exception  be  express 
or  by  necessary  implication  fi'om  the  terms  used,  th^  hiring  cannot  lie 
considered  a  hiring  for  a  year  so  as  to  confer  a  settlement,  although  tlie 
contract  be  for  a  year's  service,  subject  to  such  exceptions  ;  thus  where 
a  man  was  hired  for  a  year,  with  liberty  to  let  himself  for  the  harvest 
month  to  anyother  person  (Eex  v.  Bishop  Hatjield,  Rex  v.  Atthorne),  it 
was  held  that  he  could  not  gain  a  settlement  by  service  under  such  a 
hiring  ;  so  where  the  servant  agreed  for  liberty  to  be  absent  eleven  days 
during  the  sheep-shearing  season  (Rex  v.  Empingham),  or  during  the 
sheep-shearing  season  {Rex  v.  Arlington),  or  to  work  shearman's  hours 
and  to  be  at  liberty  at  all  other  times  {Rex  v.  Buckland  Denltam)  ;  or 
as  a  colt  shearman,  to  work  twelve  hours  each  day  {Rex  v.  North  JVibley); 
or  where  the  hiring  was  for  a  year  from  Michaelmas,  to  go  away  a  month 
at  harvest,  and  make  up  the  time  after  Michaelmas  {Rex  v.  Turveg)." 
And  again  :  "  Where  the  only  circumstance  from  which  the  intended 
duration  of  a  contract  of  hiring  and  service  can  be  inferred  is  the  reser- 
vation of  wages  weekly,  it  must  be  taken  to  be  a  weekly  hiring,  as 
where  a  servant  in  husbandry  was  to  serve  for  the  weekly  wages  of  4s., 
board,  washing,  and  lodging,  except  in  the  harvest  month,  when  his 
wages  were  to  be  increased  to  10s.  6d.  per  week,  and  then  again  reduced 
to  4s.  {R£x  V.  Dodderhill) ;  or  where  the  hiring  was  at  8s.  a  week,  and  2 
guineas  for  the  harvest,  to  do  anything  the  gardener  should  set  him 
about  (Rex  \.  Lamheih)  ;  or  when  a  gardener  having  asked  £20  a  year, 
his  master  refused  that,  but  agreed  to  give  him  so  much  a  week  (Rex  v. 
Warminster)."  But  if  there  is  anything  in  the  contract  of  hiring  to 
fihow  that  it  was  intended  to  be  for  a  year,  the  reservation  of  weekly 
wages  will  not  control  it.  (See  also  Rex  v.  Birdhrook,  Rex  v.  Hampreston, 
Rex  V.  Great  Yarnioidh,  and  Rex  v.  Pershore,  and  other  cases  collected 
in  ]\Ir.  Manley  Smith's  "Law  of  Master  and  Servant,"  pp.  44-47). 

"Where  defendant  agreed  to  take  plaintiff,  a  shepherd,  into  his  service 
for  50s.  and  his  board  and  lodging  for  five  weeks,  next  ensuing  after 
the  28th  February,  but  afterwards  refused  to  let  him  enter  his  service, 
])laintiff'  recovered  £5  damages  for  such  breach  of  contract  (Clark  v. 
Allatt). 

It  was  left  by  Parke  B.  to  the  jury  in  Louth  v.  Drummond,  at  King- 
ston Spring  Assizes,  to  say  wluit  notice  a  farm  haiJiff  was  entitled  to ; 
and  they  said  that  the  master  was  not  justified  in  giving  only  a  monDCs 
notice,  and  gave  a  verdict  for  a  year's  wages.     In  Bulling  v.  Ellice, 


NOTICE    TO    FARM    BAILIFF.  209 

Knight  Bruce  V.C.  held  that  a  farm  bailiff  ^Yho  had  lived  28  years  wilh 
the  Earl  of  Leicester  at  £350  a  year,  living  on  the  home  farm  within 
the  park  rent-free,  the  earl  paying  all  rates  and  taxes,  and  who  was 
allowed  keep  for  a  cow  and  horse,  and  to  take  pnpils  in  agriculture,  was 
a  servant  who  might  receive  a  legacy  within  the  meaning  of  the  will. 
And  so  may  a  gardener  and  under-gardener,  in  the  exclusive  employ- 
ment of  the  testator,  at  weekly  wages,  but  living  at  their  own  houses 
(Thn/pj)  V.  CoUeft).  The  bailiff  cannot  be  considered  as  the  em^jJoyer  of 
the  labourers  on  his  master's  own  farm,  within  the  sense  of  the  words 
in  stat.  20  Geo.  II.  c.  19,  s.  2,  though  the  contract  of  hiring  was  made 
by  the  bailiff  personally ;  and  hence  it  was  held  in  Rex  v.  Hoseason  to 
be  a  most  abusive  interpretation  of  the  law  for  a  magistrate  to  sentence 
one  of  the  servants  on  his  own  farm  to  be  "  corrected  and  kept  to  hard 
labour  for  one  calendar  month"  on  a  complaint  referred  to  him  in  his 
judicial  character  by  his  bailiff. 

Reg.  V.  WortJeij  turned  upon  the  point  as  to  whether  a  farm  bailiff, 
according  to  the  terms  of  his  agreement,  ivas  a  servant  or  a  'partner.  Here 
the  defendant  was  engaged  to  "take  charge  of  the  glebe  land  of  the 
Eev.  J.  B.  Clarke,  his  wife  undertaking  the  dairy,  and  poultry,  &c.,  at 
15s.  a  week  till  Michaelmas,  1850,  and  afterwards  at  a  salary  of  £25  a 
year  and  a  third  of  the  clear  annual  profit  after  all  expenses  of  rent  and 
rates,  labour,  and  interest  on  capital,  &c.,  are  paid  on  a  fair  valua- 
tion made  from  Michaelmas  to  Michaelmas.  Three  months'  notice  on 
either  side  to  be  given,  at  the  expiration  of  which  time  the  cottage  to 
be  vacated  by  Samuel  Wortley,  who  occupies  it  as  bailiff,  in  addition 
to  his  salary."  It  was  held  that  the  defendant  w^as  a  servant,  and  not  a 
partner.  He  was  not,  however,  a  menial  servant,  but  a  labourer ;  and 
the  agreement  was  admissible  in  evidence,  though  unstamped,  as  it  fell 
within  the  exemption  in  the  Stamp  Act  as  an  agreement  for  the  hire  of 
a  labourer.  And  p)er  Lord  Campletl  C.J. :  "  I  see  no  reason  for  con- 
fining the  meaning  of  the  word  '  labourer '  to  a  mere  hedger  and  ditcher." 
Contracts  to  serve  as  artificers,  clerks,  servants  either  domestic  or  in 
husbandry,  handicraftsmen,  mechanics,  gardeners,  or  labourers  are  ex- 
empted by  sec.  21  of  stat.  17  &  18  Vict.  c.  83. 

The  lailiff'  of  a  farming  cstaUishment,  through  whose  hands  all  pay- 
ments and  receipts  pass,  has  no  implied  authority  to  pledge  the  credit  of 
his  employer  hy  drawing  and  indorsing  bills  of  excJmnge  in  the  name  of 
the  latter.  Nor  in  the  absence  of  nil  direct  evidence  of  authority  does 
the  nature  of  the  employment  of  such  a  bailiff  furnish  any  ground  for 
inferring  the  existence  of  such  an  authority  upon  slight  or  on  any  other 
than  clear  and  distinct  evidence  of  assent  or  acquiescence  {Davidson  v. 
Stanteg).     And  p)er  Tindat  C.J. :  "  If  bankers  could  recover  on  such  a 


210  BAILIFFS   POWER   TO    BI^^D    MASTER. 

state  of  facts  as  this,  every  farm  agent  might  pledge  the  credit  of  his 
employer  to  an  indefinite  extent.  Here  there  was  no  direct  authority; 
and  the  case  of  Murmij  v.  The  East  India  Oonipani/  establishes  that  a 
(jcncral  authority  to  receive  and  pay  does  not  authorise  the  agent  to 
indorse  bills  of  exchange.  Here  it  was  never  shown  that  the  defendant 
knew  or  had  the  means  of  knowing  that  his  name  was  used  in  the 
manner  in  Avhich  it  was  used  by  the  bailiff"  {ih.). 

Lord  Denman  C.J.  thus  laid  down  the  law  in  Truman  v.  Loder  as  to 
a  ha ilifrs power  to  hind  his  master  hij  his  contracts:  "Suppose  a  landed 
proprietor  to  send  his  steward  habitually  to  the  neighbouring  fairs  and 
markets  to  make  sales  and  purchases  for  him  in  matters  connected  with 
the  management  of  his  estate  ;  that  the  steward  makes  all  these  contracts 
in  his  own  name,  but  that  he  is  universally  known  to  have  no  land  of 
his  own,  and  to  be  acting  solely  for  his  employer,  and  by  his  direction  and 
on  his  credit ;  could  his  intention  to  make  himself  the  owner  of  articles 
bought  on  one  particular  occasion  in  the  course  of  the  same  dealing 
deprive  the  vendor  of  his  recourse  against  the  master  ?  Clearly  not." 
In  the  case  of  Tassell  v.  Cooper,  where  the  plaintiff,  the  farming  bailiff' 
of  Lord  De  L'Isle  (after  his  employment  as  such  had  ceased)  received  a 
check  of  =£1S0  in  payment  for  wheat  belonging  to  his  lordship,  which 
he  had  sold  on  his  own  account  while  acting  as  bailiff,  and  paid  it  in  to 
his  own  account  with  B.  and  Co.,  his  bankers,  who  received  the  cash  for 
it,  and  gave  him  credit  for  the  amount;  but  afterwards,  under  an  in- 
demnity fi'om  Lord  De  L'Isle,  refused  to  honour  his  drafts  ;  it  was  held 
that  even  assuming  that  the  check  had  been  improperly  obtained  by  the 
plaintiff,  still,  as  between  him  and  his  bankers,  the  amount  was  recover- 
able by  him  as  money  had  and  received  by  them  to  his  use,  or  as  money 
paid.  The  plaintiff  had  been  in  the  habit,  in  1844-6,  of  managing  Lord 
De  L'Isle's  home  farm,  and  receiving  large  sums  from  the  sale  of  the 
produce  on  his  lordship's  account,  and  paid  the  various  charges  and  ex- 
penses, and  outgoings  of  the  farm  as  such  farm  bailiff.  He  paid  into  his 
account  with  the  bank,  which  was  sometimes  overdrawn,  money  received 
on  his  lordship's  account,  along  with  that  of  himself  and  others,  without 
any  distinguishing  mark.  The  account  and  the  usual  pass-book  was 
kept  by  the  company  in  his  name  ;  and  till  the  bank  received  Lord  De 
L'Isle's  notice,  they  had  no  idea  that  his  lordship  had  any  concern  with 
the  plaintiff's  account  with  them,  or  that  the  })laintiff  was  his  farm  baihff. 

On  January  11,  1817,  his  lordship  sent  him  word,  through  a  third 
party,  that  lie  was  from  that  time  not  to  deal  any  more  with  his  pro- 
l)erty,  but  to  confine  his  services  to  giving  orders  to  the  men  and  to 
seeing  that  they  did  their  work  on  the  fai'm.  On  the  l!)th,  however,  of 
the  same  month  he  paid  in  by  check  to  the  Tuul;ridge  Branch  of  the 


LIABILITY    OF    MASTER    FOR    ACT    OF    SERVANT.  9A1 

London  and  County  Joint  Stock  Bank  £180  4,s.  8^7.,  for  wheat  lie  had 
sold  for  his  lordship  in  the  December  jjrcvious  ;  and  on  January  28th 
Lord  De  L'Isle,  on  learning  that  he  had  an  account  at  the  bank,  served 
them  with  a  notice  to  hold  "  the  balance,  £128  Is.  lOtl,  on  credit  of 
the  account  of  Mr.  Tasscll,  the  same  being  formed  of  money  belonging 
to  me,"  until  further  correspondence  had  taken  place  ;  and  the  plaintiff's 
checks  were  accordingly  dishonoured.  The  Court  had  no  doubt  what- 
ever as  to  the  point  that,  at  all  events,  after  the  check  was  converted 
into  money,  the  bankers  (having  no  notice  at  the  time  they  obtained 
money  for  it  that  it  was  not  the  property  of  the  plaintiff)  were  indebted 
to  him  as  for  money  had  and  received  to  his  use,  or -money  lent,  and 
became  liable  to  account  to  him  for  it  whenever  he  chose  to  call  for  it ; 
but  they  also  seemed  to  consider  that  it  might  be  very  questionable 
whether  the  plaintiff  might  not  fairly  have  understood  the  intimation  to 
him  that  he  was  "not  to  deal  any  more  with  Lord  De  U Isle's properf//," 
as  prohibiting  him  from  making  any  more  sales,  but  not  from  getting 
in  money  from  persons  to  whom  he  had  already  sold  corn,  especially  as 
he  did  not  seem  to  have  been  asked  to  render  an  account  of  the  sales 
Avhich  he  had  already  effected.  And  see  Tindall  v.  PoiveJl,  where  a  hill 
for  an  account  against  a  person  who  was  alleged  to  have  acted  as  steward 
to  an  aged  lady  up  to  the  date  of  her  decease,  was  dismissed  with  costs, 
there  being  no  circumstances  of  suspicion  against  the  defendant,  and  no 
duty  to  keep  accounts  having  been  undertaken,  and  the  education  and 
capacity  of  the  defendant,  as  well  as  the  course  of  dealing  between  him- 
self and  his  employers,  being  inconsistent  with  the  notion  of  his  keeping 
regular  accounts. 

It  was  decided  in  JiPManus  v.  Criclcett  (1  East,  106)  that  a  master  is  tiot 
liable  in  tresimssfor  the  tvitful  act  of  his  servant,  as  by  driving  his  master's 
carriage  against  another  without  the  direction  or  assent  of  his  master 
(who  was  not  present)  ;  but  that  he  is  liable  to  answer  for  any  damage 
arising  to  another  from  the  negligence  and  unskilfulness  of  his  servant 
acting  in  his  employ.  And  per  Curiam :  "  For  a  wilful  act  ■intrinsically 
icrong  by  a  servant,  the  master  is  not  Vuible.  By  a  parity  of  reason  he 
ought  not  to  be,  where  the  act,  not  wrong  in  itself,  is  only  so  for  reasons 
l)ersonal  to  the  servant  and  his  wilful  disregard  of  them.  The  master's 
liability  ought  to  be  limited  to  that  which  he  may  anticipate  and  guard 
against "  {Beyy  (Adx.)  v.  Tlie  MidJand  Railway  Company).  So  udiere  a 
servant  teas  guilty  of  unJauful pounding,  it  was  held  in  Lyons  v.  Martin 
that  his  master  was  not  liable.  The  defendant  occupied  land  adjoining 
a  highway,  and  not  fenced  ;  and  horses  of  the  neighbourhood  had, 
shortly  before  the  act  in  question,  trespassed  on  the  land  and  been  im- 
pounded.    The  plaintiff's  horse  being  on  the  highway  was  intentionally 


212  MASTER    LIABLE    FOR    ACT    OF    SERVANT. 

driven  from  it,  by  a  servant  of  the  defendant's,  into  the  defendant's 
gronnd,  and  there  secured  by  the  same  servant  and  taken  to  the  pound. 

Coleridge  J,  thought,  as  this  was  not  within  the  scope  of  a  servant's 
ordinary  authority,  some  direct  authority  from  the  master  ought  to  be 
proved  :  and  this  not  being  done,  the  plaintiff  was  nonsuited.  The 
Court  refused  a  new  rule,  as  it  was  clear  the  wrongful  act  could  not  be 
traced  to  the  master.  Fatteson  J.  said,  "  Brucker  v.  Fromont,  and  other 
cases,  where  the  master  has  been  held  liable  for  the  consequences  of  a 
lawful  act  negligently  done  by  his  servant,  do  not  apply  ;  here  the  act 
was  utterly  unlawful.  A  master  is  liable  ivhere  his  servant  causes  injury 
hy  doing  a  lawful  act  negligently,  but  not  where  he  wilfully  does  an  illegal 
one.     Every  person  is  to  be  taken  to  know  the  law." 

A  master  is  liable  for  an  act  done  by  his  servant  in  the  course  of  execu- 
ting his  orders  with  ordinary  care ;  and  therefore  where  a  servant  was 
ordered  to  lay  down  a  quantity  of  rubbish  near  a  neighbour's  wall,  but 
80  that  it  might  not  touch  the  same,  and  the  servant  used  ordinary  care 
in  executing  the  orders  of  his  master,  but  some  of  the  rubbish  naturally 
ran  against  the  wall,  it  was  held  that  the  latter  might  be  sued  in  trespass  " 

Gregory  v.  Fiper,  9  B.  &  0.  591).  Ar^Hj^er  Littledale  J. :  "Where  a  servant 
does  work  by  order  of  his  master,  and  the  latter  imposes  a  restriction 
in  the  course  of  executing  his  order,  which  it  is  difficult  for  the  servant 
to  comply  with,  and  the  servant  in  execution  of  the  order  breaks  through 
the  restriction,  the  master  is  liable  in  trespass.  Suppose  the  case  of  two 
persons  possessed  of  contiguous  uninclosed  land,  and  that  one  of  them 
desired  his  servant  to  drive  his  cattle,  but  not  to  let  them  go  upon  the 
land  of  his  neighbour,  and  that  the  cattle  went  upon  the  land  of  the 
neighbour,  the  master  would  be  answerable  in  trespass,  because  he  has 
only  a  right  to  expect  from  his  servant  ordinary,  not  extraordinary 
care.  If  the  servant,  therefore,  in  carrying  into  execution  the  orders  of 
his  master  use  ordinary  care,  and  an  injury  is  done  to  another,  the  master 
is  liable  in  trespass.  If  the  injury  arise  from  the  want  of  ordinary  care 
in  the  servant,  the  master  will  only  be  liable  in  case  "  {ib.).  And  again 
in  Turberville  v.  Stampe,  where  the  defendant's  servants  kejit  a  fire  so 
negligently  guarded  on  the  heath  of  their  master,  which  was  adjacent  to 
the  plaintiff's,  that  the  latter  was  burnt,  the  defendant  was  held  liable. 
Holt  C.J.  observed  :  "  If  my  servant  throws  dirt  into  the  highway,  I  am 
indictable.  So  in  this  case,  if  the  defendant's  servant  kindled  a  fire  in 
the  way  of  husbandry,  and  proper  for  his  employment,  though  he  had  no 
express  command  of  his  master,  yet  the  master  shall  be  liable  to  an  action 
for  damage  done  to  another  by  the  fire,  for  it  shall  be  intended  that  the 
servant  had  authority  from  his  master,  it  being  for  his  master's  benefit.'' 
In  Kingdon  v.  Moss  the  plaintiff  recovered  against  a  veterinary  surgeon 


NEGLIGENCE  BY  VETERINARY  SURGEON.       213 

for  the  /os-s  of  a  mare  tr/tich  he  (lUeged  had  been  desiroijed  hij  tlic  improper 
admirustration  of  a  draiight  hjj  his  servant.  The  man,  according  to  the 
evidence  of  the  plaintiff's  servant,  had  fastened  tlie  mare's  head  to  a 
beam,  and  poured  the  draught  down  ;  and  the  mare  coughed  and  kicked 
about,  and  showed  such  pain  that  plaintiff  came  into  the  stable  and  told 
the  man  he  had  killed  her.  Ten  days  afterwards  she  died ;  but  the 
defendant's  witnesses  attributed  her  death  to  pleuro-pneumonia,  and 
proved  that  there  were  tubei'cles  in  the  left  lung  in  various  stages,  as 
well  as  a  broken  abscess  and  adhesion  between  the  lungs  and  ribs. 
Evidence  was  adduced  for  the  plaintiff  to  show  that  the  pleuro-pneu- 
monia  arose  from  some  foreign  substance  (in  this  case  the  medicine) 
having  gone  the  wrong  way,  and  got  into  the  air  passages.  The  defen- 
dant and  his  witnesses  admitted  that  it  was  improper  to  fix  a  horse's 
head  when  giving  medicine;  but  the  man  said  that  he  had  merely  tied 
the  halter  to  the  beam  by  a  slip-knot,  and  could  in  a  moment  set  it  free 
by  pulling  the  cord.  Lord  CampUll  C.J.  told  the  jury  that  if  they 
were  of  opinion  that  there  had  been  improper  treatment,  which  had 
accelerated  the  death  or  done  any  harm  whatever  to  the  mare,  the  jury, 
in  point  of  law,  must  find  for  the  plamtiff,  which  they  did,  with  £b 
damages. 

A  curious  case  of  liability  came  before  the  Court  of  Common  Pleas 
in  Holmes  v.  Onion.  Tlie  defendant  had  hired  one  Simpkiu  as  a 
thatcher,  but  no  time  was  mentioned  at  which  the  service  was  to  com- 
mence. About  a  month  after  this  Simpkin  hired  himself  to  the  plain- 
tiff. Some  conversation  ensued  between  the  latter  and  the  defendant  ; 
and  the  defendant  said,  "  I  must  have  my  wheat  cut,  and  if  I  give 
Simpkiu  up  you  must  pay  me  as  much  as  I  should  have  had  if  he  were 
thatching  for  me."  To  this  the  plaintiff  assented  ;  and  Simpkin  did  a 
portion  of  the  thatching  very  negligently,  and  left  it  before  it  was 
completed.  The  defendant  then  sent  another  man,  at  the  plaintiff's 
request,  to  complete  it  :  sued  the  plaintiff  in  the  Newmarket  County 
Court,  and  recovered  for  the  w^hole  work  done.  An  action  was  then 
brought  by  the  plaintiff  at  the  Cambridgeshire  Spring  Assizes  against 
the  defendant  for  the  negligent  thatching  of  the  stacks ;  and  the 
defendant  had  a  verdict,  leave  being  reserved  by  Pollock  C.B.  to  enter 
the  verdict  for  the  plaintiff  for  £5,  if  the  Court  should  think  that  there 
was  any  evidence  of  a  contract  between  the  plaintiff  and  defendant,  so 
as  to  make  the  defendant  liable  for  Simpkin's  negligent  execution  of 
the  work.     The  Court  made  the  rule  absolute. 

CressweJl  J.  said :  "The  case  of  Quarman  v.  Burnett  (6  M.  &  W.  499) 
shows  that  Simpkin  would  be  Onion's  servant,  and  Onion  the  contracting 
party.  The  defendant  buys  the  services  of  an  able  thatcher,  in  order  to  hire 


211        SERVANT    KILLED    BY    NECLIGENCE    OF    ANOTHER, 

]iim  out  at  a  profit,  and  ho  docs  po,  and  gets  the  profit  ;  then  he  should 
lie  liable.''  In  re})ly  to  the  argument  of  counsel  that  where  the  plaintiff 
selects  his  man  he  takes  the  risk  of  his  not  possessing  skill,  industr}', 
and  g-ood  conduct,  his  lordship  added  :  "  Suppose  you  send  a  valuable 
horse  to  a  smith,  and  say,  '  Do  not  trust  this  horse  to  any  clumsy 
hands,  but  shoe  him  yourself,  or  let  your  foreman  shoe  him,'  and  the 
foreman  does  shoe  him  and  pierces  his  foot,  is  not  the  smith  liable  ?  " 
Andpej'  CocJcbum  C.J. :  "  Although  where  a  man  selects  a  servant,  the 
master  may  be  relieved  from  responsibility  as  to  incompetency,  that 
will  not  relieve  him  from  liability  as  to  negligence"  (26  L.J.  C.  P.  261). 

If  a  sei'vant,  in  this  case  a  general  manager,  he  possessed  of  a  Iwrse  and 
gig  of  his  own  (which  were  kept  at  the  defendant's  expense),  and  while 
using  them  to  collect  debts  on  his  master's  account  with  his  master's 
acquiescence,  cause  a  collision  and  damage  hg  his  negligent  driving,  the 
master  is  liable  for  the  damage  {Patten  v.  Rea).  Willcs  J.  observed 
that  the  defendant's  argument  "  seemed  a  contradiction  of  the  doctrine 
laid  down  in  Turhcrville  v.  Stampe."  And  per  Curiam,  in  an  action  for 
damage  done  by  the  negligent  driving  of  the  defendant's  servant,  the 
proper  question  to  leave  to  the  jury  is,  whether  at  the  time  of  the  act 
complained  of  the  servant  was  driving  on  his  master's  business  and 
with  his  authority  {ib.)  (1  Ld.  Eaym.  264). 

The  77th  sec.  of  Stat.  5  &  6  Will.  IV.  c.  50,  provides  that  a  person 
mag  act  as  the  driver  of  two  carts  on  a  highwag,  provided  that  the  carts 
shall  not  be  drawn  by  more  than  one  horse  each,  and  the  horse  of  the 
hinder  cart  shall  be  attached  by  a  rein,  not  exceeding  four  feet,  to  the 
back  of  the  foremost  cart  ;  and  it  was  held  by  the  Court  of  Queen's 
Bench,  in  Robertson  (appel.)  v.  Burlcett  (resp.),  that  the  provision  was 
substantially  complied  with,  when  a  driver  seated  in  the  first  cart  had 
a  rope  attached  to  the  head  of  the  last  horse  passed  over  the  back,  and 
fastened  to  the  body  of  the  first  cart  about  the  centre,  and  the  last 
horse's  head  drawn  close  up  to  the  back  of  the  first  cart,  so  that  he 
had  full  command  of  both  horses.  Erie  J.  styled  the  appeal  '•  a  pesti- 
lent perversion  of  a  useful  statute." 

^Y]lere  a  servant  in  the  ordinarg  course  of  his  emplogment  is  Jcilled  bg 
the  negligence  of  one  ivho  is  not  his  emploger,  the  widow  may  maintain 
an  action  against  the  latter  ( Vose  Adx.  v.  The  Lancashire  and  Yorkshire 
Railwag  Compang).  According  to  Tarrant  v.  ^Yed)b,  a  master  is  not 
generallg  responsible  for  an  injnrg  to  a  servant,  from  the  negligence  of  a 
felloiv -servant ;  but  that  rule  is  subject  to  this  qualification,  that  the 
master  uses  reasonable  care  in  the  selection  of  the  servant.  And  jjer 
Jervis  C.J.  :  "The  master  may  be  liable  where  he  is  personally  guilty  of 
negligence  ;  but  certainly  not  wiiere  he  does  his  best  to  get  competent 


TNJUEY    TO    SEEYANT    WOrjaKG    WITH    MASTEE.         215 

j"»orsons.  He  is  not  bound  to  warrant  their  competency."  So  if  one 
servant  overloads  a  cart,  whereby  it  breaks  down  and  throws  plaintiff 
(another  servant),  no  action  lies  against  the  master  {Priestley  v.  Fowler). 

The  above  case  was  confirmed  by  the  House  of  Lords  in  Bartons 
Hill  Coal  Comjxuiij  v.  Reid,  which  decided  tliat  a  master  is  not  liable 
to  his  servant  for  injury  done  to  him  by  the  negligence  of  a  fellow- 
servant  employed  in  the  same  work,  the  injury  not  having  arisen 
from  the  unfitness  of  the  latter;  but  to  exclude  the  master's  liability, 
there  must  not  only  be  common  service,  but  the  fellow-servants  must 
be  employed  in  the  same  work.  Where  persons  in  common  service 
are  engaged  in  diff'erent  departments  of  labour,  the  master  is  liable 
for  an  injury  committed  through  negligence  by  one  servant  upon 
another,  unless  the  risk  of  such  an  injury  was  fairly  to  be  considered 
as  incidental  to  the  particular  employment  of  the  injured  party  ;  and 
the  proper  test  of  the  latter  consideration  is,  what  risk  the  injured 
party  must  have  known  he  was  exposed  to  from  the  nature  of  the 
employment  he  undertook  ;  and  notwithstanding  some  occasional  dicta 
of  judges  of  the  Court  of  Session,  the  English  and  Scotch  laws  arc 
identical  on  this  subject  {ib.). 

No  contract  on  part  of  master  not  to  expose  servant  to  great  risJc. — 
From  the  mere  relation  of  master  and  servant,  no  contract  can  be  implied 
on  the  part  of  the  master  to  take  due  and  ordinary  care  not  to  expose 
the  servant  to  extraordinary  danger  and  risk  in  his  service.  And  per 
Follocic  C.B. :  "  This  is  an  attempt  to  nullify  the  decision  of  the 
Court  in  Priestley  v.  Fowler  (3  M.  &  "VV.  1  ;  7  L.  J.  N.  S.  Ex.  42), 
and  to  enlarge  the  case  in  which  persons  in  the  relation  of  master  or 
employer  are  to  be  made  responsible  for  injuries  incurred  by  those  in  . 
their  employment,  who  are  in  general  much  more  able  to  judge  of  the 
probability  and  extent  of  the  risk  they  run  in  the  service  than  those 
who  employ  them.  I  think  it  highly  expedient  that  the  rule  laid  down 
in  Fowler  v.  Priestley  should  be  maintained  and  not  eaten  up  by  excep- 
tions "  {Riley  Aclmx.  v.  Baxendale,  30  L,  J.  Ex.  87). 

Lijury  to  servant  worldng  with  master. — When,  by  the  negligence  of 
the  master,  an  injury  is  caused  to  a  servant  in  the  course  of  his  employ- 
ment, the  master  is  liable,  although  he  was  employed  as  a  workman  at 
the  time,  and  was  working  with  the  servant ;  and  if  one  member  of  a 
partnership  is  guilty  of  such  an  act  of  negligence,  and  if  it  occurs  in 
a  matter  within  the  scope  of  the  common  undertaking  of  the  partner- 
ship, all  the  partners  will  be  liable  for  the  injury  caused  to  the  servant. 
And  j;«r  Curiam:  "  H  the  defendant  had  been  simply  the  fellow  workman 
of  the  plaintiff,  the  case  would  have  come  within  the  principle  and 
would  be  quite  analogous  to  Barlonshill  Coal  Company  v.  Reid  (3  Macq. 


21 G  INJURY    TO    SEEVAJsT    WORKING    WITH    MASTER. 

II.  L.  Ca.  SCO),  wliorc  it  was  decided  that  a  servant  sustaining;  an  injury 
from  the  neoligcuce  of  a  fellow-servant  engaged  in  the  same  employ- 
ment, cannot  recover  against  the  common  master.  The  present  case 
is  distinguishable  in  this  important  particular,  that  the  defendant, 
althougli  engaged  jointly  in  the  work  of  the  mine,  was  also  a  co-pro- 
prietor, and  as  such  one  of  the  plaintiff's  masters  ;  and  this  takes  the 
case  out  of  the  before-mentioned  rule,  and  calls  for  the  application  of  a 
different  jirinciplc.  The  doctrine  that  a  servant,  on  entering  the  service 
of  an  employer,  takes  on  himself,  as  a  risk  incidental  to  the  service,  the 
chance  of  injury  arising  from  the  negligence  of  fellow-servants,  has  no 
application  in  the  case  of  the  negligence  of  an  employer.  Though  the 
chance  of  injury  from  the  negligence  of  fellow-servants  may  be  supposed 
to  enter  into  the  calculation  of  a  servant  on  undertaking  the  service,  it 
would  be  too  much  to  say  that  the  risk  of  danger  from  the  negligence 
of  a  master  when  engaged  with  him  in  their  common  work  enters  in 
like  manner  into  his  speculation. 

"  From  the  master  he  is  entitled  to  expect  the  care  and  attention 
which  the  superior  position  and  presumable  sense  of  the  duty  of  the 
latter  ought  to  command.  The  relation  of  master  does  not  the  less 
subsist  because  by  some  arrangement  between  the  joint  masters  one  of 
them  takes  upon  himself  the  functions  of  a  workman.  It  is  a  fallacy 
to  suppose  that  on  that  account  the  character  of  a  master  is  converted 
into  that  of  a  fellow-labourer.  Though  engaged  with  the  plaintiflF 
(Ashworth)  in  a  common  employment.  Walker  did  not  the  less  remain 
the  master  of  the  plaintiff  and  the  partner  of  the  co-defendant  Stanwix. 
This  being  so,  it  follows  that  Stanwix  must  be  liable  in  respect  of  the 
negligence  through  which  injury  has  arisen  to  the  plaintiff,  as  the  rela- 
tion of  partner  subsisted  between  Walker  and  Stanwix  ;  and  as  the 
negligence  was  in  a  matter  within  the  scope  of  a  common  undertaking, 
we  think  that  Stanwix  is  equally  liable  with  Walker.  That  a  partner 
is  liable  for  the  negligence  of  his  co-partner  when  engaged  in  the 
business  of  the  partnership  is  not  only  clear  in  principle,  but  it  is 
established  by  the  case  of  Moretun  v.  Harden  (4  B.  &  C.  223),  in  this 
court,  where  the  jjroprietors  of  a  stage-coach  were  held  liable  with  a 
third  for  the  negligence  of  the  latter,  by  whom  the  coach  had  been 
driven.  Now  it  has  never  been  doubted  that  for  personal  negligence 
of  the  master,  whereby  injury  is  occasioned  to  the  servant,  the  master 
will  be  liable.  Personal  negligence  is  clearly  established  against 
Walker  ;  and  it  being  admitted  that  the  defendant  Stanwix  was  his 
cn-])roprietor  and  partner,  the  latter  must  be  held  to  be  jointly  respon- 
sil>le  in  respect  of  such  negligence,  and  is  therefore  liable  in  this  action  " 
{Ashicoilh  V.  Stanwix  and  Walker,  30  L.  J.  Q.  B.  183). 


STEANGER    HELPING    SERVANT.  217 

Non-JlfihilH!/  of  master  for  injury  to  servant  from  iiegliyence  offdtow 
servant. — The  doctrine  in  Priestley  v.  Fowler  (3  M.  &  W.  1  ;  and  7 
L.  J.  N.  S.  Ex.  42)  that  a  master  is  not  liable  for  an  injury  to  his 
servant  arising  from  the  negligence  of  a  fellow-servant,  ^^^^oi^^/ef/  he  has 
taken  due  care  to  iirovide  proper  macMnery  and  competent  servants,  was 
upheld  in  Searle  v.  Lindsay  and  Others. 

Stiriiiger  helpiny  servant.— If  a  stranger,  invited  by  a  servant  to  assist 
him  in  his  work,  is,  while  engaged  in  giving  such  assistance,  injured  by 
the  negligence  of  another  servant  of  the  same  master  in  the  com'se  of 
his  employment,  the  stranger  cannot  hold  the  master  responsible.  The 
stranger,  by  volunteering  his  assistance,  cannot  impose  upon  the  master 
a  greater  liability  than  that  in  which  he  stands  towards  his  own  ser- 
vant ;  and  if  the  master  takes  care  that  his  servants  are  persons  of 
competent  skill  and  ordinary  carefulness,  he  is  not  liable  for  any  injury 
that  one  of  them  may  receive  from  the  negligence  of  another.  This 
case  affirmed  the  authority  of  Degg  v.  Tlie  Midland  Piailway  Company 
(1  H.  &  N.  773,  and  26  L.  J.  N.  S.  Ex.  171),  and  the  decision  of  the 
Queen's  Bench  was  affii-med  {Potter  v.  Faulkner,  31  L.  J.  Q.  B,  30). 

Proof  of  ivell-deflned  negligence  required. — In  an  action  for  an  injury 
occasioned  by  a  defendant's  negligence,  e.g.,  negligent  driving,  the 
plaintiflp,  to  warrant  the  judge  in  leaving  the  case  to  the  jury,  must 
give  'proof  of  well-defmed  negligence,  and  not  merely  some  evidence  of 
negligence  on  the  part  of  the  defendant  ;  and  where  the  evidence  given 
is  equally  consistent  with  there  having  been  no  negligence  on  the  part 
of  the  defendant  as  with  there  having  been  negligence,  it  is  not  com- 
petent for  the  judge  to  leave  it  to  the  jury  to  find  either  alternative ; 
such  evidence  must  be  taken  as  amounting  to  no  proof  of  negligence. 
It  had  been  previously  held,  in  Plgott  v.  Eastern  Counties  Railway 
Company  (3  C.  B.,  229),  which  was  referred  to  in  the  plaintiff's  argu- 
ment, but  not  noticed  in  the  judgment,  that  the  fact  of  the  premises 
being  fired  by  sparks  from  a  passing  engine  is  prima  facie  evidence 
of  neghgence,  rendering  it  incumbent  on  the  company  to  show  that 
lyome  precautions  had  been  adopted  by  them  reasonably  calculated  to 
prevent  such  accidents  {Cotton  v.  Wood,  29  L.  J.  C.  P.  333). 

blaster  responsiUe  for  wilful  conduct  of  servant  if  u'ithin  scope  of 
his  employment. — It  was  held  by  the  Exchequer  Chamber  {Wightman  J. 
diss,  and  Cromjjton  J.  dull.),  affirming  the  judgment  of  the  Court  of 
Exchequer,  that  a  master  is  responsible  for  the  negligent  act  of  his 
servant,  notwithstanding  that  it  be  done  wilfully,  and  contrary  to 
express  orders,  if  it  be  done  within  the  scope  of  his  employment,  and  in 
executing  the  matter  for  which  he  is  engaged.  Here  the  omnibus- 
driver  of  the  defendant's  had  wilfully,  and  contraiy  to  express  orders 


218  IXJUllY    TO    FELLOW   SERVA^"T. 

from  his  master,  pulled  across  the  road  to  obstruct  the  jirogress  of  the 
plaintiff's  omnibus,  and  in  so  doing  injured  one  of  the  plaintiff's 
omnibus  hoi-ses.  The  reason  he  gave  was  that  he  wanted  to  serve  the 
jilaintiff's  driver  as  that  person  had  served  him.  And  jjcr  Williams 
J. :  "  If  a  master  employs  a  servant  to  drive  and  manage  a  carriage, 
the  master  is,  in  my  oi)inion,  answerable  for  any  misconduct  of  the 
servant  in  driving  or  managing  which  can  fairly  be  considered  to  have 
resulted  from  the  performance  of  the  functions  entrusted  to  him,  and 
especially  if  he  was  acting  for  his  master's  benefit,  and  not  for  any 
purpose  of  furthering  his  own  interest,  or  for  any  motive  of  his  own 
caprice  or  inclination"  {Limpus  v.  London  General  Omnilms  Comimmj 
Limited,  32  L.  J.  Ex.  31). 

Alderson  B.  thus  stated,  in  a  similar  case,  Hutcldnson  v.  The  TorJr, 
Newcastle  &  Berwick  Radway  Compamj,  the  principle  applicable  to  the 
case  of  several  servants  employed  by  the  same  master,  ivhere  injury 
resulted  to  one  of  them  froyn  the  negligence  of  another.  "■  In  such  a  case, 
however,"  said  his  lordship,  "we  are  of  opinion  that  the  master  is  not 
in  general  responsible  when  he  has  selected  persons  of  competent  care 
and  skill.  Put  the  case  of  a  master  employing  A,  and  B.,  two  of  his 
servants,  to  drive  cattle  to  market.  It  is  admitted  that  if  by  the 
unskilfulness  of  A.  a  stranger  is  injured,  the  master  is  responsible.  Not 
so,  if  A.  by  his  unskilfulness  hurts  himself  ;  he  cannot  treat  that  as  the 
want  of  skill  of  his  master.  Suppose,  then,  that  by  the  unskilfulness 
of  A.,  B.,  the  other  servant,  is  injured  while  they  are  jointly  engaged  in 
the  same  service,  there  we  think  B.  has  no  claim  on  his  master.  They 
have  both  engaged  in  a  common  service,  the  duties  of  which  impose  a 
certain  risk  on  each  of  them  ;  and  in  case  of  negligence  on  the  part  of 
the  other,  the  party  injured  knows  that  the  negligence  is  that  of  his 
fellow-servant,  and  not  of  his  master."  In  Degg  (Adx.)  v.  The  Midland 
Raihray  Company,  the  ahove  rule  of  law  that  a  master  is  not  in  general 
responsible  to  his  servant  for  injury  occasioned  by  the  negligence 
of  a  fellow-servant  in  the  course  of  their  common  employmenc,  7cas 
extended  to  the  case  ofajjerson  vlio  is  injured  ivhile  voluntarily  assisting 
ilm  servants  in  their  ivorlc.  The  deceased,  by  thus  volunteering  his 
services,  could  not  have  greater  rights,  or  impose  any  greater  duty 
on  the  defendants,  than  would  have  existed  had  he  been  a  hired 
servant. 

It  has  also  been  decided  that  tchere  an  ioijury  happens  to  a  servant 
while  he  is  in  the  actual  use  of  an  mistrument,  engine,  or  machine,  of  the 
nature  of  which  he  is  as  much  aware  as  his  master,  and  the  use  of  which 
is,  therefore,  the  proximate  cause  of  the  injury,  he  cannot,  at  all  events 
if  the  evidence  is  consistent  with  his  own  negligence  in  the  use  of  it 


LENDING    AN    UNSAFE    LADDEH.  219 

being  ilic  real  cause,  nor  in  case  of  his  dying  from  the  injury,  can  his 
representative  under  Lord  Campbell's  Act  (9  &  10  Vict.  c.  93),  recover 
against  his  master,  there  being  no  evidence  that  the  injury  arose 
through  the  personal  negligence  of  the  master  {Dijnen  v.  Leach).  Nor 
is  it  any  evidence  of  such  jJcrsonal  negligence  of  ike  master,  that  he  has 
in  use  in  his  works  an  engine  or  machine  which  is  less  safe  than  some 
other  which  is  in  general  use  {ih.).  But  it  was  decided  l:)y  the  Exchequer 
Chamber  that  where  a  master  builder  personally  interferes  and  directs 
his  workmen  to  make  a  scaffolding  out  of  poles  which  he  knows  to  be 
unsound,  he  is  liable  to  make  compensation  if  the  scaffolding  gives  way, 
and  a  workman  upon  it  in  his  employ,  who  has  had  no  notice  of  the 
unsoundness,  is  injured  thereby  {Roherts  v.  Smillt).  And  see  AIsop  v. 
Yates,  27  L.  J.  Ex.  150. 

A  declaration  that  the  defendant  was  possessed  of  a  ladder,  unsafe 
and  unfit  for  use  by  any  person  carrying  corn  up  the  same,  and  the 
plaintiff  was  the  defendant's  servant,  yet  the  defendant,  well  knowing 
the  premises,  wrongfully  and  deceitfully  ordered  the  plaintiff  to  carry 
corn  up  the  ladder,  and  the  plaintiff  in  obedience  to  the  order,  and 
believing  the  ladder  to  be  proper  for  the  purpose,  and  not  knowing  the 
contrary,  did  therefore  carry  corn  up  it  for  the  defendant ;  but  by  reason 
of  its  being  unsafe  and  unfit,  the  plaintiff  fell  and  was  injured,  was  held 
in  Williams  v.  Clovgh,  BramiveJl  B.  (Jul).,  to  be  sufficient  without  an 
averment  that  the  plaintiff  had  no  notice  that  the  ladder  was  unsafe. 
And  senibh,  the  gratuitous  lender  of  an  article  unfit  for  use  to  his 
knowledge,  is  not  liable  to  a  person  whose  user  of  it  he  has  not  fore- 
seen, for  an  injury  caused  by  the  unfitness  {Blachnore  Adx.  v.  Bristol  & 
Exeter  Raihcay  C'om^mny). 

In  Joel  V.  Morison,  Parke  B.  ruled  that  if  a  servant  driving  his  master's 
cart  on  his  master's  business  7nalce  a,  detour  from  the  direct  road  for  some 
jmrpose  of  Ids  oivn,  his  master  will  be  answerable  in  damages  for  any 
injury  occasioned  by  his  careless  driving  while  so  out  of  the  road.  But 
if  a  servant  take  his  master's  cart  tvithotct  leave,  at  a  time  when  it  is  not 
wanted  for  the  purposes  of  business,  and  drive  it  about  solely  for  his 
own  purposes,  the  master  will  not  be  answerable  for  any  injury  he  may 
do.  And  this  ruling  was  confirmed  by  the  Court  of  Common  Pleas  in 
the  case  of  Mitchell  v.  Crasiualler,  where  the  defendant's  carman,  instead 
of  putting  up  his  horse  and  cart  when  the  day's  work  was  done,  without 
the  defendant's  leave,  drove  a  fellow-servant  in  an  opposite  direction  to 
the  mews,  and  on  his  way  back  injured  the  plaintiff  by  his  negligent 
driving.  The  defendants,  under  Not  guilty,  were  allowed  to  show  that 
the  driver  was  not  at  that  time  acting  as  their  servant.  The  Coui't  of 
Queen's  Bench  upheld  the  ruling  of  Parke  J.  in  Goodman  v.  Kenuel 


220  LIABILITY    OF    MASTER    DEFINED. 

that  if  a  master  sends  fiis  servant  on  an  errand,  irUltuid  }wov!din(j  him 
trifh  a  fiorse,  and  the  servant  takes  one  and  rules  it  in  the  doing  of  si/eh 
errand,  and  au  injury  happens  in  consequence,  the  master  is  not  liable 
in  an  action  for  damages  by  the  party  injured.  If  it  were  otherwise, 
every  master  might  be  ruined  by  acts  done  by  his  servant  without  his 
knowledge  or  authority.  And  Tindal  C.J.  ruled  in  Ulidge  v.  Goodwin, 
that  //  a  horse  and  cart  are  teft  in  the  street  Inj  a  servant,  without  any  one 
to  watch  them,  the  owner  is  liable  for  any  damage  done,  even  though  it 
be  occasioned  by  the  act  of  a  passer-by  in  striking  the  horse.  See  also 
Croft  V.  Alison,  4  B.  &  Aid.  590. 

]\Ir.  Baron  Parke  observed,  in  Gordon  v.  Rolt,  "  The  result  of  the 
authorities  is,  that  fa  servant,  in  the  coarse  of  his  master's  employ,  drives 
over  any  2}('rson,  and  does  a  ivilful  injury,  the  servant,  and  not  the  master, 
is  liable  in  tresjMss;  if  the  servant,  by  his  negligent  driving,  causes  an 
injury,  the  master  is  liable  in  case  ;  if  the  master  himself  is  driving,  he 
is  either  liable  in  case  for  his  negligence,  or  in  trespass,  because  the  act 
was  wilful.  In  Maclaughlin  v.  Pryor,  the  master,  though  not  actually 
driving,  was  present,  and  directing  the  driver;  therefore  there  was 
evidence  that  he  sanctioned  the  conduct  of  his  servant,  from  which  the 
injury  arose."  And  see  his  lordship's  judgment  in  Sliarrod  v.  The 
London  and  North  Western  Railway  Company,  where  some  cattle  were 
killed  by  a  railway  engine.  A  person  driving  a  carriage  is  not  dound  to 
keep  on  the  regidar  side  of  the  road;  but  if  he  does  not,  he  must  use  more 
care,  and  keep  a  better  look  out,  to  avoid  concussion,  than  would  be 
necessary  if  he  were  on  the  regular  side  of  the  road  {Pluclavelly.  Wilso7i). 
And  per  Mcnde  J. :  "  It  is  negligence  not  to  drive  an  inferior  vehicle 
with  such  a  degree  of  care  as  its  inferiority  requires,  just  as  it  would  be 
negligence  to  drive  a  high-spirited  horse  with  no  more  care  than  a  dull 
one  "  {Templeman  apjxillant  v.  Hagdon  respondent).  This  was  an  appeal 
against  the  decision  of  a  Somersetshire  county  court  judge,  in  an  action 
for  negligently  driving  a  horse  and  cart ;  the  plaintiff  having  simply 
))roved  the  fact  of  a  collision,  under  circumstances  which  might  or 
might  not  amount  to  negligence.  The  defendant  proved  that  the  horse, 
])erfectly  quiet  up  to  the  time,  and  going  slowly,  suddenly  began  to  kick 
very  violently  ;  both  shafts  broke  ofiP,  the  cart  tilted  up,  and  himself  and 
a  woman  and  four  dead  i)igs  were  thrown  into  the  road,  that  he  himself 
was  rendered  insensible,  and  that  the  horse,  which  then  ran  away,  had 
not  sufficient  room  to  pass  the  plaintiff's  horse  and  gig  on  the  proper 
side  of  the  road.  The  judge  ordered  a  verdict  for  the  plaintiff,  being 
of  opinion  that  the  breaking  of  the  shafts,  even  under  the  circumstances 
stated  by  the  defendant's  witnesses,  showed  a  defect  in  the  cart,  which 
raised  a  presumption  of  negligence  in  the  owner,  and  the  appeal  was 


RULE    OF    LAW    RESPECTIXG    NEGLIGENCE.  221 

dismissed  with  costs.  It  is  said  (Bac.  Abr,,  Tit. "  Master  and  Servant ") 
that  if  a  servant  drives  his  master's  cart,  and  by  his  negligence  suffers 
the  cattle  to  perish,  an  action  on  the  case  lies  against  him.  In  an  action 
of  tort  for  an  injurij  to  the  jjerson  as  Inj  careless  driving,  imrticuJars  will 
be  ordered  as  to  the  nature  and  extent  of  the  injuries,  or  of  the  claim  for 
compensation  on  an  affidavit  ( ^Yiclis  v.  MacnamarcC). 

The  general  rule  of  law  respecting  negligence  is,  that  although  there 
may  have  been  negligence  on  the  part  of  the  plaintiif,  yet  unless  he 
might  by  the  exercise  of  ordinary  care  have  avoided  the  consequences 
of  the  defendant's  negligence,  he  is  entitled  to  recoYev  (Davies  v.  Mann; 
Bridge  Y.  The  Grand  Junction  Raihmg  Conqmny;  ButterfieldY.  Forrester). 
Jn  the  first  of  these  three  cases,  the  plaintiff  having  fettered  the  fore- 
feet of  an  ass  belonging  to  him,  turned  it  into  a  public  highway;  and 
at  the  time  in  question  the  ass  was  grazing  on  the  oflF-side  of  a  road 
about  eight  yards  wide,  when  the  defendant's  waggon  with  a  team  of 
three  horses  coming  down  a  slight  descent,  at  what  the  witness  termed 
a  smartish  pace,  ran  against  the  ass,  knocked  it  down,  and  killed  it.  It 
was  proved  that  the  driver  of  the  waggon  was  some  little  distance 
behind  the  horses.  ErsMne  J.  told  the  jury,  that  though  the  act  of  the 
plaintiff  in  leaving  the  donkey  on  the  highway  so  fettered  as  to  prevent 
his  getting  out  of  the  way  of  carriages  travelling  along  it,  might  be 
illegal;  still,  if  the  proximate  cause  of  the  injury  was  attributable  to  the 
want  of  proper  conduct  on  the  part  of  the  driver,  the  action  was  main- 
tainable against  the  defendant,  and  his  lordship  directed  them,  if  they 
thought  the  accident  might  have  been  avoided  by  the  exercise  of 
ordinary  care  on  the  part  of  the  driver,  to  find  for  the  plaintiff,  which 
they  did,  with  40s.  damages.  The  Court  of  Exchequer  upheld  the 
ruling.  Parke  B.  said  :  "  Although  the  ass  might  have  been  wrongfully 
there,  still  the  defendant  was  bound  to  go  along  the  road  at  such  a  pace 
as  would  be  likely  to  prevent  mischief  Were  this  not  so,  a  man  might 
justify  the  driving  over  goods  left  on  a  public  highway,  or  even  over  a 
man  asleep  there,  or  the  purposely  running  against  a  carriage  going  on 
the  wrong  side  of  the  road."  It  is  deducible  from  the  opinions  of  the 
judges  in  Butterfield  v.  Forrester,  Bridge  v.  The  Grand  Junction  Canal 
Company,  Davis  v,  3Iann,  and  Dowell  v.  The  General  Steam  Navigation 
Company,  which  were  all  referred  to  in  the  judgment  of  the  Exchequer 
Chamber,  which  affirmed  the  decision  of  the  Court  of  Common  Pleas  in 
Tuff  Y.  Warman, — that  in  actions  for  injuries  by  collision,  though  the 
damage  is  not  occasioned  entirely  by  the  negligence  or  improper  con- 
duct of  the  defendant,  the  plaintiff  is  still  entitled  to  recover,  if  he  have 
not  so  far  contributed  to  the  misfortune  by  his  ouni  ?iegligence  or  want  of 
ordinary  care,  that  but  for  such  negligence  the  misfortune  could  not 


2Zi  LIABILITY  OF  MASTER  FOR  DEBTS  CONTR ACTED  BY  SERVANT. 

have  liappeued,  and  if  tlic  defendant  could  by  the  exercise  of  ordinary 
care  and  canlion  have  avoided  the  consequences  of  the  neglect  or  care- 
lessness of  the  plaintiff. 

Lord  EUenhoromjh  C.J.  ruled,  in  Rushy  v.  ScaHcll,  that  the  master  is 
discMrijcd  from  the  payment  of  debts  contracted  hy  the  servant  where  he 
gives  the  servant  money  beforehand  to  jmy  for  goods ;  but  not  where  he 
authorizes  the  servant  to  take  up  goods,  and  afterwards  gives  him  money 
to  pay,  if  the  servant  embezzles  the  money.  The  action  here  was  to 
recover  the  price  of  hay  and  straw  sold  and  delivered  at  defendant's 
stables;  but  there  was  no  evidence  that  the  plaintili'  had  ever  seen  the 
defendant,  or  received  any  orders  from  him.  Defendant  said  he  had 
given  the  coachman  money  to  pay  the  bills,  and  that  he  had  embezzled 
it ;  but  it  appeared  the  money  was  advanced  generally,  and  not  with  a 
view  to  this  particular  demand  ;  and  there  was  a  verdict  for  the  plaintiflp. 
It  was  held  by  Potloclc  C.B.  in  Aste  v.  Montague,  that  a  gentleman  was 
I'dhtefor  corn  ordered  in  his  name  by  a  livery-stable  Iceeper,  ivho  had  been 
his  coachman,  and  continued  to  loear  his  livery,  not  having  given  notice 
to  the  plaintiff  of  the  employment  being  at  an  end.  Rimel  v.  Sctmpayo 
was  relied  on  for  the  plaintiff,  in  which  Littlcdale  J.  held  that  if  a  gentle- 
inan's  coachnum  go  in  his  mastefs  livery  and  hire  hm'ses,  which  his  master 
v.ses,  the  master  will  be  bound  to  pay  for  the  hire  of  the  horses,  although 
he  has  agi'ced  with  the  coachman  that  he  will  pay  him  a  large  salary  to 
provide  horses,  unless  the  lender  of  the  horses  had  some  notice  that  the 
coachman  hired  them  on  his  own  account  and  not  for  his  master. 
"Where  the  p)risoner  had  been  in  the  habit  of  buying  and  selling  corn  for 
his  employers,  and  he  had  been  accustomed  to  employ,  for  the  purpose 
of  payments  on  their  behalf,  as  well  monies  which  he  received  on  their 
account,  as  monies  which  he  received  from  them  for  that  purpose,  and 
had  falsely  entered  the  price  of  some  corn  which  he  had  purchased  and 
paid  for  as  amounting  to  a  larger  rate  of  Qd.  a  coomb  than  it  really  did, 
and  retained  the  difference,  it  was  held  by  Wightnuin  J.  that  there  was 
no  case  for  larceny ;  but  scmble  that  there  was  a  case  for  the  jury  of 
embezzlement  (Reg.  v.  Lgon),  And  in  Howard  v.  Siieward  (2  L.  R. 
C.  P.  148),  the  Court  held  that  the  servant  or  agent  of  a  horse  dealer  has 
implied  authority  to  bind  his  principal  or  master  by  a  warranty,  even 
though,  unknown  to  the  buyer,  he  has  express  orders  not  to  warrant. 

In  Gingell  v.  Glascock,  the  plaintiff,  a  hay  salesman,  sold  for  the 
defendant  a  load  of  hay  to  one  Sumner,  and  remitted  £4  IG.s.  to  him 
before  Sumner  had  paid.  In  the  meantime  defendant's  servant,  who  was 
sent  up  to  London  with  the  hay,  charged  by  the  plaintiff  to  deliver  it  to 
the  purchaser,  was  imposed  on  by  some  cheat,  who  personated  Sumner, 
and  got  the  hay.     Sumner  would  not  pay,  and  the  defendant  would  not 


:milk  walk.  22.'5 

refund,  and  the  case  having  been  referred,  tlie  arbitrator  decided  for  the 
pkiintiif.  The  Court  considered  that  the  servant  who  made  the  mistake 
was  at  the  time  acting  as  the  servant  of  the  defendant,  and  the  awaid 
Avas  confirmed.  Evans  v.  Winifred  Birch  was  a  case  of  supposed  cJieaiinij 
hy  a  dairymaid,  who  was  sued  for  money  had  and  received.  She  liad 
twenty  quarts  daily  for  a  milk -walk,  and  sometimes  sold  on  credit,  and 
sometimes  for  ready-money.  Each  morning  she  accounted  with  the 
plaintiff;  but  there  were  no  written  vouchers,  and  often  no  third  party 
present :  and  she  was  sued  for  the  proceeds  of  two  months'  milk.  Lord 
Ellenlorowjh  called  for  "  some  evidence  that  the  defendant  has  not  paid 
over  the  money.  If  in  point  of  fact  she  has  not,  and  no  negative 
evidence  can  be  adduced  by  the  plaintifi",  I  am  afraid  his  only  remedy 
will  be  by  a  bill  in  equity  for  a  discovery  and  account,  though  this  may 
be  rather  an  expensive  mode  of  settling  a  milk  score."  Siie,  however, 
acknowledged  to  Is.  8^/.  not  paid  over,  and  the  verdict  was  for  that 
sum. 

A  servant  carrying  out  milk  at  locelcly  wa/jes,  with  trade  ailowances, 
was  restrained  by  Sir  John  Romilly  M.R.  from  trading  on  his  ou-n 
account  in  contravention  of  an  agreement,  signed  by  him,  not  to  carry 
on  the  same  business,  &c.,  within  the  same  district  (three  miles  from 
Charles-street,  Grosvenor  Square),  for  two  years  after  ceasing  to  be 
employed  or  leaving  the  service  of  his  master,  his  successor,  or  assigns. 
His  Honour  considered  that  the  defendant's  being  a  servant  at  wages 
was  quite  a  sufficient  consideration  to  support  the  agreement,  and  that 
it  would  be  a  virtual  breach  of  it  if  he  assisted  any  other  milkman 
{Benwell  v.  Inns).  The  trade  allowances  were  bd.  for  every  quantity 
of  eight  quarts  over  and  above  44  quarts  a  day  he  disposed  of ;  2d.  per 
quart  for  carrying  cream  ;  As.  for  every  customer  he  introduced  who 
should  continue  such  customer  for  two  months,  and  take  one  quart  of 
milk  per  day,  with  an  additional  4s.  for  two  quarts  or  more  per  day 
which  such  customer  should  take  {il).). 

The  following  were  general  cases  of  tarceny  Inj.  farming  servants,  and 
somewhat  peculiar  in  their  facts. 

Reg.  V.  Hayward.  was  a  case  where  the  prisoner  took  the  straw  to 
the  prosecutor's  court-yard,  and  put  it  down  at  the  stable-door.  The 
prisoner  then  went  to  the  prosecutor,  to  ask  him  to  send  some  one  to 
open  the  hay-loft,  which  was  over  the  stable,  that  the  straw  might  be 
put  in.  He  then  put  in  part  of  the  straw,  and  carried  the  rest  away  to 
a  public-house.  This  carrying  away,  if  done  with  a  felonious  intent, 
was  held  to  be  a  larceny,  and  not  an  embezzlement,  as  the  delivery  of 
the  straw  to  A.  was  complete  when  it  was  put  down  at  the  stable-door. 
And  if  a  servant  animo  furandi  takes  his  master's  hay  from  his  stable 


224  CASES    OF    LARCENY    BY    SERVANTS. 

and  puts  it  into  his  master's  waggon,  this  is  a  sufficient  asportation 
{Reg.  \.  GnnuMJ). 

Again,  in  Beg.  v.  Pn'rett  and  Goodhall,  the  prisoners,  a  carter  and 
carter's  boy,  took  from  the  barn- floor,  in  the  thresher's  presence,  five 
sacks  of  unwinno\Ycd  oats,  and  secreted  them  in  a  loft,  to  give  to  their 
master's  horses,  although  they  were  not  answerable  at  all  for  the  con- 
dition or  appearance  of  the  horses.  The  jury  found  that  they  had  no 
intention  of  applying  the  oats  to  their  private  benefit ;  but  nine  of  the 
judges  held  that,  on  the  authority  of  previous  decisions,  this  was  a 
larceny,  though  they  doubted  if  they  should  have  so  decided  if  the 
matter  were  res  iniegra.  Erie  J.  and  Piatt  B.  thought  that  the  taking 
was  not  felonious,  as  the  goods  were  to  be  applied  to  the  master's  use  ; 
and  the  former  decisions  proceeded  on  the  supposition  that  the  prisoners 
would  gain  by  the  taking,  which  was  negatived  in  this  case. 

The  indictment  in  Beg.  v.  Mills  was  for  obtaining  money  by  false 
pretences.  The  prisoner  had  been  employed  to  cut  chafi"  for  the  pro- 
secutor, and  was  to  be  paid  2d.  per  fan  for  as  much  as  he  cut.  He 
made  a  demand  for  10^.  6f/.,  and  said  he  had  cut  63  fans;  but  the  pro- 
secutor and  another  witness  had  seen  the  prisoner  remove  18  fans  of 
cat  cliaflf  from  an  adjoining  chaff-house,  and  add  them  to  the  heap 
which  he  pretended  he  had  cut,  thus  making  the  G3  fans  for  which  he 
charged.  Upon  the  representation  that  he  had  cut  Go  fans  of  chaff, 
and  notwithstanding  his  knowledge  of  the  prisoner's  having  added  the 
18  fans,  the  prosecutor  paid  him  the  \0s.  6d.,  being  Ss.  more  than  the 
prisoner  was  really  entitled  to  for  the  work  actually  performed.  The 
Court  quashed  the  conviction.  And  2^er  Curiam :  "  The  question  in 
these  cases  is,  whether  the  false  representation  is  the  motive  opera- 
ting in  the  mind  of  the  prosecutor,  and  inducing  him  to  part  with  his 
money.  It  cannot  be  said  that  this  was  the  case  here,  because  he  paid 
the  money,  although  he  knew  the  representation  to  be  false.  Unless 
the  money  be  obtained  by  the  false  pretence,  it  is  an  attempt  only. 
The  prosecutor  could  not  recover  back  the  money  in  a  civil  action, 
because  it  was  paid  voluntarily,  with  a  knowledge  of  all  the  circum- 
stances." 

One  of  the  earliest  cases  on  the  subject  of  fraudidcnt  drovers  is  Rex 
v.  Stork,  which  decided  that  it  is  larceny  for  a  person  hired  for  the 
special  purpose  of  driving  sheep  to  a  fair,  to  convert  them  to  his  own 
use,  he  having  the  intention  so  to  do  at  the  time  of  receiving  them  from 
the  owner.  The  prisoner,  who  had  never  been  the  prosecutor's  servant, 
though  he  had  been  occasionally  employed  to  drive  sheep,  was  hired  at 
Bristol  fair  to  drive  fifty  sheep  to  Bradford  fair  for  him  for  2s.  6d.  per 
day.     lie  had  never  had  either  ou  this  or  any  other  occasion  authority 


FRAUDULENT    DROVERS.  2^5 

to  sell,  but  simply  to  drive  them  to  Bradford  ;  which  he  did  not  do, 
but  sold  ten  out  of  the  fifty,  the  next  morning  after  he  received  them, 
to  a,  person  in  quite  an  opposite  direction  to  Bradford,  on  a  false  repre- 
sentation of  his  authority  to  do  so.  The  jury  found  that  the  prisoner 
at  the  time  he  received  the  sheep  intended  to  convert  them  to  his  own  use 
and  not  to  drive  them  to  Bradford,  and  the  judges  unanimously  decided 
that  he  was  rightly  convicted  of  felony. 

This  was  followed  by  Rex  v.  Bernard  3Iac  Namee,  where  it  was 
decided  unanimously  l^y  nine  judges,  that  if  a  man  ivlio  is  hired  to  drive 
cattle  sell  them,  it  is  tarcenij  ;  for  he  has  the  custody  only,  not  the  right  to 
the  possession,  his  possession  being  the  owner's  possession,  though  he  is  a 
general  drover,  at  least  if  he  is  paid  by  the  day.  The  prisoner  was  con- 
victed of  stealing  118  sheep.  It  seems  that  the  prosecutor,  who  lived  fifty 
miles  from  Grantham,  had  employed  the  drover  in  his  service  as  a  drover 
off-and-on  for  nearly  five  years,  but  not  as  a  regular  servant.  He  was  a 
general  drover,  and  lodged  in  the  town  ;  and  agreed  with  the  prosecutor 
for  35.  a  day,  that  being  what  the  former  regularly  gave  drovers.  On  the 
3rd  of  April,  1832,  he  employed  the  prisoner  to  take  169  sheep  to  Gran- 
tham fair,  and  found  him  with  only  163  sheep  on  the  8th;  his  excuse 
being  that  he  had  sold  five  lame  ones,  and  sent  one  back.  The  prosecutor 
sold  44  at  Grantham,  and  gave  the  prisoner  money  and  orders  to  bring 
the  119  to  Smithfield  on  the  16th,  and  meet  him  in  London  the  night 
before.  The  prisoner  had  no  authority  to  sell  sheep ;  but  on  Monday  he 
found  118  of  them  at  the  market  in  the  hands  of  different  salesmen,  who 
said  they  had  purchased  them  of  one  Shelton,  who  had  bought  them  from 
the  prisoner,  who  pretended  that  they  were  his  own.  The  jury  found 
that  the  prisoner  did  not  intend  to  steal  the  sheep  at  the  time  he  took 
them  into  his  possession.  The  case  was  considered  by  nine  of  the  judges, 
and  they  were  unanimously  of  opinion  that  as  the  owner  parted  with 
the  custody  only,  not  with  the  possession,  the  prisoner's  possession  was 
the  OAvner's,  and  that  the  conviction  was  therefore  right. 

In  Rex  V.  Henry  Hughes  it  was  held,  in  thesame  term,  that  a  servant 
may  he  found  guiltij  of  emtjezzlemcnt,  thovijh  he  is  not  a  general  servant 
and  enqdoijed  to  receive  in  a,  single  instance.  Here  the  prosecutor  was  a 
farmer,  and  the  prisoner  a  drover  occasionally  employed  by  him.  He 
was  engaged  to  take  a  cow  and  calf  for  him  to  Marylebone,  and  bring- 
back  £16,  and  had  not  any  extra  reward  beyond  what  was  his  due  for 
driving  and  delivering  the  cattle  to  the  purchaser.  From  the  low  situa- 
tion in  life  of  cattle-drovers  they  were  not  likely  persons  to  be  entrusted 
with  the  receipt  of  money,  and  the  Recorder  (relying  principally  on  Rex 
V.  Nettleton)  considered  that  the  receipt  in  this  instance  was  a  mere 
voluntary  act  on  the  part  of  the  prisoner,  not  at  all  incident  to  his 


J226  LARCENY    BY    DROVERS. 

general  clmractcr  and  employment  as  a  drover,  and  that  without  any 
breach  of  his  duty  as  such,  he  might  have  declined  taking  upon  himself 
the  burthen  or  risk  attendant  on  his  taking  charge  of  the  money.  Nine 
of  the  judges,  however,  were  of  opinion  that  the  prisoner  was  a  servant 
within  tlie  meaning  of  the  Act  7  &  8  Geo.  IV.  c.  29,  s.  47,  and  that  the 
conviction  was  right. 

The  next  case  on  the  subject  was  Baj.  v.  }Vm.  Goodboily.  The  prisoner 
was  indicted  for  stealing  six  oxen  from  a  farmer  and  grazier,  who  had 
known  him  several  years,  and  had  employed  liim  once  or  twice  before. 
He  was  sent  with  eight  oxen,  which  were  left  unsold  at  St.  Ives  market, 
and  told  that  if  he  could  sell  them  on  the  road  he  might,  but  that  those 
lie  did  not  sell  were  to  be  taken  on  to  Smithfield  to  one  Mr.  Pollett,  the 
prosecutor's  salesman.  On  cross-examination  the  prosecutor  said  he 
did  not  know  whether  the  prisoner  drove  other  cattle  on  that  occasion, 
though  he  was  at  liberty  to  do  so  :  there  is  a  regular  charge  for  drovers  ; 
so  much  per  head  for  cattle  driven,  and  so  much  for  cattle  sold.  Two 
of  the  beasts  he  sold  on  his  way  to  London,  and  took  the  remaining  six 
to  Smithfield,  wdiere  he  sold  them,  and  received  the  money  through  a 
►Smithfield  bank.  One  of  the  witnesses  for  the  prosecution  said  the 
prisoner  was  a  salesman  as  well  as  a  drover.  J\Ir.  Pollett  was  called  as 
a  witness,  and  stated  that  he  never  received  the  beasts.  He  added : 
"  It  is  the  duty  of  the  drover  to  deliver  them  to  our  drover,  and  next 
morning  to  come  and  see  that  we  have  them :  it  is  no  part  of  his  duty 
to  sell  them  in  iSmithfield.  The  prisoner  had  twice  before  delivered  the 
prosecutor's  beasts  to  my  drover."  The  Court  held  that  there  was  no 
proof  that  the  prisoner  was  the  servant  of  the  prosecutor,  and  there 
being  no  felonious  taking  in  the  first  instance,  the  indictment  could  not 
be  sustained. 

The  suhjecf  of  felonious  intention  was  much  considered  in  Regina  v. 
Georeje  Heij,  which  shook  Rex  v.  Bernard  Mac  Xamee.  On  September 
26,  1848,  the  prosecutors,  two  pig-jobbers  at  Newcastle,  having  bought 
pigs  which  they  tliought  would  suit  Goose,  a  pig-dealer  at  Leeds, 
engaged  the  defendant,  a  butcher  and  drover  at  Newcastle,  to  go  by 
rail  and  deliver  them  to  Goose  (bringing  back  the  amount  in  a  post- 
office  (jrder  or  a  check)  on  showing  him  a  certain  paper.  No  orders  of 
any  kind  were  given  him  to  sell  the  pigs  in  case  Goose  refused  to  take 
them.  At  0  a.m.  on  the  27th,  he  went  to  the  house  of  Goose,  who  was 
not  at  home.  Mrs.  Goose,  on  hearing  him,  called  up  a  man,  to  whom 
she  referred  him.  The  latter  merely  looked  out  of  the  window,  and 
said,  "Is  that  you?'''  and  then  shutting  it  up  retired,  as  if  to  bed. 
Between  6  and  7  that  morning  the  prisoner  called  up  a  pork-butcher, 
sold  the  pigs  to  him,  absconded  with  the  £35,  and  said  nothing  to  the 


LAHCENY    EY    GENERAL    DROVEK.  ri£7 

prosecutors.  He  had  often  been  employed  by  them  to  slaughter  and 
cut  np  pigs,  and  had  been  paid  by  the  job,  but  never  before  as  a  drover. 
Two  pounds  were  given  him  for  expenses,  and  no  arrangement  was 
made  as  to  how  he  was  to  be  paid,  though  there  was  an  established 
custom  in  the  trade  to  pay  them  so  much  per  day;  and  by  another 
trade  usage  he  was  at  liberty  to  drive  any  other  person's  cattle  at  the 
same  time,  though  nothing  was  expressed  to  that  effect  in  this  case. 
The  pi'isoner  said,  in  his  defence,  that  he  was  a  partner  with  the  prose- 
cutors ;  and  there  was  no  evidence  of  an  animus  furandi  when  the  pigs 
were  delivered  to  him.  He  was  found  guilty  of  larceny  ;  Imt  the  Recorder 
postponed  judgment  to  take  the  .opinion  of  the  Court,  whether,  under 
the  circumstances,  the  prisoner  was  the  servant  of  the  prosecutors,  and 
whether  the  taking  amounted  to  larceny  ?  The  Court  thought  that  it 
was  not  proved  in  this  case  that  the  prisoner  was  a  mere  servant,  and 
that  the  conviction  was  wrong. 

Parlie  B.  said,  in  delivering  the  judgment:  "There  are  several 
reported  cases  bearing  upon  the  question  whether  a  person  is  a  mere 
servant  or  bailee.  There  are  none  precisely  like  the  present,  though 
the  case  of  Rex  v.  Bernard  Mac  Narnee  nearly  approaches  to  it.  In 
this  case,  on  the  one  hand,  the  circumstance  that  the  prisoner  was  paid 
the  expenses  of  the  cattle,  and  also  that  the  customary  mode  of  payment 
of  his  remuneration  was  by  the  day,  tend  to  show  that  he  was  a  mere 
servant ;  on  the  other,  the  fact  of  his  being  a  drover  by  trade,  and  also 
of  his  having  the  liberty  to  drive  the  cattle  of  any  other  person  by  the 
general  usage  with  respect  to  di-overs,  raises  an  inference  that  he  was 
not  a  servant.  The  learned  Depufji-Recorder  felt  himself  bound  by  the 
decision  of  the  judges  in  Rex  v.  Henry  Hughes,  but  that  case  was  under 
the  7  &  8  Geo.  IV.  c.  29,  s.  47,  which  makes  embezzlement  by  a  servant, 
or  person  employed  in  the  capacity  of  a  servant  to  receive  money, 
felony  ;  and  the  learned  Recorder  of  London  referred  the  question  to  the 
judges,  whether  the  prisoner  fell  under  either  description,  though  if  the 
indictment  had  been  referred  to,  it  was  necessary  to  prove  that  he  was  a 
servant.  The  judges  decided  that  the  prisoner  was  properly  convicted, 
and  consequently  that  he  was  a  servant  or  person  employed  in  that 
capacity,  and  authorized  as  such  to  receive  money,  so  that  his  receipt 
would  be  a  discharge  to  the  debtor.  This  is  not  exactly  the  same  ques- 
tion. It  is,  whether  the  prisoner  had  the  custody  of  the  cattle  as  a 
servant  to  the  prosecutor  at  the  time  of  the  receipt  of  them ;  and  we 
think  he  could  not  be  so  considered,  unless  in  driving  the  cattle  to 
market  he  was  his  servant,  and  the  prosecutor  responsible  for  any 
negligent  act  of  his  in  so  driving  them.  This  subject  has  undergone 
much  discussion  of  late,  and  has  been  placed  on  its  projier  footing  by 

4  2 


238  BUTCHER   EMi'LOYING   DllOVEE. 

the  case  of  Quannan  v.  Burncit,  and  other  cases :  one  of  which  is  that 
of  a  general  drover,  who  was  held,  in  Milliijan  v.  Wedge,  not  to  be  a 
servant  so  as  to  make  the  owner  of  the  cattle  responsible  for  his  negli- 
gence. After  the  full  consideration  which  this  subject  has  undergone, 
we  doubt  whether  the  case  of  Rex  v.  Bernard  Mac  Namee  (above 
referred  to)  would  now  be  decided  in  the  same  way. 

In  MiUignn  v.  Wedge,  defendant  was  a  butcher,  and  had  bought  a 
bullock  in  Smithfield-market,  which  is  within  the  city  of  London.  By 
the  bye-laws  of  the  city,  no  person  not  licensed  can  drive  cattle  for  hire 
from  Sniithfield,  though  the  owner  may  drive  them  himself.  The 
defendant  employed  a  licensed  drover  to  drive  the  bullock  to  the  defen- 
dant's slaughter-house,  which  is  without  the  city,  and  the  drover 
employed  a  boy  to  drive  it  there,  with  four  other  bullocks,  which  were 
not  defendant's,  but  were  bound  in  the  same  direction.  The  five  were 
passing  the  plaintiff's  show-room,  which  is  without  the  city  in  Port- 
land-road, when  the  defendant's  bnllock  did  the  mischief  complained  of. 
Williams  J.  thought,  on  the  evidence,  the  boy  was  not  the  defendant's 
servant ;  and  the  jury  having  found  neglect,  a  verdict  was  given  for 
defendant  on  the  first  plea  (that  at  the  time,  &c.,  the  said  person  driving 
the  bullock  "was  not  employed  by  him,  the  said  defendant,  as  his 
servant  in  that  behalf,  in  manner,"  (tc),  and  for  plaintiff"  on  the  second 
(Not  guilty).  Leave  was  reserved  to  move  to  enter  a  verdict  for  the 
plaintiff"  on  the  first  plea,  but  the  rule  was  discharged.  The  Court 
considered  they  were  bound  by  the  decision  in  Qiiarman  v.  Burnett, 
where  the  opinions  of  Abbott  C.J.  and  Litfledale  J.  in  Laugher  v. 
Pointer  were  acceded  to  by  the  Court  of  Exchequer.  The  party  sued 
here  had  not  done  the  act  complained  of,  but  had  employed  another,  u'ho 
was  recognized  by  the  law  as  exercising  a  distinct  calling.  The  butcher 
was  not  bound  to  drive  the  beast  to  the  slaughter-house  himself.  He 
employed  a  drover,  Avho  employed  a  servant ;  and  hence  the  drover,  and 
not  the  owner,  was  liable.  It  did  not  even  appear  that  the  defendant 
attended  the  drover  or  his  servant ;  and  the  mischief  was  done  in  the 
course,  not  of  the  butcher's  business,  but  the  drover's.  Coleridge  J. 
said:  "The  true  test  is  to  ascertain  the  relation  between  the  party 
charged,  and  the  party  actually  doing  the  injury.  Unless  the  relation 
of  master  and  servant  exist  between  them,  the  act  of  the  one  creates  no 
liability  in  the  other.  Apply  that  here.  I  make  no  distinction  between 
the  licensed  drover  and  the  boy:  suppose  the  drover  to  have  committed 
the  injury  himself.  Tlie  thing  done  is  the  driving.  The  owner  makes  a 
contract  with  the  drover  that  he  shall  drive  the  beast,  and  leaves  it  under 
his  charge ;  and  then  the  drover  does  the  act.  The  relation,  therefore, 
of  master  and  servant  does  not  exist  between  them  "  (12  A.  &  E.  737). 


PRESUMPTION    OF    DROVER's    AUTHORITY    TO    SELL.       2;J9 

AiJcrson  who  is  entrmicd  Juj  f/tc  o/riier  fo  falce  caftle  to  a  salesman  for 
the  market,  has  no  implied  authoritij  {in  the  absence  of  proof  of  a  custom  to 
pay  the  servant)  to  receive  the  proceeds  of  the  sale  {Letiice  v.  Judkins). 
What  is  a  reasonable  presumption  that  a  drover  has  authority  to  sell, 
appears  from  Metcalfe  v.  Lumsden,  which  was  a  case  of  trover  for 
thirteen  heifers.  The  plaintiff  brought  the  heifers  to  Morpeth  market ; 
but  not  being  able  to  sell  them,  entrusted  them,  without  any  direct 
authority  to  sell,  to  a  common  drover,  to  take  them  to  some  land  of 
defendant's,  ordinarily  used  for  that  purpose  by  farmers  and  cattle- 
jobbers  frequenting  Morpeth  market,  to  graze  till  the  next  market-day. 
They  were  brought  there  on  September  6th,  and  on  the  next  day  the 
drover  offered  them  for  sale  at  a  fair  price  to  the  defendant,  stating 
that  he  had  authority  from  the  plaintiff  to  dispose  of  them,  and 
absconded  with  the  purchase-money.  In  a  week's  time  the  plaintiff 
went  to  demand  his  cattle,  and  tendered  the  money  due  for  agistment; 
but  the  defendant  refused  to  give  them  up,  alleging  that  he  had  bought 
them  from  the  drover.  The  drover  had  sold  cattle  for  the  plaintiff  in 
Morpeth  market  on  former  occasions,  and  had  also  stood  in  the  market 
with  the  cattle  in  question.  It  was  customary  for  drovers  to  sell  cattle 
in  the  market  for  their  employers  ;  but  there  was  no  evidence  that  the 
drover  had  ever  sold  cattle  for  the  plaintiff  except  in  the  market,  nor 
was  there  any  evidence  that  drovers  had  by  custom  an  implied  authority 
to  sell  cattle  on  the  road. 

Rolfe  B.  said :  "  An  authority  to  sell  may  be  either  express,  as  when 
an  actual  order  to  sell  is  given,  or  it  may  arise  from  ordinary  usage,  as 
in  the  case  of  a  servant  in  a  shop  or  market,  or  where  the  master  has 
been  in  the  habit  of  sending  his  servant  to  sell  at  a  particular  place. 
Had  the  defendant  purchased  the  cattle  on  the  6th  of  September  on  the 
market,  he  might  have  been  protected ;  but  with  regard  to  the  autho- 
rity which  the  drover  had  on  the  7th  of  September,  the  only  evidence  is 
that  he  was  ordered  to  take  the  cattle  to  depasture,  and  this,  indeed, 
appears  at  first  to  have  been  the  defendant's  own  opinion.  Afterwards, 
however,  on  the  drover  representing  to  the  defendant  that  he  had 
authority  from  the  plaintiff  to  sell,  the  defendant  buys  the  cattle  from 
him ;  and  who,  then,  is  to  suffer  by  the  drover's  dishonesty  ?  Clearly 
the  party  who  was  guilty  of  incaution.  The  defendant  might  have 
ascertained  whether  the  drover  had,  in  fact,  authority  to  sell  or  not ; 
but  not  having  done  so,  and  having  afterwards  refused  to  give  up  the 
cattle  to  the  real  owner,  on  the  ground  of  a  purchase  from  a  party 
who,  it  turns  out,  had  no  authority  to  sell,  he  has  been  guilty  of  a 
conversion." 

In  Goode  v.  Jones  it  was  settled  that  there  is  a  privittj  between  the 


2o0  LIxiBlLlTY    OF    SALESMAN'fcJ    BOOK-KEEPEll. 

otnur  of  cattle  and  Hip  salesman's  loolc-leejwr,  who  has  received  the 
farmer's  money  from  the  salesman  and  entered  it  as  such.  The  plaintifiP, 
a  country  grazier,  had  sent  three  oxen  by  his  drover  to  Smithfield,  to  be 
sokl  by  a  salesman,  who  employed  the  defendant  (who  was  also  employed 
by  several  other  salesmen)  as  his  book-keeper.  It  was  the  business  of 
the  latter  to  receive  the  money  from  the  purchaser,  and  keep  an  account 
of  the  beasts  sold,  distinguishing  what  each  beast  was  sold  for,  and  to 
whom  it  belonged.  \Alien  that  is  done,  the  salesman  sends  an  order  to 
the  book-keeper,  desiring  him  to  pay.  In  this  case  the  salesman  owed 
the  defendant  money,  and  refused  to  pay  over  the  money  received  for 
the  plaintiff's  cattle  till  his  own  debt  from  the  salesman  was  satisfied. 
The  salesman  became  insolvent,  and  this  action  was  brought.  Lord 
Kenyon  C.J.  said  he  was  never  clearer  on  a  case  in  his  life.  By  the 
common  law  of  the  land  the  plaintiff  is  entitled  to  receive  this  money 
from  the  defendant,  and  no  custom  whatever  can  deprive  him  of  it. 
There  is  not  the  least  similitude  between  the  case  of  a  banker  and  the 
present  defendant.  No  privity  whatever  exists  between  the  banker  of  a 
factor  and  the  principal  whom  he  never  heard  of;  but  this  defendant 
knew  that  he  was  receiving  this  money  for  the  use  of  the  plaintifiP;  he 
entered  his  name  in  his  book,  and  distinguished  how  much  was  due  to 
him.     The  plaintiff  had  a  verdict. 


DEFINITION    OF    MORTALITY.  231 


CHAPTER    VIII. 

CONVEYANCE    OP    HORSES    AND    CATTLE. 

Very  few  cases  of  injuries  to,  or  losses  of,  horses  and  cattle  during 
conveyance  from  place  to  place,  are  to  be  met  with  in  the  books,  before 
the  universal  establishment  of  railways.  In  Lawrence  v.  Aherdein,  two 
mules,  an  ox,  and  five  asses  were  killed,  and  the  remainder  received 
such  severe  injury  from  the  pitching  of  the  ship,  that  nearly  all  of 
them  died.  The  Court  decided  that  this  was  a  loss  hij  jieril  of  the  sea, 
and  that  the  underwriters  were  liable  on  a  policy  which  warranted 
them  "free  ofmorMity  and  jettison."  Best  J.  said  :  "  The  underwriters 
have  only  stipulated  that  they  will  not  be  liable  for  loss  by  mortality. 
That  word  in  its  ordinary  and  popular  sense  signifies  death  arising 
from  natural  causes,  and  not  from  violence.  I  think,  therefore,  that 
the  underwriters  must  be  taken  to  have  intended  to  exempt  themselves, 
by  this  exception,  from  that  species  of  loss  which  occurredin  Tatham  v. 
Hodgson,  a  loss  of  which  death  was  the  proximate  cause,  and  the  perils 
of  the  sea  the  remote  cause.  Here  the  injury  done  to  the  animals  arose 
directly  and  immediately  from  the  violence  of  the  tempest ;  or,  in  other 
words,  from  the  perils  of  the  sea.  In  Tatham  v.  Hodgson,  the  want  of 
provisions  was  the  immediate  cause  of  the  death  of  the  slaves  ;  the 
remote  cause  was  the  circumstance  of  the  ship  having  been  driven  out 
of  her  course  by  the  perils  of  the  sea,  in  consequence  of  which  the 
provisions,  which  otherwise  would  have  been  quite  sufficient  for  the 
voyage,  were  exhausted." 

The  construction  put  by  the  Court  on  the  word  "  mortality,"  in  the 
above  case,  governed  their  decision  in  Galjag  v.  Llogd,  which  was  an 
action  of  assumpsit  on  a  policy  of  assurance  on  three  horses,  "  war- 
ranted'free  from  jettison  or  mortality."  It  was  there  found,  by  a 
special  verdict,  that  in  consequence  of  a  storm,  the  horses  broke  down 
their  slings,  and  killed  themselves  by  kicking  down  the  partitions ; 
and  that  at  Lloyd's  Coffee-house,  where  the  policy  was  efiFected,  a 
particular  usage  prevailed  with  respect  to  policies  on  live  stock.  The 
Court  ordered  the  postea  to  be  delivered  to  the  plaintiffs,  and  ruled 
that  as  the  usage  found  by  the  verdict  to  prevail  at  Lloyd's  cannot 


'^0:1  NEGLIGENCE   OF   OWNERS   OF   FERRY. 

possibly  <nflbct  any  other  persons  tliau  those  who  frequent  that  phice, 
and  are  familiar  -nith  that  usage,  it  A^•ould  not  bind  the  plaintiffs,  Avho 
"were  not  shown  to  be  persons  answering  that  description.  LittMalc  J., 
however,  intimated  that  he  had  some  doubt  whether  he  should  have 
agreed  with  the  rest  of  the  Court,  in  Lawrence  v.  Ahcrdcin,  on  the 
construction  of  the  word  "  mortalif//." 

WiUouffMnj  and  olhcrs  (appellants)  y,  Horrhlgc  (respondent),  was  a 
case  of  very  r/ross  negJiyence  on  the  j'art  of  the  lessees  of  a  ferry,  who 
provided  steam-boats  for  the  conveyance  of  caftle,  passengers,  and 
goods  from  Liverpool  to  Birkenhead,  and  also  slips  for  landing.  The 
plaintiff  rode  his  mare  to  the  liirkeuhead  ferry,  paid  I*-.,  led  her  on 
board  himself,  and  remained  with  her  till  they  were  alongside  the 
floating-stage  at  Liverpool,  when  he  led  her  off  it  along  the  slip,  which 
had  nothing  broken  in  its  appearance  to  attract  attention.  The  com- 
pany were  held  liable  for  the  full  value  of  the  mare,  who  sustained  a 
f\ital  injury,  in  consequence  of  such  landing-slip  (of  the  dangerous 
state  of  which  they  had  been  forewarned)  giving  way,  although  she  was 
at  the  time  under  the  control  and  management  of  her  owner  ;  and  the 
ruling  of  the  County  Court  judge,  that  to  permit  a  using  of  the  slip 
after  two  accidents,  one  of  them  that  very  morning,  was  so  careless  and 
culpable  an  act,  as  to  make  the  defendants  responsible  for  the  con- 
sequences, was  confirmed.  One  of  the  hand-rails  of  the  slip  had  been 
broken  in  the  centre,  where  a  sharp-pointed  upright  supporter  of  iron 
entered  it,  by  a  horse  a  fortnight  before  ;  but  the  rail  had  been  merely 
tied  by  a  piece  of  cord,  and  used  as  usual.  On  the  very  morning  be- 
fore, another  horse  had  fallen  against  it  and  broken  it ;  but  in  spite  of 
a  distinct  caution  from  the  policeman  on  duty,  it  was  put  together 
again,  and  the  plaintiff's  mare  pressing  against  the  spliced  rail,  it 
parted,  and  the  iron  upright  pierced  her  so  severely,  that  she  had  to  be 
destroyed. 

The  8Gth  section  of  the  Raihraij  Chtuses  Consolidation  Act,  stat.  8  &  9 
Virt.  c.  20,  is  permissive  only,  and  a  railway  company  who  under  it 
elects  to  carry  goods  is  subject  to  no  greater  liability  than  attaches  to 
carriers  at  common  law  ;  and  therefore  such  a  company  is  not  bound 
to  carry  every  description  of  goods,  and  between  all  places  on  their 
line,  but  only  such  goods,  and  to  and  from  such  places  as  they  have 
publicly  professed  to  do  and  have  convenience  for  that  purpose  {John- 
son v,  77/e  Midtand  Raitaxiij  Company).  The  first  of  a  long  line  of 
cases  in  which  railvays  mdeavovred  to  restrict  their  common  law  liahility 
as  carriers,  by  the  special  terms  of  their  looh'ny  tickets,  was  that  of 
Palmer  v.  Grand  Junction  Railway  Company.  Here  the  plaintiff',  who 
was  a  horse-dealer  at  Northampton,  booked  nine  horses  at  Liverpool, 


carriers'  liability  restricted  by  booking  ticket.    233 

and  placed  them  in   three  horse-boxes,  attended  by  his   son.     The 
engine  was  thrown  off  the  line  near  Birmingham,  owing  to  a  horse 
having  strayed  on  to  it,  and  one  of  the  horses  was  killed  on  the  spot, 
and  the  rest  more  or  less  injured.     Some  labourers  had  been  working 
at  a  culvert,  and  taken  down  some  part  of  a  fence,  and  hence  the  horse 
had  strayed  on  to  the  railway.     There  was  contradictory  evidence  as  to 
whetlier  a  ticket  had  been  delivered  to  the  plaintiff's  son  at  the  time 
when  the  horses  were  booked  at  Liverpool,  bearing  this  notice,  "  This 
ticket  is  issued,  snhjed  to  the  oivners  undertaUng  all  risJcs  of  conveyance 
ichatsocrer,  as  the  company  will  not  be  responsible  for  any  injury  or 
damages  (however  caused)  occurring  to  horses  or  carriages  travelling 
upon  The  Grand  Junction  Line"    The  declaration  alleged  that  the 
defendants  received  from  the  plaintiff  divers  horses,  to  be  safeli/  and 
securely  carried  and  conveyed,  which  allegation  the  defendants  traversed 
in  their  second  plea.     Two  questions  of  fact  were  left  to  the  jury:  first, 
whether  the  accident  was  occasioned  by  the  gross  negligence  of  the 
defendants  ;   and  secondly,  whether  the  above  ticket,  by  which  the 
company   sought   to  limit  their  responsibility,   ever    came  into  the 
possession  of  the  plaintiff's  son,  or  any  other  person  acting  for  the 
plaintiff.     The  jury  found  gross  negligence  in  the  defendants,  and  that 
DO  ticket  had  been  given,  and  the  plaintiff  had  a  verdict  for  £150. 
A  rule  nisi  for  a  nonsuit  was  obtained  on  two  grounds — first,  that  the 
declaration  being  against  the  defendants  as  carriers,  it  was  not  sup- 
ported by  evidence  which  fixed  them  with  negligence  in  the  non-repair 
of  fences,  in  their  character  of  railway  projjrietor ;  and  secondly,  that 
fourteen  days'  notice  had  not  been  given  to   the  defendants  before 
bringing  this  action.     A  rule  for  a  new  trial  was  also  obtained  on  the 
ground  of  misdirection  on  the  part  of  the  learned  judge  {Tindal  C.J.),  in 
leaving  it  to  the  jury  to  consider  whether  the  ticket  ever  came  into  the 
iwssession  of  the  plaintiff's  agent,  instead  of  leaving  to  them  whether 
it  was  not  read  over,  or  its  contents  communicated  to  him.     It  was 
held  that  the  company  were  not  entitled  to  fourteen  days'  notice  of  the 
action,  under  section  214  of  their  act,  3  Will.  IV.  c.  34  (local  and 
personal),  as  the  action  was  not  brought  against  them  for  the  omission 
of  some  duty  imposed  upon  them  by  the  act ;   and  that  not  having 
restricted  their  liability  by  any  special  contract  (of  which  it  was  to  be 
assumed  that  there  was  no  evidence  in  the  present  case),  they  were 
subject  to  the  liabilities  of  carriers  at  common  law.     At  the  trial,  there 
was  contradictory  evidence  as  to  whether  a  ticket,  by  which  the  com- 
pany sought  to  limit  its  liability,  had  been  delivered  to  the  son  of  the 
plaintiff  (who  denied  that  it  had) ;  and  the  learned  judge  left  it  to  the 
jury  to  say  whether  it  was  delivered  to  him  or  not.     It  was  held  that 


23-1:  r.AILWAY   BOOKING   TICKET. 

it  was  no  misdirectiou,  in  not  directing-  tlicm  to  find  wliother  it  was 
read  over  and  ex2)]ained  to  him. 

The  principle  of  the  restriction  of  JidhllH;/  in  the  ticM  forming  part  of 
the  contract,  was  A'ery  fully  discussed  in  the  case  of  Slimv  v.  llie  York 
and  North  Midland  Kailwaij  Comj)any.  The  plaintiS"  was  a  horse- 
dealer,  who  had  brought  nine  horses  to  the  York  station,  to  be  con- 
veyed by  railway  to  Watford.  Three  horse-boxes  were  shown  him,  to 
one  of  which  he  objected,  on  the  ground  that  a  partition  separating  one 
horse-standing  from  another  was  insecure.  One  of  the  company's 
servants  endeavoured  to  remedy  the  defect,  and  assured  the  plaintiff" 
that  the  partition  had  been  secnred  ;  and  the  horses  were  placed  in  the 
boxes.  The  plaintiflF  then  paid  the  fare  for  their  conveyance,  and  a 
receipt  was  given  him  for  money  paid  on  acconnt  of  "  three  horse- 
boxes : "  and  at  the  foot  of  the  receipt  was  the  following  memorandum : 

^'jV.B.  Til  is  ticket  is  issued,  sid)ject  to  the  ownefs  undertaking  all  ris/cs 
of  conrcgance  whatsoever,  as  the  compang  ivill  not  he  responsible  for  any 
injurg  or  damage  {Itoivever  caused)  occurring  to  horses  or  carriages  while 
travelling,  or  in  loading  or  unloading." 

On  the  train  arriving  at  Normantou,  it  was  found  that  one  of  the 
horses  had  killed  itself,  and  that  the  insecurity  of  the  above-mentioned 
partition  had  led  to  its  death.  It  was  objected,  for  the  defendants, 
that  tlie  memorandum  constituted  the  contract,  and  that  the  effect  of  it 
was  to  protect  the  defendants  from  responsibility,  under  the  circum- 
stances, and  to  entitle  them  to  a  verdict  on  the  second  and  third  issues, 
viz.,  that  the  defendants  did  not  receive  the  horses  to  be  safely  and 
securely  carried  and  delivered  ;  and  that  they  were  carried  subject 
to  a  certain  contract  as  to  plaintiff  undertaking  the  risks  of  conveyance. 
Atderson  B.,  who  tried  the  case,  thought  that  the  special  notice  did  not 
exempt  the  defendants  from  the  obligation  to  use  ordinary  care  ;  and 
also,  on  the  authority  of  Lgon  v.  Metis,  that  a  contract  in  the  terms  of 
the  memorandum  was  subject  to  an  implied  exception  of  injury  arising 
from  the  insufficiency  of  the  carriage  provided  by  the  defendants,  and 
directed  a  verdict  for  the  plaintiff.  The  Court  held  this  to  be  a  mis- 
direction, and  made  a  rule  for  a  new  trial  absolute.  Lord  Denman  C.J. 
said,  in  delivering  the  judgment  of  the  Court,  "  It  appears  to  us  clear 
that  the  terms  contained  in  the  ticket  given  to  the  plaintiff,  at  the  time 
the  horses  were  received,  formed  part  of  the  contract  for  the  carnage 
of  the  horses,  Ijetween  the  plaintiff  and  the  defendants,  and  that  the 
allegation  in  the  declaration  that  the  defendants  received  the  horses  to 
he  safelg  and  secure^g  carried  hg  them,  which  would  throw  the  risks  of 
conveyance  upon  the  defendants,  is  dis})rovcd  by  the  memorandum  at 
the  foot  of  the  ticket  ;  and  the  alleged  duty  of  the  defendants,  safely 


LIABILITY    OF    RAILWAYS.  235 

and  securely  to  cany  and  convey  the  horses,  would  not  arise  upon  such 
a  contract.  It  may  be  that,  notwithstanding  the  terms  of  the  contract, 
tlie  plaintiff  might  have  alleged  that  it  v.as  the  duty  of  the  defendants 
to  have  furnished  proper  and  sufficient  carriages,  and  that  the  loss 
happened  from  a  breach  of  that  duty  ;  Ijut  the  plaintiif  has  not  so  de- 
clared,  but  has  alleged  a  duty  which  does  not  arise  upon  the  contract 
as  it  appeared  in  evidence." 

The  principle  thus  successfidlij  csiaUislied  in  favour  of  the  milwaijs 
has  been  confirmed  by  a  long  line  of  subsequent  decisions. 

In  ChiirpcncMe  v.  Tlte  Lancashire  and  Yorlcshire  Raihvay  Company, 
the  plaintiff"'s  drover  brought  12  head  of  cattle  to  the  Wigan  station 
of  the  above  railway,  to  go  to  Bury,  a  distance  of  1 6  miles.  With  the 
aid  of  the  company's  servants  they  were  put  into  a  truck,  and  before 
that  operation  was  completed  the  plaintiff  himself  brought  another 
heifer,  which  was  placed  amongst  them,  and  paid  8s.  for  the  carriage. 
He  also  got  a  free  pass  for  his  drover,  and  signed  a  pass-ticket,  at  the 
bottom  of  which  was  this  notice  : 

"N.B.  This  ticM.  is  issued,  sidiject  io  the  owner  undertcdciny  cdl  risJcs 
of  conveyance  ivhcdever,  as  the  company  wilt  not  le  responsdjle  for  any 
injury  or  damaye,  howsoever  caused,  occurriny  to  live  stock  of  any  de- 
scription trareUiny  upon  the  Lancashire  and  YorMiire  Railiray,  or  in 
their  vehicles.  "  William  Chippendale. 

[0/cner,  or  on  the  owners  lehcdf  ayrees  to  the  cdjove  termsy 

On  the  truck  reaching  the  main  line  the  cattle  became  alarmed,  and 
tliree  escaped  throuyh  a  space  between  the  ctose  hoardiny  at  the  tower  part 
of  the  side  of  the  trucJc,  and  a  rad  which  ran  round  the  top  of  the  track ; 
two  of  the  heifers  were  killed,  and  the  third  much  injured.  The 
plaintiff's  advocate  in  the  AVigan  County  Court,  by  whose  judge  the 
case  was  stated,  contended  that  the  defendants  were  liable,  not- 
withstanding the  special  contract,  as  the  truclc  was  defectively  con- 
structed for  the  purpose  of  conveyiny  cattle,  by  reason  of  the  space 
between  the  top  rail  of  the  truck  and  the  close-boarding  being  too 
great.  The  learned  judge  held  that  the  plaintiff  having  entered  into 
the  special  contract  as  before  mentioned  had  no  ground  of  action,  and 
the  defendants  were  not  liable  ;  but  having  asked  their  opinion  on 
the  point  at  the  request  of  the  plaintiff's  advocate,  the  jury  found  that 
they  considered  the  truck  in  question  was  so  defectively  constructed 
as  to  be  unfit  and  unsafe  for  the  purpose  of  conveying  cattle  along  the 
line,  and  that  they  considered  the  plaintiff  had  sustained  damages  to 
the  amount  of  £21  46'.  The  judge  directed  a  verdict  to  be  entered  for 
the  defendants,  and  the  Court  affirmed  the  judgment  with  costs. 


2-'3G       DAMAGE    THROUGH    BADLY    COXSTRUCTED    TRUCK. 

Eric  J.  said  :  "  I  think  that  the  plaiiitifT  entered  into  a  contract  by 
which  he  nndertook  not  to  call  npou  tlie  company  for  any  damage,  such 
as  that  ^vhich  has  accrned.  I  take  it  that  the  carriage  was  fit  for  the 
journey,  and  fit  for  the  weight,  and  that  the  damage  has  entirely  arisen 
from  the  freight  being  living  animals,  who  made  an  effort  to  escape, 
and  so  injured  themselves.  That  seems  to  me  to  be  a  risk  for  which 
the  comi)any  peculiarly  said  that  they  would  not  be  responsible.  I 
think  that  limitation,  however  wide  in  its  terms,  being  in  respect  of 
live  stock,  is  reasonable ;  for  though  domestic  animals  might  be 
carried  safely,  it  might  almost  be  impossible  to  carry  wild  ones  without 
injury."  Coleridtjo  J.  thus  remarked  on  Lyon  v,  Mells  :  "■  The  counsel 
for  the  appellants  allows  that  to  take  the  ticket  literally,  would  be  to 
exempt  the  company  in  all  cases  whatever  against  any  risks  of  con- 
veyance, and  against  any  injury  or  damage  accruing  to  the  animals 
while  travelling,  but  says  that  it  cannot  be  construed  so  literally,  and 
resting  on  the  authority  of  Lijon  v.  Mells,  seeks  to  introduce  a  quali- 
fication that  the  carriage  is  to  be  fit  for  the  journey,  or,  to  borrow  a 
phrase  from  contracts  of  insurance,  '  sea-worthy.'  Now  the  case  of 
Ltjon  V.  Mells  was  purely  one  of  construction  also.  The  Court  rea- 
soned from  the  particular  exception  in  the  case  of  want  of  ordinary  care 
in  the  master  and  the  crew,  that  it  must  be  intended  that  want  of  ordi- 
nary care  in  the  owner  was  also  excepted  ;  and  that  it  was  a  want  of 
ordinary  care  on  his  part,  in  not  providing  a  proper  vessul.  Now  the 
words  here  do  not  leave  us  open  to  adopt  any  such  ground  of  con- 
struction as  in  that  case.  Tlie  plaintiff  had  a  full  op^jortunity  of  know- 
ing what  the  carriage  was,  for  it  is  found  that  he  saw  one  of  the  beasts 
put  into  it." 

In  Avsiin  v.  I  he  Manchester,  Sheffichl,  d-  Lincolnshire  Railway  Com- 
pany, the  doctrine  of  non-liahillty  n-as  si  retched  to  its  ntmost  liniils. 
The  declaration,  which  was  in  case,  contained  two  counts,  and  alleged 
in  the  second  that  the  defendants  were  pro})rictors  of  a  railway  and 
carriages  used  for  the  conveyance  of  horses  from  New  Holland  to 
Bhoreditch  for  hire  ;  and  that  plaintiffs,  at  the  request  of  the  defend- 
ants, delivered  to  them,  and  they  received,  horses  to  be  carried  for  the 
plaintiffs  by  the  defendants  in  a  carriage  for  reward  ;  and  that  while 
the  horses  were  being  conveyed  in  the  carriage  (which  with  the  loco- 
motive power  thereof  was  under  the  sole  control  of  the  defendants) 
the  ivheel  of  tlie  carriaye  took  fire,  of  ivhich  the  defeiulants,  at  a  convenient 
time  and  place,  had  notice,  and  were  requested  by  plaintiffs  not  to  per- 
sist further  in  carrying  the  horses  in  the  carriage  ;  but  defendants  ])qv- 
sistcd,  and  the  wheel  took  fire  again  for  want  of  due  precaution,  and 
broke,  and  the  carriage  was  consequently  thrown  out  of  its  proper  posi- 


DAMAGE    THROUGH    AXLE    TAKING    FIRE.  237 

tion,  and  the  horses  were  injured.  The  facts  of  the  case  were  these  : 
Shortly  after  the  train  had  started,  it  was  discovered  that  one  of  tlic 
wheels  of  the  truck  in  which  the  horses  in  question  stood,  was  becominj^ 
heated  for  want  of  grease  ;  and  when  the  train  arrived  at  Boston,  the 
company's  servants  were  requested  by  the  plaintiff's  servant  to  cause 
the  carriage  to  be  removed  from  the  train  and  another  substituted  for 
it ;  but  they  declined  to  do  so,  alleging  that  tliere  was  not  time  for  it, 
but  they  applied  water  to  the  wheel,  and  greased  it.  When  the  train 
reached  Peterborough,  the  wheel  being  still  on  fire,  the  station-master 
desired  the  driver  to  stop  at  Whittlesea  and  grease  it  again.  The 
driver,  however,  did  not  stop,  as  directed  ;  and  shortly  afterwards  the 
wheel  broke  down,  and  the  truck  was  broken  to  pieces,  and  one  of  the 
plaintiff's  horses  killed  and  others  injured.  Plea  the  sixth  to  second 
count  alleged  that  the  plaintiffs  did  not  deliver,  nor  defendants  receive 
the  horses  to  be  carried  mode  ct  forma.  At  the  trial,  before  Erie  J., 
it  appeared  that  the  horses  were  placed  in  trucks  at  New  Holland  ;  and 
at  the  time  a  ticket  was  signed  by  the  plaintiff  Davis,  on  behalf  of  the 
plaintiff  Austin,  who  could  not  write.  The  ticket  Avas  indorsed  as 
follows — 

"  This  ticket  is  issued  subject  to  tlie  owner  s  undertakinc/  to  lear  all  the 
risk  of  injury  hij  conveyance  and  other  contingencies ;  and  ths  owner  is 
required  to  see  to  the  efficiency  of  the  carriage  lefore  he  allows  his  horses 
or  live  stock  to  de  jdaced  therein,  the  charge  being  for  the  me  of  the 
railway  carriages  and  locomotive  power  onlg.  The  Gompang  will  not 
be  responsible  for  ang  alleged  defects  in  their  carriages  or  trucks  unless 
complaint  be  made  at  the  time  of  booking  or  before  the  same  leave  the 
station  ;  nor  for  ang  damages,  however  caused,  to  horses,  cattle,  or  live 
stock  of  ang  description,  travelling  upon  their  raihvay  or  in  their 
vehicles.  I  have  examined  the  carriages,  and  am  satisfied  tvith  their 
sufficiency  and  safetg.  {Signed)  Austin. 

{Owner,  or  on  the  owner'' s  behalf).''^ 

Evidence  was  given  in  support  of  the  allegations  in  the  declaration. 
It  also  appeared  that  twenty-one  horses  were  sent,  and  that  if  the 
horses  had  been  sent  in  regular  horse-boxes  the  price  of  conveyance 
would  have  been  £50,  whereas  they  had  only  cost  by  the  truck  con- 
veyance £22  lOs.  The  jury  found  that  the  accident  was  occasioned 
by  the  fire,  and  that  there  Avas  negligence  on  the  part  of  the  company 
in  proceeding  with  the  carriages.  The  learned  judge  directed  a  verdict 
to  be  entered  for  the  defendants  on  the  issue  on  the  sixth  plea,  reserving 
leave  to  move  to  enter  a  verdict  for  the  plaintiffs.  A  verdict  was  also 
found  for  the  defendants  on  issues  upon  pleas  to  the  first  count.     Dam- 


23S  ACCIDENT    TimOUGII    GROSS    NEGLIGEKCE. 

ages  were  assessed  contingently  ;  and  a  rule  ;;/.s/  was  obtained  to  enter 
a  verdict  for  the  plaintifls  on  the  issue  on  the  sixth  pica,  and  for  judg- 
ment non  obstante  veredicto,  which  was  not  confined  to  any  particular 
plea.  The  Court  of  Queen's  Bench  held  that  the  traverse  taken  by  the 
pleii  was  material,  and  that  the  verdict  should  stand.  Erie  J.  said : 
"  It  will  be  seen  that  the  charge  of  negligence  arises  from  the  defend- 
ants standing  in  a  certain  situation,  that  of  bailees.  The  foundation  of 
the  declaration  is  the  bailment.  Now  negligence  is  a  matter  of  degree  ; 
what  is  negligence  under  one  baihnent  is  not  negligence  under  another. 
The  bailment,  therefore,  should  be  carefully  stated.  It  may  be  on  the 
terms  that  the  bailee  shall  carry  safely ;  he  is  then  a  sort  of  insLU'er,  It 
may  be  on  the  terms  that  he  shall  take  such  care  as  the  owner  would 
reasonably  take;  he  is  then  bound  to  take  reasonable  care.  It  may  be 
on  the  terms  that  he  shall  be  discharged  from  all  responsibility  as  to  the 
sufficiency  of  the  means  of  conveyance  ;  and  that  is  clearly  the  present 
case.  An  ordinary  ticket  would  be  simply  an  engagement  for  the 
carriage  of  the  animals  ;  here  the  ticket  contains  a  contract  for  the 
carriage  on  the  terms  of  conveying  for  a  lower  remuneration,  but  with- 
out any  liability  for  accidents  arising  in  the  course  of  the  conveyance. 
The  plaintiffs  knew  the  terms.  On  the  face  of  this  record  the  breach  is 
of  a  duty,  founded  on  a  contract  which  is  traversed,  and  not  proved. 
Had  it  been  alleged  that  the  damage  accrued  from  the  wheel  taking  fire, 
and  that  the  defendants  undertook  that  the  means  of  conveyance  should 
hold  good,  that  allegation  of  responsibility  would  have  been  traversed." 
A  case  was  re-tried  between  the  same  parties,  to  recover  damages  for 
the  loss  of  one  horse,  which  was  killed  in  the  manner  described  in  the 
first  action  ;  and  the  declaration  alleged  that  i/ie  accident  was  entirely 
occasioned  l)ij  the  cjross  negligence  and  gross  misconduct  of  the  plain tijfs, 
and  also  contained  a  count  in  trover.  To  this  the  defendants  pleaded, 
first,  Not  guilty,  to  the  whole  declaration ;  secondly,  to  the  first  count, 
that  the  injury  was  occasioned  by  conveyance  and  other  contingencies 
within  the  true  meaning  of  (he  ticket;  and  thirdly,  to  the  firsc  count, 
that  the  defects  existed  in  the  truck  when  the  horse  was  placed  in  it. 
It  was  argued  for  the  defendants  that  the  ticket  being  the  contract  on 
which  they  received  the  horses,  they  were  by  its  express  terms  exempted 
from  all  responsibility  for  damage  of  whatever  kind,  and  however 
arising,  which  horses,  &c.,  might  encounter  during  the  journey ; 
while  the  plaintiffs  submitted  that  the  facts  })rovcd  exhibited  such 
a  degree  of  gross  negligence  on  the  part  of  the  Company's  servants 
as  to  remove  from  them  the  protection  of  the  notice.  Jcrvis  C.J. 
strongly  inclined  to  the  latter  opinion,  and  so  told  the  jury,  intimating 
at  the  same  time  that  the  question  whether  sucli  negligence  entitled 


UNANIMOUS   JUDGMENT    IN    FAVOUR    OF    IIAILWAYS.      2o9 

the  plaintiffs  to  a  verdict  was  upon  the  record.  The  jury  found  that 
the  servants  of  the  Company  had  not  exercised  due  care ;  and  they 
accordingly  returned  a  verdict  for  the  plaintiff,  but  the  rule  for  arrest- 
ing the  judgment  was  made  absolute.  Cressivdl  J.  in  delivering  the 
judgment  said:  "The  declaration  appears  to  have  been  drawn  with  the 
greatest  care,  to  avoid  the  objection  upon  which  the  decisions  in  Shaw  v. 
The  York  and  North  Midland  Railway  Companij  and  this  case  pro- 
ceeded, and  to  lead  to  the  supposition  that  there  was  some  duty  cast 
upon  the  defendants  beyond  that  which  arose  out  of  the  special  con- 
tract made  between  them  and  the  plaintiffs.  But  after  all  the  allega- 
tions as  to  the  usual  and  known  course  of  business  practised  and  olj- 
served  by  the  defendants,  the  plaintiffs  find  themselves  obliged  to  aver 
that  their  horses  were  delivered  to  the  defendants  to  be  carried  accord- 
ing to  the  usual  and  well-known  course  of  business  so  practised  and 
observed,  cxccj)!  so  far  as  the  same  was  altered  or  qualified  by  certain 
terms  expressed  in  a  note  or  ticket  then  by  the  defendants  prepared 
and  produced  to  the  plaintiffs."  "The  question  still  turns  on  the 
contract,  which  in  express  terms  exempts  the  Company  from  responsi- 
liility  for  damages,  however  caused,  to  horses,  &c.  In  the  largest  sense, 
those  words  might  exonerate  the  Company  from  responsibility  even  for 
damage  done  wilfully,  a  sense  in  which  it  was  not  contended  that  they 
were  used  in  this  contract.  But  giving  them  the  most  limited  meaning, 
they  must  apply  to  all  risks  of  whatever  kind,  and  however  arising,  to 
be  encountered  in  the  course  of  the  journey  ;  one  of  which  undoubtedly 
is  the  risk  of  a  wheel  taking  fire,  owing  to  neglect  to  grease  it. 
Whether  that  is  called  negligence  merely,  or  gross  negligence,  or  culpable 
negligence,  or  whatever  other  epithet  may  be  applied  to  it,  we  think  it 
is  within  the  exemption  from  responsibility  provided  by  the  contract  ; 
and  that,  such  exemption  appearing  on  the  face  of  the  declaration,  no 
cause  of  action  is  disclosed,  and  that  judgment  must  be  arrested." 

This  decision  in  favour  of  ihe  raihvaijs  tvas  referred  to  and  confirmed 
on  the  day  of  its  delivery  by  the  Exchequer  in  Carr  v.  The  Lancashire 
and  Yorkshire  Railway  Company,  and  thus  the  three  Courts  were 
unanimous.  The  facts  of  the  latter  case  were  as  follows  :  The  plaintiff 
delivered  to  the  defendants  a  horse  to  be  carried  from  Wakefield  to 
Knottingley,  subject  to  the  following  conditions  at  the  foot  of  a  certain 
ticket — • 

"  This  ticket  is  issued  suhject  to  the  owner's  undertaking  all  risks  of 
conveyance  tvhatsoever,  as  the  Company  will  not  le  responsible  for  any 
injury  or  damage  {hoivsoever  caused)  occurring  to  live  stock  of  any  de- 
scription travelling  upon  the  Lancashire  and  Yorkshire  Railway,  or  in 
their  vehicles." 


~iO  COLLlStON    OX    RAILWAY. 

The  horsc-hox  was  propelled  against  certain  trucks,  and  the  horse 
was  so  seriously  damaged  that  he  died.  At  the  trial,  the  jury  found 
that  the  accident  was  caused  by  the  gross  negligence  of  the  defendants, 
and  returned  a  verdict  for  the  plaintilf  with  £87  damages.  A  rule  Jiisi 
to  arrest  the  judgment  was  made  absolute,  Ftatt  i>.  diss.  During  the 
argument,  tlie  Court  was  informed  that  the  Common  Pleas  had  held  the 
declaration  in  Austin's  case  insullicient.  After  verdict,  Par/ce  B.  said  ; 
'•  I  am  of  opinion  that  by  entering  into  this  contract,  with  reference  to 
the  subject-matter,  the  owner  has  taken  upon  himself  all  risk  of  con- 
veyance, and  that  the  railway  company  are  bound  merely  to  find  car- 
riages and  propelling  power.  The  contract  appears  to  me  to  amount 
to  this  :  The  company  say  tliey  will  not  be  responsible  for  any  injury 
or  damage,  Jtonr/'er  caused,  occurring  to  live  stock  of  any  description 
travelling  upon  their  railway.  This,  then,  is  a  contract,  by  virtue  of 
wliich  the  plaintilf  is  the  party  to  stand  all  risk  of  accident  and  injury 
of  conveyance  ;  and  certainly  when  we  look  at  the  nature  of  the  thing 
conveyed,  there  is  nothing  unreasonable  in  this  arrangement.  In  the 
case  just  decided  by  the  Common  Pleas,  the  language  of  the  contract 
was  slightly  different  from  the  present.  There  the  ticket  was  issued, 
'subject  to  the  plaintiffs  undertaking  to  bear  all  the  risk  of  injury  by 
conveyance  and  other  contingencies  ;  and  the  plaintiff  was  required  to 
see  to  the  efficiency  of  the  carriages,  and  the  defendants  were  not  to  be 
responsible  for  any  damage  caused  to  horses,'  &c.,  travelling  upon  the 
railway.  In  that  case  the  accident  was  occasioned  by  the  wheels  not 
being  properly  greased  :  in  the  present  case,  the  carriage  that  contained 
the  plaintiflfs  horse  was  driven  against  another  carriage.  For  the  pur- 
poses of  this  decision,  the  two  notices  may  be  considered  as  in  effect 
the  same.  It  is  not  for  us  to  fritter  away  the  true  sense  and  meaning 
of  these  contracts,  merely  with  a  view  to  make  men  careful.  If  any 
inconvenience  should  arise  from  their  being  entered  into,  that  is  not  a 
matter  for  our  interference,  but  it  nuist  be  left  to  the  legislature,  who 
may,  if  they  ])leaBe,  put  a  stop  to  this  mode  whicli  tlie  carriers  have 
adojjted  of  limiting  their  liability.  We  are  bound  to  construe  the  words 
used  according  to  their  proper  meaning,  and  according  to  the  true 
meaning  and  intention  of  the  parties,  as  here  expressed.  I  am  of 
opinion  that  the  defendants  are  not  liable." 

The  Great  Northern  Raihraij  Company  (appellants)  v.  Morvitle  (re- 
spondent) was  decided  -within  a  few  days  of  the  above  two  cases.  The 
plaintiff  in  it,  who  was  a  veterinary  surgeon  and  horse-dealer  at  Wake- 
field, had  been  to  Homcastle  fair,  and  on  the  14th  of  August,  1851, 
brought  a  horse  he  had  purchased  to  the  Kirkstead  station  of  the  above 
railway,  and  signed  a  horse  ticket  with  this  indorsement  : — 


HOUSE    INJURED    IN    COLLISION.  241 

"  This  ticlcet  is  issued  suljcct  to  the  owncfs  underlaldng  to  hear  all  the 
rlslc  of  injury  tjy  conveyance  and  other  continyencies,  and  the  owner  is 
required  to  see  to  the  efficiency  of  the  carriaye  lefore  lie  atlows  his  horses  or 
live  stock  to  he  placed  therein;  the  charye  leiny  for  the  use  of  the  railway 
carriayes  and  locomotive  jmwer  only.  The  com^jany  will  not  he  resjwnsihle 
for  any  alleged  defects  in  their  carriayes  or  trucJrs,  unless  convplaint  he 
made  at  the  time  of  hooldny  or  hefore  the  same  leave  the  station,  nor  for 
any  damayes,  however  caused  to  horses,  cattle,  or  live  stocJc  of  any  descrip- 
tion travelling  upon  their  railway  or  in  their  vehicles." — "  /  Juive  examined 
the  carriayes,  and  am  satisfied  with  their  efficiemy  and  safety. 
"  (Siyned)        John  Morville. 

[Ou:ner,  or  on  the  owner's  account.]  " 

The  clerk  then  handed  to  the  plaintiff  what  he,  the  plaintifF,  understood 
to  be  a  duplicate  of  the  ticket  signed  by  him  in  the  book,  but  which 
did  not  contain  that  part  relating  to  the  efficiency  of  the  carriages. 
The  duplicate  was  not  signed  by  the  plaintiflF ;  it  Avas  identically  the 
same  as  the  ticket  signed  in  the  book,  if  that  ticket  had  terminated 
with  the  word  "  vehicles."  WheA  the  train  arrived  at  Knottingley 
the  horse-box  containing  the  plaintiffs  horse  was  detached  from  the 
London  train  and  shunted  upon  the  Wakefield  line  by  the  servants  of 
the  defendants,  in  order  to  be  attached  to  another  train  proceeding  to 
Wakefield,  and  in  so  doing  a  concussion  tooJc  place  hetween  the  horse- 
hox  and  a  truck  or  carriaye  on  the  Itztier  line,  -which  caused  the  injury 
that  the  horse,  on  the  arrival  of  the  train  at  Wakefield,  was  found  to 
have  sustained.  The  judge  of  the  Pontefract  County  Court  ordered  the 
verdict  to  be  entered  for  the  plaintiff,  and  assessed  the  damages  at  £21. 
He,  however,  expressly  found  that  the  injury  done  to  the  horse  had 
not  been  caused  by  any  misfeasance,  wilful  misconduct,  or  gross  negli- 
gence *on  the  part  of  the  defendants  or  their  servants,  but  w-as  the 
result  of  the  want  of  due  care  only  in  shunting  the  horse-box  at  Knot- 
tingley, as  above  stated.  The  question  for  the  Court  of  Queen's  Bench 
was,  whether  the  defendants  upon  the  construction  of  such  ticket  were 
protected  from  their  liability  to  pay  for  the  damage  so  occasioned ;  and 
Coleridge  and  Erie  JJ.,  the  only  judges  present,  held  they  were,  and 
allowed  the  appeal.  Erie  J.  said:  "It  is  perfectly  clear  that  the 
defendants  undertook  to  carry  the  horse  upon  the  terms  that  they  were 
not  to  be  responsible  for  damages  that  might  happen  to  it.  The  con- 
sideration for  the  plaintiff  assenting  to  the  agreement  was,  the  carriage 
of  the  horse  by  the  defendants  on  the  payment  of  the  fare.  Whether 
the  plaintiff  had  signed  the  paper,  or  whether  the  clerk  had  mentioned 
the  terms,  or  whether  the  latter  had  delivered  to  the  plaintiff  a  ticket 


242  EAILWAY   AND   CAXAL   TEAFFIC   ACT. 

saying  what  the  terms  were,  there  would  have  been  in  each  case  good 
evidence  of  an  agreement  between  the  parties.  The  4th  section  of  tlie 
Carriers'  Act  (11  Geo.  IV.  and  1  Will  IV.  c.  ^^)  provides  that  public 
notices  should  no  longer  be  of  avail.  It  used  to  be  a  constant 
question  whether  knowledge  of  a  public  notice  was  brought  home  to 
the  party  sending  the  things  to  be  carried :  to  prevent  which  question 
the  above  proviso  was  made  in  the  act.  But  that  section  does  not 
afl'ect  section  G,  by  which  every  carrier  is  left  free  to  make  a  special 
agreement  with  the  party  sending  goods.  Assuming  the  defendants 
to  be  common  carriers  in  the  widest  possible  sense,  I  think  that  is  a 
special  contract  under  section  G,  and  that  the  defendants  are  protected 
by  it." 

The  RaUwaij  and  Canal  Traffic  Act  {11  &  18  Vict.  c.  31)  came  into 
operation  in  July,  1854.  It  was  enacted  by  section  7  that  every  rail- 
way or  canal,  or  railway  and  canal  company,  "  shall  be  liable  for  the 
loss  of,  or  for  any  injury  done  to  any  horses,  cattle,  or  other  animals, 
or  to  any  articles,  goods,  or  things,  in  the  receiving,  forwarding, 
or  delivering  thereof,  occasioned  by  the  neglect  or  default  of  such 
company  or  its  servants,  notwithstanding  any  notice,  condition,  or 
declaration  made  and  given  by  such  company  contrary  thereto  or  in 
any  wise  limiting  such  lialjility,  every  such  notice,  condition,  or  declara- 
tion being  hereby  declared  to  be  null  and  void  :  Providetl  always  tliat 
nothing  herein  contained  shall  he  construed  to  2^revent  the  said  companies 
from  malting  such  conditions  with  resj^cct  to  the  receiving ,  forwarding,  and 
delivering  of  any  of  the  said  animals,  articles,  goods,  or  things,  as  shall  he 
adjudged  hy  the  Court  or  judge  lefore  whom  any  question  relating  thereto 
shall  he  tried  to  he  just  and  rcasonahle."  The  section  further  declares 
that  the  company  are  not  to  be  hable  beyond  a  limited  amount,  to  wit, 
£50  for  a  horse,  £15  per  head  for  neat  cattle,  £2  per  head  for  sheep  or 
pigs,  unless  the  value  is  declared  at  the  time  of  the  delivery,  and  .an 
extra  payment  made,  proof  of  the  value  to  lie  on  the  person  claiming 
compensation ;  and  no  special  contract  is  to  be  binding  unless  signed 
by  him,  or  the  person  delivering  such  animals,  articles,  goods,  or  things 
respectively  for  carriage. 

This  section  underwent  much  discussion  in  the  Court  of  Common 
Pleas  in  Simons  v.  The  Great  Western  JRailuwj  Company.  It  is  for 
the  Court  to  say,  iqwn  the  ivhole  matters  hrougld  lefore  them,  U'hether  or 
not  //(c  " condition "  or  "special  contract"  is  just  and  reasonahle  (ih.). 
A  condition  "  that  no  claim  for  damage  will  be  allowed  unless  made 
within  three  days  after  the  delivery  of  the  goods,  nor  for  loss,  unless 
made  within  three  days  of  the  time  that  they  should  be  delivered,"  is 
just  and  reasonable  (ih.) ;  and  so  is  a  condition  that  in  the  case  of 


JUST  AND  REASONABLE  CONTRACT.         243 

goods  conveyed  at  special  or  mileage  rate,  the  company  will  not  be 
resj)onsible  for  any  loss  or  damage,  however  caused  (ib.).  But  a  condi- 
tion that  the  company  will  not  be  accountable  for  the  loss,  detention, 
or  damage  of  any  package  insufficiently  or  improperly  packed,  is  unjust 
and  unreasonable  {ib.).  In  The  London,  and  North  Western  Railway 
Company  (appellants)  v.  Dunliam  (respondent),  where  the  respondent 
had  sustained  considerable  injury,  owing  to  his  meat  not  having  been 
forwarded  and  delivered  in  London  in  time,  and  the  risk  note  which 
was  signed  by  him  when  he  delivered  the  meat  at  the  railway  contained 
this  notice — "  Hay  and  straw,  furnifure,  glass,  marble,  china,  castings, 
and  other  brittle  and  hazardous  articles,  &c.,  conveyed  at  the  risJc  of 
the  oicners" — the  Court  held  that  as  the  circumstances  under  which 
the  contract  was  made,  or  the  nature  or  reason  of  the  particular  risk 
were  not  disclosed,  they  could  not  come  to  any  conclusion  as  to  whether 
or  not  the  contract  was  ''just  and  reasonable  "  under  the  statute. 

Andjw  Jcrvis  C.J. :  "The  result  seems  to  be  this  :  A  general  notice 
is  void,  but  the  company  may  make  special  contracts  with  their  cus- 
tomers, provided  they  are  just  and  reasonable,  and  signed ;  and  whereas 
the  monopoly  created  by  railway  companies  compels  the  public  to  employ 
them  in  the  conveyance  of  their  goods,  the  legislature  have  thought  fit 
to  impose  the  further  security,  that  the  Court  shall  see  that  the  condi- 
tion or  special  contract  is  just  and  reasonable." 

In  Pcalce  v.  The  North  Staffordshire  Railway  Company,  the  Court  of 
Queen's  Bench  had  to  decide  on  the  construction  of  the  7th  section. 
The  plaintiff  sued  for  the  loss  of  his  goods,  which  were  delivered  to  the 
defendants  to  carry.  The  defendants  pleaded  fifthly,  that  the  goods 
were  delivered  and  received  under  and  subject  to  a  certain  just  and 
reasonable  condition,  made  by  the  defendants,  and  assented  to  by  the 
plaintiffs  with  respect  to  the  receiving,  forwarding,  and  delivering  the 
said  goods  (viz.,  that  they  would  not  be  responsible  for  loss  or  injury  to 
them  unless  declared  and  insured  according  to  their  value),  and  went  on 
to  set  out  the  condition,  and  to  aver  that  the  state  of  things  had  arisen, 
Avhich  by  that  condition  exempted  them  from  liability,  in  respect  of  the 
loss  of  the  goods.  There  was  no  allegation  that  the  assent  of  the 
plaintiff  was  in  writing.  The  jury,  in  answer  to  questions  from  Erie  J., 
found  that  there  had  been  no  wilful  default  or  neglect  on  the  part  of  the 
defendants,  and  that  there  had  been  no  negligence  if  the  goods  had  been 
of  an  ordinary  kind,  such  as  granite  and  not  marble  chimney-pieces ; 
and  on  this  finding  the  learned  judge  held  that  the  condition  was 
reasonable,  and  directed  the  verdict  to  be  entered  for  the  defendants,  on 
the  fourth  and  fifth  pleas,  with  leave  to  move  for  judgment  non  obstante 
veredicto  on  both  pleas.    The  Court  was  divided  in  opinion.     Lord 


244   COURT   TO   DECIDE  WHAT    IS   JUST  AND   TREASONABLE. 

CampheU  C.J.  and  Crompton  J.  considered  that  "condition"  (when 
assented  to)  and  "  special  contract "  meant  in  fact  the  same  thing,  and 
that  nnder  the  statute  the  assent  to  the  condition  must  be  in  writing, 
else  the  "  special  contract "  constituted  by  the  condition,  and  the  assent 
thereto,  is  void.  Erie  J.,  on  the  other  hand,  thought  that  "conditions" 
are  diflPerent  from  "special  contracts,"  and  that  the  railway  company 
may  still  protect  themselves  by  such  "conditions"  as  the  Court  may 
think  reasonable;  while  "special  contracts"— direct  express  bargains 
between  the  parties — were  alone  required  to  be  signed  by  the  parties 
thereto.  According  to  the  majority  of  the  Court  {Coleridge  J.  also  gave 
judgment)  both  "condition"  and  "special  contract"  are  void,  unless 
they  fulfil  the  two  requisites,  first  of  being  such  as  find  approval  in  the 
sight  of  the  Court  or  the  judge,  and  secondly  of  being  signed.  Ac- 
cording to  Eric  J.,  "a  condition"  is  sufficient  to  protect  the  company  if 
it  be  reasonable  in  the  opinion  of  the  judge  ;  and  "  special  contract," 
whether  reasonable  or  not,  or  whether  thought  so  or  not  by  the  judge, 
binds  the  parties  if  they  have  signed  it. 

Among  the  cases  tried  since  the  act  were  Wise  v.  The  Great  Western 
Railway  Comimn]],  and  Pardington  v.  The  South  Wales  Railicag  Com- 
2mny.  The  circumstances  of  both  these  cases  were  peculiai-,  as  in  the 
former  there  was  not  only  carelessness  on  the  part  of  the  sender,  lut  the 
railway  officials  hcul  shunted  a  horse-hox  to  a  siding  out  of  the  way  all 
night,  ivithout  even  observing  that  there  teas  a  horse  inside;  and  in  the 
latter  the  drover,  ivho  went  free  with  the  cattle,  did  not  look  at  them  in  the 
course  of  the  journeg. 

In  Wise  V.  Tlie  Great  Western  Railway  Company,  the  horse  had  been 
hired  from  the  plaintiff,  a  job-master  residing  at  Eton,  by  one  Johnson, 
who  sent  it  fi-om  the  Newbury  station  on  Saturday,  the  31st  of  March, 
directed  to  the  plaintiff  at  Eton.  The  directions  were  written  on  labels, 
and  tied  one  to  the  bridle,  the  other  to  the  saddle.  It  started  by  the 
train  from  Newbury  at  40  minutes  past  2,  and  should  have  been  de- 
livered at  the  plaintiff's  stables  at  Eton  at  5  o'clock  the  same  afternoon. 
It  did  not  arrive,  and  the  plaintiff  had  no  information  whatever  as  to  its 
having  been  sent  until  the  next  morning,  when  Johnson  wrote  him  by 
post,  thus — 

"Emborne,  March  31. 
"Mr.  Wise, — I  wrote  a  letter,  intending  to  send  it  with  the  horse, 
but  forgot  to  take  it  down  to  the  station.    We  send  you  back  the  horse 
to-day,  instead  of  Monday :  so  in  case  you  require  him  he  will  be  all 
ready  for  hunting  on  Monday,  &c.  "  W.  S.  Johnson." 

On  reading  this  letter,  the  plaintiff  made  inquiries  respecting  the  horse 


CASE    OF    HORSE   LEFT    IN    SIDING.  245 

at  the  Windsor  station,  but  the  parties  stated  there  was  no  horse  at  the 
station,  and  that  none  had  been  sent  there.  The  plaintiff  persisted 
that  the  horse  was  there,  and  it  was  at  length  discovered  on  a  siding 
in  the  horse-box  in  which  it  had  come  from  Newbury,  tied  up  by  the 
head  for  nearly  24  hours,  without  food  or  water,  and  exposed  in  au 
elevated  situation  to  a  cold  north  wind.  Johnson  had  signed  the  fol- 
lowing document : 

'^  Mr.  Wise:  paid  for  one  Jiorse  125.  6f?.;  9|  train  Newlury  to  Wind- 
sor. Notice:  The  directors  will  not  lie  answerable  for  damage  done  to  any 
horses  conveyed  by  this  railway. — /  ayrce  to  abide  by  the  above  notice. 

"  W.  S.  Johnson." 

The  plaintiif  lived  three-quarters  of  a  mile  from  the  station  at  Windsor. 
Sometimes  the  company  sent  up  horses  to  his  stables,  but  no  regular 
course  of  dealing  was  proved.  If  a  horse  was  sent,  the  plaintiff  paid 
the  man  for  bringing  it,  but  in  general  he  sent  to  the  station  for  his 
own  horses.  Pollock  C.B.  directed  the  jury  to  find  a  verdict  for  the 
defendants,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict 
for  £20,  the  Court  to  be  at  liberty  to  amend  the  pleadings  in  any  way 
which  might  be  necessary  to  raise  this  question.  The  Court  confirmed 
the  ruling,  and  Pollock  C.B.  said :  "  There  can  be  no  doubt  whatever 
that  the  person  who  hired  the  horse  was  himself  the  real  cause  of  all 
the  mischief.  The  railway  company  may  to  a  certain  extent  have  been 
blameable ;  but  the  person  who  produced  the  mischief  was  the  sender 
of  the  horse,  who  sent  it  without  having  forwarded  any  letter  to  inform 
the  plaintiff  that  it  was  coming,  and  without  any  groom  or  person  to 
attend  it  on  its  journey.  One  of  the  witnesses  stated  that  it  was  the 
usual  and  proper  course  for  an  intimation  to  be  sent,  and  for  somebody 
to  come  and  meet  horses  sent  by  train,  at  the  end  of  the  journey.  If 
that  had.  been  done,  the  horse  would  have  been  taken  care  of,  and  no 
mischief  would  have  happened.  This  action  appears  to  us  an  attempt 
to  throw  upon  the  railway  company,  who  are  certainly  not  free  from 
blame,  the  responsibility  for  an  injury  which  in  reality  was  occasioned 
by  the  person  who  sent  the  horse ;  but  we  think  that  the  mischief  was 
covered  by  the  terms  of  the  note  in  writing,  and  that  the  horse  having 
been  accepted  under  a  special  contract,  by  which  the  railway  company 
were  not  to  be  liable  for  any  damage  which  might  be  done  to  it,  that 
any  injury  which  might  happen  to  it,  while  remaining  at  the  station 
till  somebody  came  and  made  au  application  for  it,  must  be  considered 
as  part  of  the  risk  of  sending  it  from  one  place  to  another."  The 
rule  was  therefore  discharged. 

The  following  were  the  principal  features  of  Pardinyton  v.  The  South 


246       CATTLE  SUFFOCATED  IN  CLOSE  VAN. 

Wales  Railway  Comjjany :  On  the  11th  of  March,  1856,  one  Morgan, 
a  cattle  dealer,  wishing  to  send  33  head  of  cattle,  the  property  of  the 
plaintiff,  from  Newport  to  Gloucester,  wrote  to  the  superintendent  of 
the  Newport  station,  requesting  him  to  have  two  or  three  cattle  trucks 
ready  for  the  following  day.  When  he  brought  the  cattle  to  the  station 
the  superintendent  showed  him  the  carriages  in  which  the  cattle  Avere 
to  go,  Avhich  were  vans  closing  with  lids,  generally  used  for  the  con- 
veyance of  salt.  He  made  no  objection  to  the  vans,  and  the  cattle 
were  placed  in  them,  to  be  forwarded  to  Gloucester,  the  lids  being 
open  when  the  train  left  Newport.  The  contract  ticket  was  indorsed 
— "  A  pass  for  a  drover  to  ride  with  his  stock  will  be  given  for  every 
10  beasts,  30  calves,  75  pigs,  or  100  sheep.  All  carriage  must  be 
prepaid,  &c.,  and  the  stock  will  only  be  conveyed  on  the  following 
conditions  :  The  comjMJiy  is  to  he  held  free  from  all  risk  or  resjmnsihiUiy 
ill  resj)cct  of  any  loss  or  damaye  arisiny  on  the  loadiny  or  imloadvny,  from 
suffocation,  or  from  heiny  tramj^led  on,  hrulsed,  or  otherwise  injured  in 
transit,  from  fire,  or  from  any  other  cause  ivhatsoevcr.  The  comjjcmy  is 
not  to  he  held  resjmisihle  for  carriaye  or  delivery  within  aiiy  certain  or 
definite  time,  nor  in  time  for  any  j^articular  markets  "  The  form  below 
is  to  be  filled  uj)  and  signed  by  the  party  desiring  to  send  cattle." 
"  And  unless  this  and  all  the  following  rules  be  complied  with,  the 
cattle  will  not  go  forward." 

"March  12,  1856. 

"  To  Messrs. ,  the  South  Wales  Railway  Company. 

"  In  conformity  to  the  above  regulations  with  regard  to  the  convey- 
ance of  cattle  and  live  stock,  I  request  that  two  trucks  may  be  ready 
at  the  Ne^A^iort  station,  in  which  I  may  load  33  cattle,  to  be  conveyed 
from  Newport  station  to  Gloucester,  on  the  conditions  above  men- 
tioned. "(Paid)  £2  5  0 
"(Signed)                      Thomas  Morgan,  Sender." 

The  plaintiff's  servant  in  charge  of  the  cattle  received  a  free  pass  from 
the  company.  He  travelled  in  the  same  carriage  with  the  guard,  and 
did  not  get  out  to  look  at  the  cattle  during  the  journey  ;  but  on  arriv- 
ing at  Gloucester  he  heard  them  make  a  noise,  and  found  that  the  lid 
of  one  of  the  vans  had  become  closed,  and  that  out  of  sixteen  oxen  in 
it  ten  were  dead  or  dying  from  suffocation,  and  four  very  much  injured. 
Some  evidence  was  given  to  show  that  the  lid  could  not  have  become 
closed  by  the  motion  of  the  train,  but  must  have  been  purposely  shut 
down  by  the  servants  of  the  railway  company.  Alder  son  B.  asked  the 
jury  whether  they  thought  that  the  cattle  were  suffocated  during  the 
transit ;  and  the  jury  having  found  that  they  were,  his  lordship  directed 


REASONABLE  PROVISIONS  FOR  SAFETY  OF  CATTLE.  247 

a,  verdict  to  be  entered  for  the  defendants,  giving  leave  to  the  plaintiff 
to  move  to  enter  a  verdict  for  £135,  if  the  Court  thought  the  conditions 
were  unreasonable. 

The  Court  refused  a  rule,  and  considered  that  the  driver  had  the 
means  of  knowing  whether  the  cattle  could  travel  safely  in  the  carriage 
provided  for  them.  He  had  no  right  to  acquiesce  in  what  was  done, 
and  take  no  trouble  to  look  after  the  cattle  on  the  journey,  and  then 
throw  the  responsibility  on  the  company.  And  ^per  Bramivell  B. ;  "I 
think  the  question  of  reasonableness  does  not  arise ;  and  that  the 
meaning  of  the  Act  17  &  18  Vid.  c,  31,  s.  7,  is  that  companies  shall 
be  liable  for  injuries  to  any  cattle  occasioned  by  the  neglect  or  default 
of  the  company  or  its  servants,  notwithstanding  any  notice,  condition, 
or  declaration  limiting  such  liability,  but  that  in  each  case  particular 
bargains  may  be  made.  It  has  been  suggested  that  a  railway  company 
might  have  made  any  conditions  with  respect  to  the  carriage  of  cattle, 
because  they  are  not  compelled  to  carry  them.  Assuming  that  the 
question  of  reasonableness  does  arise,  the  stipulations  in  the  present 
case  appear  to  me  to  be  reasonable.  The  company  say  they  do  not 
choose  to  be  liable  for  accidents  occasioned  by  the  negligence  of  per- 
sons who  have  the  care  of  cattle  ;  and  as  in  the  nature  of  things  such 
accidents  are  likely  to  occur,  they  will  not  undertake  the  risk,  but  allow 
the  owners'  servants  to  travel  free  in  charge  of  the  cattle.  If  the  sender 
is  dissatisfied  he  should  object,  or  pay  something  additional  for  the 
extra  risk."  Ilartui  B. :  "I  am  of  the  same  opinion.  I  am  well 
aware  that  the  case  put  by  the  plaintiff's  counsel  seems  hard — that 
where  there  has  been  neghgence,  a  person  injured  by  it  should  not 
recover.  But  it  is  necessary  to  companies  that  they  should  have  power 
to  make  reasonable  provisions  for  their  own  protection ;  and  it  seems 
to  me  especially  reasonable  that  when  animals  are  sent  by  railway  such 
provisions  should  be  made.  If  any  servant  of  the  company  had  done 
the  act  which  caused  this  mischief,  he  would  have  been  responsible. 
Here,  however,  it  was  apparently  a  mere  accident ;  besides,  there  was 
a  written  contract  for  the  conveyance  of  these  cattle,  duly  signed  as  pro- 
vided by  the  act.     People  who  make  such  contracts  are  bound  by  them." 

The  last  case  of  this  kind  was  M'3Ianus  v.  The  Lancashire  and 
Yorlcshire  Railway  Comj)anii,  which  was  an  action  to  recover  damages  for 
injuries  to  three  horses,  which  were  delivered  to  the  defendants  to  be 
conveyed  from  Liverpool  to  York  by  their  railway.  The  parties  agreed 
upon  a  written  statement  of  facts,  upon  which  the  Court  of  Exchequer 
was  to  give  their  judgment.  It  was  in  substance  as  follows :  The  horses 
were  delivered  to  be  forwarded  by  a  cattle  truck  from  Liverpool  to  York 
for  reward  ;  and  the  defendants'  servant  provided  a  truck  which,  to  all 


248       INJUIIY    TO   HORSES   THROUGH    DEFECTIVE   TRUCK. 

external  appcnrauce,  and  so  far  as  they  knew,  was  sufficient  for  the 
purpose.  The  plaintiff  signed  a  ticket,  which  contained  the  following 
memorandum : 

"  71iis  iiclcet  is'  issued  suhjecf  lo  the  oicnefs  iindcrtahing  all  risirs  of 
conveyance,  loading  and  unloading  wMisoever,  as  the  comjmng  ivill  not  he 
responsible  for  any  injury  or  damage  {hoivsoever  caused)  occurring  to  live 
Steele  of  any  description  travelling  upon  the  Lancashire  and  YorJcshire 
Railway,  or  in  their  vehicles" 

M'Manus,  the  owner,  or  some  one  on  his  behalf,  agreed  to  the  above 
terms  ;  and  the  truck  provided  proved  (as  the  fact  was)  to  be  insuf- 
ficient for  the  safe  carriage  of  the  horses,  and  a  hole  was  made  in  the 
bottom  of  it,  on  the  journey,  by  which  the  horses  were  injured.  Two- 
pence a  mile  was  charged,  being  the  regular  charge  for  conveyance  in 
open  trucks,  under  tickets  in  the  above  form,  from  the  cattle  station ; 
whereas  4d,  per  mile  was  the  charge  for  horses  forwarded  from  the 
passenger  station,  in  horse-boxes  under  similar  tickets. 

The  judgment  of  the  Court  was  thus  delivered  by  Martin  B. :  "  We 
arc  of  opinion  that  the  cases  cited  in  the  argument  decided,  and  must 
govern,  the  present  case.  In  Simons  v.  The  Great  Western  Railway 
Company,  the  Court  of  Common  Pleas  held  that  the  15th  clause  of 
the  notice  of  the  Great  Western  Railway  Company,  viz.,  that  '  goods 
conveyed  at  special  or  mileage  rate  must  be  loaded  and  unloaded  by 
the  owners  or  their  agents ;  and  the  company  will  not  be  responsible 
for  any  risk  of  stowage,  loss  or  damage,  however  caused,  nor  for  dis- 
crepancy in  the  delivery,  as  to  either  quantity,  number,  or  weight, 
nor  for  the  condition  of  articles  so  carried,  nor  for  detention  or  de- 
lay in  the  conveying  or  delivery  of  them,  however  caused,'  was  reason- 
able within  17  &  18  Vict.  c.  31,  s.  7.  In  Pardington  v.  The  South 
Wales  Raihvay  Company,  the  Court  held  that  a  memorandum  relating 
to  live  animals,  that  '  the  company  are  to  be  held  free  from  all  risk 
or  responsibility,  in  respect  of  any  loss  or  damage  arising  on  the 
loading  or  unloading,  from  suffocation  or  from  being  trampled  upon, 
bruised  or  otherwise  injured  in  transit,  from  fire,  or  from  any  other 
cause  whatsoever,'  was  reasonable.  It  seems  to  us  that  those  notices 
are  not  more  extensive  than  the  one  now  in  question,  and  that  our 
judgment  must  be,  that  the  notice  is  reasonable.  Then  if  that  should 
be  so,  tlie  case  of  Chippendale  v.  The  Lancashire  Railway  Company 
further  furnishes  a  direct  authority  that  it  extends  to  defects  in  the 
trucks,  and  in  that  case  the  notice  was  the  same  as  the  present.  The 
jury  had  found  that  the  truck  was  unfit  and  unsafe  for  the  conveyance 
of  cattle,  and  that  the  damage  was  consequent  upon  it.      Coleridge  and 


DOGS    WITHIN    THE    TllAFFIC   ACT.  219 

Erie  JJ.  held  that  the  notice  protected  the  company.  The  case  is  ex- 
pressly in  point,  and  we  concnr  in  it.  We  think  one  of  the  risks  of 
conveyance  of  live  cattle  is  the  risk  of  their  breaking  the  trucks  or 
boxes  in  which  they  are  conveyed.  We  are  able  to  decide  this  case 
without  referring  to  the  second  point  made  by  the  defendants,  viz., 
the  alleged  distinction  between  the  liability  of  carriers  as  to  the  con- 
veyance of  horses  and  live  stock,  and  ordinary  goods;  but  should  the 
question  ever  arise,  we  think  the  observation  which  fell  from  Parlcc 
B.,  in  Carr  v.  The  Lancashire  and  Yorkshire  Raihcaij  Conqjamj,  is 
entitled  to  much  consideration.  Our  judgment  will  therefore  be  for 
the  defendants."  The  judgment  of  fhe  Court  Mow  was  reversed  {Erie  J. 
diss.)  in  the  Exchequer  Chamber. 

In  giving  judgment  the  Court  said:  "In  order  to  bring  the  de- 
fendants W'ithin  the  protection  of  the  special  contract,  it  is  necessary 
to  construe  it  as  including  responsibility  for  loss  occasioned,  not  only 
by  risks  of  whatever  kind,  directly  incident  to  the  transit,  but  also  for 
that  occasioned  by  the  insufficiency  of  the  carriages  provided  by  the  de- 
fendants, though  occasioned  by  their  own  negligence  or  misconduct. 
The  sufficiency  or  insufficiency  of  the  vehicles  by  which  the  company 
arc  to  carry  on  their  business,  is  a  matter,  generally  speaking,  which 
they  and  they  alone  can  and  ought  to  have  the  means  of  fully  ascertain- 
ing ;  and  it  would  be,  vre  think,  not  only  unreasonable  but  mischievous 
if  they  were  to  be  allowed  to  absolve  themselves  from  the  consequence 
of  neglecting  to  perform  that  which  seems  entirely  to  belong  to  them 
as  a  duty.  It  is  unrensonable  that  the  company  should  stipulate  for 
exemption  from  liability  from  their  ov.m  negligence  however  gross,  or 
misconduct  however  flagrant,  and  this  is  what  the  condition  under  con- 
sideration professes  to  do." 

"  Just  and  reasonable  "  condition  tvith  resjiecl  lo  a  dog  under  the  Traffic 
Act. — A  dog  (although  not  specifically  mentioned  in  the  proviso  as  to 
the  limit  of  compensation)  is  within  the  7th  section  of  the  Kailway  and 
Canal  Traffic  Act,  1854  (17  &  18  Vict.  c.  31).  The  plaintiff  delivered 
to  the  defendants,  a  railway  compau}^,  a  dog,  to  be  carried,  and  signed 
this  ticket:  "Received  the  annexed  ticket,  subject  to  the  following  con- 
ditions :  the  company  will  not  be  liable  in  any  case  for  loss  or  damage 
to  any  horse  or  other  animal  above  the  value  of  £10,  or  any  dog  above 
the  value  of  £5,  unless  a  declaration  signed  by  the  owner  or  his  agent 
at  the  time  of  booking  shall  have  been  given  to  them  ;  and  by  such 
declaration  the  owner  shall  be  bound,  the  company  not  being  in  any 
event  liable  to  any  greater  amount  than  the  value  declared.  The 
company  will  in  no  case  be  liable  for  injury  to  any  horse  or  other 
animal,  or  dog,  of  whatever  value,  where  such  injury  arises  wholly  or 


250      CONDITION  AS  TO   INSURANCE   OF  VALUABLE   DOG. 

partially  from  fear  or  restiveuess.  If  the  declared  value  of  any  horse 
or  other  animal  exceed  £40,  or  any  dog  £5,  the  price  of  conveyance 
T\"ill,  in  addition  to  the  regular  fare,  be  after  the  rate  of  2|  per  cent, 
upon  the  declared  value  above  £40,  whatever  may  be  the  amount  of 
such  value,  and  for  whatever  distance  the  animal  is  to  be  carried."  The 
value  of  the  dog  was  £21,  but  the  plaintiff  made  no  declaration  of  its 
value,  and  paid  only  the  regular  fare  3s.  The  dog  escaped  from  the 
train,  and  was  lost  without  any  negligence  on  the  part  of  the  defend- 
ants, and  the  plaintiflp  having  sued  the  defendants  for  the  loss,  it  was 
held  by  Coclihurii  C.J.  and  Blaclchuni  J.,  first  that  the  meaning  of 
this  ticket,  the  whole  of  Avhich  must  be  read  together,  was  that  if  the 
value  of  a  dog  was  above  £5,  and  its  value  was  not  declared,  and  the 
extra  price  paid  accordingly,  the  defendants  would  not  be  liable  at  all 
even  for  loss  or  injury  caused  by  their  own  negligence,  and  that  the 
condition  was  therefore  Avithin  17  &  18  Vict.  c.  31,  s.  7  ;  secondly, 
that  this  condition  was  "  not  just  and  reasonable,"  inasmuch  as  the 
extra  charge  of  2|  per  cent,  (without  proof  to  the  contrary,  which  it  lay 
on  the  defendants  to  give)  appeared  excessive  and  unreasonable  ;  and 
thirdly,  that  the  condition  being  void,  although  there  was  no  negligence 
on  the  part  of  the  defendants,  the  plaintiff  was  entitled  to  recover  the 
full  value  of  the  dog  against  them  as  common  carriers.  It  was  held  by 
Wightmcui  J.  that  the  different  clauses  of  the  ticket  were  separable  ; 
that  the  first  condition  meant  that  the  defendants  would  not  be  liable 
beyond  £5  for  injury,  however  caused,  unless  the  value  of  the  dog  were 
declared,  and  that  this  was  a  reasonable  condition,  and  afforded  a  good 
defence  beyond  £5,  which  sum  the  plaintiff  was  entitled  to  recover. 
The  verdict  was  directed  to  stand  for  £21. 

Error  was  thereupon  brought  by  the  defendants  to  reverse  tlie  judg- 
ment given  by  the  Court  of  Queen's  Bench  for  the  plaintiff  on  a  special 
case  :  and  it  was  held  {diss.  Wild  B.),  reversing  the  decision  of  the 
Court  below,  that  the  plaintiff  was  not  entitled  to  recover,  Erie  C.J. 
and  Kcaiiwj  J.  being  of  opinion  that  section  7  of  17  &  18  VicL 
c.  31,  Avas  confined  in  its  application  to  cases  Avhere  the  loss  or  injury 
Avas  occasioned  by  the  neglect  or  default  of  the  company,  and  had  no 
bearing  on  such  a  case  as  the  present,  where  the  loss  arose  from  pure 
accident,  and  that  the  company  Avere  exempt  from  liability  by  the 
terms  of  their  contract.  It  was  held  further  by  Erie  C.J.,  Williams  J., 
Channcll  B.,  and  Kealiiuj  J.,  that  assuming  that  the  statute  applied 
to  this  case,  the  conditions  in  the  ticket  were  reasonable  and  just, 
and  that  they  were  not  to  be  construed  as  meaning  to  exempt  or  as 
having  the  effect  of  exempting  the  company  from  liability  for  loss 
or  injury  occasioned  by  wilful  misconduct  on  their  part.     And  per 


ESTOPPEL   BY   FALSE   STATEMENT   OF   OWKEK.  251 

Erie  C.J.,  it  is  for  a  jury  not  for  the  judge  to  say,  -whether  the  per- 
centage charged  on  the  extra  vahie  declared  in  respect  of  any  animal 
is  reasonable  {Harrison  y.  London  and  Brighton  and  iSoufh  Coast  liail- 
ivay  Company). 

Contract  of  carriage  with  first  railway,  and  second  not  lialjle  for 
accident. — The  plaintiff  delivered  cattle  at  a  station  of  the  Shrewsbury 
and  Hereford  Eailway  Company,  to  be  conveyed  to  Birmingham,  and 
signed  a  contract  note  with  that  company  one  of  the  terms  of  which 
was  that  the  company  would  not  be  subject  to  liability  for  any  damage 
arising  on  other  railways.  The  cattle  were  placed  on  a  truck  of  defend- 
ants, lying  at  the  station,  and  were  conveyed  in  it  along  the  Shrewsbury 
and  Hereford  line  to  Shrewsbury,  and  then  on  defendant's  line  to 
Birmingham.  Between  Shrewsbury  and  Birmingham  the  cattle  were 
injured  by  the  floor  of  the  truck  giving  way,  and  it  was  held  that  as  the 
contract  of  carriage  was  with  the  Shrewsbury  and  Hereford  Company 
for  the  entire  journey,  the  defendants  were  not  liable  {Coxon  v.  Great 
Western  Railway  Company). 

Crowdiny  cattle  witJiout  leave  into  trucJc  with  another  owner's. — Marlin 
B.  ruled  that  an  action  was  maintainable  by  a  person  who  hired  a 
railway  truck  to  put  his  nine  cattle  in,  against  another  who  crammed 
his  two  cattle  in  and  seriously  injured  the  rest.  The  whole  eleven 
seem  to  have  been  bought  together,  but  there  was  a  false  representation 
by  the  defendant  to  the  railway  as  to  his  right  to  have  the  truck  {Raynor 
Y.  Childs). 

Railway  company  must  he  sued  within  county  court  district  of  jjrincipal 
pilace  of  business. — If  a  railway  company  injure  a  chattel  (here  a  horse) 
of  the  plaintiff  in  County  Court  district  A,  the  company  cannot  be  sued 
for  it  in  County  Court  district  B,  merely  because  it  has  a  local  station 
in  district  B,  at  which  passengers  are  booked  and  goods  received  for 
carriage  ;  for  a  railway  company  does  not  carry  on  its  business  within 
the  meaning  of  the  statute  9  &  10  Vict.  c.  95,  s.  60,  at  every  place 
where  it  has  a  station,  but  only  at  the  principal  office,  where  the 
directors  meet,  and  the  general  business  of  the  company  is  transacted. 
The  case  was  decided  on  the  authority  of  Taylor  v.  Crowland  Gas 
Company  (11  Ex.  1,  and  2i  L.J.  (N.S.),  Ex.  233),  and  Adams  v.  The 
Great  Western  Railway  Company  (30  L.J.  (N.S.),  Ex.  124),  Skids  v. 
Great  Northern  Railway  Company. 

Estoppel  iy  wilfully  false  statement  of  value  of  horses  at  time  of  contract 
for  their  carriage. — It  was  held  by  the  Court  of  Exchequer,  that  the 
plaintiff  having  made  a  wilfully  false  statement  to  a  railway  company, 
as  to  the  value  of  the  three  horses  (stated  to  be  less  than  £10  each)  for 
the  purpose  of  inducing,  and  having  thereby  induced  the  defendants  to 


252    CONDITIONS  IMPOSED  BY  RAILWAYS  MUST  BE  REASONABLE. 

enter  into  the  contract  for  their  carriage,  was  not  at  liberty  to  show 
their  real  value,  in  order  to  obtain  compensation  above  the  amount  paid 
into  Court  (£25).  And  scmhle  that  the  declaration  of  the  value  of  the 
horses  formed  no  part  of  the  contract,  and  that  even  if  it  were  part, 
it  did  not  render  the  contract  a  conditional  contract ;  and  also  that 
the  stipulation  that  the  horses  should  be  carried  entirely  at  the  owner's 
risk  was  not  unreasonable  and  void  within  the  meaning  of  the  17  & 
18  Vict.  c.  31  {McCance  v.  London  and  Xorih  Western  Railivmj 
Compamj).  This  case  was  confirmed  by  the  Exchequer  Chamber,  34 
L.J.  (N.S.)  Ex  39. 

The  conditions  imposed  by  a  railway  company  on  persons  sending 
cattle  on  their  line  must  be  reasonable,  and  if  the  conditions  are  un- 
reasonable, the  liability  of  the  company  is  not  removed  by  the  fact  that 
.  the  company  under  a  second  condition  grants,  and  the  owner  of  cattle 
accepts,  a  free  pass  for  a  person  who  travels  with  the  cattle.  Booth  v. 
Xorth  Eastern  Railway  Comiiany  (2  L.E.  Ex.  173). 

In  Gill  V.  Manchester,  Sheffield,  and  Lincolnshire  Railway  Company, 
(8  L.R.  Q.B.,  18G),  the  plaintiff  delivered  a  cow  at  Doncastcr  station  on 
the  Great  Northern  Railway  to  be  sent  to  Sheifield  on  the  defendants' 
line.  The  cow  arrived  safely  at  Sheffield,  but  when  released  from  the 
truck  it  ran  wild,  got  on  to  the  railway  and  was  killed.  The  defen- 
dants' servant  released  the  cow  from  the  truck  against  the  advice  of  the 
plaintiflF's  servant  who  was  in  charge  of  the  cow.  The  Court  having 
})Ower  to  draw  inferences  of  fact,  held  that  the  action  was  rightly  brought, 
inasmuch  as  the  Great  Northern  became  agents  of  the  defendants  in 
making  the  contract  to  carry  the  cow.  Secondly,  that  the  condition  in 
the  contract  did  not  relieve  the  defendants  from  liability  for  negligence 
on  the  part  of  their  servants  in  delivering  the  cow.  Thirdly,  (by 
Blacldnirn  and  Lvsh  J.  J.,  Ilellor  J.  diss.),  "  That  the  inference  to 
ha  drawn  from  the  facts  was  that  there  was  negligence  on  the  part  of 
defendants'  porter,  and  that  they  Avcre  therefore  liable  to  the  plaintiff 
for  the  loss  of  the  cow.  See  also  Bhiwcr  v.  Great  Western  Railway 
Company  (7  L.E,.  C.P.  G55),  Kendall  v.  South  Western  Railway  Com- 
pawj  (7  L.R.  Ex.  373),  and  Rooth  v.  North  Eastern  Railway  Company 
(2  L.R.  Ex.,  173). 

In  the  case  of  Kendall  v.  London  and  Sontli  Weatern  Railicay  Company, 
the  plaintiff  delivered  a  horse  saddled  and  bridled  at  Waterloo  to  be 
sent  to  Ewell.  The  horse  Avas  boxed  at  AVaterloo  under  the  supervision 
of  the  plaintiff.  No  accident  of  any  kind  occurred  to  the  train  and  the 
horse  was  proved  to  be  a  quiet  one,  but  on  its  arrival  at  Ewell  it  was 
found  to  be  much  injured  :  held  by  3fartrn  and  Bramwell  BB.,  Piyott 
B.  diss.,  that  the  defendants  were  not  liable,  as  there  was  no  evidence 


CATTLE-DEALEllS   TEAVEL    AT    THEIR    OWN   PJSK.        258 

of  negligence  on  their  part,  and  it  was  to  be  inferred  that  the  injuries 
resulted  from  the  action  of  the  horse  itself. 

In  the  case  of  Wright  v.  London  and  North  Western  Railway  Company 
(10  L.E,.  Q.B.  298),  the  plaintiff  sent  a  heifer  by  defendants'  railway 
to  Penrith  station.  On  tlie  arrival  of  the  train  at  the  station,  between 
8  and  9  p.m.,  the  horse-box  in  which  the  heifer  had  travelled  had  to  be 
shunted  into  a  siding  to  be  unloaded.  There  was  only  one  porter 
available  to  shunt  the  horse-box,  and  the  plaintiff,  who  had  travelled  by 
the  same  train,  being  desirous  of  getting  his  heifer  away  with  as  little 
delay  as  possible,  assisted  in  shunting  the  horse-box  to  the  siding  from 
which  alone  the  heifer  could  be  unloaded,  and  while  he  was  so  doing 
the  horse-box  was  run  into  by  a  train  which  had  been  negligently 
allowed  to  come  out  of  the  siding  :  and  the  horse-box  was  driven 
against  the  plaintiff  and  injured  him.  There  was  evidence  that  it  was 
the  practice  at  Penrith  for  persons  to  assist  in  unloading  their  cattle, 
and  that  on  this  particular  occasion  the  station-master  had  consented  to 
the  plaintiff  assisting  in  the  shunting.  It  was  held  that  the  defendants 
were  hable  for  the  injuries  sustained  by  the  plaintiff.  8ee  also  Holmes 
V.  North  Eastern  Railway  (Law  Rep.  4  Ex.  254,  and  L.R.  G  Ex.  123)  ; 
and  in  the  case  of  Hall  v.  The  North  Eastern  Railway  (10  L.R.  Q.B. 
437),  where  the  plaintiff  booked  some  sheep  from  Angerton  on  the 
North  British  Railway  to  Newcastle  on  the  North  Eastern,  it  was  held 
tliat  the  ticket  under  which  plaintiff  travelled  meant  that  he  should  bo 
at  his  own  risk  for  the  whole  journey,  and  the  defendants  were  not  held 
liable  for  injuries  sustained  by  the  plaintiff  on  their  line  and  th-.ough 
their  negligence. 

A  cattle  dealer  who  travels  free  of  charge  at  his  own  risk  cannot 
maintain  an  action  against  a  railway  company  on  whose  line  he  so 
travels,  for  injury  incurred  either  during  the  actual  transit  or  while 
leaving  the  company's  premises.  Gallin  v.  London  ami  North  Western 
Railway  Company  (10  L.R.  Q.B.  212). 

In  the  case  of  Tlie  Great  Northern  Rail/cay  v.  Sariffield,  the  defen- 
dant sent  a  horse  from  King's  Cross  to  Sandy  consigned  to  himself,  the  . 
fare  being  prepaid.  The  horse  arrived  at  Sandy  at  10  p.m.,  and  there 
being  no  one  there  to  receive  him,  the  station-master  sent  the  horse  to 
a  livery  stable  near  the  station  for  safe  custody.  Defendant's  servant 
arrived  soon  after  and  demanded  the  horse  ;  he  was  referred  to  the 
livery  stable-keeper,  who  refused  to  give  up  the  horse  except  upon 
payment  of  charges  admitted  to  be  reasonable,  the  servant  refused  to 
pay,  and  went  away  without  the  horse.  On  the  following  day  the 
defendant  came  and  demanded  the  horse  ;  plaintiffs'  station-master 
offered  to  pay  the  charges  and  let  the  defendant  have  the  horse  j  this 


2jt  INJURY   TO   VALUABLE   GREYHOUNt). 

the  defendant  declined,  and  the  horse  remained  at  the  livery  stable. 
The  plaintiffs  afterwards  offered  to  deliver  the  horse  to  defendant  at 
Sandv,  but  the  defendant  refused  to  receive  it  nnless  delivered  at  his 
farm  and  with  payment  of  a  snm  of  money  for  his  expenses  and  loss  of 
time.  The  horse  remained  at  the  livery  stables  till  November,  when 
the  plaintiffs  paid  the  livery  stable-keeper's  charges  and  sent  tlie  horse 
to  defendant,  who  received  it.  The  plaintiffs  brought  an  action  to 
recover  the  amount  of  these  charges,  and  the  Court  held  that  the  defen- 
dant was  liable. 

In  the  case  of  Hodrpnan  v.  Tlie  West  Midland  Raihvay  Comjiany,  the 
plaintiff  sent  a  valuable  racehorse  under  the  care  of  a  groom  to  the 
station  of  defendants'  railway  at  Worcester  to  be  carried  from  Worcester 
to  liOndon.  The  horse  while  being  led  by  the  groom  came  in  contact 
with  some  sharp-edged  girders  situate  in  defendants'  yard,  and  was  so 
injured  that  it  became  necessary  to  kill  it.  No  declaration  of  value 
had  been  made,  nor  had  any  ticket  been  taken,  and  it  was  held  by  the 
Court,  CocJcburn  C.J.  diss.,  that  the  plaintiff  could  not  recover  more 
than  £50  (33  L.J.  (N.S.)  Q.B.  233,  and  35  L.J.  (N.S.)  Q.B.  85). 

In  the  case  of  Grcfjory  v.  The  West  Midland  Raihvay  Company,  the 
Court  of  Exchequer  upheld  this  decision,  and  decided  that  an  owner  is 
not  bound  by  conditions  annexed  by  a  railway  company  to  their  cattle 
tickets  which  are  neither  just  nor  reasonable  (33  L.J.  (N.S.)  Ex.  155). 
3PMamis  v.  The  Lancashire  and  Yorlrshire  Railway  Comjmny  (28  L.J. 
(N.S.)  Ex.  353).  Allday  x.  Great  Western  Railway  Company  (34  L.J. 
(N.S.)  Q.B.  5). 

In  the  case  of  Richardson  v.  The  North  Eastern  Railway  Company  (7 
L.R.  C.P.  75),  the  plaintiff  sent  a  valuable  greyhound  to  be  carried  by 
the  defendants.  In  the  course  of  the  journey  it  became  necessary  to 
transfer  the  dog  from  one  train  to  another,  and  while  waiting  for  this 
second  train  it  was  tied  by  the  strip  with  which  it  had  been  sent  by 
plaintiff  to  an  iron  spout  on  the  platform  ;  while  so  fastened  the  dog 
slipped  its  collar,  got  on  to  the  line  and  was  killed  ;  held  that  as  the 
dog  was  fastened  by  means  furnished  by  the  plaintiff,  there  was  no 
evidence  of  negligence  on  the  part  of  the  company,  and  judgment  was 
given  for  them  ;  and  in  Bloiver  v.  The  Great  Western  Railway  Company 
(7  L.R.  C.P.  G55),  when  the  plaintiff  sent  a  bullock  to  be  conveyed  by 
the  defendants,  and  the  bullock,  by  its  own  efforts  and  exertions, 
escaped  from  the  truck  in  which  it  was  being  carried,  and  was  killed,  it 
was  held  that  the  defendants  were  not  liable. 

In  reyard  of  delay  in  forivardiny  cattle  to  marlcet,  the  decisions  liave  also 
hcen  ofjainst  the  senders.  Of  this  class  of  cases  was  The  TorJf,  Newcastle, 
and  Beri'.'icJc  Railway  Company  (appellants)  v.  Crisp  and  Logan  (respond- 


DELAY   IN   FOEWARDING   PIGS.  255 

ents).  The  respondents  were  cattle-jobbing  partners,  and  tlie  appellants 
railway  carriers  from  Alnwick  to  Newcastle.  Alnwick  fortnightly  fair 
is  held  on  a  Monday,  and  a  weekly  one  at  Newcastle  on  a  Tuesday, 
when  the  market  is  nominally  open  from  5  a.m.  till  3  p.m.,  but  is 
l^ractically  ended  between  10  and  11  a.m.  On  the  28th  of  November, 
1853,  the  respondents  and  one  Logan  brought  some  sheep  and  pigs,  of 
a  portion  of  which  they  were  joint  owners,  to  the  Alnwick  station,  in 
order  to  ofiPer  them  for  sale  at  Newcastle  early  the  next  morning,  and 
engaged  2^  trucks  for  sheep  and  half  a  truck  for  pigs.  For  this  they 
paid  £2  4s.  3d.,  and  certain  tickets  were  given  out  before  half-past 
three  p.m.  Evidence  was  given  by  the  appellants  of  the  ticket  having 
been  furnished  to  Crisp,  on  the  back  of  which  was  this,  among  other 
conditions — 

"  TJiCit  the  coirqMny  he  not  rcsponsiJjle  for  tlie  non-dcJivcrij  of  tlie 
stock  within  any  ceiiain  or  reasonaNe  time,  nor  in  time  for  any  par- 
ticular marJcet ;  nor  are  they  o'eqnircd  to  forward  ly  any  particular 
train." 

There  were  no  disengaged  trucks  at  this  time,  as  the  respondents 
knew ;  and  after  waiting  several  hours,  the  station-master  franked  the 
respondents  to  Newcastle  (instead  of  leaving  them  to  come  with  the 
usual  cattle-train  passes),  and  assured  them  that  the  sheep  and  cattle 
would  follow  the  same  evening.  Logan  and  a  servant  were  left  behind 
with  the  cattle;  and  seeing  no  trucks  forthcoming,  demanded  back 
their  money,  which  was  refused.  The  former  waited  fruitlessly  for 
trucks  till  one  in  the  morning,  and  then  went  away,  leaving  a  servant 
with  the  cattle,  which  were  put  into  the  coal  depot.  At  four  o'clock 
the  cattle  were  forced  into  some  filthy  waggons,  and  did  not  reach  New- 
castle market  till  11  a.m.,  when  the  market  was  over.  They  were  so 
reduced  by  hunger  that  some  of  them  died,  and  the  rest  were  rendered 
unsaleable  up  to  the  time  of  the  trial.  Logan  proved  that  whereas 
he  ought  to  have  realized  a  considerable  profit  at  Newcastle,  he  had 
been  offered  10s.  less  per  head  than  he  had  given  at  Alnwick.  The 
station  clerk  of  the  appellants  proved  that  he  handed  three  tickets 
to  Logan,  Crisp,  and  Thompson ;  but  he  admitted  that  no  copy  or  dupli- 
cate was  given,  nor  was  it  read  to  any  of  the  respondents  or  Logan,  nor 
was  the  attention  of  any  of  them  directed  to  the  contents  or  meaning  of 
the  tickets. 

It  was  admitted  that  the  tickets  were  returned  to  the  appellants  at 
Newcastle,  but  the  latter  gave  no  evidence  to  explain  the  delay.  The 
judge  of  the  Alnwick  County  Court  did  not  direct  the  jury  as  to  the 
legal  effect  of  the  ticket,  but  asked  them,  first,  Are  the  defendants 
common  carriers  for  hire?  secondly,  Did  they  receive  the  plaintiffs 


25 S  CARRIAGE    OF   PIGS. 

cattle  as  common  carriers  for  hire,  or  under  the  sjoecial  contract  set 
forth  in  the  ticket  ?  and  thirdly,  Did  the  station-master  further  con- 
tract that  the  trucks  should  be  furnished  soon  ?  If  they  found  the 
first  question  and  the  first  part  of  the  second  question  in  the  affirma- 
tive, they  were  to  say  what  damages  the  plaintiff  had  sustained.  The 
following  were  the  terms  of  the  verdict  for  the  plaintiff:  "The  jury 
find  the  damages  to  be  £30;  and  that  the  company  are  common 
carriers,  and  received  the  goods  without  any  limitation  of  their 
liability  by  any  special  contract ;  and  that  the  only  special  contract 
was  the  subsequent  promise  of  the  station-master  that  the  trucks 
would  be  ready  soon."  The  Court  ordered  a  non-suit  to  be  entered  ; 
Jem's  C.J.  intimating  that  Austin  v.  The  Manclicsicr,  Bltcffield,  Jc 
Lincolnshire  Raihcay  could  not  be  overruled,  and  that  it  was  a  mere 
waste  of  time  to  argue  against  it.  His  lordship  added :  "  There  is 
clearly  a  misdirection  here.  There  was  no  evidence  whatever  that 
the  defendants  were  common  carriers  of  cattle  or  live  stock,  or  that 
they  had  received  the  pigs  in  question  as  common  carriers.  The 
judge  should  have  told  the  jury  distinctly  that  there  was  nothing 
to  justify  them  in  finding  that  the  pigs  were  received  by  the  company's 
servants  to  be  carried  upon  any  other  terms  than  those  contained  in  the 
special  contract." 

This  case  was  followed  by  Hughes  v.  The  Great  Western  Railway 
Company.  On  the  evening  of  Tuesday  the  9th  of  Xovember,  1853,  the 
plaintiff  delivered  at  the  company's  station  at  Southall  20  fat  pigs, 
which  were  intended  for  the  Birmingham  market  the  next  Thursday, 
and  was  informed  that  they  would  go  by  a  train  which  started  at  3 
o'clock  the  next  morning.  He  signed  a  paper  of  conditions,  part  of 
which  were  that  "  The  Company  is  not  to  he  held  responsible  for  the 
carriage  or  delivery  within  any  certain  or  definite  time,  nor  in  time  fur 
any  particular  markets  The  pigs  were  sent  by  the  3  o'clock  a.m.  train 
on  the  10th  of  November,  but  did  nut  arrive  at  Birmingham  in  time 
for  Thursday's  market,  and  so  wasted,  by  want  of  food,  in  consequence 
of  having  been  so  long  in  the  trucks,  that  the  plaintiff'  sustained  great 
loss.  The  defendants  proved  that  the  goods  train  which  left  Southall 
at  3  a.m.  went  no  further  than  Didcot,  where  it  ought  to  have  arrived 
at  7.30  a.m.,  and  that  the  next  goods  train  for  Birmingham,  by  which 
the  pigs  were  forwarded,  left  Didcot  at  5.30  p.m.,  the  only  other  train 
which  passed  through  Didcot  for  Birmingham  between  those  hours 
being  the  express  passenger  train.  It  was  further  insisted  that  the 
special  contract  excluded  all  question  as  to  reasonable  time,  and  that 
the  pigs  were  sent  within  reasonable  time,  inasmuch  as  they  were  sent 
by  the  next  practicable  train.    Jervis  C.J.  referred  to  Walker  v.  The  York 


COMPLICATED    PIG    CASE.  257 

Jt  North  Midland  RaiUvay  Company  (a  well-known  case  of  fisli-sending), 
and  being  of  opinion  that  the  pigs  had  been  forwarded  within  a  reason- 
able time,  and  the  plaintiflf's  counsel  expressing  no  dissent,  nonsuited 
the  plaintiff.    The  rule  for  a  new  trial  was  discharged. 

On  the  authority  of  this  case  Mr.  Sergeant  Channel  nonsuited  the 
plaintiff  in  White  v.  The  Great  Western  Railway  Conijjany,  which  was  an 
action  against  that  railway  company  for  neyliyence  in  forwardiny  a 
quantity  of  cheese,  whereby  the  plaintiff,  a  Somersetshire  farmer,  lost  a 
market  at  Bishopstoke. 

Slim  V.  The  Great  Northern  Railway  Company  was  a  somewhat  com- 
plicated pig  case.  The  plaintiff  had  sent  two  lots,  containing  together 
203  pigs,  to  the  defendant's  station  at  Hitchin,  and  they  were  duly 
delivered  in  London.  Six  other  pigs  of  the  plaintiflf's  were  conveyed  to 
the  station  by  one  Lewis,  who  had  32  pigs  of  his  own  going  to  London. 
For  these  latter  Lewis  procured  the  proper  cattle  ticket  and  consign- 
ment note,  but  neglected  to  do  so  for  the  plaintiff's  six,  which  he 
delivered  (as  he  stated)  to  one  Morgan,  a  servant  of  the  defendants,  at 
the  station,  who  said  he  would  take  care  of  them.  Plaintiff  was  cog- 
nisant of  the  course  of  business  at  the  station,  which  was,  thac  on  the 
arrival  of  live  stock  there,  they  were  counted  by  one  of  the  company's 
servants,  who  made  out  and  signed  what  is  called  a  "consignment-note," 
stating  the  number  of  the  trucks  and  cattle,  and  the  name  of  the  con- 
signor and  consignee.  This  "  consignment-note  "  was  then  signed  by 
the  person  bringing  the  stock,  and  taken  to  the  booking-clerk,  who 
made  out  from  it  a  "  cattle  ticket,"  which  was  signed  by  the  consignor's 
agent,  who  on  receipt  of  a  duplicate,  paid  the  carriage,  the  duplicate 
ticket  being  the  authority  to  receive  the  cattle  on  their  arrival  at  their 
destination.  The  declaration  set  out  the  special  contract  indorsed  on 
the  cattle-ticket,  which  threw  the  risk  of  injury,  examination  of  car- 
riages, &c.,  upon  the  plaintiff,  and  alleged  as  a  breach  that  the  defen- 
dants did  not  carry  and  deliver  the  pigs  within  reasonable  time. 

There  was  also  a  count  in  trover.  The  defendants  pleaded— first, 
Not  guilty  ;  and  secondly,  that  the  plaintiff  did  not  deliver  the  pigs, 
nor  did  the  defendants  receive  the  same  to  be  carried  upon  the  terms 
and  conditions  alleged  in  the  first  count.  It  appeared  that  the  pay- 
ment for  the  carriage  of  the  cattle  was  made  sometimes  at  the  station 
at  which  they  were  received,  and  sometimes  on  their  arrival  at  their 
destination.  At  the  close  of  the  plaintiff's  case  the  defendant's  counsel 
called  upon  the  learned  judge  to  nonsuit  him,  insisting  that  there  was  no 
evidence  to  go  to  the  jury  that  the  defendants  had  contracted  with  the 
plaintiff  on  the  terms  mentioned  in  the  declaration  ;  and  that  assuming 
their  servant  Morgan  to  have  received  the  pigs  in  question,  he  had 


S5S  PIGS    TOO    LATE    FOR    MARKET. 

done  so  without  their  authority,  and  in  direct  violation  of  his  duty 
and  the  course  of  business  at  the  station.  WiUiams  J.  declined  to 
nonsuit,  but  left  it  to  the  jury  to  say  whether  or  not  Morgan  had  received 
the  pigs.  They  found  that  he  had  ;  and  his  lordship  thereupon  directed 
a  verdict  for  the  plaintiff  for  £14,  the  value  of  the  six  pigs  :  reserving 
leave  to  the  defendants  to  move  to  enter  a  nonsuit,  if  the  Court  should 
think  there  was  no  evidence  to  go  to  a  jury;  and  also  reserving  leave 
to  the  plaintiff  to  amend  the  declaration,  if  necessaiy,  it  being  agreed 
that  the  only  questi<m  was  whether  or  not  the  company  had  received 
the  pigs  to  be  carried. 

The  Court  of  Common  Pleas  made  the  rule  absolute  ;  and  held  that 
the  count  in  trover  clearly  could  not  be  sustained,  and  that  the  first 
count,  whether  in  its  original  state  or  as  proposed  to  be  amended,  was 
not  supported  by  the  evidence.  Jervis  C.J.  said  :  "  According  to  the 
course  of  business,  of  which  the  plaintiff  was  proved  to  be  perfectly 
cognizant,  it  was  the  sender's  duty  to  get  a  consignment-note  when  he 
delivered  the  pigs  at  the  station,  and  that  consignment-note  gave  him 
distinct  notice  that  the  company  would  not  hold  themselves  responsible 
for  the  pigs,  unless  the  same  were  signed  for  as  received  by  their  clerk. 
Knowing  this,  the  plaintiff  sent  the  pigs  in  question  by  Lewis  ;  Lewis 
handed  them  over  to  Morgan  without  more  ado,  and  thus  made  Morgan 
his  servant  for  the  purpose  of  doing  what  was  necessary  to  put  the  pigs 
in  motion  towards  their  destination.  Morgan  had  no  authority  to  con- 
travene the  regulations  of  the  company,  and  I  think  they  are  not  bound 
by  his  act."  In  the  course  of  the  argument  Maide  J.  observed  that  "  If 
Morgan  had  been  the  master  or  superintendent  of  the  station,  possibly 
he  might  have  had  authority  to  do  as  he  did.  And  it  may  be  that  the 
company  are  liable  if  they  place  a  man  in  a  position  to  hold  himself  out 
as  having  authority,  though  he  may  in  some  degree  have  exceeded  his 
duty.  Morgan  had,  it  appears,  authority  to  go  through  some  of  the 
preliminary  matters  to  the  making  of  the  contract.  It  is  not  necessary 
to  show  that  he  had  full  and  perfect  authority.  It  [is  enough  if  there 
was  evidence  to  go  to  a  jury."  The  same  Court  also  held  in  Simons  v. 
2'he  Great  Wesfern  Railway  Comimny,  that,  wlmrc  the  ^laintif  ivas 
asked  ly  the  clerh  of  the  railway  compan,y,  when  the  goods  were  delivered, 
to  sign  a  j)aiwr  containing  a  sjyecial  contract,  and  he  demurred,  in  con- 
sequence of  there  not  being  light  enough  to  read  it  by,  but  was  told 
that  it  was  of  no  importance,  and  that  his  signature  was  a  mere  matter 
of  form,  on  the  strength  of  which  assurance  he  signed,  the  jury  were 
warranted  in  finding  that  the  goods  were  not  dehvered  to  the  company 
to  be  carried  under  the  special  contract. 

It  was  held  by  Byles  J.  in  Blakemore  v.  Lancashire  and  Yorkshire 


DELAY    BY    FALL    OF    SNOW.  259 

Raihcay  Company  that  carriers  are  hound  to  convey  ivHh  rcasonahk 
eycj^jedilion,  and  if  their  course  of  business  is  inconsistent  with  that,  it  is 
no  answer  to  an  action  against  them  for  damages  arising  from  delay, 
that  they  carried  at  the  ordinary  rate  in  which  they  conducted  their 
business.  Here  the  potatoes  were  placed  in  the  defendant's  trucks  on 
a  Tuesday  afternoon,  and  ought  in  due  course  to  have  arrived  at  their 
destination  next  day  ;  but  did  not  do  so  till  the  Friday,  as  the  line  at 
Wigan  was,  as  was  constantly  the  case,  completely  blocked  up  with 
trucks,  for  lack  of  sufficient  sidings,  the  consequence  of  which  was  that 
the  potatoes  fermented  and  became  rotten  and  worthless. 

However,  according  to  Briddon  v.  The  Great  Northern  Railway  Com- 
pany, a  carrier  of  goods  and  cattle  is  only  hound  to  carry  in  a  reasonahle 
time,  wider  m'dinary  circumstances,  and  is  not  hound  to  use  extraordinary 
efforts  or  incur  extra  expense  in  order  to  surmount  ohstructions  caused  hy 
the  act  of  God,  as  a  fall  of  snow.  It  appeared  that  the  plaintiff"  in  this 
case  had  received  a  ticket  at  Huntingdon  on  the  terms  that  the  com- 
pany were  not  to  be  liable  for  any  loss  or  damage  arising  from  any 
cause  whatever  during  the  transit,  and  that  the  beasts  were  put  into 
two  cattle-trucks,  subsequently  attached  to  a  heavy  goods  train.  The 
line  from  Nottingham  was  the  defendant's  as  far  as  Grantham,  from 
which  there  was  a  branch  to  Nottingham,  and  on  the  day  in  question 
there  was  a  heavy  snowstorm,  which  obstructed  the  latter  part  of  the 
line.  The  goods  train  to  which  the  two  cattle-trucks  were  attached  was 
very  long,  and  on  arriving  at  a  station  on  the  line  to  Grantham  the  train 
was  shunted  to  a  siding,  and  the  engine  detached  to  add  to  a  passenger 
train  which  went  on  its  way  with  this  additional  power,  rendered  neces- 
sary by  a  fall  of  snow  on  the  line  hcyond  Grantham.  The  plaintiff,  who 
went  in  the  same  train  with  the  beasts,  remonstrated  with  the  station- 
master,  telling  him  that  the  cattle  market  at  Nottingham  was  the  next 
day.  Notwithstanding  this,  the  goods  train  with  the  two  cattle-trucks 
attached  thereto,  was  detained  at  the  station  thu-ty  hours,  during  all 
which  time  the  cattle  were  deprived  of  food,  and  they  were  not  for- 
warded until  next  day,  too  late  to  save  the  market.  In  the  meantime 
all  the  passenger  trains  were  kept  running  as  usual.  To  send  on  the 
goods  train  would  have  required  additional  engines  ;  but  it  appeared 
that  there  was  an  unlimited  supply  of  engines  at  Peterborough.  The 
plaintiff's  case  was  that  the  defendant's  servants  were  bound  to  obtain 
additional  engines,  if  necessary,  to  forward  the  goods  train,  or  to  send  on 
the  two  cattle-trucks  by  themselves.  For  the  defendants  it  was  contended 
that  they  were  not  obliged  to  take  either  course,  nor  to  use  any  extra- 
ordinary efforts  to  send  on  the  goods  train  ;  but  that  it  was  enough  for 
them  to  show  that  by  reason  of  the  snow  the  train  could  not  be  reasonably 

s2 


260  HIRE    OF    SACKS. 

sent  on  with  the  orJinaiy  engine  power.  Cockhurn  C.J.  held  tliat  the  ques- 
tion was  whether  the  delay  in  forwarding  these  heasls  was  owing  to  the 
negHgence  or  want  of  due  expedition  on  the  part  of  the  company's 
servants,  or  was  it  the  unavoidable  result  of  the  state  of  the  line,  they 
doing  all  that  under  the  circumstances  they  were  bound  to  do.  The 
jury  found  for  the  defendants,  and  the  Court  of  Exchequer  confirmed 
such  finding.  And  per  Pollock  C.B.  :  "The  contract  entered  into  was 
to  carry  the  cattle  to  Nottingham  without  delay,  and  in  a  reasonable 
time,  under  ordinary  circumstances.  If  a  snowstorm  occurs,  which 
makes  it  impossible  to  carry  the  cattle  except  by  extraordinary  efforts, 
involving  additional  expense,  the  company  are  not  bound  to  use  such 
means  and  to  incur  such  expense." 

The  subject  of  the  lending  of  sacks  ly  railway  companies  for  the  con- 
veyance of  grain  on  their  lines  was  considered  by  the  Court  of  Common 
Pleas  in  The  Great  Northern  Railway  Company  v.  Wyles,  in  which  the 
plaintiff  sought  to  recover  £20  lis.  bd.  for  the  demurrage  of  sacks  let 
by  them  to  the  defendant.  The  sacks  were  hired  subject  to  the  fol- 
lowing, among  other  regulations  : — 

"  2.  The  charges  for  the  use  of  sacks  will  be  ^d.  per  sack  per 
journey  when  discharged  at  any  of  the  company's  stations  on  the  line  ; 
or  at  their  warehouses,  or  at  warehouses  or  mills  connected  by  rail 
with  the  company's  line  ;  and  Id.  per  sack  when  sent  to  foreign 
stations. 

"  3.  Demurrage  of  ^d.  per  sack  per  week  will  be  charged  after  the 
expiration  of  fourteen  days,  the  hire  to  commence  from  the  time  the 
sacks  leave  the  station  to  be  filled ;  the  time  allowed  for  filling  and 
returning  to  the  station  to  be  seven  days. 

"  10.  None  of  the  company's  sacks  containing  grain  will  be  allowed 
to  leave  any  station  (local  or  foreign)  unless  a  guarantee  is  first  ob- 
tained by  the  clerk  in  charge,  from  the  consignee,  that  the  grain  will 
be  immediately  discharged,  and  the  sacks  returned  the  same  day,  and 
to  the  same  station." 

It  was  held  that  the  company's  claim  for  demurrage  arose  at  the 
expiration  of  fourteen  days  from  the  hire  of  the  sacks  ;  and  that  the 
only  person  with  whom  there  was  any  contract  for  demurrage  was  the 
consignor,  by  virtue  of  the  3rd  regulation  ;  but  that,  by  the  operation 
of  the  10th  regulation,  his  liability  ceased  upon  the  company's  per- 
mitting the  sacks  to  get  into  the  hands  of  the  consignee,  whether  with 
or  without  a  guarantee. 

The  Great  Northern  and  other  Railways  have  recently  issued  fresh 
regulations  with  regard  to  letting  out  sacks  on  hire,  and  the  subject  is 
so  important  that  the  new  regulations  are  given  in  full. 


TERMS    AND    CONDITIONS    OF    HIRING    SACKS.  'Z(\] 

The  Great  Norihmi  Baihrmj  ComjmvJ's  Saris  arc  Unl  on  the 
folloirhvj  tcr^ns  and  conditions  : — 

1.  Application  for  sacks  on  hire  for  the  purpose  of  being  filled,  must 
be  made  to  the  Clerk  in  charge  of  the  Station  from  which  they  are  to 
be  consigned  for  transit  when  filled,  and  they  must  in  all  cases  be 
returned  to  that  particular  station,  otherwise  the  party  hiring  the 
sacks  subjects  himself  to  the  charge  of  one  penny  per  sack,  in  addition 
to  any  other  charge  that  may  be  incurred. 

2.  Parties  hiring  sacks  for  the  conveyance  of  grain  (or  seed)  by  rail- 
way are  allowed  to  have  them  four  days  for  the  purpose  of  filling 
AND  RETURNING  to  the  station  whence  received,  free  of  charge,  subject 
to  the  following  condition  : — If  detained  beyond  four  days,  or  if  re- 
turned to  the  station  unused,  or  if  returned  full  and  not  sent  forward 
by  rail,  demurrage  will  be  charged  at  the  rate  of  one  halfpenny  per 
sack  per  week,  such  demurrage  to  commence  from  the  date  the  sacks 
are  taken  from  the  station  to  be  filled,  and  continue  in  force  till  the 
sacks  are  returned  to  the  same  station. 

3.  Sacks  returned  full  to  the  station  will  be  allowed  to  remain  tw'O 
DATS,  FREE  OF  CHARGE,  TO  WAIT  ORDERS.  If  detained  at  the  station 
beyond  two  days,  demurrage  at  the  rate  of  one  halfpenny  per  sack  per 
week  will  be  charged  from  the  time  of  the  receipt  of  the  grain  at  the 
station  to  the  date  of  forwarding. 

4.  No  charge  will  be  made  for  sacks  returned  unused  if  the  number 
be  less  than  twelve,  and  be  part  of  a  larger  number  obtained  for  the 
purpose  of  being  filled,  provided  they  are  returned  to  the  station  at  the 
same  time  as  the  filled  sacks  are  delivered  thereat. 

5.  The  charge  for  sack  hire  from  the  sending  station  is  one  half- 
penny PER  SACK  FOR  TWELVE  DAYS,  Commencing  from  the  date  of  tlie 
Railivaij  Companifs  forwarding  Invoice ;  such  sacks  are  only  to  be  used 
for  the  same  grain  during  that  period.  If  detained  beyond  twelve  days, 
an  additional  one  halfpenny  per  sack  per  week  will  be  charged,  until 
proof  be  furnished  of  their  discharge  at,  or  their  return  to,  the  station 
from  which  they  were  delivered  filled  to  the  consignee.  The  returned 
sacks  to  be  addressed  to  the  Great  Northern  Railway  depot,  Boston, 
Lincolnshire. 

6.  The  amounts  payable  to  the  Company  for  hire  may  be  paid  by  the 
original  sender,  or  by  the  transferee  of  the  grain,  at  the  station  from 
which  it  is  to  be  forwarded  ;  or  such  amounts  as  are  due,  or  may 
accrue  thereon,  may  be  charged  forward  with  the  carriage  of  the  grain. 

7.  On  the  arrival  of  the  grain  at  the  station  to  which  it  is  consigned, 
the  consignee  will  be  charged  with  the  demurrage  due  up  to  that  date. 


2CrZ  REGULATIONS    AS    TO    HIRE    OF   SACKS. 

and  for  the  hire  of  the  sacks  unless  previonsly  paid.  In  the  event  of 
his  i-efnsal  or  objection  to  pay  tlie  same,  the  Company  will  hold  the 
consignor  or  hirer  responsible  for  all  amounts  of  dcmui-ragc  and  hire 
due  and  unpaid  up  to  the  date  of  delivery  to  the  consignee.  The 
Great  Northern  Railway  Company  therefore  recommend  the  hirers  of 
their  sacks  to  have  a  clear  understanding  with  the  purchaser  of  the 
grain  at  the  time  of  sale  as  to  the  charges  incurred  for  the  use  of 
such  sacks,  and  to  obtain  a  distinct  undertaking  for  payment  of  such 
charges. 

8.  Consignees  and  others  receiving  grain  in  the  Company's  sacks, 
must  sign  the  Full  Sack  Eeceipt  Book,  and  will  be  charged  demurrage 
for  the  sacks  at  the  rate  of  one  halfpenny  per  sack  per  week  for  any 
period  they  may  detain  the  sacks  beyond  that  charged  for  upon  the 
grain  by  the  sending  station. 

9.  In  charging  for  demurrage,  parts  of  a  week  will  be  charged  as  one 
week.  Sundays  will  not  be  charged  for  in  calculating  any  period  under 
a  week. 

10.  Grain  brought  to  a  station  in  other  sacks  cannot  be  shot  into 
those  belonging  to  the  Great  Xorthern  Railway  Company,  unless  an 
order  in  writing  is  sent  to  the  Clerk  in  charge  of  the  station  for  the 
liire  of  the  Great  Northern  Railway  Company's  sacks.  The  party  send- 
ing such  order  will  be  held  liable  for  the  Company's  charges  according 
to  these  regulations. 

11.  Lightermen  and  carriers  of  grain  applying  for  and  obtaining 
the  Great  Northern  Railway  Company's  sacks  without  a  special  order 
from  their  employers  will  be  held  liable  for  the  sacks  and  the  charges 
thereon. 

12.  The  Great  Northern  Railway  Company's  sacks,  when  obtained 
from  a  station  for  the  purpose  of  being  filled,  or  when  emptied  after 
use,  must  not  be  sent  by  merchants  or  others  to  the  station  of  any 
other  company,  but  must  in  all  cases  be  returned  to  the  same  station 
from  which  they  were  received.  If  this  regulation  is  infringed,  one 
penny  per  sach  per  week  will  be  charged.  This  rule  will  not  apply 
when  sacks  containing  grain  are  sent  by  the  Great  Northern  Railway 
Company  direct  for  further  transit  to  the  station  of  another  Railway 
Company  in  the  same  town,  in  which  case  the  usual  hire  will  be  charged. 

13.  The  Great  Northern  Railway  Company's  sacks  are  not  to  be  used 
for  any  other  purpose  than  for  the  conveyance  of  grain  by  the  Great 
Northern  Railway  route  ;  parties  using  them  for  any  other  purposes,  or 
for  the  conveyance  of  grain  by  water  or  road,  will  be  charged  three- 
pence per  sack  per  day  the  whole  time  they  are  in  their  possession,  and 
in  case  of  damage^  loss  or  misuse  of  sacks,  parties  render  themselves 


PRIVATE    SACK    COMPANIES.  203 

]inl>le  to  penaltief?  provided  nndcr  tlic  Act  7  &  8  George  dth,  cap.  30, 
section  24. 

14.  The  Clerks  in  charge  at  the  stations  on  the  Great  Nortliern 
Eailway  are  not  empowered  to  make  any  arrangements  for  use  of  the 
Company's  sacks  contrary  to  these  reguhitious. 

15.  In  case  of  parties  disregarding  or  infringing  these  regulations  the 
Great  Northern  Railway  Company  reserve  to  themselves  the  right  of 
refusing  to  accede  to  any  further  a})plication  for  sacks  for  or  from  such 
parties. 

The  regulations  upon  which  Private  Companies  let  out  sacks  are 
materially  diflFerent  ft-om  those  of  Railway  Companies  :  and  this  is  not 
to  be  wondered  at,  seeing  that  a  Sack  Company  has  no  claim  whatever 
upon  the  consignee  ;  the  hirer  of  the  sacks  makes  the  contract  with  the 
lender,  and  he  alone  therefore  is  responsible  for  any  damage  which  the 
lender  may  sustain.  Thus  it  frequently  happens  that  farmers  receive 
a  long  bill  for  demurrage  upon  sacks  which  they  have  hired  a  long  time 
previously,  and  suppose  to  have  been  returned  long  ago  to  the  Sack 
Company.  These  cases  are  generally  tried  in  County  Courts,  and  are 
rightly  decided  in  fiivour  of  the  Sack  Companies,  so  that  hirers  of  sacks 
should  in  all  cases  protect  themselves  by  special  contract  with  the 
parties  to  whom  they  consign  their  sacks. 

In  Lee  v.  Umcin,  which  was  tried  at  the  York  Summer  Assizes,  the 
question  raised  was — how  far  the  plaintiff  was  entitled  to  charge  the 
consignees  of  grain  and  malt  loaded  in  his  sacks,  and  with  whom  he  had 
no  direct  dealings,  with  demurrage  for  the  extension  of  the  use  of  his 
sacks,  for  a  certain  number  of  days  beyond  those  mentioned  in  his 
notice  ?  Pollock  C.B.  ruled  that  the  plaintiff  could  not  by  any  system 
of  notices  make  the  defendant  liable,  and  that  his  remedy  was  against 
the  consignor  and  not  against  the  consignee. 

A  railway  company  imclertaldng  to  carry  goocU  hoolced  through  hy 
otJier  means  than  their  line,  cannot  set  up  as  a  defence  for  damage  done 
to  the  goods  that  such  contract  was  ultra  vires  {Willey  v.  The  West 
Cornwall  Railway  Company).  And  if  they  charge  for  parcels  less  than 
one  cwt.  a  larger  rate  than  for  heavy  goods,  but  if  such  small  parcels 
are  packed  together  or  directed  to  the  same  consignee  the  same  rate  as 
for  heavy  goods,  they  cannot  be  compelled  to  carry  for  the  lower  rate 
parcels  directed  to  different  persons,  but  delivered  to  the  railway  by 
the  same  carrier,  to  be  re-delivered  by  himself  at  their  destination 
(Baxendale  v.  The  Eastern  Counties  Railway  Company). 

It  has  been  decided  by  the  Court  of  Exchequer  that  there  is  no 
general  duty  imposed  hy  law  upon  carriers  to  give  notice  to  the  consignor 
of  tlie  refusal  hy  t/ie  consignee  to  receive  the  goods,  but  they  are  merely 


2G1  CAnEIER    LIABLE    FOE    LOSS    OF    DOG. 

lionnd  to  do  what  is  rcaponnhle,  under  the  particular  circumstauces  of 
cacli  case  {Tfinhoii  \.  Baxruilale).  "But  per  Bramiccll  B.  :  "The  judg- 
ment of  tile  majority  of  l:he  Court  iu  Crouch  v.  The  Great  Wesfern 
Bailicay  Cumpainj  seems  to  sliow  that  it  is  the  duty  of  the  carrier  to 
communicate  with  the  consio-nor"  (/^.).  And  it  is  no  answer  to  an 
action  against  carriers  by  tlie  owner  of  goods  lost  (who  was  the  con- 
signee) that  the  consignor,  after  the  loss  of  the  goods,  claimed  com- 
pensation, and  that  the  carriers,  without  notice,  and  believing  him  to 
be  the  owner,  paid  compensation  to  him  {Coomls  v.  Bristol  and  Exeter 
liailiray  Company,  27  L.  J.  Ex.  401). 

}Vliere  the  plaintiff  sent  Jive  bwidles  of  hay-cloths  by  the  defendants, 
carriers,  to  he  delivered  in  Bedford  on  a  Thursday,  in  order  to  be  ready 
for  the  market  on  Saturday,  but  did  not  give  notice  that  they  were  sent 
for  that  purpose,  and  on  that  day  his  clerk  proceeded  there,  but  owing 
to  the  non-delivery  of  the  goods  till  the  Monday  following,  removed 
them  to  another  place  for  sale,  it  was  held  by  the  Court  of  Exchequer, 
on  a  motion  for  a  new  trial,  in  an  action  for  non-delivery  of  the  goods 
within  a  reasonable  time,  that  the  simple  expenses  so  incurred  might 
be  given  by  the  jury  as  damages  (Blade  v.  Baxendale). 

Lord  Ellenborouyh  C.J.  ruled,  in  8tuart  v.  Craivley,  that  when  a  cloy 
is  delivered  to  a  carrier,  ivho  yives  a  receipt  for  it,  and  is  afterwards  lost, 
the  carrier  cannot  set  iip  as  a  defence  that  the  cloy  teas  not  properly  secured 
ivhen  delivered  to  him.  Here  a  valuable  greyhound  had  been  delivered 
to  the  defendant  to  carry  from  London  to  Harefield  Lock.  His  book- 
keeper gave  a  receipt ;  and  the  dog  was  tied  by  a  cord  to  a  watch-box, 
but  slipped  his  head  from  the  cord  round  his  neck.  The  defendant 
contended  that,  as  the  dog  had  no  collar,  he  was  the  same  as  a  parcel 
imperfectly  packed,  and  that  the  loss  should  fall  on  the  sender  ;  but  his 
Lordship  said  that  the  cases  were  not  identical  :  as  iu  that  of  the  parcel 
the  defect  was  not  visible,  whereas  here  the  defendant  had  the  means  of 
seeing  that  the  dog  was  insulliciently  secured. 


DISTRESS    DAMAGE    FEASANT.  265 


CHAPTER    IX. 

DISTRESS. 

Gilhert  thus  defines  the  general  principles  of  distress  damage  feasant : 
''A  man  may  distrain  beasts  damage  feasant ;  but  if  a  man  come  to 
distrain,  and  see  the  beasts  on  his  ground,  and  the  owner  chase  tliem 
out  before  the  distress  be  taken,  though  it  be  of  purpose  to  prevent  the 
distress,  yet  the  owner  of  the  soil  cannot  distrain  them  ;  and  if  he  doth, 
the  owner  of  the  cattle  may  rescue  them,  for  the  beasts  must  be  damage 
feasant  at  the  time  of  the  distress  ;  and  if  they  were  damage  feasant 
yesterday,  and  again  to-day,  they  can  only  be  distrained  for  the  damage 
they  are  doing  when  they  are  distrained.  And  if  many  cattle  are  doing 
damage,  a  man  cannot  take  one  of  them  as  a  distress  for  the  whole 
damage,  but  he  may  distrain  one  of  them  for  its  own  damage,  and 
bring  an  action  of  trespass  for  tlie  damage  done  by  the  rest."  So  Lord 
Cohe  says  (1  Inst.  161  A)  :  '*  If  a  man  come  to  distrain  for  damage 
feasant,  and  see  the  beasts  on  his  soil,  and  the  owner  chase  them  out  on 
purpose  before  the  distress  is  taken,  the  owner  of  the  soil  cannot 
distrain  them  ;  and  if  he  doth,  the  owner  of  the  cattle  may  rescue 
them,  for  the  beasts  must  be  damage  feasant  at  the  time  of  the  distress." 
His  Lordship  also  adds  (1  Inst.  142  a)  :  "  It  is  to  be  understood  that 
for  a  rent  or  service  the  lord  cannot  distrain  in  the  night,  but  in  the 
day-time  ;  and  so  it  is  of  a  rent-charge.  But  for  damage  feasant  one 
may  distrain  in  the  night  ;  otherwise  it  may  be  that  the  beasts  will  be 
gone  before  he  can  take  them." 

And  j;er  Witmot  C.J.  :  "  If  a  man  turn  cattle  into  Blackacre,  where 
he  has  no  right,  and  they  escape  and  stray  into  my  field  for  want  of 
fences,  he  cannot  excuse  himself  or  justify  for  his  cattle  trespassing  in 
my  field"  (3  Will.  12).  It  was  decided  in  Dovaston  v.  Pagne,  that  a 
plea  in  bar  of  an  avowry  for  taking  cattle  damage  feasant,  that  the 
cattle  escaped  fi'om  a  public  highway  into  the  locus  in  quo,  through  the 
defect  of  fences,  must  show  that  they  weve  passing  on  the  highwag  when 
they  escaped  ;  and  that  it  is  not  sufficient  to  state  that  being  in  the 
highway  they  escaped.  Heath  J.  said  :  "  The  law  is  as  my  brother 
Williams  (Sergeant)  stated,  that  if  cattle  of  one  man  escape  into  tlie 


2C)6      THINGS    IN    MANUAL    USE    CANNOT    BE    DISTRAINED. 

land  of  another,  it  is  no  excuse  that  the  fences  were  ont  of  repair  if  they 
were  trespassers  in  the  place  from  whence  tliey  came.  If  it  l)e  a  close, 
the  owner  of  the  cattle  must  show  an  interest  or  a  right  to  put  them 
there.  If  it  be  a  way,  he  must  show  that  he  was  lawfully  using  the 
way  ;  for  the  pro^x^rty  is  in  the  owner  of  the  soil,  subject  to  an  ease- 
ment for  the  benefit  of  the  public. 

Carndlicrs  v.  Hullis  and  Church  was  a  case  of  trespass  for  driving 
plaintiff's  sheep  and  having  them  in  a  highivay,  by  which  they  were  in- 
jured. To  this  it  was  pleaded  that  they  were  wrongfully  in  defendant's 
close  depasturing,  and  that  defendant  drove  them  into  the  adjacent 
highway.  The  replication  was  that  they  escaped  into  defendant's  close 
from  an  adjoining  close  of  plaintiff's  through  a  defect  in  the  fence 
between  the  two  closes,  which  fence  defendant  was  bound  to  repair. 
The  rejoinder  travereed  the  escape  of  the  sheep  through  a  defect  in  the 
fence,  and  the  issue  was  found  for  the  plaintiff.  It  was  held  that  the 
replication  answered  the  plea.  Lord  Denman  C.J.  said  :  "  It  is  per- 
fectly clear  that  the  least  to  be  expected  from  a  party  in  the  situation  of 
the  defendant  here,  is  that  he  should  put  back  the  sheep  into  the  place 
in  which  they  were  before  they  quitted  it  in  consequence  of  his  neglect." 

A  horse,  harness,  and  other  things  in  actual  iTiamial  use,  cannot  be 
distrained  damage  feasant,  although  they  be  so  in  use  in  doing  the 
damage  complained  of,  because  of  the  tendency  to  a  breach  of  the  peace 
{Field  V.  Adames).  And  it  is  not  necessary  for  the  person  whose  pro- 
perty is  distrained  to  aver  that  the  peace  was  endangered,  nor  that  the 
things  taken  were  "  in  manual "  use  ;  but  it  is  sufficient  to  state  they 
were  "in  the  actual  possession  of  the  plaintiff,  and  then  under  his  per- 
sonal care,  and  were  then  being  actually  used  by  him  "  {ih.).  A  strong 
case  is  put  in  Bac.  Abr.  "  Distress"  (f),  where  it  says,  "  If  a  man  rides 
upon  my  corn,  I  cannot  take  his  horse  damage  feasant'"' 

To  support  a  justification  for  taking  cattle  as  a  distress  damage 
feasant,  if  it  appear  that  the  party  distraining  had  not  actually  got  into 
the  locus  in  ([uo  before  the  cattle  had  got  out  of  it,  the  justification  can- 
not be  supported  {Clement  v.  Milner).  In  this  case  the  cow  broke  into 
a  field  of  turnips  belonging  to  the  defendant,  and  a  woman  picking 
turnii:>s  turned  her  out.  The  fences  (which  it  apjieared  the  plaintiff 
was  bound  to  repair)  were  in  a  very  ruinous  state,  and  the  cow  re- 
turned ;  the  same  woman  was  about  to  turn  her  out  again,  when  one  of 
the  defendants  being  in  an  adjoining  field,  and  seeing  her  endeavour  to 
turn  the  cow  out,  called  out  to  her  to  stop,  and  ran  towards  the  place 
where  the  cow  was.  The  woman  not  having  heard  him,  turned  the  cow 
back  into  the  plaintiff's  field,  and  she  had  got  some  way  into  the  defen- 
dant's field  before  the  defendant  came  up.     He  followed  the  cow  into 


DEMISE    OF    A    DAIRY.  267 

the  field,  and  calling  the  other  defendant,  his  servant,  to  his  assist- 
ance, they  drove  her  back  into  the  defendant's  field,  and  from  thence  to 
the  pound.  There  was  rather  contradictory  evidence  as  to  the  fact 
whether  the  defendant  had  actually  got  into  the  field  where  the  trespass 
was  done  before  the  cow  had  been  turned  out  of  it  or  not.  Lord  EMun 
C.J.  thus  pat  the  case  to  the  jury  :  If  Milner,  in  the  act  of  coming  up 
in  order  to  distrain  the  cow,  had  actually  got  into  the  field  where  the 
cow  was  committing  the  trespass  before  she  had  been  turned  out  of  it, 
the  justification  that  he  was  owner  of  the  field  of  turnips  where  she  was 
trespassing  was  proved  ;  but  if  they  thought  that  though  he  might  be 
approaching  it  to  distrain  her,  the  cow  was  out  of  the  hcus  in  gt^o  before 
he  got  into  it,  the  verdict  must  be  for  the  plaintifi* ;  and  so  the  jury 
found  it. 

Burt  V.  Moore  was  a  somewhat  peculiar  case.  The  plaintiflF  demised 
to  the  defendant  the  milk  of  twenty-two  cows,  provided  by  the  plaintiff, 
and  to  be  fed  at  the  plaintiff's  expense  on  certain  closes  belonging  to 
him,  the  plaintiff  covenanting  that  the  defendant  might  turn  out  a 
mare,  and  that  no  other  cattle  should  (except  a  bull  with  the  cows  from 
April  23rd  to  November  13th)  be  fed  there.  It  was  held  that  the 
separate  herbage  and  feeding  of  those  closes  passed  to  the  defendant, 
and  that  the  defendant  might  distrain  other  cattle  of  the  plaintiff's 
doing  damage  there.  And  ])cr  Ashhurst  J, :  "  The  cases  of  Rex  v. 
LocJcerlij  and  Eex  v.  Tolpuddle  go  the  full  length  of  deciding  the 
present.  In  those  it  was  held  that  a  right  to  the  separate  herbage  gave 
the  party  renting  it  a  settlement ;  and  that  the  sole  right  to  the  use  of 
a  thing  was  the  same  as  a  right  to  the  thing  itself.  Such  is  the  present 
case  ;  it  is  the  demise  of  a  dairy  ;  of  the  sole  right  of  enjoyment  of  cer- 
tain closes  to  the  exclusion  even  of  the  lessor  himself.  For  as  to  the 
circumstance  of  the  bull,  that  does  not  derogate  from  the  general  and 
exclusive  right  granted  ;  on  the  contrary,  the  stipulation  was  inserted 
for  the  benefit  of  the  lessee,  and  not  of  the  lessor,  since  otherwise  the 
lessee  would  not  have  had  the  advantage  of  the  cows." 

The  escape  of  a  distress  was  very  much  considered  in  Vasjmr  v. 
Edwards,  which  was  a  case  of  "  trespass  quare  dausum  fregit,  and  fed 
his  grass  with  a  pig."  The  pig  had  been  taken  damage  feasant,  and  im- 
pounded in  a  common  pound,  and  the  Court  held  that  if  a  distress 
escapes  the  person  distraining  cannot  bring  trespass,  unless  he  shows 
that  the  escape  was  without  his  default.  And  ^^er  Holt  C.J.  :  "  If  a 
distress  damage  feasant  dies  in  pound,  or  escapes,  the  party  shall  not 
distrain  de  novo ;  but  if  it  were  for  rent,  in  either  case  he  may  distrain 
de  novo."  This  dictum  was  quoted  by  Best  C.J.  in  his  judgment  in 
Knowles  v.  BlaJce. 


268  ABANDONMENT    OF    DISTRESS. 

Knou'Jes  v.  Bhthp  was  a  Rtronp:cr  case  tlian  the  above,  as  the  caftU 
hnil  neve?'  hem  in  the  pound.  Tlie  plaintiff's  son  having  seen  the  defen- 
dant Blake's  horses  trespassing  in  his  father's  field,  was  in  the  act  of 
driving  them  to  the  pound,  when  he  left  them  for  the  jDurpose  of  ap- 
prising Blake  of  what  had  happened.  When  he  was  out  of  sight  they 
strayed  from  the  plaintiff's  field  into  the  defendant's  shrubbery,  where 
they  remained  half-an-hour  :  at  the  end  of  that  time  plaintiff's  son, 
having  failed  to  receive  redress,  di'ove  them  out  of  the  shrubbeiy  into 
plaintiff's  yard,  from  which  they  were  shortly  afterwards  rescued  by  the 
defendant  and  his  servant.  It  was  objected  that  there  was  no  rescue, 
because  the  distress  had  been  abandoned  by  the  plaintiff's  son  allowing 
the  cattle  to  escape  and  remain  in  the  shrubbery,  whence  he  had  no 
right  to  remove  them.  A  verdict  was  found  for  the  plaintiff,  subject  to 
a  motion  to  set  it  aside,  in  which  judgment  was  given  for  the  defendant. 
Best  C.J.  said  :  "  Two  questions  have  been  raised  in  this  case  :  upon 
the  first,  we  all  think  that  the  distress  was  sufficiently  made,  for  no 
precise  act  or  form  is  essential  to  a  distress.  But  distress  is  a  matter  of 
strict  right,  and  if  he  who  distrains  damage  feasant  permits  the  cattle  to 
escape,  he  must  look  for  some  other  remedy.  A  mere  escape  for  an 
instant,  indeed,  if  the  distrainor  followed  him,  would  not  be  an  aban- 
donment of  the  distress  ;  for  Lord  Coke  (Co.  Litt.  161a)  says  :  '  When 
a  man  has  taken  a  distresse,  and  the  cattle  distreyned,  as  he  is  driving 
of  them  to  the  pound,  go  into  the  house  of  the  owner,  if  he  that  took 
the  distresse  demand  them  of  the  owner,  and  he  deliver  them  not,  this 
is  a  rescous  in  law.'  But  here  the  plaintiff's  son  permitted  the  horses 
to  stray  in  the  defendant's  shrubbery  for  half-an-hour,  they  were  not 
demanded  during  that  time,  and  that  was  an  abandonment  of  the  right 
of  freshly  following.  Lord  Colce  also  says  :  '  If  the  cattle  of  themselves 
after  the  view  go  out  of  the  fee,  then  cannot  the  lord  distreyne  them ' '' 
{ib.).  A  plea  of  recaption  on  a  rescue  must  aver  that  the  recaption  was 
on  fresh  pursuit  {Rich  v.  WoolJcy,  7  Bing.  G51). 

In  Badkin  v.  Powell  it  was  held  that  trespass  vi  et  armis  does  not  lie 
against  a  pound-keeper  merely  for  receiving  a  distress,  though  tlie  original 
taking  be  tortious,  but  secus  if  he  exceeds  his  duty,  and  assents  to  the 
trespass.  This  was  a  case  of  trespass  by  the  plaintiff,  who  was  a  running 
dustman,  against  the  three  defendants,  two  of  whom  had  detained  the 
})laintiff's  cart  and  horses  in  the  street,  under  the  pretext  that  they  were 
an  estray.  Lord  Mansfield  C.J.  thus  defined  a  pound-keeper's  duties : 
"The  pound-keeper,  who  is  the  third  defendant,  had  no  concern  in 
taking  or  bringing  them  to  the  pound.  How,  then,  is  he  guilty  of 
trespass  ?  The  pound  is  in  the  custody  of  the  law ;  and  the  pound- 
keeper  is  Ijound  to  take  and  keep  whatever  is  brought  to  him  at  the 


DUTIES    OF   POUNDKEEPER.  269 

peril  of  tlie  person  who  brings  it.  There  is  no  judgment,  no  direction, 
no  written  warrant  or  examination  to  be  had  by  him.  When  is  the 
trespass  committed  by  him  ?  He  does  nothing  to  ratify  it.  He  only 
takes  the  cattle,  as  he  is  obhged  to  do,  at  the  peril  of  the  persons  who 
bring  them.  If  wrongfully  taken,  they  are  answerable,  not  he.  It 
would  be  terrible  if  a  pound-keeper  were  liable  to  an  action  for  refusing 
to  take  cattle  in,  and  were  also  liable  in  another  action  for  not  letting 
them  go.  If  he  goes  one  jot  beyond  his  duty,  and  assents  to  the  tres- 
pass, that  may  be  a  different  case.  When  cattle  are  once  impounded  he 
cannot  let  them  go  ^\dthout  a  repleyin,  or  without  the  consent  of  the 
party.  Upon  their  being  released,  he  is  entitled  to  legal  fees.  If  he  is 
guilty  of  extortion,  there  is  another  remedy.  The  law  thinks  him  so 
indiflPerent  a  person,  that  if  the  pound  is  broken  the  pound-keeper  can- 
not bring  an  action,  but  it  must  be  brought  by  the  party  interested." 

And  so  in  Rex  v.  Bradslmw,  Coleridge  J.  defined  the  dutij  of  a  hay- 
ward:  "  We  may  take  it  that  the  duty  of  the  hay  ward  is  to  keep  the 
lanes  clear,  by  impounding  stray  cattle  that  he  may  find  there  ;  but 
that  with  respect  to  stray  cattle  found  on  private  land  the  hayward  is 
only  the  private  servant  of  the  parties,  if  they  send  for  him.  I  should 
be  certainly  inclined  to  ask  whether  there  is  any  authority  which  lays 
down  that  a  hayward  is  bound  to  go  into  private  fields.  If  there  were 
extensive  commons  in  this  parish,  I  should  hold  them  to  fall  within  the 
same  rule  as  the  lanes.  It  is  true  that  if  these  cattle  had  got  to  the 
pound  and  been  rescued  from  it,  the  defence  would  have  been  pound- 
breach, but  in  some  places  the  offices  of  hayward  and  pound-keeper  are 
distinct,  and  held  by  separate  persons.  If  the  hayward  had  driven 
cattle  to  the  pound,  which  he  had  found  straying  in  the  lanes,  I  should 
have  held  that  they  were  in  the  custody  of  the  law  from  the  first,  and 
that  the  rescue  of  them  on  their  way  to  the  pound  would  be  indictable ; 
but  here,  till  the  cattle  got  to  the  pouud  the  hayward  was  merely  act- 
ing as  the  servant  of  Mr.  Stone,  on  whose  land  the  cattle  were  found, 
and  therefore  at  that  time  a  rescue  of  them  was  no  more  indictable  than 
if  Mr.  Stone  had  himself  been  driving  them  to  the  pound,  and  they  had 
been  rescued  from  him  ;  and  till  those  cattle  had  got  to  the  pound  I  am 
of  opinion  that  they  could  not  be  considered  in  the  custody  of  the  law, 
and  that  the  rescue  of  them  was  therefore  not  indictable." 

The  treatment  of  animals  in  the  pound  is  fully  provided  for  by  12  &  13 
Vict.  c.  92,  ss.  5  &  6,  which  enacts  that  every  one  who  impounds  an 
animal,  "  in  any  pound  or  receptacle  of  the  like  nature,"  shall  provide 
it  with  a  sufficient  quantity  of  fit  and  wholesome  food  and  water,  under 
a  penalty  of  20s. ;  and  that  in  case  an  animal  is  left  so  unprovided  lor 
more  than  twelve  successive  hours,  any  one  may  from  time  to  time  enter 


270  TREATMENT   OF    ANIMALS    IN    POUND. 

and  supply  it  with  food  and  water,  without  being  subject  to  an  action 
of  trespass,  and  recover  the  reasonable  cost  of  such  food  and  water  from 
the  owner  of  the  animal,  before  it  is  removed.  As  it  was  doubtful 
whether  this  latter  act  gave  any  remedy  to  the  person  impounding  for 
the  recovery  of  the  value  of  the  food  and  water  supplied,  and  certainly 
gave  no  power  to  sell  the  animal,  although  full  provisions  for  those  pur- 
poses were  given  by  5  &  6  WiU.  IV.  c.  59  (repealed),  stat.  17  &  18  Vicf. 
c.  60  was  enacted,  which  provided  by  section  1  that  all  persons  who  had 
impounded  animals,  &c.,  since  12  &  13  Vict.  c.  92,  or  should  hereafter 
impound  them,  might  recover  from  their  owners  not  exceeding  double 
the  value  of  the  food  and  water  so  already  or  hereafter  to  be  supplied, 
and  might  sell  them  pul)licly  in  the  market  after  the  expiration  of  seven 
clear  days  from  the  time  of  the  impounding,  and  after  having  given  three 
days'  public  printed  notice  thereof,  and  after  discharging  the  value  of 
such  food  and  water,  sale  expenses,  &c.,  hand  over  the  surplus  (if  any) 
to  the  owner. 

By  section  1  of  6  &  7  Vict  c.  30,  jwrsons  relmshnj  or  afffm^jfinf/  to 
release  cattle  imjm/nded,  or  ilamafjing  any  pound,  etc.,  upon  conviction 
before  justices  are  to  forfeit  £5,  or  be  imprisoned  for  not  less  than  four- 
teen days  in  default  of  payment.  For  decisions  on  5  &  6  WiU.  IV., 
c.  59,  as  to  supplying  animals  in  the  pound  with  food  and  selling  them 
for  its  value,  see  Machcll  v.  Ellis,  Laijton  v.  Harry,  and  Mason  v.  Neiv- 
hnd.  A  distrainor  cannot  work  or  use  the  thing  distrained,  as  he  has 
only  the  custody  of  it  as  a  pledge  (Bac.  Ab.  tit.  Distr.  D).  Cows  may 
be  milked  in  the  pound,  and  there  is  no  difference  in  this  respect 
between  those  taken  for  a  distress,  or  in  ivWiernam  or  as  estrays.  And 
see  the  cases  collected  in  Gilbert's  "  Law  of  Distress,"  page  65. 

Impounder  hound  to  know  state  of  pound. — A  person  who  distrains 
cattle  damage  feasant  is  bound,  at  his  peril,  to  take  care  that  the  place 
in  which  he  impounds  them  is  in  a  fit  and  proper  state,  and  is  hable  for 
the  consequences  if  it  is  not  {Biynell  v.  Clark)  and  {Wilder  v.  Speer, 
8  Ad.  &  E.  547.) 

Where  cattle  distrained  damage  feasant  were  in  a  private  pound  (an 
outhouse),  and  the  distrainor's  wife  admitted  that  they  were  to  be  for- 
warded to  a  public  pound,  the  tender  of  amends  was  not  too  late.  Here 
there  was  abundant  evidence  that  the  wife  was  authorized  to  receive  such 
tender.  It  was  not  too  late,  as  the  cattle  were  not  in  the  custody  of  the 
law  (Broume  v.  Poa-etl).  And  semUe  per  Best  C.J.,  the  piovnd  of  the  lord 
of  the  manor  is  the  only  pound  sufficient  to  make  a  tender  of  amends 
too  late ;  and  if  it  were  otherwise,  the  distrainor  by  impounding  on  the 
spot  where  he  takes  the  cattle,  or  very  near,  might  exclude  the  possibility 
of  any  tender  being  made  {ib.)  (4  Bing.  230). 


TENDER   WHEN    NOT    TOO    LATE.  271 

But  detinue  will  not  lie  for  goods  impounded  damage  feasant,  where 
tender  of  amends  has  been  made  after  the  impounding,  Gahvay  v.  Cozens 
(1  C.B.  788  ;  14  L.J.  (N.S.)  C.P.  215),  and  Singleton  v.  Williamson. 

Tender  not  too  late  if  made  after  imjmunding  and  before  sale. — An  action 
is  maintainable  upon  the  equity  of  the  statute  2  Will.  &  Marg,  stat.  1, 
c.  5,  s.  2,  for  selling  goods  seised  under  a  distress  for  rent,  where  a  tender 
of  the  rent  and  expenses  has  been  made  before  the  sale,  and  within  five 
days  of  the  seizure,  although  after  impounding  ;  Ullis  v.  Ta?jlor  is  there- 
fore overruled.  And  per  Curiam:  "The  case  most  relied  upon  by  the 
defendant  was  that  of  Ellis  v.  Taglor  (8  M.  &  W.  415,  and  10  L.J. 
(N.S.)  Ex.  462),  in  which  the  Court  held,  upon  the  authority  of  two 
previous  cases,  that  a  tender  after  impounding  a  distress  for  rent  was 
too  late.  The  two  cases  were  Thomas  v.  Harris  (1  M.  &  G.  695,  9  L.J. 
(N.S.)  C.  P.  308),  in  which  Mr.  Justice  Maide  differed  from  the  other 
judges  ;  and  Ladd^.  Thomas  (12  Ad.  &  E.  117,  and  9  L.J.  (N.S.)  Q.  B. 
345).  Undoubtedly  those  cases  are  authorities  upon  the  point.  But 
notwithstanding  those  decisions,  the  judges  of  the  Court  who  heard  the 
argument  were  unanimously  of  opinion  that  upon  the  equity  of  the 
statute  of  Will  &  Marg,  before  referred  to,  an  action  is  maintainable  for 
selling  goods  distrained  for  rent  after  tender  of  tlie  rent  and  expenses 
though  the  tender  be  made  after  the  impounding."  And/?er  Cromplon 
J. :  "  The  Court,  in  Ellis  v.  Taylor,  seems  to  have  assumed  that  because 
it  had  been  decided  that  the  defendant  could  lawfully  keep  the  goods, 
notwithstanding  a  tender,  if  it  was  after  impounding,  he  had  therefore 
a  right  to  sell.  The  case  of  Glgn  v.  Thomas  (11  Ex.  870,  &  25  L.J. 
(N.S.)  Ex.  125)  carried  the  law  far  enough  against  tenants  "  {Johnson  v. 
Ujiham). 

Proper  person  to  receive  tender  of  rent. — On  distraining  for  rent,  the 
man  left  in  possession  on  the  premises  (being  other  than  the  person 
holding  the  warrant  ft-om  the  landlord  to  distrain)  has  no  authority  in 
law  to  receive  the  rent.  Where,  therefore,  W.  executed  a  warrant  of 
distress,  directed  to  him  by  the  landlord,  and  left  R.  on  the  premises  in 
possession,  and  the  tenant  tendered  the  rent  to  R.  who  refused  to  receive 
it,  the  tenant  knowing  that  R.  had  not  authority  in  fact  to  receive 
the  rent,  and  that  W.  had,  and  that  he  was  within  a  reasonable  and 
convenient  distance  of  the  premises,  it  was  held  that  the  tender  was 
invalid.  And  per  Hill  J. :  "  If  it  were  necessaiy  to  decide  whether  the 
bailiff  employed  to  make  a  distress  has  authority  to  receive  a  tender,  I 
should  say  he  has,  as  there  ought  to  be  somebody  who  may  be  conveni- 
ently applied  to  by  the  tenant  for  the  purpose  of  tender.  Pilhngtofi's  Case 
(Cro.  Eliz.  813)  decides  that  when  a  bailiff  goes  with  his  master,  who 
himself  distrains,  the  bailiff  has  no  authority  to  receive  a  tender  ;  but 


272        PROPER    MODE    TO    TRY    VALIDITY    OF    DISTRESS. 

I  sliould  agvQC  with  the  passage  ah'eady  alluded  to  in  Gilbert  on  Distress, 
pp.  82,  83,  that  where  the  baililt'  is  authorized  to  distrain,  and  distrains 
without  the  personal  intervention  of  the  landlord,  he  would  be  authorized 
to  receive  the  rent.  But  it  by  no  means  follows  that  because  a  tender 
may  be  well  made  to  the  bailiflf  or  broker  authorized  to  distrain,  a  tender 
may  be  made  to  any  person  assisting  in  the  distress,  and  it  would  be  a 
monstrous  proposition  to  say  that  the  rent  might  be  paid  to  any  irre- 
sponsible person  who  happened  to  be  left  by  the  bailiff  in  temporary  posses- 
sion of  the  goods.  The  case  of  Smith  v.  Goodwin  (1  Nev.  &  M.  371,  and 
4  B.  &  Ad.  413  ;  2  L.J.  (N.S.)  K.B.  192)  was  relied  upon  for  the  plain- 
tiff as  assuming  the  proposition  for  which  he  contended,  that  the  person 
left  in  possession  had  authority  to  receive  the  rent ;  but  in  that  case  the 
rule  was  refused,  on  the  ground  that  the  tender  to  the  landlord  himself 
was  good.  The  short  dictum  as  to  the  tender  to  the  man  in  possession 
was  wholly  unnecessary  and  beside  the  question  {Boulton  v.  Reynolds, 
29  L.J.  Q.B.  11). 

An  action  on  the  case  does  not  lie  for  detaining  cattle  distrained  damage 
feasant,  ivhere  tender  of  sufficient  amends  ivas  made  after  the  cattle  had 
been  impovnded  (Sheriff  v.  James).  It  was  also  held  in  Ansco7nhe  v.  Shore 
that  such  an  action  would  not  lie,  and  comnie  semble  such  an  action  could 
not  be  supported,  even  if  the  tender  of  amends  had  been  made  before 
the  impounding,  as  the  proper  mode  to  try  the  yahdity  of  a  distress  is 
by  an  action  of  replevin  or  trespass.  Lindon  v.  Hooper,  which  Lord 
Mansfield  C.J.  referred  to,  in  this  case,  decided  that  money  had  and 
received  did  not  lie  to  recover  back  money  paid  for  the  release  of  cattle 
taken  damage  feasant,  though  the  distress  were  wrongful,  the  proper 
remedy  being  trespass  and  replevin.  In  Glynn  v.  Thomas,  which  was 
argued  in  Error  from  the  Exchequer,  and  where  the  principle  on  which 
Lindon  v.  Hooper  was  decided,  was  expressly  in  pomt,  Coleridge  J. 
remarked,  "  Lindon  v.  Hooper  was  a  case  in  which  the  plaintiff's  cattle 
had  been  distrained  damage  feasant,  and  not  for  rent  in  arrear  ;  and  it 
was  acted  upon,  in  the  Court  of  Common  Pleas,  in  the  case  of  Gulliver 
V.  Cosens,  in  which  all  the  prior  authorities  were  carefully  reviewed,  and 
in  which  it  was  held  that  wlicre  cattle  arc  distrained  damage  feasant, 
an  exorbitant  sum  demanded  for  the  damage,  and  the  owner  pays  that 
sum  under  protest,  but  makes  no  tender  of  a  sufficient  sum,  he  cannot 
recover  back  the  sum  so  paid  as  money  had  and  received  to  his  use. 
And  in  the  same  case  it  was  further  held,  that  if  he  had  tendered  a 
sufficient  sum  before  the  distress  made,  his  remedy  would  have  been 
replevin  or  trespass  ;  if  after  the  distress,  but  before  impounding, 
detinue.  The  passage  cited  in  that  case  from  that  of  the  Six  Carpenters 
(8  Rep.  147)  is  very  important  in  thiS;  because  in  it  Lord  Coke  clearly 


ONUS    OF    ESTIMATING    DAMAGE    TO    LAND.  273 

puts  tender  of  arrears  of  rent  on  the  same  footing  with  tender  of  amends 
as  applicable  respectively  to  distress  for  rent  in  arrear,  and  distress  for 
damage  feasant.  In  GuUwer  v.  Cosens  the  Court  assumed  the  sum 
demanded  for  the  damage  to  have  been  excessive,  but  laid  it  down  that 
the  plaintiff,  being  the  original  wrong-doer,  was  still  bound  to  tender 
the  sum  which  he  alleged  to  be  sufficient ;  and  in  the  present  case  the 
plaintilf  for  the  same  reason  was  equally  bound  to  make  the  tender ; 
he  was  in  arrear  with  his  rent,  and  therefore  first  in  default :  by  the 
law  he  must  be  taken  to  know  the  amount  for  which  he  is  in  arrear,  and 
the  landlord  when  he  distrains  is  not  bound  to  inform  him." 

The  facts  of  Oulliver  v.  Cosens  were  as  follow:  A  flock  of  sheep, 
belonging  to  the  plaintiff,  having  strayed  upon  the  defendant's  land, 
they  were  distrained  as  damage  feasant  by  the  defendant,  who  refused 
to  restore  them  except  upon  payment  of  £2  15s.  9d.,  his  estimate  of  the 
damage.  This  the  plaintiff  paid  under  protest,  and  brought  an  action 
for  money  had  and  received.  It  was  urged  for  the  defendant,  on  the 
authority  of  Lindon  v.  Hoojmr,  that  the  action  was  not  maintainable, 
and  that  where  an  exorbitant  demand  was  made  for  compensation,  the 
only  remedy  was  replevin.  Alderson  B.  directed  a  nonsuit,  reserving 
to  the  plaintiff  leave  to  enter  a  verdict  for  that  sum,  if  the  Court  should 
think  the  action  well  brought.  The  actual  damage  done  by  the  sheep 
was  estimated  by  the  jury  at  5s.  The  Court  discharged  the  rule  ;  and 
Tindal  C.J.  thus  laid  down  the  law  on  the  subject : 

"The  question  at  issue  seems  to  me  to  depend  on  the  considera- 
tion npon  which  of  the  parties  has  the  law  cast  the  onus  of  estimating 
the  amount  of  damage  done  to  the  owner  of  the  land.  The  party  whose 
sheep  have  trespassed  is  in  the  first  instance  the  wrong-doer;  it  is 
therefore  upon  him  that  the  risk  of  estimating  the  amoun'  of  damage 
ought  to  rest,  and  not  upon  the  party  who  has  suffered  by  the  trespass. 
If  the  owner  of  the  cattle  elects  to  make  a  tender  of  sufficient  amends 
before  the  distress,  and  the  distrainor  refuses  it,  the  latter  becomes  a 
wrong-doer ;  but  a  tender  after  distress  does  not  entitle  the  owner  to 
replevy  his  cattle.  The  rule  of  law  cannot  be  more  clearly  stated  than 
is  done  by  Lord  Cole  in  the  Six  Carpenters'  case.  Vide  John  Matre- 
rer's  case :  it  is  held  by  the  Court  that  if  the  lord  or  his  bailiff'  comes 
to  distrain,  and  before  the  distress  the  tenant  tenders  the  arrears  upon 
the  land,  there  the  distress  taken  for  it  is  tortious.  The  same  law  for 
damage  feasant,  if,  before  the  distress,  the  tenant  tenders  sufficient 
amends ;  and  therewith  agree  7  Ediv.  III.  8  b.,  in  the  Jllaster  of  St. 
Mar¥s  case;  and  so  is  the  opinion  of  Mill  to  be  understood  in  13 
Hen.  IV.  17  &.,  which  opinion  is  not  well  abridged  in  title  'Trespass,' 
Fitzh.  pi.  180.     'Note,  reader,  this  difference,  that  tender  upon  the 


274        DETAIXTXG    CATTLE    AFTER    TENDER    OF   AMENDS. 

land  before  the  distress  makes  the  distress  tortious;  tender  after  tlie 
distress,  and  before  the  impounding,  makes  the  detainer,  and  not  the 
takingr,  wrongful ;  tender  after  the  impounding  makes  neither  the  one 
nor  the  other  wrongful,  for  then  it  comes  too  late,  because  then  the 
cause  is  put  to  the  trial  of  tlie  law,  to  be  there  determined.  But,  after 
the  law  has  determined  it,  and  the  avowant  has  return  irreplevisable, 
yet  if  the  plaiutitt"  makes  him  a  sufficient  tender,  he  may  have  an  action 
of  detinue  for  the  detainer  after ;  or  he  may,  upon  satisfaction  made  in 
Court,  have  a  writ  for  the  re-delivery  of  his  goods.' 

"  Tt  appears  to  me  that  when  the  present  plaintiflF  found  he  was  too 
late  to  make  a  tender  so  as  to  entitle  himself  to  replevy  the  sheep,  and 
to  succeed  in  an  action  of  replevin,  his  proper  course  was  to  make  a 
tender  of  sufficient  amends  to  cover  the  damage  sustained  ;  and  in  the 
event  of  the  defendant  refusing  to  accept  the  sum  tendered,  and  deliver 
up  the  sheep,  he  should  have  brought  detinue  {i.e.,  upon  a  tender  lefure 
the  impounding),  for  they  were  held  by  the  defendant  merely  as  a  pledge. 
In  that  case  the  hazard  of  the  sufficiency  of  the  tender  would  fall,  as  it 
ought  to  do,  on  the  owner  of  the  cattle.  It  has  been  urged  that  here  a 
tender  was  unneccsi^ary,  inasmuch  as  the  sum  demanded  for  compensa- 
tion was  exorbitant.  That  argument,  however,  as  it  seems  to  me,  is 
answered  by  saying  that  the  risk  of  determining  the  real  amount  of 
damage  is  not  by  law  imposed  upon  the  defendant.'  This  I  should  be 
disposed  to  hold  upon  principle,  and  independently  of  the  authority  of 
Lindon  v.  Hoojjpr,  which  I  am  unable  to  get  over,  and  which  I  am  not 
aware  has  been  overruled  ;  and  though  cases  have  occurred  in  which  it 
has  been  decided  that  an  excessive  demand  dispenses  with  a  tender,  yet 
those  were  cases  where  the  law  made  it  incumbent  on  the  defmdant 
correctly  to  ascertain  the  amount  of  his  demand.  The  cases  of  Barrett 
V.  The  Stockton  and  Darlington  Railway  Comjinny  and  Parker  v.  The 
Great  Western  Railway  Company  range  themselves  within  this  class. 
The  cases  of  Knihhs  v.  Hall  and  Skeate  v.  Beale  follow  the  doctrine  of 
Lindon  v.  Hooper,  On  authority,  therefore,  as  well  as  principle,  the 
verdict  for  the  defendant  ought  to  stand." 

And;w  Mauh  J.  :  "The  owner  of  the  land  is  no  wrong-doer  if  he 
distrains  before  tender  made  ;  nor  is  he  a  wrong-doer  if  he  impounds 
before  tender,  or  after  an  insufficient  tender.  Here  the  real  question  is, 
whose  duty  it  was  to  estimate  the  damage  :  if  the  owner  of  the  cattle 
was  bound  to  make  a  tender,  he  was  to  ascertain  the  amount  at  his 
peril." 

An  action  will  lie  against  a  landlord,  at  the  suit  of  the  tenant,  for  de- 
laining  the  goods  taken  under  a  distress,  after  tender  of  rent  in  arrear  and 
costs,  before  imjioundiny  {Loring  v.  Warhurton).     And  per  Coleridge  J.  : 


DISTRAINING    CATTLE    OF    STRANGER.  275 

''  This  case  is  clearly  distinguishable  from  Glynn  v.  Thomas ;  there  it 
did  not  appear  that  the  tender  was  made  before  impounding  "  {ih). 

The  note  in  Poole  v.  LongvcvUh  says,  "Agreeable  to  the  opinion  of 
Smmders,  the  settled  distinction  seems  now  to  be,  that  where  a  stranger's 
cattle  escape  into  another's  land  by  breaking  the  fences  where  there  is 
no  defect  in  them,  or  if  the  tenant  of  the  land  where  the  distress  is 
taken  is  not  bound  to  repair  the  fences  though  there  is  a  defect  in  them, 
the  cattle  may  be  distrained  for  rent  immediately  before  they  are  levmit 
and  coufliant ;  but  if  the  cattle  escape  through  the  defect  of  fences 
which  the  tenant  of  the  land  is  bound  to  rei)air,  they  cannot  be  distrained 
by  the  landlord  for  rent,  though  they  have  been  levant  and  couchant, 
unless  the  owner  of  the  cattle  after  notice  that  they  are  in  the  land 
neglects  or  refuses  to  drive  them  away,  for  the  landlord  shall  not  take 
advantage  of  his  own  wrong  ;  and  this  case  of  Poole  v.  Lo7igueviUe  (if 
cattle  escape  out  of  an  adjoining  close,  and  are  levant  and  couchant,  ad- 
judged that  they  may  be  distrained  for  rent,  though  they  escape  through 
the  defect  of  fences  which  the  party  distraining  ought  to  have  repaired) 
is  denied  to  be  law." 

Littledale  J.  said,  in  Safferi/  v.  Elgoocl,  which  was  confirmed  in  Jolin- 
son  v.  FauUnur,  "The  cccttle  of  a  stranger  are  cUstrainahle  for  a  rent-charge, 
unless  they  are  shown  to  have  been  placed  there  by  some  one  who  has 
an  interest  paramount  to  the  charge."  "A  rent-charge  is  a  rent  with 
power  of  distress  ;  and  unless  the  grantee  could  distrain  the  cattle  of  a 
stranger  being  upon  the  land,  I  know  not  what  would  be  the  use  of  a 
power  of  distress ;  for  the  land  might  get  into  the  hands  of  a  stranger. 
In  order  to  exempt  the  cattle  of  a  stranger,  he  ought  to  show  some 
interest  in  the  land,  paramount  to  that  of  the  grantee  of  the  rent-charge." 
"  In  2  Saund.  290  there  is  a  note  which,  referring  to  the  case  of  a 
stranger's  cattle  escaping  into  another's  land  by  breaking  the  fences, 
says,  'The  lord  ox  grantee  of  a  rent-charge,  who  had  nothing  to  do  with  the 
fences,  may  in  such  case  distrain  the  cattle  after  they  have  been  levant 
and  couchant,  though  no  notice  is  given  to  the  owner.'  Kemp  v.  Creives 
is  there  cited.  That  case  may  be  considered  as  having  settled  the  law 
that  a  grantee  of  a  rent-charge  may  distrain  the  goods  of  a  strarger 
being  upon  the  land  charged." 

Cattle  which  cere  upon  land  hg  wag  of  agistment  may  be  distrained  for 
rent  (Roll.  Abr.  669  ;  Cro.  Eliz.  549).  In  FowJces  v.  Jogce,  a  grazier's 
servant  driving  a  flock  of  123  fat  sheep  to  London,  was  encouraged  by 
an  innkeeper's  servant  to  put  his  sheep  into  pasture  grounds  belonging 
to  an  inn,  at  the  usual  rate  of  eightpeuce  per  score  per  night.  Before 
they  were  levant  and  couchcint  the  landlord,  Joyce,  whose  rent  was  £132 
in  arrear,  demanded  whose  they  were,  and  seeming  to  be  angry  the 

T  2 


27G       SALE    OF    TENANTS    GOODS    UNDER    BILL    OF    SALE. 

drovers  said  they  would  take  out  their  sheep.  At  hist  he  said  they 
might  stay  in  for  tlie  night  ;  and  when  the  men  were  gone  to  the  inn 
he  drove  the  slieep  to  the  pound,  where  they  were  kept  four  or  five  days, 
and  had  to  be  replevied.  It  Avas  decided  that  they  were  liable  to  dis 
tress  ;  but  the  grazier  was  afterwards  relieved  in  equity,  on  the  ground 
of  fraud  in  Joyce,  who  was  decreed  to  pay  all  the  costs  both  in  law 
and  equity.  Serjeant  Williams  adds,  in  his  note  on  this  case  (2  Saund. 
290  a),  "  And  it  should  seem  at  this  day,  a  court  of  law  would  be 
of  opinion  that  cattle  belonging  to  a  drover  being  put  into  a  ground 
with  the  consent  of  the  occu])ier,  to  graze  oidy  one  night  on  their  way 
to  a  fair  or  market,  are  not  liable  to  the  distress  of  the  landlord  for 
rent." 

In  Horsford  v.  Wchsler,  a  tenant's  goods,  includhig  certain  eatage, 
were  sold  under  a  bill  of  sale  ;  and  his  landlord  (whose  agent  was  the 
defendant)  agreed  to  let  the  sale  proceed  on  condition  that  the  arrears 
of  rent  for  which  he  had  put  in  a  distress  should  be  paid  out  of  the 
proceeds.  It  was  stated  at  the  time  of  sale  (November),  where  the  de- 
fendant attended,  that  the  purchaser  should  have  liberty  to  consume  the 
grass  in  the  close  till  February  25,  when  the  tenant's  interest  in  them 
terminated.  The  plaintiff  purchased  the  eatage  ;  and  as  the  sale  did 
not  cover  the  arrears,  the  landlord  distrained  the  plaintiff's  cattle,  which 
were  eating  it  off.  It  was  held  by  Lord  AUnger  C.B.,  Bolland  B.,  and 
Chiniei)  B.  {Parlie  'B.  diss.)  that  a  contract  was  to  be  implied  on  the 
part  of  the  landlord  not  to  distrain  the  cattle  of  such  purchaser.  Gurney 
B.  considered  that  any  other  construction  of  the  agreement  at  the  sale 
"  would  render  the  transaction  merely  a  trap  for  the  cattle  of  any  ])erson 
who  purchased  the  eatage  sold  under  the  sanction  of  the  landlord  him- 
self." Bolland  B.  said  he  was  "  at  first  struck  Avith  the  case  of  FowTces 
V.  Joyce,  which  was  relied  on  for  the  defendant.  The  point  there  was, 
whether  the  plaintiff'  had  any  right  to  the  privilege  of  having  his  cattle 
unmolested.  There  was,  in  fact,  no  consideration  to  support  the  grant 
of  any  such  privilege  ;  but  suppose  the  landlord  there  had  by  agreement 
taken  a  portion  of  the  rent  from  the  owner  of  the  cattle,  could  he  after- 
wards have  distrained  ?  " 

Where  a  tenant,  ivho  is  shortly  alout  to  quit  his  farm,  advertises  for 
sale  hy  auction  his  stocJc,  Ax.,  upon  the  farm,  his  payment  of  rent  already 
due  and  to  becoms  due  at  the  exjnration  of  his  tenancy  to  his  land- 
lord, who  has  notice  of  the  intended  sale,  does  not  raise  an  implied 
ptromise  (no  actual  promise  was  proved  at  the  trial)  on  the  part  of  the 
landlord  not  to  interfere  with  or  prevent  the  sale  or  the  removal  of  the 
property,  and  the  tenant  cannot  recover  damages  caused  by  the  hindrance 
of  the  sale  {Bushhy  v.  Fisher).     In  Thomas  v.  Williams,  a  tenant  of  the 


IMPLIED    PROMISE    NOT    TO    INTEP.FERE    WITH    SALE.      377 

])laintiff"s  had  cng^aged  the  defendant  to  sell  his  goods  ;  but  on  the  sale 
day  (August)  the  plaintiff  arrived  at  the  farm  Avith  a  bailiif  and  a  notice 
of  distress  for  part  of  a  half-year's  rent  due  on  the  25  th  of  Marcli.  The 
defendant  verbally  promised  that  if  he  would  not  distrain  for  the  rent 
due,  and  let  the  sale  proceed,  he  would  pay  him  not  only  the  rent  due, 
but  the  rent  that  would  be  due  at  Michaelmas.  It  was  held  that  the 
promise  to  pay  the  accruing  rent  Avas  a  promise  founded  on  a  new 
consideration  distinct  from  the  demand  which  the  plaintiff  had  against 
his  tenant,  and  therefore  void  by  the  29  Gar.  II.  c.  3,  s.  4  ;  and  that 
the  promise  being  entire,  and  in  the  commencement  void  in  part,  was 
void  altogether  ;  and  that  the  plaintiff  therefore  could  not  recover 
from  the  defendant  the  rent  due  on  the  25th  of  March.  Lexington 
V.  Clarlc  and  Chafer  v.  Beckett  Avere  authorities  directly  against  the 
plaintiff  on  the  question  whether  the  promise,  being  void  in  part, 
could  be  held  good  as  to  the  other  part,  viz.,  the  arrears  due  at  Lady- 
day,  in  respect  of  which  it  might  have  been  good  if  confined  to  those 
arrears. 

A7i  agreement  to  take  interest  on  rent  in  arrear  does  not  take  away 
the  right  of  distress  {Skerry  v.  Preston).  But  j^er  Bagleg  J.,  the  landlord 
could  not  distrain  for  the  interest  {ili.).  According  to  Davis  v.  Ggde,  a 
promissorij  note  given  hy  the  tenant  to  his  landlord  for  rent  does  not  of 
itself  suspend  the  right  of  distress  until  the  note  is  due.  Gage  v.  Acton 
decided  that  a  debt  due  on  a  bond  may  be  set  off  against  rent,  because 
the  latter  is  in  the  nature  of  a  specialty  debt ;  and  in  Davis  v.  Ggde 
the  promissory  note  being  a  debt  of  inferior  degree  to  the  rent,  the 
receipt  of  the  note  created  no  extinguishment  of  the  rent.  Assuming 
that  the  taking  of  the  promissory  note  might  operate  as  a  suspension  of 
the  riglit  to  distrain,  the  Court  there  held  that  an  agreement  between 
the  parties  to  that  effect  should  have  been  pleaded. 

In  Parrot  and  anor.  v.  Anderson,  one  Love,  a  tenant,  being  indebted 
to  his  landlord  for  rent,  gave  the  agent  of  the  latter  a  hill  of  exchange  at 
ibur  months  for  £146  rent,  which  he  indorsed  to  a  third  person,  and 
afterwards  paid  the  rent  to  the  landlord,  giving  credit  for  it  in  his 
accounts  as  if  the  tenant  had  paid  the  money.  The  bill  was  dis- 
honoured ;  and  Love  having  taken  the  benefit  of  the  Insolvent  Act,  the 
defendant,  Avho  was  the  mortgagee  of  his  farm,  distrained  his  goods  for 
rent,  inchiding  the  £146,  and  the  assignees  brought  this  action  for 
excessive  distress.  Mavle  J.  thought  that  the  plaintiffs  were  not  en- 
titled to  recover  ;  and  it  was  arranged  that  they  should  be  nonsuited, 
leave  being  reserved  to  enter  a  verdict  for  £80,  if  on  the  facts  of  the 
case  the  learned  judge  ought  to  have  directed  a  verdict  for  them. 
After  consultation  with  Maulc  J.,  who  reported  that  he  was  requested 


278  AUTHOKITY    BY    LANDLORD    TO    DISTRAIX. 

to  leave  the  matter  to  the  jury  only,  if  he  could  tell  them  that  they 
mast  find  a  verdict  for  the  plaintiff,  the  Court  refused  a  rule.  Pollock 
C.B.  said  :  "  The  tenant  cannot  take  advantajj^e  of  such  a  payment. 
Suppose  the  steward  of  a  landowner  took  bills  of  exchange  for  rent,  and 
then  remitted  the  amount  to  the  landholder,  might  he  not  distrain  if 
the  bills  were  dishonoured  ? "  Kndiper  Alderson  B.  :  "  If  the  defendant 
himself  had  received  the  bill  of  exchange,  and  it  was  afterwards  dis- 
honoured, could  he  not  have  distrained  ?  "  Farlce  B.  thought  the  de- 
fendant liable  to  refund,  on  the  ground  that  the  money  was  paid  by 
the  agent  under  a  mistake  of  fact ;  and  added,  "  It  is  a  question  of  fact 
whether  this  payment  by  the  agent  was  a  loan  to  the  tenant,  or  whether 
the  money  was  advanced  by  the  agent  to  the  landlord.  A  similar  point 
arose  in  Griffiths  v.  ClticJtcstcr.  If  the  transaction  amounted  to  a  dis- 
count of  the  bill  by  the  agent  for  the  tenant,  then  the  rent  was  paid  ; 
but  if  it  was  only  an  advance  of  the  rent  by  the  agent  to  the  landlord, 
then  he  was  entitled  to  distrain."  The  principal  acted  on  in  Slcijrinfj  v. 
Greenwood  also  applied  here. 

Where  a  landlord  gires  an  autJioritij  to  distrain  for  rent,  he  thereby 
necessarily  authorises  the  bailiflp  to  receive  it  if  tendered  {Hatch  v.  Hale). 
In  Lewis  v.  Rectd  the  landlord  verbally  authorized  his  bailiffs,  through 
his  agent  (Owens),  to  distrain  for  rent  due  to  him  fi'om  his  tenant,  of  a 
farm  called  Aberbortheu,  and  a  mountain  sheep-walk,  Peubryn,  direct- 
ing them  not  to  take  anything  except  on  the  demised  premises.     The 
bailiff  distrained  sheep  of  another  person's  (supposing  them  to  be  the 
tenant's)  beyond  the  boundary  of  the  farm ;  the  cattle  were  sold,  and 
the  landlord  received  the  proceeds.     It  was  held  that  the  landlord  was 
not  liable  in  trover  for  the  value  of  the  cattle  unless  it  were  found  by 
the  jury  that  he  ratified  the  act  of  the  bailiffs  with  knowledge  of  the 
iiTegularity,  or  that  he  chose,  without  inquiry,  to  take  the  risk  upon 
himself  and  adopt  the  whole  of  their  acts.     The  defendants  had  first 
seized  about  a  dozen  sheep  which  they  found  on  the  Penbryn  mountain  ; 
and  while  they  were  driving  thein  down,  and  somewhere  very  near  the 
boundary  of  the  Penbryn  sheep-walk,  these  were  joined  by  the  other 
sheep  (making  forty  in  all),  which  had  been  straying  upon  an  adjoining 
sheep-walk  l)elonging  to  am^lher  farm.     Owens  received  the  proceeds  of 
the  sale  of  the  sheep,  and  accounted  for  the  money  to  Read,  the  defend- 
ant ;  but  there  was  no  direct  evidence  that  either  Owens  or  Read  was 
informed  where  the  sheep  were  taken,  or  had  any  disLinct  knowledge 
that  the  distress  was  not  made  on  the  Penbryn  sheep-walk. 

Payment  of  rent  under  a  distress  is  not  a  conclusive  admission  of  title 
in  the  distrainor,  but  may  be  rebutted  by  showing  that  he  never  had 
any  title  (Knight  v.  Cox).     A  tender  of  the  rent  "  under  protect "  is 


TRESPASS    MAINTAINABLE    AFTER    TENDER.  279 

good  ;  but  it  should  be  made  generally  without  any  condition  or  quali- 
fication being  imposed  on  the  receiver  {Manniipj  v.  Liuin).  Bat  tender 
of  saf is/action  to  a  distrainor  is  too  late  after  the  goods  have  been  im- 
pounded, and  this  rule  applies  equally  to  goods  seized  for  rent  as  well 
as  to  cattle  taken  damage  feasant  {Ladd  v.  Thomas).  Patteson  J.  said, 
"  That  such  a  tender  cannot  avail  where  cattle  have  been  distrained 
damage  feasant,  is  shown  beyond  a  doubt  by  the  cases  of  Sheriff  v.  James 
and  Anscomh  v.  Shore.  The  same  doctrine  has  been  laid  down  as  to 
goods  taken  for  rent  in  FirtJb  v.  Purvis:  but  that  was  an  act  for  pound 
breach ;  and  it  was  enough  for  the  decision  of  the  case,  that  the  tenant 
had  no  right  to  take  the  law  into  his  own  hands  "  {it).).  And  per  Lord 
Denman  C.J. :  "  I  must  say  I  think  continuing  in  possession  after  a 
proper  tender  is  ground  for  an  action  of  trespass  j  that  Lord  Ellen- 
horovgKs  doubts  on  that  subject,  in  Winterhourne  v.  Morgan,  were  not 
well  founded ;  and  that  Lc  Blanc  J.  and  Bagley  J.  took  a  right  view  of 
it  "  (/&.). 

Parke  B.  ruled,  in  Vcrtue  v.  Beasley,  that  a  tenant  tendering  Ms  rent 
and  the  costs  after  distress  taken,  hut  before  it  is  impounded  or  removed, 
may  maintain  tresjmss  for  a  subsequent  removal  of  the  distress.  His 
lordship  added:  "  The  statute  11  Geo.  2,  c.  19,  s.  10,  gives  the  option  of 
proceeding  by  case  or  trespass.  If  the  injury  had  arisen  from  a  mere 
neglect  to  do  some  act  {i.e.,  the  mere  omission  to  restore  the  goods  after 
acceptance  of  the  rent),  case  would  have  been  the  only  proper  remedy." 
The  cause  of  action  here  was  not  the  mere  retaining  possession,  but  the 
wrongful  removal  of  the  goods  after  the  tender  ;  and  hence  the  Court 
of  Common  Pleas  did  not  consider  that  their  decision  in  West  v.  Nibbs 
conflicted  with  it.  It  was  decided  in  West  v.  Nibbs,  that  a  landlord 
who  had  accepted  the  rent  in  arrear  and  the  expenses  of  the  distress 
after  the  impounding  cannot  be  treated  as  a  trespasser  merely  because 
he  retains  possession  of  the  goods  distrained,  although  his  refusal  to 
deliver  them  up  to  the  tenant  may  amount  to  a  conversion,  so  as  to 
render  him  liable  in  trover.  And  per  Cresswell  J.,  Evans  v.  Ellioi  (in 
which  it  was  held  that  replevin  lay,  at  common  law,  for  a  wrongful  de- 
tention of  goods  taken  under  a  lawful  distress),  "  is  an  authority  for  the 
proposition  that,  where  there  has  been  a  tender  between  the  taking  and 
the  impounding,  a  detention  after  the  tender  is  suSicient  to  satisfy  the 
usual  allegation  in  a  declaration  in  replevin,  that  the  defendant  took, 
&c.,  and  detained,  &c.;  but  yet  it  does  not  decide  that  the  mere  retain- 
ing by  the  landlord  of  the  goods  distrained,  after  the  tenant  has  gained 
a  right  to  have  them  delivered  up  to  him,  will  render  the  landlord 
liable  to  an  action  of  trespass."  And  per  Wilde  C.J.,  in  allusion  to 
Evans  v.  Elliot :  "  My  present  impression  certainly  is  that  trespass  will 


2 so  RECOVERY    OF    RENT-CHARGE. 

not  lie  for  tlic  mere  detention  of  the  goods  ;  the  goods  being  in  the 
custody  of  the  law,  the  distrainor  is  under  no  legal  obligation  actively 
to  re-deliver  them  ;  the  owner  must  take  due  means  to  re-possess  him- 
self of  them"  (iJ.). 

A  rent-charge  may  ie  dwidcil  />//  irill  or  hy  deed  operating  wider  the 
Statute  of  Uses,  so  as  to  make  the  tenant  liable  without  attornment  to 
several  distresses  by  the  devisees,  or  cestuis  que  use,  and  semble  since 
the  statute  4  Anne,  c.  IC,  s.  9,  a  rent-charge  may  be  so  divided  by  a 
conveyance  of  any  kind  {Iliris  v.  Watson);  and  the  arrears  of  a  per- 
petual rent-cliarge  were  ordered  by  a  decree  of  Sir.  J.  Romdiy  M.R.  in 
White  V.  James,  to  be  raised  by  sale,  on  the  authority  of  Chqjit  v. 
Jacl'son. 

If  the  half-yearly  payment  of  a  rent-charge  on  land  under  the  Tithe 
Commutation  Act,  6  &  7  Wilt.  IV.  c.  71,  he  in  arrear,  and  no  sufficient 
distress  found,  the  owner  of  the  rent-charge  may  recover  such  arrear  for 
a  period  not  exceeding  two  years  by  assessment  and  writ  of  hahere  facias 
2)ossessionem,  under  sec.  82,  although  he  may  not  have  attempted  to  levy 
the  arrear  of  distress,  under  sec.  81,  at  the  end  of  each  or  any  but  the  last 
of  the  half-years,  and  although  at  the  end  of  one  or  more  of  such  previous 
half-years  there  may  have  been  a  suBBcient  distress  for  the  amount  then 
due  (In  re  Camlenvell  Rent-charge).  Patfeson  J.  said :  "  There  is  no 
reason  to  suppose  that,  although  a  party  might  distrain  for  an  arrear  of 
two  years,  the  legislature  intended  that  he  should  not  enforce  the  remedy 
under  sec.  82,  unless  he  attempted  to  distrain  at  the  end  of  a  single  half- 
year  and  no  distress  were  found.  The  construction  of  both  clauses  must 
be  the  same.  In  the  case  of  proceedings  on  a  vacant  possession  (11  Geo. 
II.  c.  19,  s.  16)  it  never  was  contended  that  if  the  landlord  omitted  to 
enforce  his  remedy  at  the  end  of  a  first  year  he  could  not  avail  himself  of 
it  afterwards."  It  was  held  by  the  Court  of  Exchequer  {Parlce  B.  diss.), 
substantially  on  the  authority  of  the  above  case,  that  where  under  the 
Tithe  Commutation  Act  the  halfgearly  payment  of  rent-chciryes  on  land 
shall  he  in  arrear  and  unpaid  for  40  days,  and  there  shall  bene  sufficient 
distress  on  the  premises  liable  to  the  payment  thereof,  it  shall  be  lawl'ul 
for  any  judge  of  Her  lilajesty's  courts  of  record  at  Westminster  to  make 
an  order  ex  parte,  without  summons  or  notice,  on  affidavit  of  the  f\icts, 
i'or  a  writ  to  issue  to  the  sheriff  to  summon  a  jury  to  assess  the  arrears 
of  rent-charge,  and  to  return  such  inquisition  to  one  of  the  superior 
courts  (In  re  Hammersmith  Rent-charye).  Lloyd  v.  Winton  is  a  clear 
authority  that  a  rent-charge  is  not  within  11  Geo.  II.  c.  19,  s.  22  ;  and 
it  was  held  by  the  Court  of  Common  Pleas,  in  Newnham  v.  Bever, 
principally  on  the  authority  of  Lindon  v.  Collins,  that  the  owner  of  a 
rent-charge  in  lieu  of  tithes,  distraining  under  the  81st  section  of  the 


DISTRESS    NOT    INSEPARABLE    FROM    RENT-SERVICE.      281 

6  &  7  Will.  IV.  c.  71,  aud  afterwards  obtaining  judgment  in  an  aetion 
of  replevin,  is  not  entitled  to  double  costs  under  11  Geo.  II.  c.  19,  s.  22 ; 
and  that  neither,  consequently,  is  he  entitled  to  "the  lull  and  reason- 
able indemnity  as  to  costs,"  substituted  for  double  costs  by  the  5  &  6 
Vict.  c.  97,  s.  2,  And  per  Maide  J. :  "  The  owner  of  the  rent-charge,  in 
distraining  for  it,  may  act  and  demean  himself  iu  relation  to  the  distress 
as  any  landlord  may  for  arrears  of  rent  reserved  on  a  common  lease  for 
3eurs  ;  that  is,  he  may,  without  becoming  a  trespasser  ah  initio, conduct 
himself  in  a  manner  not  strictly  conformable  with  the  proper  mode  of 
managing  a  distress"  (/7>.). 

The  right  of  distress  is  not  so  inseparahJe  an  incident  to  a  rent  service 
that  it  cannot  be  postponed  ;  and  therefore  where  one  A,  a  mesne 
landlord,  let  premises  to  an  under-tenant  by  a  written  agreement  which 
provided,  among  other  things,  that  no  distress  should  be  made  till  A 
had  produced  the  receipt  of  the  superior  landlord,  and  A  afterwards 
distrained  for  his  rent  without  producing  such  receipt,  it  was  held 
by  the  Court  of  Common  Pleas,  in  an  action  by  the  under-tenant 
against  the  broker  who  executed  the  distress,  that  A's  right  was 
postponed,  and  that  the  defendant  was  liable  as  a  trespasser  {Giles  v. 
Spencer).  And  the  fact  that  some  time  after  the  first  agreement,  A 
and  his  under-tenant  (who  entered  under  it)  agreed  by  parol  to  sub- 
stitute other  premises  for  those  originally  taken,  to  be  held  on  the 
same  terms,  constituted  a  new  contract,  aud  not  an  alteration  of  the 
terms  of  the  first  {ib.). 

A  distress  can  only  he  made  hij  law,  in  respect  of  a  fixed  ascertained 
rent  reserved  out  of  land  {Gardiner  v.  Williamson).  It  frequently 
happens  that  j^ersons  enter  and  occupy  at  a  rent  to  be  fixed  in  future. 
In  such  cases  no  distress  can  be  made,  but  an  action  may  be  brought 
for  the  rent  on  a  quantum  valehat  {Hanwrton  v.  Stead).  No  precise 
form  of  words  is  necessary  for  a  distress  ;  and  where  a  landlord  laid  his 
hand  on  a  lathe,  and  said,  "  I  will  not  suffer  this  or  any  of  the  things 
to  go  off  the  premises  till  my  rent  is  paid,"  it  was  held  that  the  distress 
Avas  sufficiently  commenced  to  entitle  him  to  the  article  in  question 
( Wood  V.  Nunn.) 

Distress  rendered  illegal  hy  improper  time  of  talcing  it. — In  two  cases, 
in  one  of  which  the  distress  was  taken  at  nearly  ^ight  o'clock  in  the 
evening,  when  by  the  almanac  the  sun  set  just  after  seven,  and  in  the 
other  it  was  taken  between  two  and  three  o'clock  on  the  morning  of  a 
day  on  which,  by  the  almanac,  the  sun  rose  shortly  before  half-past 
four,  and  there  was  no  other  evidence  upon  the  point,  nor  any  evidence 
as  to  whether  in  either  case  it  was  dark  when  the  distress  was  taken, 
but  the  jury  in  both  cases  found  that  it  was  taken  between  sunset  and 


282  IMPROPERLY    WORKING    A   DISTRESS. 

sunrise,  it  was  held  that  the  evidence  was  sufficieut  to  sustain  that 
lindiug,  and  that  the  distresses  therefore  were  illegal  (Tufton  v.  Darke ; 
Nixon  V.  Freeman). 

Improperly  working  a  distress. — If  a  distrainor  abuses  a  distress  by 
working  it,  the  owner  may  interfere  and  prevent  it,  and  no  action  can 
be  maintained  against  him  for  pound  breach  or  rescue.  Here,  after 
three  horses  of  the  defendant,  who  was  a  butty-collier  under  the  Messrs. 
Hickman,  tenants  to  the  plaintiffs,  of  a  colliery  at  a  surface  rent,  and 
also  at  a  mining  rent,  had  been  included  in  a  distress  for  colliery  rent 
levied  on  the  Messrs.  Hickman,  and  removed  to  a  stable  half  a  mile  off, 
and  notice  given  that  they  were  impounded  there,  the  plaintiffs'  ap- 
praiser directed  the  bailiffs  to  bring  two  of  them  to  work  in  the  pit. 
One  of  the  horses  was  locked  in  a  movable  stable  on  the  pit  bank,  and 
the  other  was  about  to  be  let  down,  when  the  defendants  took  forcible 
possession  of  both,  breaking  the  lock  of  such  stable,  turned  both  loose, 
and  then  took  them  away.  The  plaintiffs  got  a  verdict  of  XGO  treble 
damages  under  stat.  2  Wil.  &  Mary,  sess.  1,  c.  5,  with  leave  reserved  to 
the  defendant  to  enter  a  verdict  for  himself  on  the  ground  that  neither 
count  of  the  declaration  was  proved,  the  rescue  being  after  the  im- 
pounding, and  after  the  plaintiffs  had  taken  the  distress  from  the  pound 
for  an  unlawful  purpose ;  and  the  verdict  was  entered  for  the  defendant. 
And  2)er  Wilde  B. :  "  Here  there  was  a  plain,  palpable  misuse  of  the 
distress  of  the  most  aggravated  kind.  I  think,  under  the  circumstances, 
the  defendant  was  perfectly  justified  in  interfering.  I  think,  therefore, 
the  rescue  is  not  made  out.  With  regard  to  the  pound  breach,  it  seems 
to  be  perfectly  plain  that  directly  the  distrainor  has  taken  the  animals 
out  of  the  pound  for  the  purpose  of  using  them,  it  cannot  be  said  that 
they  are  any  longer  under  the  protection  of  the  law,  nor  in  any  artificial 
sense  can  they  be  considered  as  being  in  the  pound  contrary  to  the 
fact."     {Smilh  and  Anolhcr  v.  WriyliL) 

Distress  after  death  of  tenant. — T  being  tenant-at-will  at  a  yearly 
rent,  died  leaving  rent  in  arrear  ;  the  next  day  the  lessor  distrained  on 
the  premises  which  were  then  occupied  by  T's  servants  ;  his  widow 
came  into  occupation  the  day  after,  and  subsequently  took  out  adminis- 
tration to  her  husband.  It  was  held  that  the  distress  was  not  justified 
under  8  Anne,  c.  14,  ss.  6,  7,  as  it  was  not  made  "  dtiriny  the  possession 
of  the  tenant  from  whom  the  rent  became  due  ;"  and  senible  that 
WaUccrv.  Giles  (G  C.B.,  GG'2  ;  18  L.J.  (N.S.),  C.P.  323)  is  still  law  as  to 
the  construction  to  be  put  upon  similar  deeds,  and  is  not  overruled  by 
Pinhorn  v.  Sonster,  (8  Ex.,  7C>'6  ;  22  L.J.  (N.S.),  Ex.,  26G),  and  Brown 
V.  Metropolitan  Counties  Life  Assurance  tiociety  (28  L.J.  (N.S.),  Q.B., 
236;  ;  and  per  Mellor  J,,  ^'  Braithwaite  v.  Cooksey  (1  H.  Bl.,  467),  is 


OPEN    FIELD    SUFFICIENT    POUND.  283 

distinguishable  because  the  tenancy  did  not  expire  Avith  the  death 
{Turner  v.  Barnes  and  others). 

An  open  field  is  a  pound  sufficient  at  Jaw  in  ichich  to  distrain  cattle 
laJcen  fur  rent  arrear  {CastJenuiin  v.  Hides)  per  Coleridge  J.  AVhere  a 
bailiff  went  a  little  into  the  field  in  which  the  cattle  wei'e,  and  touching 
one  of  them  on  the  side,  said,  ^^  I  distrain  t/iese  cat  tk  for  rent;  "and 
then,  after  taking  a  list  of  them,  left  them  undisturbed  in  the  field 
(although  he  subsequently  returned,  and  then  placed  them  in  the 
charge  of  another  man),  without  putting  any  lock  or  additional  fasten- 
ing on  to  the  gate,  and  gave  notice  of  distress  to  the  tenant,  informing 
him  that  if  the  rent  and  costs  were  not  paid  he  would  proceed  to  sell 
in  five  days,  and  adding  that  the  cattle  were  impounded  on  the  premises, 
though  he  did  not  say  where — it  was  held  by  the  Court  of  Common 
Pleas  {Maule  J.  diss.),  principally  on  the  authority  of  Frith  v.  Purvis, 
that  under  these  circumstances  the  impounding  of  the  cattle  was  com- 
plete and  perfect  from  the  time  of  giving  the  notice  to  the  tenant  ; 
and  consequently  a  tender  of  the  rent  and  costs  of  distraining,  &c., 
after  such  incident  was  too  late  (Thomas  v.  Harris).  And  jjer  Tindal 
C.J  :  "According  to  the  best  construction  which  I  can  put  upon  11 
Geo.  II.  c.  19,  s.  10,  the  impounding  of  the  cattle  was  complete  before 
the  tender  was  made.  A  pound,  in  its  strict  legal  sense,  means  an 
enclosed  place,  where  cattle  are  kept  until  rent  is  paid.  The  words  '  or 
otherwise  secure  the  distress,'  used  in  the  statute  give  a  greater  latitude, 
and  do  not  render  it  imperative  on  the  party  to  secure  them  in  such 
pound.  For  example,  cattle  grazing  in  a  field,  and  goods,  chattels,  or 
effects  placed  in  a  room  or  other  places  fit  for  their  reception,  may  be 
said  to  be  impounded." 

And  so  in  Tcnnant  v.  Field,  where  a  landlord  sent  a  broker  to  distrain 
for  rent  upon  the  tenant's  premises,  but  he  did  not  lay  his  hands  upon 
any  of  the  goods,  to  indicate  an  impounding,  &c.,  and  by  the  tenant's 
wife's  request  nothing  was  done  but  an  inventory  taken  and  a  man  left 
in  possession,  with  a  notice  that  the  broker  had  "distrained"  the  goods, 
the  Court  of  Queen's  Bench  held  that  this  was  an  impounding  under  11 
Geo.  II.  c.  19,  and  that  the  landlord  was  not  bound  afterwards  to  accept 
a  tender  of  rent.  And  per  Lord  Campbell  C.J. :  '•  The  consent  of  the 
parties  makes  this  case  like  a  room  being  the  pound,  a  man  being  left 
in  possession.  This,  I  think,  was  equivalent  to  an  actual  impounding  ; 
and  looking  at  the  cases  and  authorities,  I  am  consequently  of  opinion 
tliat  there  was  an  impounding  before  tender."  Frle  J.  said  :  "I  agree 
with  the  rest  of  the  Court,  because  the  tenant's  conduct  showed  that 
he  agreed  to  the  goods  being  left  where  they  were.  The  statute  shows 
that  there  may  be  an  impounding  on  the  pi-emises  ;  but  I  certainly 


2Si  FRAUDULENT    TvEMOYAL    OF    GOODS. 

coaciiv  in  the  observations  of  Jlatile  J.  in  Thomas  v.  Harris,  that  the 
rational  interpretation  of  this  remedy  is  to  enable  the  landlord  to  get 
what  is  dne  for  rent  and  costs,  the  amount  of  wliicli  there  can  be  no 
difficulty  iu  ascertaining." 

^-1  distress  can  only  he  made  letween  sunrise  and  sunset ;  and  it  was 
held  in  Tifd'Ier  v.  Prentice  that  in  pleading  a  tender  of  rent  on  the 
land,  it  must  be  shown  that  the  tenant  was  on  the  land  time  enough 
before  sunset  to  have  counted  the  money.  A  distress  must  be  made  on 
the  land  from  which  the  rent  issues  ;  but  where  a  farm  adjoins  a  high- 
way, goods  standing  on  such  highway  within  the  middle  of  it,  and  on 
that  part  next  to  the  demised  premises,  may  be  distrained  {Hodyes  v. 
L(urrence).  "Where  a  landlord  distrains  for  more  than  is  due  for  rent, 
an  action  on  tbe  case  lies,  though  the  goods  distrained  are  of  less  value 
than  the  rent  really  due  ;  and  it  is  no  defence  that  after  distress,  and 
notice  thereof,  and  before  the  sale,  the  landlord  served  a  second  notice 
on  the  tenant  stating  the  amount  really  due,  and  that  the  distress  was 
taken  for  that  amount  only,  and  would  be  sold  unless  that  amount  was 
paid  {Taylor  v.  Henniker).  A  landlord  cannot  l)reak  open  yates  or  break 
down  enclosures  to  make  a  distress,  but  he  may  open  an  outer  door  by 
turning  the  key,  lifting  the  latch,  or  drawing  back  the  bolt  (Ryan  v. 
Shilcock).  But  it  was  doubted  in  the  same  case  whether,  if  the  outer 
door  is  broken  open,  the  distress  is  void. 

The  7th  section  of  11  Geo.  II.  c.  I'J  gives  power  to  the  landlord — 
where  yoods  fraudulently  carried  away  by  the  tenant,  are  placed  in  any 
"  house,  barn,  or  stable,''  &c.,  locked  up  so  as  to  prevent  such  goods 
"  from  being  taken  and  seized  as  a  distress  for  arrears  of  rent  " — "  to 
break  open  and  enter  into  such  house,  barn,  and  stable,"  &c.  It  was 
decided  in  Rich  v.  Wooley  that  a  plea  under  this  section,  justifying  the 
breaking  open  a  lock  to  distrain  cattle  which  have  been  fraudulently 
removed  to  elude  a  distress  for  rent,  must  aver  that  a  constable  was 
present  when  the  lock  was  broken  open.  Patteson  J.  observed  upon 
it,  in  Broivn  v.  Glenn  (whicli  settled  that  a  landlord  cannot  break  open 
the  outer  door  of  a  stable,  though  not  within  the  curtilage,  to  levy  an 
ordinary  distress  for  rent)  :  "  The  inference  appears  to  be  that  the 
right  of  the  distrainor  to  break  open  the  door  of  a  stable  does  not  exist 
irrespectively  of  that  provision."  And  Lord  Cami)bell  C.J.  considered 
that  "  this  statute  afforded  a  clear  inference  that,  irrespective  of  the 
matters  therein  provided  for,  the  outer  door  of  a  barn  or  stable  could 
not  be  broken  open  for  the  purpose  of  executing  an  ordinary  distress. 
This  doctrine  is  at  least  not  novel  ;  it  was  acted  upon  by  Lord  Hard- 
iricke ;  and  his  decision  is  cited  by  Mr.  Serjeant  Williams,  in  his  note 
to  Poole  V.  Lonyueville.      In  Penton  v.   Brown  it  was  decided  on 


COURSE    AS    TO    SURPLUS    FROM    DISTRESS.  285 

demurrer  tluit  the  outer  door  of  an  ouiliouso  might  Im  Irolmi  open  for  the 
purpose  of  executing  a  fieri  fcicias.  This,  however,  is  not  inconsistent 
with  our  decision ;  for  a  distinction  may  be  reasonably  made  between 
the  powers  of  an  officer  acting  in  execution  of  legal  process,  and  the 
powers  of  a  private  individual  who  takes  the  law  into  his  own  hand, 
and  for  his  own  purposes.  There  is  another  well-known  distinction, 
that  a  landlord  cannot  distrain  at  all  hours,  whereas  the  sheriff  is  under 
no  such  restriction." 

A  landtord  or  bailiff  who  has  distrained,  even  if  not  lomid  (as  sembte 
he  is)  to  restore  goods  remai?iing  vnsold  to  the  premises  on  which  he  dis- 
trained them,  is  at  liberty  to  do  so  ;  and  his  doing  so  will  not  be  a 
conversion,  even  although  they  are  the  goods  of  third  parties,  and  the 
bailiff  has  had  notice  of  this  from  them  after  the  impounding,  and  has 
promised  to  act  on  the  notice,  both  as  to  the  goods  unsold  and  the 
surplus  proceeds  of  goods  sold  :  for  such  a  promise  does  not  impose 
any  duty  on  the  bailiff  to  deliver  the  goods  to  the  right  owner,  neither 
will  it  sustain  an  action  for  money  had  and  received  to  recover  the 
surplus  proceeds  of  the  goods  sold  {Evans  v.  Wright). 

Where  goods  distrained  for  rent  in  arrear  have  been  removed  to  a 
convenient  place  for  sale,  and  sufficient  sold  to  satisfy  the  distress,  the 
proper  course  is  for  the  broker  to  leave  the  surplus  money  with  the 
sheriff,  and  return  tlie  surplus  goods  to  the  premises  from  whence  he 
took  them  {Evans  v.  Wright)  ;  and,  where  a  broker  has  distrained  for 
rent  the  right  goods  of  the  tenant,  the  landlord,  having  authorised  the 
distress,  is  liable  for  any  irregularity  committed  by  him  in  the  sale 
of  such  distress,  although  doue  without  his  knowledge  {HaseJer  v. 
Le  Mogne). 

Tilings  are  not  distrainalte  irhich  cannot  he  restored  in  the  same  plight 
in  which  they  were  before  the  distress,  and  as  Patteson  J.  observed  of 
fixtures,  in  Darhg  v.  Harris,  the  reason  would  be  more  apparent  in 
former  times,  when  the  landlord  was  obliged,  on  distraining,  to  remove 
the  distress  from  the  premises. 

Until  2  Will  &  M.  c.  5,  no  sheaves  or  cocks  of  corn,  loose  or  in  the 
straw,  or  hag  in  ang  barn  or  granarg,  or  in  ang  hovel,  staclc,  or  rick, 
could  bg  the  law  be  distrained  or  otherwise  secured  for  rent ;  but  sec.  3  of 
that  statute  gave  the  landlord  power  to  seize  it  upon  any  part  of  the 
land  or  ground.  The  common  law  is  not  taken  away  by  the  above 
statute,  and  commodities  of  a  perisliable  nature,  which  cannot  l)e  restored 
on  a  replevin  in  the  same  state  as  that  in  which  they  were  taken,  cannot 
be  made  the  subject  of  distress.  Hence  the  carcase  of  a  beast  sent  to  the 
butcher's  {Brown  v.  Shevill)  and  the  flesh  of  animals  lately  slaughtered 
cannot  be  distrained  {Morleg  v.  Pincombe).     Neither  can  animals  fercB 


28G  DT^^TRATXTNG    IMPLEMENTS    OF    HUSBANDRY. 

naiunv,  thougli  deer  may  which  are  put  np  to  fat  ( DaviH  y.  Powell). 
Wearing  apparel,  if  in  actual  use,  cannot  be  distrained,  nor  whatever 
else  is  in  actual  use  at  the  time  ;  and  goods  sent  to  any  place  by  way 
of  trade,  but  not  to  remain  there  permanently,  are  within  the  exception. 
A /id  so  a  horse  wJien  lie  goes  to  he  shoed,  or  faJces  corn  to  market,  is 
exempt,  as  well  as  when  a  person  is  actually  riding  it.  Slteej)  and  leasts 
of  plough  are  privileged  by  51  Hen.  III.  6*/.  4,  while  there  is  another  suffi- 
cient distress,  unless  they  are  found  damage  feasant.  But  an  action  is  not 
maintainable  for  distraining  beasts  of  the  plough  when  there  is  no 
other  sufficient  subject  of  distress  on  the  premises  beside  growing  crops 
(Piggott  V.  Birtles) ;  for  the  landlord  has  a  right  to  resort  to  the  subjects 
of  distress  which  can  be  made  immediatelg  available  ;  and  beasts  of  the 
plough  are  distrainable  for  arrears  of  poor-rate  (Rutchins  v.  Chamhers) 
when  there  were  other  things  that  might  have  been  distrained,  and 
exceeding  the  value  of  the  demand.  An  implement  of  trade  is  only 
privileged  if  it  be  in  use,  and  if  there  be  no  other  distress  on  the 
premises  (Fen  ton  v.  Logan).  Here  the  threshing  machine  had  been  let 
to  hire  by  the  plaintiff  to  the  tenant,  on  whom  the  defendant  in  replevin 
had  distrained.  The  work  for  which  it  was  let  had  been  completed  on 
the  Saturday,  and  the  distress  was  made  on  the  next  Monday,  when 
there  was-  no  other  distress  on  the  premises.  Gorton  v.  Falhier  was 
decisive  against  the  plaintiflF.  And  see  Lord  Lyndlmrst  C.  B.'s  judgment 
in  Wood  V.  Clarke. 

An  action  of  trespass  will  lie  for  distraining  tools  or  implements  of 
trade  and  industrg  (here  a  spade  and  dung  forlc),  though  not  in  actual 
use,  if  there  he  other  sufficient  distress  on  the  premises  at  the  time  (Nargatt 
V.  Nias),  Lord  Camphell  C.J.  thus  remarked  on  Piggolt  v.  Birtles, 
Yolland  v.  Price,  Hutchins  v.  Chamhers,  Dawson  v,  Alford,  and  Fitz- 
herbert's  Katura  Brevium,  90,  which  were  cited  in  support  of  the  rule  : 
"  On  examining  the  cases  cited  in  the  argument,  we  do  not  find  any 
which  decides  that  trespass  is  not  maintainable.  The  precedent  cited 
from  Fitzherbert,  is  classed  under  the  head  "  Writ  of  Trespass"  ;  and 
in  Corayn's  Digest,  "  Trespass,  &c.,"  it  is  laid  down  that  trespass  will 
lie  for  an  unlawful  distress  of  goods,  and  the  same  precedent,  as  in 
Fitzherbert,  is  there  referred  to  in  support  of  that  position. 

Piggott  V.  Birtles  was  an  action  on  the  case,  in  which  the  plaintiff, 
by  one  of  the  counts  in  the  declaration,  complained  of  the  distraining 
his  beasts  of  the  plough,  there  being  other  chattels  on  the  premises  ; 
and  the  only  matter  decided  in  that  case  was  respecting  the  distress  of 
beasts  of  the  plough,  that  they  were  distraina])le  when  there  was  no 
other  sufficient  distress  on  the  premises  besides  growing  crops.  In 
Uuicluhs  V.  Chamhers,  there  were  two  distresses  under  the  same  war- 


DISTEAINIXG    BEASTS    OF    HUSBANDRY.  287 

rant  ;  under  the  last  distress  beasts  of  the  plough  were  taken,  there 
being  at  the  time  more  than  sufficient  to  answer  the  demand.     The 
first  distress  proved  insufficient  in  value,  whereupon  a  second  distress 
was  made,  which  was  excessive,  and  in  it  were  also  included  beasts  of 
the  plough.     In  that  case,  there  were  three  questions  calling  for  the 
decision  of  the  Court  :  first,  whether  in  the  last  distress  beasts  of  the 
plough  could  be  distrained  for  at  all,  if  there  were  other  things  of  suf- 
ficient value  upon  the  premises  ;  secondly,  whether  the  second  distress 
under  the  same  warrant  was  at  all  justified  ;  and  thirdly,  whether  the 
second  distress  being  excessive,  that  circumstance  alone  was  not  suffi- 
cient to  maintain  the  action  of  trespass.     On  the  first  point  the  Court 
was  of  opinion  that  beasts  of  the  plough  were  distrainable  under  4?> 
Eliz.  and  such  like  Acts  of  Parliament,  and  upon  the  second  and  third 
questions  the  Court  held,  that  if  a  man  makes  a  distress  which  is  in- 
sufficient in  the  value  of  the  goods,  and  afterwards  on  discovering  the 
mistake  makes  a  second  seizure,  in  that  case  an  action  of  trespass  can- 
not be  maintained  for  taking  an  excessive  distress.     With  respect  to 
Jenner  v.  YoUand,  which  was  an  action  on  the  case,  for  distraining 
beasts  of  the  plough,  where  there  were  other  goods  of  sufficient  value 
which   ought   to   have   been   distrained,  the   matter  in   dispute   was, 
whether  the  value  of  the  other  goods  was  to  be  judged  of  at  the  time 
the  distress  was  originally  made,  or  whether  it  was  to  be  ascertained  by 
the  subsequent  sale  ;  and  the  Court  held  that  the  legality  or  illegality 
of  the  distress  was  to  be  determined  by  the  circumstances  of  the  dis- 
tress at  the  time  it  was  made.     The  judgment  of  Wood  B.  puts  the 
case  very  clearly,  and  there  is  nothing  in  that  case  to  show  that  tres- 
pass will  not  lie  if  tools  of  trade  are  illegally  taken.     It  is  true  there 
are  precedents  for  making  the  illegal  distress  of  tools  of  trade  the 
subject  of  an  action  on  the  case  ;  but  there  are  also  many  authorities 
which  show  that  the  wrongful  taking  may  be  the  ground  of  trespass, 
and  yet  the  party  aggrieved  may,  if  he  pleases,  waive  the  trespass 
and  sue  in  case.     The  view  that  we  have  taken,  that  the  wrongful 
seizure  of  tools  of  trade  is   the  subject  matter  of  an  action  of  tres- 
pass,  is  fully   confirmed   in  Dawson  v.  Alford,  which  shows  that  it 
is  not  necessary  for  the   plaintiff  in  his   declaration  to   allege   that 
there  were  other   goods  of  sufficient  value,  which  might  have  been 
distrained,  but  the  defendant  must  by  his  plea  answer,  if  he  justi- 
fies, that  no  other  sufficient  distress  could  be  had.     The  rule  must  be 
discharged." 

y^havQ  the  sheep  of  a  third  person  Ofi  the  land  of  a  tenant  were  distrained 
ly  the  landlord  for  rent,  when  other  things  availalle  for  the  distress  were 
upon  the  premises,  in  an  action  against  the  landlord  by  the  owner  of 


288  DI^^TRrSS  NOT  LEGAL  AFTER  DETEUMIXATION  OF  TENANCY. 

the  sheep,  the  Court  of  Exchequer  hehl  that  the  mcasinr  of  damafjcs  ivcip: 
the  value  of  the  shee^j  {Keen  v.  Priest). 

Tithes  are  an  incorpoi-eal  hereditament,  aud  cau  tlierefore  only  pass  by 
deed.  It  was  held  in  Gardner  v.  Williamson,  Avhere  tlie  tithes  of  a 
parish  and  a  homestead  were  let  together  by  parol  agreement,  no  dis- 
tinct rent  having  been  reserved  for  the  homestead,  for  which  there 
might  have  been  a  distress  that  the  distress  for  rent  in  arrear  was  alto- 
gether unlawful.  And  per  Parke  J. :  "It  is  impossible  to  say  that  all 
the  rent  in  this  case  is  reserved  in  respect  of  the  land  only ;  aud  there 
can  be  no  distress  for  rent  ensuing  out  of  any  incorporeal  hereditament. 
The  rent  is  payable  for,  though  it  does  not  issue  out  of,  the  tithes." 

.1  distress  cannot  he  made  at  common  law  after  the  tenancy  has  leen 
determined  hj  notice  to  quit,  though  the  rent  may  have  become  due  lefore 
such  determination:  aud  an  avowry  for  such  a  rent  must  therefore  be 
so  framed  as  to  bring  it  within  the  8  Anne,  c.  14,  s.  G  {WiUiams  v. 
Stiren).  Here  the  defendant  gave  the  plaintiff  a  notice  to  quit  expiring 
on  Feb.  2nd,  1844;  and  it  was  contended,  on  the  authority  of  Jenncfr 
V.  Clegg,  that  the  defendant  having  by  his  notice  to  quit  treated  the 
plaintiff  as  a  trespasser,  could  not  afterwards  treat  him  as  a  tenant. 
Jenner  v.  Clegg,  a  case  of  replevin,  where  Parlte  J.  and  Bolland  B. 
decided  that  a  tenant  holding  over  after  notice  to  quit  given  by  the 
landlord,  is  not  liable  to  a  distress  without  some  evidence  of  a  renewal 
of  the  tenancy,— was  cited.  The  Court,  however,  held  that  this  case 
was  not  ai)plicable,  as  the  rent  there  distrained  for  l)ecame  due  after  the 
determination  of  the  tenancy  by  notice  to  quit  from  the  landlord.  And 
per  Patteson  J.,  "  All  that  Jetiner  v.  Clegg  shows  is  that  the  tenancy  is 
at  an  end  when  the  notice  expires."  A  landlord  having  treated  an 
occupier  of  his  land  as  a  trespasser,  by  serving  him  with  an  ejectment, 
cannot  afterwards  distrain  on  him  for  rent,  though  tlie  ejectment  is 
directed  against  the  claims  of  a  third  person,  who  comes  in  and  defends 
in  lieu  of  the  occupier,  and  the  occupier  is  aware  of  that  circumstance, 
and  is  never  turned  out  of  possession  (Bridges  v.  Smgih). 

In  Bendy  v.  Kichol  a  tenant  hroke  a  covenant  not  to  underlet  without 
consent.  After  the  breach,  the  plaintiff  brought  an  action  for  the  rent, 
and  subsequently  obtained  judgment  and  received  the  money.  Before 
he  received  the  money  he  brought  an  action  of  ejectment.  The  Court 
of  Common  Pleas  held  that  the  bringing  of  the  action  for  the  rent  and 
the  subsequent  recei  pt  of  the  money  amounted  to  a  waiver  of  the  for- 
feiture. Thus  a  right  of  re-entry  for  breach  of  covenant  is  waived  by 
the  lessor  bringing  an  action  for  rent  accrued  due  subsequent  to  the 
breach. 

One  joint  tenant  of  the  reversion  can,  by  severance,  deprive  the  others 


ACTION   FOR   RENT   BY    TENANTS   IN   COMMON.  289 

of  their  right  to  distrain  for  rent  ah'eady  due,  and  this  hardship  is  an 
incident  to  that  species  of  property ;  all  remedy  for  the  rent  is  not 
gone,  but  an  action  may  be  clearly  brought  in  the  name  of  all,  as  before 
the  severance  of  the  reversion  an  avowry  must  have  been  by  all 
{Staveley  v.  AUcoclc).  K^vd.  per  Patteson  J. :  "An  authority  is  required 
to  show  that,  by  the  severance  of  the  reversion,  the  rent  already  due  to 
the  six  was  apportioned."  A  terre  tenajit,  holding  under  two  tenants  in 
common,  cannot  pay  the  whole  rent  to  one  after  notice  from  the  other  not 
to  pay  it  ;  and  if  he  do,  the  other  tenant  in  common  may  distrain  for 
his  share  {Harrison  v.  Barnlnj).  And  per  Abbott  C.J.,  in  Poivis  v. 
Smith,  "It  is  clear  that  if  there  be  a  joint  lease  by  two  tenants  in 
common,  reserving  an  entire  rent,  the  two  may  join  in  an  action  brought 
to  recover  the  same  ;  but  if  there  be  a  separate  reservation  to  each,  there 
must  be  separate  actions.  Here,  by  the  original  contract,  there  was 
a  letting  of  the  whole  premises  by  the  two  tenants  in  common  at  an 
entire  rent  ;  afterwards  the  rent  was  severed.  It  became  a  question  of 
fact  upon  the  whole  evidence,  whether  the  parties  thereby  meant  to 
enter  a  new  contract,  with  a  separate  reservation  of  rent  to  each,  or 
whether  they  meant  to  continue  the  old  reservation  of  rent,  each  of 
the  plaintiffs  receiving  his  own  moiety." 

It  is  a  well-known  rule  that  the  action  for  rent  by  tenants  in  common 
is  in  its  nature  a  joint  action,  and  consequently  upon  a  lease  by  them 
the  survivors  may  sue  for  the  whole  of  the  rent,  althougli  the  reserva- 
tion be  to  the  lessors  according  to  their  respective  interests  {Wattace  v. 
Maclaren).  And  they  can  recover  an  ejectment  under  the  Common 
Law  Procedure  Act  (1852),  on  a  joint  writ,  the  whole  of  the  property 
to  which  they  are  entitled  {Elliss  v.  Elliss).  A  tessee  ivho  under- teccses 
for  tess  titan  Ms  whote  estate  in  the  term  has  a  power  of  distress  {Wade  v. 
Marsh),  but  not  where  he  demises  the  whole  of  his  interest  {Preece  v. 
Carrie).  In  Parmenter  v.  Webber  the  lessee  of  two  farms  agreed  with 
the  plaintiff  that  he  should  have  them  during  the  leases  for  the  same 
price,  and  remain  his  tenant,  with  the  stipulation  that  he  should  farm 
according  to  the  tenor  of  the  leases,  and  incur  forfeiture  and  be  paid  for 
the  fallows  and  dung  on  leaving  the  farms.  The  plaintiff  took  posses- 
sion, and  paid  one  year's  rent  growing  due  after  the  date  of  the  agree- 
ment to  the  sub-lessee,  who  afterwards  distrained  for  the  rent  in  arrear. 
The  Court  held  that  the  agreement  did  not  operate  as  an  underlease, 
but  as  an  absolute  assignment  by  the  defendant  to  the  plaintiff  of  all 
the  defendant's  interest  in  the  farms,  and  that  therefore  the  defendant, 
having  no  reversion  left  in  him,  could  not  legally  distrain. 

A  demise  by  a  tenant  from  year  to  year  to  another  atso  to  hotdfrom  year 
to  year,  is  in  legal  operation  a  demise  from  year  to  year  during  the  con- 

u 


290  DISTEAIN   OF   AWAY-GOING   CROPS. 

tinuance  of  the  original  demise  to  the  intermediate  landlord  {Pilce  v 
Eyre).  According  to  Curtis  v.  Wheeler,  a  tenant  from  year  to  year 
under-letting  from  year  to  year  has  a  right  to  distrain ;  and  per  Pollock 
C.J.,  the  above  two  "  cases  show  that  if  a  tenant  from  year  to  year 
demises  for  a  term  of  years,  and  the  original  tenancy  from  year  to  year 
lasts  beyond  that  term,  such  a  demise  is  not  an  assignment,  but  there 
is  a  reversion  on  which  covenant  may  l)e  maintained."  {Oxley  v.  James). 
In  Geeclcie  v.  Monl;  and  D.  d.  Monk  v.  Geeckie,  Rolfe  B.  ruled  that 
//,  whilst  a  tenant  from  yceir  to  year  is  in  possession  of  lands  under  an 
agreement  reserving  a  certain  rent,  he  agrees  with  his  landlord  to  pay  an 
'increased  rent,  this  will  not  have  the  effect  of  creating  a  7iew  tenancy. 
Where  the  occupier  under  an  agreement  for  a  lease  at  a  certain  rent 
pays  the  rent,  he  becomes  tenant  from  year  to  year  on  the  terms  of  the 
agreement,  and  the  landlord  may  distrain  {3Iann  v.  Lovejoy).  This  was 
also  a  case  of  replevin ;  and  Hegan  v.  Johnson  and  Dunk  v.  Hunter 
were  cited  for  the  plaintiff  in  support  of  his  position,  that  if  the  holding 
is  mider  a  mere  agreement  for  a  lease  there  can  be  no  distress. 

In  Knight  v.  Bennett,  the  plaintiff  occupied  a  farm  according  to  the 
terms  of  cm  oral  agreement  (which  did  not  fix  the  rent,  but  only  the  time 
of  paying  it)  for  a  ten  years'  lease,  which  was  never  executed,  and  paid 
a  certain  rent  for  two  years ;  and  the  Court  held  that  he  was  tenant  from 
year  to  year,  and  that  the  lessor  might  distrain  for  arrears  accordmg  to 
the  rate  which  the  plaintiff  had  paid. " 

In  another  case  between  these  parties,  it  appeared  that  by  agreement, 
as  well  as  by  the  custom  of  the  country,  the  tenant  was  to  have  the  nse  of 
the  ham  and  gate-rooms  to  thrash  out  his  corn  and  fodder  his  cattle  till 
the  May-day  after  the  expiration  of  his  term.  His  term  expired  at 
JMichaelmas,  and  he  was  then  restrained  by  injunction  from  carrying 
off  the  premises  corn  in  the  straw.  In  January  his  landlord  distrained  a 
rick  of  corn  on  the  premises,  and  it  was  held  that  the  distress  was  valid. 
Beavan  v.  Delahay  decided  that  a  custom  thcd  a  tenant  may  leave  his 
cmaij-going  crop  in  the  hams  of  the  farm  for  a  certain  time  after  the  lease 
is  expired,  and  he  has  quitted  the  premises,  is  good  ;  and  the  landlord 
may  distrain  the  corn  so  left  for  rent  arrear  after  six  months  have  expired 
from  the  determination  of  the  term,  notwithstanding  the  statute  8  Anne, 
c.  14,  ss.  G  &  7.     And  see  Lewis  v.  Harris. 

It  was  held  in  NuttaU  v.  Staunton,  where  a  tenant  ly  permission  of  the 
landlord  remained  in  possession  of  part  of  a  farm  after  the  expiration  of  the 
tenancy,  that  the  landlord  might  distrain  on  that  part  within  six  months 
after  the  expiration  of  the  tenancy,  stat.  8  Anne,  c.  14,  ss.  G  k  7,  not  being 
confined  to  a  tortious  holding  ovci',  or  to  the  holding  of  the  wdiole  farm. 
kxAper  Pcdleson  i.,  in  Taylcrson  v.  Peters:  ''  To  bring  a  case  within 


DISTEAIN"   OF    GROWING    CROPS.  291 

section  7  of  the  statute  o^  Anne,  the  continuance  of  possession  may  be 
either  tortious  or  otherwise.  In  Nuttall  v.  Staunton  it  was  by  permis- 
sion, and  in  Beavan  v.  Delahaij  possession  was  continued  under  a  custom. 
But  to  make  the  statute  applicable  there  must  be  a  keeping  as  the 
party's  own,  to  the  exclusion  of  other  people.  Ti]at  fact  is  wanting 
here."  In  this  case  a  cow  and  some  pigs,  of  the  Talue  of  £17  1G5., 
were  taken  as  a  distress  for  rent  due  from  the  plaintiff  for  a  farm  and 
buildings.  He  had  received  notice  to  quit  on  May  13,  1835,  when  his 
time  of  holding  expired.  The  distress  was  put  in  May  22,  and  between 
those  periods  the  plaintiff,  Avho  still  remained,  was  asked  by  the  incom- 
ing tenant,  whose  term  had  commenced,  when  he  meant  to  leave.  He 
said  he  did  not  know  ;  but  went  away  before  the  distress,  leaving  the 
above  animals  on  the  farm.  He  did  not  ask  permission  to  do  so,  nor 
did  he  on  leaving  state  his  intentions.  The  new  tenant  entered,  but 
did  not  get  complete  possession  till  May  22.  On  that  day,  and  before 
the  distress  was  put  in,  he  had  possession  of  the  whole  farm,  unless 
there  was  a  continued  possession  by  the  plaintiff.  A  verdict  was 
given  for  the  defendant  ;  but  the  Court,  who  solely  decided  the  point 
whether  the  distress  made  after  the  expiration  of  the  term  was  justified  by 
statute  8  Anne,  c.  14,  ss.  6  &  7,  ordered  one  to  be  entered  for  the  plaintiff. 

In  the  case  of  PoUit  v.  Forrest  the  Exchequer  Chamber  decided  that 
a  lessor  cannot  distrain  under  an  agreement  not  under  seal  which  gives 
him  power  to  recover  penalties  by  distress  as  for  rent  in  arrear,  thus 
reversing  the  decision  of  the  Court  of  Queen's  Bench. 

It  was  decided  in  the  Exchequer  Chamber,  reversing  the  decision 
of  the  Court  of  King's  Bench,  that  growing  crops  cannot  he  taken  under 
the  power  to  distrain  for  the  arrears  of  an  annuitg  {Milter  v.  Green). 

But  in  Joltnson  v.  Faulkner  the  Court  of  Queen's  Bench  held  that 
hay,  corn,  and  straw,  loose  or  in  the  stacJv,  or  in  trusses,  may  be  dis- 
trained for  arrears  hy  the  grantee  of  a  rent-charge,  under  2  Witt.  &  Mary, 
sess.  1,  c.  5,  s.  3,  and  stat.  4  Geo.  II.  c.  28,  s.  5.  Lord  Denman  C.J.  said : 
"It  was  contended  that  this  statute  did  not  extend  to  distresses  for 
such  rents  as  that  in  question,  but  only  to  distresses  for  rent  service 
properly  so  called ;  and  Mitter  v.  Green  was  cited  as  an  authority  in 
favour  of  the  plaintiff.  In  that  case  groiving  crops  had  been  distrained 
for  arrears  of  an  annuity,  granted  by  a  deed,  containing  a  power  to 
distrain  for  arrears  of  the  annuity,  and  to  dispose  of  the  distress  in  all 
respects  as  distresses  for  rents  reserved  on  leases  for  years  might  be 
disposed  of;  and  it  was  held  that  though  the  powers  given  by  statute  2 
Will  &  Mary,  sess.  1,  c.  5,  would  extend  to  such  a  case,  the  grantee  of 
the  annuity  could  not  avail  himself  of  the  subsequent  statute  of  1 1  Geo. 
II.  c.  19,  introducing  a  new  suhjecl  of  distress — the  growing  crops. 

u  2 


292  SEIZUPvE   OF   CROPS   UNDEE   A   FIERI   FACIAS. 

Without  at  all  impugning  the  authority  of  that  case,  it  is  sufficient  to 
observe  that  it  does  not  apply  to  the  present.  In  that  case  the  party 
making  cognizance  relied  upon  statute  11  Geo.  II.  c.  19,  which  is  in 
terms  limited  to  '  lessors  or  landlords ' :  in  the  present,  the  defendant 
claims  the  benefit  of  the  stat.  2  Will  &  Mary,  sess.  1,  c.  5,  Avhich  is 
more  general.  If  there  were  any  doubt  upon  this  point,  it  would  be 
removed  by  stat.  4  Geo.  II.  c.  29,  s.  5,  which  gives  the  same  powers  of 
distress  in  cases  of  rents  seek,  as  in  cases  of  rents  under  leases,  and 
would  therefore  entitle  the  distrainor  for  such  a  rent  as  that  in  question 
to  all  the  powers  given  Inj  the  precedent  statute,  2  Will.  &  Mary,  sess.  1, 
c.  5,  even  if  not  to  those  given  by  the  suisequent  statute  of  11  Geo.  II.  c. 
19."  The  grantee  of  a  rent-charge  may  also  take  goods  of  a  stranger 
on  the  premises  charged,  as  a  distress  for  arrears  {ih.). 

By  11  Geo.  II.  c.  19,  s.  8,  it  was  made  lawful  for  every  landlord, 
or  person  empowered  by  him,  to  distrain  the  stock  or  cattle  on  their 
tenants'  premises  for  arrears  of  rent,  and  to  seize  all  sorts  of  corn  and 
grass,  hops,  roots,  fruit,  pulse,  or  other  product  whatsoever,  which 
shall  be  growing,  and  lay  it  up  when  ripe  in  barns  on  the  premises, 
or  conveniently  near  them,  for  the  purpose  of  having  it  appraised  and 
sold  for  the  satisfaction  of  the  rent.  It  was  held  in  ClarJc  v.  Gaslmrth 
that  trees,  shrubs,  and  plants  yrowiny  in  a  nursery  y round  and  planted 
subsequent  to  the  demise,  cannot  be  distrained  for  rent,  and  that  the 
word  "product"  in  this  section  applies  only  to  such  products  of  the  land 
as  are  subject  to  the  process  of  becoming  and  of  being  cut,  gathered, 
made,  and  laid  up  when  ripe.  By  section  9  tenants  are  to  have  notice 
where  the  "goods  and  chattels"  (which  growing  crops,  according  to 
Glover  v.  Coles,  are  considered  to  be,  for  the  purpose  of  a  replevin)  so 
seized  are  deposited,  and  the  distress  of  such  growing  crops  is  to  cease, 
if  the  rent  be  paid  before  it  is  ripe  and  cut. 

At  common  laiv  growiny  crops  might  le  seized  and  sold  under  a  fieri 
facias,  and  were  protected  from  distress  by  the  landlord,  unless  allowed 
to  remain  an  unreasonable  time  upon  the  land.  But,  the  general  right 
being  found  to  operate  in  many  cases  in  a  manner  prejudicial  to  agri- 
culture, the  5G  Geo.  III.  c.  50  was  passed,  in  order  that  the  execution 
of  legal  process  should  be  so  regulated  as  to  be  consistent  with  good 
husbandry,  and  the  effect  and  intent  of  covenants  and  agreements. 
This  statute  is  in  some  respects  restrictive  of  the  rights  which  the  exe- 
cution creditor  would  have  at  common  law,  but  in  some  respects  it  ex- 
tends them.  By  section  1,  no  sheriff  or  other  officer  is  to  sell  or  carry 
off  from  any  lands  any  straw,  thrashed  or  unthrashed,  or  any  straw  of 
crops  growing,  «&c.,  chaff,  colder,  turnips,  tares,  manure,  compost, 
&c.,  hay,  grass  or  grasses,  natural  or  artificial,  tares,  vetches,  roots,  or 


LAW   RELATING    TO    SEIZURE    OF   GROWING   CROPS.       293 

vegetables,  &c.,  contrary  to  the  covenant.  By  section  3  the  sheriff 
may  dispose  of  any  crops  or  produce  to  any  person  Avho  shall  agree  in 
writiuo-  with  such  sheriff,  in  cases  luJiere  no  covenant  or  ivritten  agree- 
ment shall  be  shown,  to  use  and  expend  the  same  on  the  land  in  such 
manner  as  shall  accord  with  the  custom  of  the  country :  and  in  cases 
where  any  covenant  or  written  agreement  shall  be  shown,  then  accord- 
ing to  it.  By  section  6  landlords  are  not  to  distrain  for  rent  on  crops 
or  produce  sold  subject  to  such  agreement,  under  the  provisions  of  the 
act,  nor  upon  any  beast  whatsoever  kept  or  used  upon  the  land  for  the 
purpose  of  consuming  the  produce  under  the  provisions  of  the  act,  and 
the  agreement  directed  to  be  entered  into  between  the  sheriff  and  the 
purchaser  of  such  produce ;  nor  on  any  carts  or  other  implements  of 
husbandry  which  such  purchaser  may  require.  By  section  7  the  sheriflf, 
&c.,  is  forbidden  under  any  process  whatsoever  to  sell  or  dispose  of  any 
clover,  rye-grass,  or  any  artificial  grass  or  grasses  whatsoever,  which 
shall  be  newly  sown,  and  be  growing  under  any  crop  of  standing  corn ; 
but  by  section  8  the  act  does  not  extend  to  any  straw,  turnips,  or  other 
articles  which  the  tenant  may  remove  from  the  farm,  consistently  with 
some  contract  in  writing. 

The  law  relating  to  growing  crops  seized  under  execution  was  dealt 
with  by  section  2  of  14  &  15  Vict.  c.  25,  which  enacts  that  in  case  all 
or  any  part  of  the  growing  crops  of  the  tenant  of  any  farm  or  lands 
shall  be  seized  and  sold  by  any  sheriff  or  other  officer,  by  virtue  of  any 
writ  of  fieri  facias,  or  other  writ  of  execution,  such  crops  so  long  as  the 
same  shall  remain  on  the  farms  or  lands  shall,  in  default  of  sufficient 
distress  of  the  goods  and  chattels  of  the  tenant,  be  liable  to  the  rent 
which  may  accrue  and  become  due  to  the  landlord,  after  any  such 
seizure  and  sale,  and  to  the  remedies  by  distress  for  recovery  of  such 
rent,  and  that  notwithstanding  any  bargain  and  sale  or  assignment 
which  may  have  been  made  or  executed  of  such  growing  crops  by  any 
such  sheriff  or  other  officer. 

According  to  Owen  v.  Leigh,  a  tenant  whose  standing  corn  and  grow, 
ing  crops  have  leen  seized  as  a  distress  for  rent  before  theg  were  ripe, 
cannot  maintain  an  action  upon  the  case  under  2  Will,  d-  llarg,  sess.  1, 
c.  5,  s.  2,  against  the  landlord  or  his  bailiff  for  selling  the  same  before 
five  days  or  a  reasonable  time  have  elapsed  after  the  seizure.  Such  sale 
being  wholly  void,  the  plaintiff  sustained  no  legal  damage  from  it,  and 
has  therefore  no  ground  of  action  in  respect  of  it.  And  per  Abbott  C.J.  : 
"It  was  clearly  competent  under  11  Geo.  II.  c.  19,  s.  8,  for  the  tenant 
at  any  time  before  the  corn  was  ripe  to  have  tendered  the  rent  due,  and 
if  after  that  the  landlord  had  taken  the  corn,  he  might  have  been  pro- 
ceeded against  as  a  trespasser." 


291<   DAMAGES  NOMINAL  WHERE  CROPS  SOLD  FOR  FULL  VALUE. 

Ill  Proudlove  v.  TtmnJoiv,  -where  a  landlord  seized  aud  sold,  under 
distress  for  rent,  growing  crops,  Avhieli  were  taken  away  by  the  pur- 
chaser, and  it  appeared  that  the  crops  were  sold  for  llie  full  value  whkh 
thcij  would  Iiare  fetched  if  sold  at  the  proper  lime,  and  the  rent  proved 
to  be  due,  exceeded  the  amount  fur  ^vhich  the  crops  were  sold,  it  was 
held  in  an  action  of  trover  by  the  tenant  that  he  was  entitled  to  nomi- 
nal damages  only.     Lord  Lyndhursl  C.B.  said:  "One  asks  naturally, 
what  is  the  damage  the  plaintiff  has  sustained?     The  party  making  the 
distress  is  lawfully  in  possession,  and  has  a  right  after  a  certain  time 
to  convert  the  crops  to  his  own  use.     He  has  done  that  immediately, 
instead  of  waiting  till  the  proper  time.     Then,  is  there  any  rule  of  posi- 
tive law  Avhich  prevents  his  right  to  deduct  the  rent  ?     Before  these 
acts  were  passed,  a  party  guilty  of  an  irregularity  in  making  a  distress 
became  a  trespasser  ah  inilio.     So  here,  reasoning  from  that,  the  de- 
fendant would  have  been  a  trespasser.     Then  came  the  11  Geo.  II. 
c.  19,  s.  19,  Avhich  says  that  the  party  shall  not  be  deemed  a  trespasser 
ab  initio,  but  the  party  aggrieved  shall  recover  full  satisfaction  for  the 
damage  he  has  sustained  by  an  action  on  the  case."     By  the  express 
terms  of  this  section  the  party  injured  by  an  unlawful  act  committed 
after  a  lawful  distress,  is  only  to  recover  to  the  amount  of  the  damage 
he  has  actually  sustained,  and  hence  the  measure  of  damages  was  the 
difference  between  what  the  crops  would  have  been  sold  for  if  the  sale 
had  been  regular,  and  what  they  actually  sold  for,  which  in  this  case 
was  proved  to  be  more  than  their  value  (ib.).     Where  (joods  distrained 
for  rent  are  sold  tcilhoul  an  appraisement,  the  measure  of  damages  is 
the  value  of  the  goods  minus  the  rent  {Bigejins  v.  Goode).    Growing 
com  sold  under  a  fieri  facias  cannot  be  distrained  for  rent  unless  the 
purchaf^er  allow  it  to  remain  on  the  ground  an  unreasonable  time  after 
it  is  rii)e  {Peacock  v.  Purvis).     Here  a  stranger  became  possessed  of  a 
crop  of  growing  corn  by  purchase,  at  a  sale  under  a  fi.fa.,  on  which 
the  landlord  was  paid  a  year's  rent.     The  latter,  before  the  corn  was 
ripe,  distrained  it  for  rent  due  subsequently  to  the  sale,  and  the  distress 
was  held  ill. 

Wharton  v.  Naylor  decided  that  statute  S  Anne,  c.  14,  s.  1,  malces  it 
v.nlauful  to  remove  (joods  taken  in  execution,  wilhout  paying  one  years 
arrears  of  rent  to  the  landlord;  hut  does  not  invalidale  the  execution  itself. 
Goods,  therefore,  so  taken  are  in  custodia  legis,  and  cannot  be  distrained 
on  by  the  landlord  for  the  year's  rent ;  and  they  are  equally  in  custodia 
legis,  for  this  purpose,  whether  they  are  in  the  hands  of  the  sheriff  or 
his  vendee.  The  principal  question  here  was  whether  the  growing  crop 
BO  seized  by  the  sheriff  aud  sold  to  the  plaintiffs  could  be  distrained  for 
antecedent  rent,  of  which  the  sheriff'  and  the  plaintiff'  had  notice,  and 


CONSTRUCTION    OF    STATUTE    8    ANNE.  £05 

which  they  neglected  to  pay.  Pallesoii  J.  said :  "  Tiie  words  of  the  stat. 
8  Annp,  c.  14,  s.  1  (which  says  that  no  goods  shall  be  liable  to  be  taken 
by  A'irtue  of  any  execution,  unless  the  party  at  whose  suit  the  execution 
is  sued  out  shall,  before  the  removal  of  such  goods  from  off  the  premises 
by  virtue  of  such  execution,  pay  to  the  landlord  of  the  premises  rent  not 
exccediug  one  year),  cannot  be  taken  literally.  The  true  construction 
is  given  in  liiseleij  v.  Bylc,  by  Parka  B.  The  meaning  is  that  the 
sheriff  shall  not  remove  the  goods  unless  a  year's  rent  shall  be  first  paid. 
The  seizm'e  is  \^\^i\A  inima  facie ;  but  if  the  goods  be  removed  without 
payment  of  the  rent,  after  notice  that  it  is  due,  such  removal  renders 
the  whole  proceeding  unlawful  as  regards  the  landlord,  and  subjects  the 
sheriff  to  an  action  on  the  case  at  his  suit.  The  goods,  however,  in  the 
meantime,  until  they  are  removed,  are  in  custodid  legis.  A  hill  of  sale  of 
ilie  goods  is  not  a  removal,  as  was  established  in  the  case  of  Smallman  v. 
Pollard.  If  indeed  the  sheriff  receives  the  proceeds  under  such  bill  of 
sale,  either  from  a  stranger  vendee  absolutely,  or  fi'om  the  execution 
creditor  constructively,  he  being  an  officer  of  the  Court,  will  be  com- 
pelled on  motion  to  pay  over  a  year's  rent  to  the  landlord  {West  v. 
Hedges,  Henchett  v.  Kimpson,  and  see  Calvert  v.  Joliffe) ;  but  such  bill  of 
sale  and  receipt  will  not  amount  to  a  removal  so  as  to  subject  him  to  an 
action.  In  the  case  of  growing  crops,  possibly  the  sheriff  may  sell, 
either  for  a  sum  of  money  to  be  paid  immediately,  or  for  a  larger  sum 
to  be  paid  on  reaping  and  removing  the  crops ;  and  in  the  latter  case 
he  could  not  be  called  upon  by  the  landlord  by  motion  to  pay  his  rent 
until  the  time  came  for  removal  of  the  crops.  The  landlord  is  in  no 
way  injured  hj  this;  for,  if  there  had  been  no  execution,  and  he  had 
distrained  the  crops  for  his  rent,  under  statute  11  Geo.  II,  c.  19,  s.  8,  he 
could  not  sell  them  till  they  were  reaped,  and  must  therefore  wait  for 
his  money  till  that  time.  There  seems,  therefore,  to  be  no  reason  why 
he  should  be  held  to  be  authorized  by  the  statute  of  Anne  to  do  that 
which  at  common  law  he  could  not  do,  namely,  to  distrain  goods  in 
custodid  legis,  but  rather  that  that  act  intended  to  give  him  protection 
through  the  liability  of  the  sheriff,  in  lieu  of  his  right  of  distress,  which 
is  taken  away  by  the  seizure  under  a  fieri  facias.  This  appears  to  be 
the  reasonable  construction  of  the  statute  of  Anne  in  regard  to  goods  of 
any  kind  seized  by  the  sheriff,  and  it  is  more  strongly  so  in  regard  to 
growing  crops,  which,  although  liable  to  be  taken  in  execution  by  the 
common  law,  were  not  liable  to  be  distrained  for  rent  until  the  statute 
11  Geo.  II.  c.  19." 

The  decision  in  Peacock  v.  Par  vis  was  expressly  in  point,  and  governed 
Wright  V.  Dewes,  and  the  Court  in  fact  considered  that  the  only  distinc- 
tion was  that  the  seizure  in  the  former  case  was  in  April,  and  in  the 


296  TRREGULAR  DISTEESS. 

latter  in  September.  In  Wn'f/I/f  v,  Dcivcs,  a  tenant's  growing  crops 
taken  in  execution  and  sold  and  remaining  on  the  premises  a  reasonable 
time  for  the  purpose  of  being  reaped,  were  held  not  to  be  distrainable 
by  the  landlord  for  rent  become  due  after  the  taking  in  execution. 
Such  crops  having  been  so  taken,  sold,  and  left  on  the  premises,  and 
the  arrears  of  rent  paid,  pursuant  to  stat.  8  Anne,  c.  14,  s.  1,  the  land- 
lord could  not  distrain  them  for  rent  subsequently  due,  on  the  ground 
that  the  purchaser  had  not  entered  into  the  agreement  ^Yith  the  sheriff 
(to  use  and  expend  the  produce  in  a  ])roper  manner)  directed  by  stat.  56 
Geo.  III.  c.  50,  s.  3.  Nor  was  he  entitled  to  presume,  from  the  absence 
of  such  agreement,  that  the  straw  of  such  crops  was  sold  for  the  purpose 
of  being  can-ied  off  the  land  contrary  to  sect.  1.  The  question  for  the 
Court  was,  whether  the  plaintiff,  by  virtue  of  a  sale  from  the  sheriff, 
was  entitled  to  the  crops  discharged  from  the  landlord's  right  of 
distress  for  rent  accrued  due  subsequently  to  the  sale. 

The  subject  of  an  irregular  distress  was  very  much  considered  in 
Rodgers  v.  Par'ker,  which  settled  that  11  Geo.  II.  c.  19,  s.  19,  only 
entitles  a  tenant  to  recover  in  an  action  for  an  irregularity  in  dealing 
with  a  distress  where  actual  damage  is i^roved. 

A  distress  was  taken  for  rent,  and  goods,  instead  of  being  retained 
for  the  five  days,  were  sold  a  day  too  soon,  for  which  the  plaintiff 
brought  an  action  ;  but  no  evidence  was  given  that  the  plaintiff  had 
sustained  any  damage  thereby,  and  a  verdict  for  the  defendant,  under 
Cressurll  J.'s  direction,  was  upheld  by  the  Court  of  Exchequer  on  the 
authority  o?  Bodgers  y.  Parker,  as  the  11  Geo.  II.  c.  10,  s.  19,  only 
entitles  the  tenant  to  recover  in  an  action  for  an  irregularity  in  dealing 
with  a  distress  where  actual  damage  is  proved  (Lucas  v.  Tarleton). 

A  distress  can  onlij  he  hi/  law  in  respect  of  a  fixed  ascertained  roit 
reserved  out  of  the  land,  and  therefore  where,  as  in  Gardner  v.  William- 
son, a  lease  of  a  homestead  and  tithes  was  granted  at  an  entire  rent, 
and  it  was  void  as  to  the  tithes,  because  it  was  not  under  seal,  it  was 
held  that  a  distress  for  all  arrear  of  rent  was  altogether  unlawful,  because 
there  was  no  fixed  certain  rent  reserved  in  respect  of  the  homestead. 

In  Meggison  v.  Ladg  G lam  is,  where  the  defendant  in  replevin  being 
the  owner  of  land  and  also  the  lessee  of  the  tithe,  which  had  been  com- 
muted under  6  &  7  Will.  IV.  c.  71,  agreed  by  parol  to  demise  to  the 
plaintiff  the  land  "  tithe  free  "  at  a  certain  yearly  rent  of  £400,  and 
then  entered  and  made  a  distress  for  one  year's  rent  in  arrear,  it  was 
submitted  by  the  plaintiff's  counsel,  on  the  authority  of  the  above 
case,  that  such  agreement  to  demise  was  meant  as  a  demise  both  of  the 
tithe  and  the  lands  at  that  entire  rent,  and  since  the  demise  was  not 
by  deed,  the  tithe  did  not  pass  ;  consequently  there  was  no  certain  rent 


DISTEAIN    OF    TRIVILEGED    GOODS.  297 

reserved  in  respect  of  the  land  for  which  the  defendant  could  distrain. 
Tt  was,  however,  held  by  the  Court  of  Exchequer  that  although  before 
the  commutation  such  an  agreement  might  have  operated  as  an  agree- 
ment to  demise  both  tithe  and  land  at  that  joint  rent,  yet  the  agreement 
being  after  the  commutation,  the  words  "  tithe  free  "  were  surplusage, 
since  by  the  80th  section  of  that  act,  if  the  defendant  distrained  for  the 
rent-charge,  the  plaintiff  would  be  entitled  to  deduct  the  amount  from 
his  rent,  and  consequently  there  was  a  holding  at  a  rent  of  £400,  as 
alleged  in  the  avowry. 

Where  a  landlord  distrains  for  Ins  rent,  amonfjsi  other  things,  some 
privileged  goods,  he  is  a  trespasser  ah  initio  only  as  to  the  goods  which 
were  not  distrainable  ;  and  if  the  tenant  pays  the  amount  and  costs  of 
distress,  upon  which  the  distress  is  withdrawn  altogether,  the  tenant 
can  only  recover  in  trespass,  the  actual  damage  sustained  by  the  taking 
of  those  particular  goods,  and  not  the  whole  amount  paid  by  him 
(Harveg  v.  PococJc).  It  was  urged  upon  the  Court  in  Price  v.  Wood- 
house,  that,  assuming  the  right  to  take  a  heriot  is  analogous  to  a  right 
to  distrain,  this  case  put  a  wrongful  seizure  on  the  same  footing  as  a 
subsequent  abuse.  But  per  ParTce  B.  :  *' If  a  party  having  "a  right  of 
entry  to  take  one  heriot,  enters  and  takes  two,  does  he  thereby  become 
a  trespasser  al)  initio,  both  as  to  the  entry  and  also  as  to  the  seizure  ? 
Suppose  a  landlord  enters  for  the  purpose  of  distraining,  and  he  takes 
certain  distrainable  goods,  and  also  some  chattels  not  the  subject  of  a 
distress,  would  that  make  him  a  trespasser  ah  initio  as  to  the  entry,  or 
only  as  to  the  seizure  of  the  chattels  ?  That  question  was  not  consi- 
dered in  Harvey  v.  Pocock.  Here  the  defendants  by  their  pleas  attempt 
to  justify  the  entry  and  seizure  of  one  horse  as  a  heriot  in  respect  of  one 
tenement ;  and  the  other  horse  as  a  heriot  in  respect  of  another  tene- 
ment. Then  the  construction  of  each  replication  is  this :  Though  true 
it  is  you  entered  to  take  a  horse  as  a  heriot  duo  for  the  particular  tene- 
ment, yet  at  the  same  moment  you  took  another  horse  not  due  for  that 
tenement.  To  make  the  entry  good,  it  must  be  good  with  reference  to 
the  seizure.  That  which  is  prima  facie  an  election,  is  shown  to  be  no 
valid  election  in  point  of  law,  and  the  seizure  of  the  other  chattel 
renders  the  defendants  trespassers  ah  initio  as  to  the  cntiy,  as  well  as 
the  seizure  of  the  chattels.  The  defendant  may  amend  his  pleas  on 
the  usual  terms,  by  stating  that  Price  died  seised  of  two  tenements, 
and  that  there  was  a  custom  to  take  a  heriot  in  respect  of  each,  and 
that  the  horses  were  seized  as  heriots  for  those  tenements." 

The  proper  remedg  for  talcing  an  excessive  distress,  is  case  upon  the 
statute  of  Marlhridge  {52  Hen.  III.  c.  4)  ;  and  a  landlord  is  liable  to 
some  damages  in  an  action  on  the  case  for  an  excessive  distress,  where 


298       SALE    OF   FArvMIXG    STOCK    TAKEN    IN    EXECUTION. 

the  excess  consists  Avliolly  in  seizing  growing  crops,  the  probable  pro- 
duce of  wliieli  is  capable  of  bciug  estimated  at  the  time  of  the  seizure  ; 
but  the  measure  of  damages  is  not  the  value  of  the  crops,  but  the  incon- 
venience and  expense  which  the  tenant  sustains  in  being  deprived  of 
the  management  of  them,  or  which  he  is  put  to  in  procuring  sureties  to 
a  larger  amount  than  he  would  otherwise  have  been  in  replevying  the 
crops  {Fi//o/f  V.  Birflrs). 

In  Mouiio  V.  Blalce  the  Court  of  Queen's  Bench  laid  down  that 
"  roplcvin  is  not  mainfainahle,  vnJess  in  a  case  in  which  there,  lias  been 
/in<t  a  talcing  out  of  the  possession  of  the  owner."  If  a  mare  in  foal  or  a 
cow  in  calf  be  distrained,  and  it  brings  forth  while  in  the  distrainor's 
custody,  replevin  lies  for  the  foal  or  calf  (Bac.  Ah.  tit.  Replevin) ;  and  if 
animals yWvp  nalarm  have  been  reclaimed,  as  deer  in  a  park,  an  action  of 
replevin  will  lie  for  them  [Davies  v.  Powell). 

Section  11  of  56  Geo.  III.  c.  50,  "  to  regulate  the  sale  of  farming  stoclc 
talcen  in  execution,''  enacts  that  no  assignee  of  any  bankrupt  or  insolvent 
debtor's  estate,  or  under  any  bill  of  sale,  nor  any  purchaser  of  the  goods, 
chattels,  stock  or  crop  of  any  person  employed  in  husbandry,  on  lands 
let  to  farm,  shall  use  or  dispose  of  any  produce  or  dressing  of  such  land 
in  any  other  manner,  and  fur  any  other  pur])ose,  than  such  bankrupt,  in- 
solvent, or  other  person  so  employed  in  husbandry  ought  to  have  used 
or  disposed  of  the  same  if  tliere  had  been  no  bankruptcy,  assignment,  or 
sale  made.  The  question  in  Wihnot  Bart.  v.  Rose  was  whether  this  sec- 
tion gave  the  plaintiff  a  right  to  prohibit  the  purchaser  at  an  auction  of 
a  tenant's  cro})  of  hay  or  straw  on  the  farm,  from  carrying  it  off  the  farm 
contrary  to  the  terms  of  the  lease.  The  Court  held  that  it  did  give  such 
power,  and  w^as  not  confined  to  purchasers  of  what  has  been  taken  in 
execution,  and  that  the  nonsuit  was  wrong.  And  ^^rv  Lord  Campbell 
C.J. :  "  Ridgwag  v.  Lord  Stafford  is  not  an  authority  on  the  construc- 
tion of  this  section;  it  was  not  brought  before  the  Court."  The  Bank- 
ruptcy Law  Consolidation  Act  (12  &  13  Vi<(.  c.  lOG),  which  repeals 
statute  G  Geo.  IV.  c.  1(5,  and  other  statutes  relating  to  bankruptcy,  has 
a  similar  enactment  in  section  ]44.  And  see  also  Hull  v.  Morell  on  the 
construction  of  this  statute. 

Whether  a  landlord  mag  annex  a  condition  that  tlieg  sliall  be  consumed 
on  the  jjremises,  to  the  sale  of  the  hag  and  sfraa;  of  his  tenant  which  he 
seizes  under  a  distress,  has  been  the  subject  of  much  discussion.  In 
Abbeg  v.  Fetch  the  defendant  having  distrained  the  hay  and  straw  on 
the  premises  of  the  plaintiff",  who  held  a  farm  under  him,  sold  them 
subject  to  a  condition,  that  the  purcliaser  should  consume  them  on  the 
premises ;  the  consequence  of  which  was  they  produced  less  than  if  the 
sale  had  been  absolute.      By  the  terms  of  this  lease,  the  plaintiff  was 


SALE    OF    HAY    AND    STRAW.  299 

bound  not  to  cany  off  the  hay  and  straw  grown  on  the  farm.  It  was 
contended  for  the  plaintiff,  that  the  selling  of  the  goods  subject  to  the 
above  restriction  was  a  wrongful  act,  and  that  the  plaintiff'  was  entitled 
to  recover  under  the  third  count  of  this  action  (case  fur  excessive  dis- 
tress) the  difference  between  the  price  actually  obtained,  and  that  which 
might  have  been  obtained  if  no  such  condition  had  been  annexed  to  the 
sale.  MauJe  J.  was  of  opinion  that  no  cause  of  action  had  been  proved, 
and  a  verdict  was  found  for  the  defendant,  with  leave  to  plaintiff  to  move 
to  enter  a  verdict  for  him  on  the  third  count.  The  rule  was  discharged. 
Rolfe  C.  said,  '*  It  seems  to  me  that  the  5G  Geo.  III.  c.  50  throws  some  light 
upon  this  point,  for  the  3rd  sect,  provides  that  on  an  execution  against 
a  tenant,  the  sheriff  may  dispose  of  the  produce  of  the  land  to  any  person 
who  shall  agree  in  writing  to  expend  it  on  the  land  according  to  the 
custom  of  the  country,  where  no  covenant  or  written  agreement  shall  be 
shown  otherwise,  avconllng  to  such  covenant  or  written  agreement;  and 
the  Gth  sect,  enacts  that  the  landlord  shall  not  distrain  for  rent  on  any 
such  produce  which  shall  have  been  severed  fi'om  the  soil  and  sold 
subject  to  such  agreement."  Aad^jer  Lord  Ahingcr  :  "  A¥hen  the  land- 
lord sells  under  a  distress,  he  should  sell  no  more  than  the  tenant  could 
himself  dispose  of." 

In  Fruslicry.  Lee  the  hay  and  straw  were  sold  under  a  condition,  that 
they  should  be  consumed  upon  the  land  according  to  the  custom  of  the 
country  (Norfolk) ;  and  it  was  alleged  that  they  had  in  consequence 
fetched  inferior  prices.  Evidence  was  given  for  the  defendant  to  show 
that  sucli  was  the  custom  of  the  country  in  the  neighbourhood  where 
the  land  lay  ;  and  Ahlicij  v.  Fetch  was  cited  as  an  authority  that  the 
landlord  had  a  right  to  impose  such  a  condition.  Atderson  B.,  in 
summing  up,  left  it  to  the  jury  to  say  whether,  according  to  the  custom 
of  the  country,  the  hay  and  straw  could  not  be  removed  from  the 
premises  ;  and  if  so,  whether  under  those  circumstances  the  goods  were 
sold  for  the  best  price.  The  jury  found  that  such  was  the  custom,  but 
that  the  goods  being  sold  subject  to  that  condition  did  not  fetch  the 
best  price;  and  upon  the  whole  case  they  gave  a  verdict  for  the  plaintiff, 
damages  £51.  A  rule  for  misdirection  after  discussion  was  discharged 
by  the  Court  of  Exchequer  on  other  points.  Parhe  B.  said,  "  There  arc 
two  conflicting  authorities  on  this  subject.  In  the  case  of  Jones  v. 
Hanip,  Patteson  J.  ruled  at  Nisi  Prii/.s  that  the  landlord  had  no  right 
to  annex  such  a  condition  to  the  sale.  Mr.  Richards  moved  for  a  new 
trial  against  that  ruling  in  this  Court,  on  the  25th  of  April,  1840,  and 
the  rule  was  refused  on  that  point.  That  case  was  not  referred  to  in 
Abicy  V.  Fetch.  It  must  therefore  still  be  considered  as  a  disputed 
question."     Alclerson  B.  also  expressed  himself  much  impressed  with 


300  UNREASONABLE   DISTRESS. 

Mr.  Kelly's  argument  at  the  trial  against  the  decision  in  Abbri/  y. 
Pckli,  that  the  landlord  may  sell  it  subject  to  such  consuming  condition. 
That  argument  was  to  the  effect  that,  if  that  case  were  law,  the  land- 
lord would  haye  the  power  of  authorizing  any  number  of  persons  to 
come  upon  the  land  for  depasturing  the  hay  and  straw  during  the 
occupation  of  the  tenant. 

The  fticts  of  Ixodon  v.  Ei/ton  were  as  follows  :  the  plaintiff  had  been 
tenant  of  a  farm,  which  he  cpiitted  at  Lady-day,  1847,  leaying  thereon 
three  ricks  of  corn,  his  property.  By  the  agreement  under  which  he 
held  the  farm,  he  was  bound  to  consume  all  the  straw,  &c.,  grown  on  the 
farm  upon  the  premises.  The  defendant  seized  the  largest  rick  as  a 
distress  for  £39  arrears  of  a  rent-charge,  imposed  upon  the  premises 
under  the  Tithe  Commutation  Act,  caused  it  to  be  valued  by  two 
persons  who  were  not  professional  appraisers,  and  sold  it  upon  the 
terms  of  the  purchasers,  leaving  the  straw  on  the  farm.  The  agreed 
value  of  the  straw  was  £20,  and  of  the  wheat  when  severed  from  it, 
£42.  There  was  no  evidence  as  to  the  value  of  the  other  two  ricks. 
The  plaintiff  insisted  that  the  defendant  had  no  right  to  sell  the  w'heat, 
as  he  did,  apart  from  the  straw ;  while  the  defendant  contended  that 
the  tithe  owner  was  justified  in  acting  upon  the  condition  under  which 
the  plaintiff  had  held  the  farm,  and  relied  on  Abbe//  v.  Pefclt.  Piatt  B. 
acting  on  that  authority  directed  the  jury  to  find  for  the  defendant, 
with  leave  to  move  to  enter  a  verdict  for  the  plaintiff  on  the  second 
count  (excessive  distress),  with  nominal  damages,  if  the  Court  should 
be  of  opinion  that  the  sale  ought  to  have  been  unconditional.  The 
Court  refused  the  rule,  and  merely  decided  that  the  seizure  under  the 
circumstances  did  not  constitute  an  excessive  distress.  Wilde  C.J.  said, 
"  It  appears  the  entire  value  of  the  rick  here  seized  was  £62,  the  value 
of  the  wheat  being  £42,  and  that  of  the  straw  £20,  and  the  claim  in 
respect  of  which  the  seizure  took  place  was  £39.  The  value  of  the  other 
ricks  did  not  appear.  There  being  a  question  whether  the  straw  could 
be  legally  sold,  inasmuch  as  the  tenant  was  under  covenant  with  his 
landlord  to  consume  all  the  hay  and  straw  upon  the  farm ;  the  tithe 
owner  seized  the  whole  rick  (which  being  an  entire  thing  I  think  he 
was  justified  in  doing),  and  sold  the  wheat  only,  leaving  the  straw  upon 
the  land  to  be  enjoyed  ]>y  whoever  might  be  legally  entitled  to  it. 
Looking  at  the  amount  of  arrears,  and  at  the  value  of  the  rick,  I  think 
it  is  impossible  to  say  the  distress  was  unreasonable."  In  reference  to 
Abbey  v.  Petrh  his  lordship  observed,  "It  certainly  does  seem  to  be  a 
startling  proposition  to  say  that  the  distress  may  be  sold  subject  to  its 
being  used  upon  another  man's  premises.  But  how  is  that  case  any 
authority  where  the  straw  is  not  sold  at  all,  but  expressly  required  to  be 


EXCESSIVE   DISTRESS.  SOt 

Jeft  upon  the  premises  ?  It  being  a  disputed  question  whether  the  straw 
could  be  sold  or  not,  the  defendant  sells  that  which  he  has  a  right  to, 
and  leaves  the  rest." 

Ridgway  v.  Lord  Stafford  overruled  Ahhcy  v.  Pekh.  It  was  in  case 
for  excessive  distress,  the  fifth  count  charging  the  defendant  with  seUiiig 
tlte  plaint ff''s  hay  and  manure  under  imjjrojjcr  conditions  and  restrictions, 
and  for  less  than  the  liest  prices.  The  plaintiff  was  tenant  to  the  defend- 
ant under  a  lease,  by  the  covenants  of  which  the  plaintiff  was  bound  to 
consume  all  the  hay  and  manure  on  the  premises  made  thereon.  The 
defendant  had  distrained  the  hay  and  manure,  and  sold  it  subject  to 
this  condition,  and  the  sale  had  in  consequence  of  this  condition  not 
realized  the  amount  it  would  if  it  had  been  absolute.  The  defendant 
under  Not  guilty  contended  that  he  was  justified  in  selling  the  goods  on 
such  terms,  and  leave  was  reserved  to  defendant  to  move  to  reduce  the 
verdict  from  £166  15^.  to  £2Q  15s.  Pollock  C.B.,  in  refusing  a  rule, 
said,  "  The  question  raised  on  the  motion  made  to  reduce  this  verdict 
was  this,  viz.,  whether  when  crops  are  taken  as  a  distress,  upon  the 
farm  of  a  tenant,  who  is  bound  by  the  covenants  of  his  lease  to  expend 
such  crops  upon  his  farm,  the  crops  ought  to  be  sold  with  reference  to 
that  covenant ;  and  whether  if  they  are  so  sold,  and  on  that  account 
fetch,  as  they  naturally  would,  a  much  lower  price  than  if  sold  without 
such  a  condition,  the  landlord  so  seizing  and  selling  them  is  liable  to  an 
action  for  not  selling  for  the  best  price.  We  think  that  in  this  case 
there  should  be  no  rule,  as  we  are  of  opinion  that  the  effect  of  the 
decisions  upon  the  subject  make  the  proposition  plain."  "  On  the 
Avhole,  therefore,  we  consider  it  to  be  decided  that  the  sale  of  such  pro- 
duce, if  it  take  place  at  all,  ought  to  be  irrespective  of  any  covenants  to 
expend  it  upon  the  premises.  A  covenant  to  expend  the  produce  on  the 
land  is  a  covenant  that  cannot  run  with  a  chattel,  and  it  is  quite  plain 
that  the  tenant  himself  would  have  the  power  to  sell  without  such  a 
condition,  but  would  only  be  liable  to  his  landlord  for  a  breach  of  cove- 
nant. If,  therefore,  he  clearly  might  send  the  goods  to  market,  and 
sell  them,  the  landlord  who  seizes  the  property  must  sell  it  in  the 
ordinary  way,  and  for  the  best  price." 

Wliere  the  defendant  received  a  certain  sum  from  the  plaintiff  for  a 
personal  chattel,  which  hoth  parties  'knew  to  have  leen  Irovght  lender  an 
execution,  and  the  plaintiff  was  prevented  from  taking  possession  of  it  by 
a  third  party,  who  claimed  under  a  superior  title,  it  was  held  by  the 
Court  of  Queen's  Bench  that  under  such  circumstances  there  was  no 
implied  warranty  of  title  by  the  defendant,  and  that  the  plaintiff  could 
not  recover  back  the  price  paid  by  him,  as  upon  a  failure  of  considera- 
tion {Chapman  v.  Speller).     The  true  consideration  here  was  the  assign- 


502   NON-DELIVERY   OF    GOODS    SOLD    AT    SHERIFF'S    SALE. 

ment  of  the  right,  whatever  it  was,  that  the  defendant  had  acquired  by 
his  purchase  at  the  sheriff's  sale,  and  that  had  not  failed.  But  qimre 
whether  the  vendor  of  a  personal  chattel  is  bound  to  refund  the  price  if 
he  has  no  title  (/&.). 

The  Hon-(Mivcnj  of  goods  sold  at  a  sheriff's  sale  was  much  considered 
by  the  Court  of  Queen's  Bench,  in  Wood  v.  Manleij,  where  the  plaintiff's 
landlord  distrained  on  him  for  rent,  and  seized  some  hay  which  was 
sold  on  the  premises.  The  conditions  of  the  sale,  to  which  plaintiff  was 
a  party,  were  that  the  purchasers  might  let  the  hay  remain  on  the 
premises  till  the  next  Lady-day,  and  come  on  the  premises  when  they 
liked  to  remove  it.  The  defendant  purchased  some  hay,  and  on  January 
2Gth  the  |>laintiff  served  a  notice  on  him  not  to  commit  any  trespass  on 
the  plaintiff's  premises;  and  in  spite  of  a  written  demand,  accompanied 
with  the  threat  of  an  action,  refused  to  let  him  have  it.  Accordingly, 
on  :March  1st,  the  defendant  broke  open  the  gate  and  carried  the  hay 
away.  ErsJcme  J.  told  the  jury  that  if  the  plaintiflp  assented  to  the  con- 
ditions of  sale  at  the  time  of  the  sale,  this  araoiuited  to  a  licence  to  enter 
and  take  the  goods,  which  licence  was  not  revocable,  and  he  therefore 
directed  them  to  find  on  this  issue  for  the  defendant,  if  they  thought 
the  plaintiff  had  so  assented.  The  Court  refused  a  rule  for  a  new  trial. 
They  considered  the  licence  so  far  executed  as  to  be  irrevocable  equally 
with  that  in  7\f)/Ier  y.  Waters. 

Trurer  lies  against  a  landlord  who  'iiiaJres  a  second  distress  for  the  same 
rent,  n-hen  he  might  hare  tahen  stif/icie/it  at  frst,  or  irhere  having  taken  a 
sufficient  distress  at  first  he  roliintaritg  abandons  it  {Daicson  v.  Cropp.)  In 
Lee  v.  CooU  it  was  held  by  the  Exchequer  Chamber,  affirming  the  judg- 
ment of  the  Court  of  Exchequer,  that  if  there  is  a  fair  opportunity,  and 
no  legal  cause  ivhg  a  distrainer  should  not  worJc  out  payment  ly  means  of 
a  single  distress,  it  is  his  duty  so  to  worlc  it  out,  and  he  cannot  laufully 
distrain  again  ;  but  if  the  purchaser  of  the  goods  distrained  is  prevented 
from  getting  them  by  the  wrongful  act  of  the  distrainee  in  converting 
them  to  his  own  use,  and  has  never  had  an  opportunity  of  getting  them, 
a  second  distress  is  lawful. 

In  this  case  the  defendant  {one  of  the  General  l)i-ainage  Commis- 
sioners) distrained  a  stack  of  the  plaintiff's  standing  upon  his  land; 
and  whilst  still  standing  there,  it  was  knocked  down  to  one  Leverton  at 
an  auction.  It  was  a  condition  of  the  ready-money  sale  that  purchasers 
should  remove  lots  at  their  own  expense,  take  possession,  and  pay  at 
the  fall  of  the  hammer,  or  with  the  auctioneer's  permission  at  the  close 
of  the  sale.  After  the  sale  the  auctioneer  left  the  stack  for  the  purchaser 
to  take  away;  but  he  did  not  do  so  then.  Upon  his  going  to  the 
premises  four  days  afterwards  with  his  cart  for  ihat  purpose,  the  plain- 


INTERPLEADER.  303 

tiff,  who  at  the  sale  had  said,  "  It  would  be  one  thing  to  buy  the  stack, 
and  another  to  take  it  away/'  assaulted  him  and  prevented  him  from 
removing  it,  and  kept  and  converted  it,  Leverton  never  paid  the  price ; 
but  the  jury  found  that  he  had  never  had  at  any  time  after  the  sale  an 
opportunity  of  taking  the  stack  away  ;  and  upon  these  facts  it  was  held 
that  the  distress  having  been  rendered  abortive  by  the  wrongful  acts  of 
the  plaintiff,  a  second  was  law-ful.  Wightman  J,  thus  distinguished  it 
from  Bagge  v.  Mawlnf:  "  There  the  creditor,  who  subsequently  became 
assignee  under  the  bankruptcy,  had  merely  threatened  the  landlord  to 
hold  him  accountable  if  he  proceeded  with  the  distress,  and  the  landlord 
upon  the  threat  ^vithdrew.  If  no  more  than  that  had  been  done  here, 
the  case  would  have  come  within  the  principle  of  that  decision;  but 
here  the  plaintiff  has  converted  the  distress  to  his  own  use,  and  deprived 
Leverton  of  it  for  ever." 

Unregistered  transfer  of  growing  croj)  good  against  execution  creditor. — 
A  creditor  having  agreed  with  his  debtor  to  take  a  growing  crop  in  satis- 
faction, and  the  dehtor  having  given  him  a  receipt  for  the  amount  of  the 
debt  as  if  for  money  paid  on  a  sale  of  the  crop,  and  the  creditor  having 
taken  possession,  it  was  held  by  Wightman  J.,  that  the  transfer  though 
not  registered  was  good  as  against  an  execution  creditor  {Neicman  v. 
Cardinal). 

Interpleader.— 'SS\\QXQ  an  execution  has  been  levied,  and  a  landlord 
makes  a  claim  upon  the  sheriff  for  rent,  which  the  execution  creditor 
lias  not  expressly  disputed,  whether  as  regards  the  amount  of  rent  due 
(on  the  construction  of  the  lease),  or  as  regards  the  liability  of  the 
property  which  has  been  seized  to  distress,  the  sheriff  is  not  entitled  to 
an  interpleader,  at  all  events  unless  the  landlord  claims  any  part  of  the 
property ;  and  semhle  that  in  no  case  where  the  claim  is  for  rent  can 
there  be  an  interpleader  {Bateman  v.  Farnsivortli). 

Distress  an  affirmation  of  tenancg. — A  landlord  by  distraining  for  rent 
afEi-ms  the  continuance  of  tlie  tenancy  up  to  the  day  when  the  rent  bo 
distrained  for  became  due,  A  tenant  under  a  lease  at  a  quarterly  rent 
of  £80  payable  quarterly,  with  a  clause  for  re- entry  if  the  rent  should 
be  in  arrear  for  21  days,  was  in  arrear  £60  for  three  quarters  at 
Michaelmas  ;  for  these  arrears  his  landlord  on  October  2nd  took  a 
distress,  which  on  October  16th  realised  £27  6.?.,  leaving  due  £32  14s,, 
there  being  no  sufficient  distress  upon  the  premises.  On  November  2nd, 
the  landlord  (under  the  Common  Law  Procedure  Act  1852,  s,  210) 
served  a  writ  of  ejectment.  It  was  held  by  the  Court  of  Common  Pleas, 
that  the  landlord  had  affirmed  the  continuance  of  the  tenancy  up  to 
Michaelmas,  and  that  as  half-a-year's  rent  was  not  in  arrear  at  the  time 
the  writ  was  served  he  could  not  recover.     And  jat  Curiam  :   '■'■  The 


uOl-  DISTRESS   AN   AFFIRMATION"   OF   TENANCY. 

statute  4  Geo.  11.  c.  28,  s.  2,  for  which  the  210th  section  of  the  Common 
Law  Procedure  Act  is  substituted,  enables  a  landlord  to  proceed  under 
it  only  in  cases  where  there  shall  be  half-a-year's  rent  in  arrear,  and  a 
right  to  re-enter  for  the  non-payment  thereof,  i.e.  for  non-payment  of 
half-a-year's  rent,  see  {Doe  dcm.  Dixon  v.  Hoc,  7  C.  B.  134).  In  the 
present  case,  therefore,  no  right  to  re-enter  in  respect  of  the  rent  due 
for  the  half-year  which  ended  at  Michaelmas  could  be  relied  on,  because 
it  never  was  in  arrear  for  21  days.  But  it  was  contended  that  at  all 
events  a  complete  title  accrued  on  the  21st  day  after  the  Midsummer 
rent  became  due,  and  Doc  v.  tShanrross  (3  B.  &  C.  752)  was  cited." 

"  That  case  certainly  shows  that  in  cases  to  which  the  Act  applies, 
the  title  accrues  at  the  time  when  the  demand  of  the  rent  ought  to  have 
been  made  at  common  law.  But  the  statute  authorises  the  service  of 
the  writ  '  as  often  as  it  shall  happen  that  one  half-year's  rent  shall  be  in 
arrear  ; '  and  in  the  present  case,  there  was  no  such  arrear  at  the  time 
the  writ  was  served.  The  case  therefore  is  not  within  the  Act,  unless 
the  words  '  shall  be '  ought  to  be  construed  'shall  have  been.'  But  there 
is  nothing  unreasonable  in  supposing  that  the  statute  meant  to  confine 
its  operation  to  cases  where  the  tenant  was  six  months  in  arrear  at  the 
very  time  when  the  landlord  had  recourse  to  this  statutory  remedy.  It 
is  not,  however,  necessary  for  us  to  decide  this  point,  because  we  are 
clearly  of  opinion  that  the  plaintiflF  waived  any  breach  of  the  conditioii 
of  re-entry,  which  accrued  earlier  than  Michaelmas,  by  distraining  for 
the  Michaelmas  rent.  Had  the  distress  been  confined  to  the  rent  due 
at  Midsummer,  it  would  not  have  waived  the  forfeiture  for  the  non-pay- 
ment of  that  rent,  as  appears  by  the  case  of  Brewer  v.  Eato7i  (3  Doug. 
230),  which  was  cited  for  the  plaintiffs.  But  the  distinction  is  plain, 
that  though  a  distress  in  respect  of  rent  due  accruing  before  the  breach 
of  condition  is  no  waiver  of  it,  yet  a  distress  for  rent  accruing  after  such 
breach,  with  notice  of  it,  is  a  waiver  of  it,  because  such  a  distress 
affirms  and  admits  the  continuance  of  the  tenancy  up  to  the  day  when 
the  rent  so  distrained  for  became  due.  If  it  were  otherwise  the  plaintiffs 
would  by  this  action  establish  their  right  to  the  possession  of  the 
demised  premises,  and  to  deal  with  the  defendant  as  a  trespasser  at  a 
date  anterior  to  Michaelmas,  although  the  plaintiff's  by  their  distress 
have  treated  the  defendant  as  having  been  rightfully  in  possession  as 
tenant  up  to  that  date  "  {Cotesivorth  and  Another  v.  Spokes). 

Sheriff  not  enlitled  lo  immdaije. — Where  after  seizure  of  goods  under 
writ  of  execution,  but  before  mle,  the  judgment  and  subsequent  proceed- 
ings are  set  aside  for  irregularity,  and  the  goods  are  therefore  not  sold, 
the  sheriff  is  not  entitled  to  poundage  {Miles  v.  Harris). 

Measure  of  damages  in  case  of  trespasser  at)  initio. — AVhere  a  landlord 


WHERE    LANDLORD    TRESPASSES    AB   INITIO.  305 

distrains  for  rent  actually  due  in  such  a  manner  that  he  is  throughout 
a  trespasser  ah  iniHo,  and  does  not  merely  become  such  by  reason  of  an 
irregularity  subsequent  to  entry,  the  measure  of  damages  in  an  action 
of  trespass  brought  against  the  landlord  by  the  person  so  distrained 
upon  is  the  fuU  value  of  the  goods  taken,  and  the  jury,  in  estimating 
the  damages,  ought  not  to  make  any  deduction  from  such  value  in 
respect  of  the  rent  which  was  actually  due.  And  per  BlacMurn  J. : 
"Where  a  party  sues  for  a  taking  of  his  goods,  and  the  defendant  had  an 
interest  in  the  goods,  there  is  very  little  doubt  that  the  defendant  may 
deduct  the  value  of  that  interest  from  the  damages  of  the  taking.  That 
was,  I  think,  the  principle  proceeded  on  in  Proudlove  v.  Twemlow  (1  Cr. 
&  Mee.  326)  and  in  Chinery  v.  Viall  (29  L.J.  N.S.  Ex.  180).  Here 
the  landlord  was  a  trespasser  ah  initio,  and  did  not  merely  become  so  by 
an  irregularity  after  entry  so  as  to  be  protected  by  the  statute  of  Geo.  II. 
The  case  of  Keen  v.  Priest  (4  H.  &  N.  236)  is  clear  against  my  ruling, 
and,  as  I  now  think,  rightly  so  "  {Attach  v.  Bantell). 

In  the  case  of  Orimivood  v.  Moss  (7  L.R.  C.P.  360).  A  lease  of  a 
farm  contained  a  condition  of  re-entry  for  breaches  of  covenants  which 
took  place  before  the  24th  June,  1871  ;  the  lessors  brought  ejectment 
on  the  21st  July  in  the  same  year,  but  the  wi'it  did  not  claim  possession 
as  from  an  antecedent  date.  After  the  commencement  of  the  action, 
but  before  trial,  the  lessors  distrained  for  rent  due  up  to  24th  June, 
1871.  Held,  that  the  distress  had  not  waived  the  breaches  of  covenant 
prior  to  24th  June,  1871. 


306  CUSTOM   OF   THE    COUNTRY. 


CHAPTER   X. 

HUSBANDRY    COVENANTS— CUSTOM    OF    THE    COUNTRY. 

The  law  will  imply  a  promise  on  tenant's  part  to  cultivate  his  farm 
in  a  luisbandlike  manner,  and  according  to  the  custom  of  the  country 
in  which  it  is  situated,  unless  the  express  agreement  is  inconsistent  with 
the  custom.  When  a  custom  of  the  country  is  proved  to  exist,  it  is  to 
be  considered  as  applicable  to  all  tenancies  in  whatever  way  created, 
whether  verbal  or  in  writing,  unless  expressly  or  impliedly  excluded  by 
the  written  terms  themselves  {Wilkins  v.  Wood). 

The  mere  relation  of  landlord  and  tenant  is  a  suflicient  consideration 
for  the  tenant's  promise  to  manage  a  farm  in  a  good  and  husbandlike 
manner,  and  not  to  carry  away  any  straw,  dung,  or  compost,  (Src, 
{Poicley  V.  Wall^er).  In  assumpsit  on  a  promise  so  to  manage  it,  and 
according  to  the  custom  of  the  country,  it  is  suflBcient  to  allege  the 
breach  in  the  words  of  the  promise  {Earl  of  Falmoidli  v.  Thomas).  And 
a  count  stating  a  contract  by  the  defendant,  to  use  the  farm  in  a 
husbandlike  manner,  is  not  supported  by  proof  that  he  had  agreed  to 
manage  it  in  a  husbandlike  manner,  to  le  kept  constantly  in  grass 
{Saunderson  v.  Griffiths).  A  breach  of  a  covenant  to  cultivate  ac- 
cording to  the  custom  of  the  country  is  sufficiently  averred,  by  stating 
that  defendant  did  not  so  cultivate,  without  specifying  instances  [Martyn 
adx.  V.  Clue). 

Where  a  declaration  stated  that  the  defendants  were  tenants  to  the 
plaintiff  from  March,  1835,  to  February,  1837,  and  ly  reason  thereof,  it 
was  their  duty  as  such  tenants  to  cultivate  the  farm  in  a  good  sub- 
stantial manner,  according  to  the  custom  of  the  country,  the  pleas  of 
Xot  guilty  and  that  the  defendants  were  not  tenants,  &c.,  modo  et 
forma,  only  put  in  issue  a  tenancy  in  fact,  and  therefore  the  defendants 
could  not  object  to  the  non-production  of  a  lease,  which  was  required 
for  the  purpose  of  showing  a  tenancy  inconsistent  with  the  cultivation, 
according  to  the  custom  of  the  country  {Hatlifax  v.  Chamhers).  On  the 
evidence  it  appeared  that  there  had  been  a  lease,  which  expired  in 
February,  183n,  and  that  the  defendants  held  over,  and  that  the  action 
was  brought  for  mismanagement  between  Februar}',  183G,  and  February, 


TORTS    WHICH    DIE    WITH    PEESON.  307 

1837.  And  2)er  Curiam:  "If  the  defendants  intended  to  show  that 
under  the  terms  of  a  lease  they  were  not  bound  to  manage  this  farm 
according  to  the  custom  of  the  country,  that  should  have  been  pleaded. 
The  declaration  merely  states  that  the  defendants  were  tenants,  and 
that  a  ^'certain  duty  devolved  upon  them  in  that  character  ;  and  no 
point  is  raised  by  either  of  the  issues  as  to  the  lease,  or  the  terms  of 
the  former  holding."  (//;.) 

A  lord  of  the  manor,  though,  he  inaij  hring  a  hill  for  an  account  of  ore 
dug,  or  timher  cut,  by  defendant's  testator,  may  not  bring  one  for 
ploughing  up  meadow  or  ancient  pasture,  or  such  torts  as  die  with  the 
person  {Bishop  of  Winchester  v.  Knight).  It  was  laid  down  in  Johnson 
V.  Goldswaine,  that  irremediable  injury  is  the  only  ground  for  the 
summary  interposition  of  courts  of  equity,  and  that  the  ploughing 
up  of  ancient  meadow  was  irreparable  waste  ;  but  that  carrying  off  the 
straw  and  manure  which  were  to  have  been  spent  upon  the  land,  was 
merely  a  breach  of  contract.  If  the  breach  of  a  covenant  be  assigned 
thus,  "  that  the  defendant  had  not  used  a  farm  in  a  husbandlike  mannerj 
hut  on  the  contrary  has  committed  great  waste,  spoil,  and  destruction," 
the  plaintiff  cannot  give  evidence  of  the  defendant  using  the  farm  in 
an  unhusbandlike  manner,  if  it  do  not  amount  to  waste  (Harris  v. 
Mantle).  Evidence  was  offered  at  the  trial  to  show  that  the  defendant 
had  not  managed  his  farm  in  a  husbandlike  manner,  as  he  had  not 
sown  any  clover  or  turnips  on  a  certain  proportion  of  it,  according  to 
the  course  of  husbandry  in  Worcestershire.  Heatlt  J.,  who  tried  the 
case,  thought,  as  the  lease  was  not  expired,  this  ^\■as  not  spoil  or  des- 
truction, and  nonsuited  the  plaintiff,  and  the  Court  discharged  a  rule 
for  a  new  trial  without  argument.  Butler  J.  said,  on  the  former  words 
of  the  breach,  the  evidence  would  have  been  admissible  ;  yet  as  the 
plaintiff  had  in  the  subsequent  part  of  it  narrowed  it  to  waste,  spoil, 
and  destruction,  it  was  not  competent  to  him  to  give  evidence  of  any 
other  particulars,  which  did  not  come  within  the  meaning  of  those 
words.  And  per  Parhe  B.  :  "  It  is  not  waste  at  common  law,  either 
wilful  or  permissive,  to  leave  tJie  land  uncultivated.  In  order  to  oblige  a 
tenant  to  farm  according  to  good  husbandry,  you  must  either  have 
some  express  contract,  or  some  implied  contract  from  the  custom  of  the 
country  "  {Ilutton  v.  Warren).  A  breach  in  an  action  by  a  landlord 
against  an  outgoing  tenant,  that  the  tenant  threatened  to  commit  waste, 
unless  he  were  paid  a  certain  sum  by  the  incoming  tenant,  as  compensa- 
tion for  ploughings,  draggiugs,  grass  seeds  sown,  dung,  &c.,  and  that 
the  latter  was  thereby  compelled  to  and  did  pay  him  that  sum,  in  order 
to  prevent  his  committing  such  waste,  is  bad  {Leach  v.  Thomas).  It 
was  ruled  at  Nisi  Prius  by  Lord  Elknhorough  C.J.  that  it  is  waste  for 

X  2 


308  INJUNCTION    AGAINST    BREAKING   UP   PASTURE, 

an  ouUioing  tenant  of  (janlen  g round  to  plough  up  stmwhorry  heds  in  full 
hearing,  although  when  he  entered  he  paid  for  them  on  a  valuation  to 
the  pei-son  who  occupied  the  premises  before  him,  and  although  it  may 
have  been  usual  for  strawberry  beds  to  be  appraised  and  paid  for,  as 
between  outgoing  and  incoming  tenants  {WaflwreU  v.  Howells). 

Lord  Eldon  C.B.,  granted  an  injunction  to  restrain  the  defendant  (the 
tenant  of  a  farm) //w;j  brealcing  iqj  meadow  for  the  j^ufyose  of  huilding, 
contrary  to  the  covenants  of  his  lease,  which  were  not  to  convert  any 
meadow  land,  with  all  other  usual  covenants  showing  that  it  was  a 
tillage  farm.  A  covenant  to  manage  pasture  in  a  husiandlike  manner 
is  equivalent  to  one  not  to  convert  it  into  arable  {Bniryy.  Molins).  It  is 
clearly  established  by  several  authorities  (Co.  Litt.  53  a,  Dyer  37,  Hob. 
23-A)  that  j)loughing  meadow  land  is  waste ;  and  one  of  the  reasons  given 
is,  that  it  alters  the  evidence  of  title,  a  reason  which,  as  Tindal  C.J. 
observed  in  Simmons  v.  Norton,  "  I  am  not  disposed  to  treat  lightly. 
It  is  also  esteemed  waste  on  another  account;  viz.,  that  in  ancient 
meadow,  years,  perhaps  ages,  must  elapse  before  the  sod  can  be  restored 
to  the  state  in  which  it  was  before  ploughing.  The  law,  therefore,  con- 
siders the  conversion  of  pasture  into  arable  as  primd  facie  injurious  to 
the  landlord  on  these  two  grounds  at  least."  It  w\is  uniformly  held  by 
Sir  W.  Mac3Iahon  IM.R.  (Ire.)  that  in  fee  simple  estates  a  continuance 
in  pasture  for  20  years,  during  the  life  of  the  donor  or  testator,  im- 
presses on  land  the  character  of  ancient  pasture ;  but  that  if  the  period 
was  less  than  20  years,  the  case  is  open  to  evidence  of  intention,  but 
not  otherwise.  It  is  not  waste  to  plough  up  land  held  under  a  lease,  if 
the  land  was  not  ancient  meadow  or  pasture  at  the  date  of  the  lease 
(Jlorris  v.  Morris).  A  tenant  may  not  break  up  ancient  meadow  or 
pasture,  though  the  land  is  mossy  and  requires  tillage,  and  there  is  no 
covenant  in  the  lease  against  doing  so  {Martin  v.  Cogan).  AxiAper  Sir  W. 
MacMahon  ]\r.Pt.  :  "  The  usual  form  of  the  affidavit  required  to  support 
an  application  for  such  an  injunction,  is  that  the  land  is  ancient  pasture 
or  meadowy  and  has  not  been  burned  nor  tilled  for  the  last  20  years, 
and  it  is  for  the  defendant  to  show  that  it  ought  not  to  be  considered 
ancient  pasture,  by  reason  of  its  having  been  used  in  tillage  previously 
to  the  date  of  his  lease."  Lord  Ma?isfield  C.J.  ruled  in  Birch  v. 
Stephenson,  that  sowing  clover  tvith  the  spring  corn  does  not  constitute 
laying  down  land  in  fermanent  pasture,  but  it  must  still  be  considered 
in  a  state  of  tillage.  And  p;-  Tindal  C.J. :  "Merely  sowing  common 
grass-seed  does  not  make  land  old  meadow  again"  {Simmons  v.  Norton). 

Kinlyside  v.  Thornton  decided  expressly  that  a  lessor  may  sue  for 
waste  in  an  action  upon  the  case,  although  the  lease  contains  a  covenant 
upon  which  the  lessor  might  maintain  an  action  for  the  same  wrong. 


rJGHT   OF   REVERSIONER   TO    PREVENT  WASTE.  309 

And  2^cr  Maule  J.  :  "  Kinhjside  v.  Thornton  (which  was  expressly  recog- 
nized in  Miislcett  v.  Hill)  shows  that  if  waste  be  committed,  the  lessor 
may  maintain  an  action  on  the  case  for  it,  and  that  it  is  no  answer  for 
the  lessee  to  say  that  covenant  also  may  be  maintained.  That  case  shows 
that  the  lessor  may  have  either  remedy.  The  authorities  which  are  said 
to  have  shaken  that  case  seem  to  me  to  have  nothing  to  do  with  the 
matter.  All  they  decide  is,  that  where  there  is  a  contract  under  seal, 
you  cannot  sue  in  respect  of  the  same  contract,  as  upon  a  contract  not 
under  seal"  {Marlcer  v.  Kenrick).  An  action  of  waste  for  not  using 
a  farm  in  a  tenant-like  manner,  is  not  within  the  meaning  of  46  Geo. 
III.  c.  66— Isle  of  Wight  Court  of  Requests  Act— ( PF/Ztom  v.  Unj). 

Where  a  declaration  states  a  charge  of  volimtary  waste,  evidence  of  a  per- 
missive waste  is  not  admissible  {Martin  v.  Gilham).  The  reversioner  or 
remainderman  may  apply  to  Chancery  to  restrain  the  tenant  in  posses- 
sion from  w-aste,  in  all  cases  where  it  is  punishable  by  law,  and  an  in- 
junction will  be  granted  before  the  bill  is  filed.  An  injunction  will  be 
granted  on  an  affidavit  of  waste  to  be  committed  by  a  tenant  for  life 
or  years,  or  to  inhibit  meadow  or  other  pasture  not  ploughed  within 
20  years  being  ploughed,  but  not  against  a  lessee  who  agreed  to  pay 
20s.  an  acre  per  annum  increase  of  rent  if  he  ploughed  a  meadow  ;  or 
to  inhibit  ancient  enclosures  being  thrown  down  (Com.  Dig.  Chan. 
D  11).  The  Court  of  Chancery  will  anrrrd  a  ])erpetual  i?ijimctian  to 
restrain  waste  hi/ ploughing,  hwrning,  hreahing,  or  sowing  of  Down  lands, 
the  effect  of  whicli,  though  it  might  be  a  present  advantage  to  the  ap- 
pellant for  his  short  term  of  years,  would  be  a  total  destruction  of  all 
future  benefit  to  arise  from  the  Down,  and  for  want  of  foldage  for  the 
shepp,  would  greatly  damage  and  impoverish  the  arable  part  of  the  farm 
(4  Bro.  Par.  Cases,  377).  An  injunction  has  been  granted  where  a 
tenant  ploughed  up  a  bowling  green  (2  Brown's  Chan.  E.ep.  64),  and 
also  to  prevent  the  land  l^eing  sown  with  mustard-seed,  or  with  any 
other  pernicious  crop  {Pratt  v.  Brett),  among  which  flax  may  perhaps 
be  included  (Savage  v.  Connor). 

On  a  writ  of  waste  for  ploughing  ancient  meadow,,  the  defendant  was 
not  allowed  under  the  general  issue,  nul  wast,  to  give  evidence  that  the 
ploughing  was  resorted  to  according  to  the  custom  of  the  country,  for 
the  purpose  of  ameliorating  the  meadow,  and  it  was  held  by  the  Court 
of  Queen's  Bench,  that  if  such  matter  were  a  defence  at  all,  it  must  be 
pleaded  specially  {Simmons  v.  Norton).  And  jjcr  Curiam  .•  "  It  is  only 
where  the  waste  happens  by  the  hand  of  God,  or  the  like  (as  if  the  sur- 
face of  the  meadow  had  been  destroyed  by  the  eruption  of  a  moss,  or 
enemies  had  landed  and  dug  it  up),  that  the  general  issue  is  the  proper 
plea.     The  general  principle  is  clearly  laid  down  in  Barrett  v.  Barrett; 


310  PLOUGHING    UP    PABBUr   WAEREN. 

r.nd  tliondi  some  exceptions  are  pointed  ont,  yet  with  respect  to  the 
conversion  of  meadow  into  arable,  no  doubt  is  raised,  Init  it  is  extremely 
donbtful  whether  such  an  injunction  would  now  be  granted  either  in  the 
case  of  mustard  seed  or  flax. 

It  cannot  Ic  decided  as  a  genei'al  jjrojwsifion,  without  any  exception, 
that  the  conversion  of  ancioit  meadow  into  arahle  is  to  he  treated  as  waste, 
and  hence  the  Court  will  not  restrain  an  incumbent  from  ploughing  up 
meadow  infected  with  moss  and  weeds  for  the  purpose  of  laying  it  down 
again  in  grass  when  properly  cleaned  {Duke  of  St.  Athans  v.  Skijjwit//). 
And  qi'O're,  whether  a  patron  is  in  any  cnse  entitled  to  an  injunction  to 
restrain  the  incumbent  from  ploughing  up  ancient  meadows,  as  in  that 
case  the  course  of  husbandry  cultivation  must  remain  the  same  to  all 
time  (//>.).  In  HosJfins  v.  Featherstone,  where  the  Court  had  previously 
interfered  to  stay  the  conversion  of  glebe  meadow  into  pasture,  the  bill 
was  filed,  not  against  the  incumbent,  but  against  the  widow  of  an  in- 
cumbent who  was  doing  the  acts  complained  of  during  a  vacancy. 
Xeejlect  to  cidtivate  the  fjlele  land  in  a  husiandtiJce  manner,  is  ?iot  a  dilapi- 
dation for  tchich  an  incum'bent  can  recover  against  the  executors  of  a  pre- 
viovs  incumlcnt,  as  no  such  contract  to  cultivate  it  can  be  implied 
between  him  and  his  successor  ;  there  must  be  something  of  demolition 
to  support  an  action  for  dilapidations  {Bird  v.  Ralph).  And  pier  Patte- 
son  J.:  "The  authorities  show  that  such  an  action  is  maintainable, 
where  the  buildings,  hedges,  and  fences  belonging  to  the  benefice  are 
left  in  a  state  of  decay,  or  where  tliere  has  been  a  felling  of  timl.)cr, 
otherwise  than  for  repairs  or  fuel  "  (il\). 

To  hrecik  up  a  ralhit  warren  for  potato  grounds,  unless  it  be  a  warren 
by  charter  or  prescription,  is  not  waste  at  common  law,  and  the  Court 
will  grant  no  injunction  {Lurling  v.  Conn).  Here  the  warren  was 
demised  simply  as  land,  l)ut  the  i^Iaster  of  the  Rolls  intimated  that  if  a 
lease  was  made  of  a  rabbit  warren  as  a  rabbit  warren,  the  tenant  might 
])crhaps  be  considered  as  i>recluded  from  ploughing  it  up.  An  injunc- 
tion was  granted  to  resti'ain  tenants  from  year  to  ycnr  under  notice  to 
quit,  as  in  the  case  of  a  lessee  for  a  longer  term,  from  cutting  and  doing 
damage  to  hedge-rows,  and  from  removing  the  crops,  manui-e,  &c.,  ex- 
cept according  to  the  custom  of  the  country  {Onslow  v.  Fames),  and  sec 
Ptdtoney  v.  Shelton,  and  Lathropp  v.  Marsh. 

In  Rayner  v.  Stone  a  demurrer  to  a  hill  hg  a  landlord  for  a  specific 
performance  of  covenants  contained  in  a  lease  which  had  expired,  to  re- 
pair hedges  and  mansion-house,  to  account  foi-  loppings,  toppings,  and 
hedges  which  the  defendant  had  cut  on  tlic  premises,  or  to  account 
for  the  fodder  or  dung  which  he  had  removed,  or  to  set  up  landmarks, 
ptones  and  fences,  was  allowed ;  common  covenants  in  husbandry  not 


PAROL    AGREEMEKT    FOR   A    LEASE.  311 

being  the  subject  of  equitable  jurisdiction,  of  which  a  si)ecific  perform- 
ance will  be  granted.  Lord  Chancellor  Henley  said,  "  How  can  a 
master  judge  of  repairs  in  husbandry  ?  What  is  a  proper  ditch  or 
fence  in  one  place  may  not  be  so  in  another."  Where  a  tenant  has 
committed  breaches  of  covenant  by  waste,  treating  the  land  in  an  un- 
husbandlike  manner,  A-c,  and  been  guilty  of  various  breaches  of  cove- 
nant for  which  the  lessor  had  a  right  of  re-entry,  he  is  not  entitled  to 
a  specific  performance  of  an  agreement  for  a  lease  {Hill  v.  Barclay). 
And  in  Neshilt  v.  3Ieyer  specific  performance  was  refused  of  an  agree- 
ment to  grant  a  lease  for  a  term  expired  before  the  hearing  of  the 
cause,  as  the  acts  of  waste,  which  were  confined  to  the  cutting  down  of 
70  or  80  poles  of  the  value  of  £3  in  order  to  repair  the  fences,  would 
not  entitle  the  plaintiff,  iu  an  action  on  the  covenants  to  be  inserted  in 
the  lease,  to  more  than  nominal  damages. 

Wiere  iqmn  a  ]mrol  ayreement  for  a  lease  (the  land,  the  rent,  and  the 
terms  of  years  being  certain)  the  tenant  was  let  into  imssession,  and  the 
landlord  received  a  sum  of  money  from  him  for  the  stock  on  the  farm, 
Sir  J.  Stuart  Y.C.  decreed  that  the  tenant  was  entitled  to  a  specific 
performance  of  the  agreement  {Pain  v.  Combes).  But  if  under  an 
agreement  for  a  lease  the  tenant  files  his  bill  for  specific  performance, 
and  yross  acts  of  waste  and  yross  breaches  of  covetiant  arc  jiroved  ayainst 
him,  the  Court  will  not  grant  a  lease,  the  only  effect  of  which  would  be 
to  compel  the  landlord  immediately  to  sue  the  tenant  for  breach  of  the 
covenants ;  but  where  the  alleged  acts  of  waste  and  breaches  of  covenant 
are  explained  or  contradicted  on  the  other  side,  the  Court  will  not  take 
such  doubtful  questions  into  consideration,  as  a  reason  for  refusing  a 
decree  for  specific  performance  {ib.).  A  Court  of  Eqiiity  will  ?iot  'inter- 
fere yenerally  to  restrain  an  action  of  ejectment  brouyht  ayainst  a  lessee  for 
breaches  of  covenant  in  the  lease,  except  for  breaches  in  nonpayment  of 
rent  {Nokes  v.  Gibbons).  And  where  a  lessee  covenanted  to  make 
certain  drains,  it  is  not  an  equitable  ground  of  interference  that  he 
employed  persons  to  make  the  drains,  but  that  they  did  not  do  the 
work  properly  {ih.).  It  is  laid  down  (Prec.  Chan.  561)  that  where  a 
man  on  a  promise  of  a  lease  to  be  made  to  him,  lays  out  money  on  im- 
provements, he  shall  oblige  the  lessor  afterwards  to  execute  the  lease, 
because  it  was  executed  on  the  part  of  the  lessee  ;  besides,  that  the 
lessor  shall  not  take  advantage  of  his  own  fraud,  and  run  away  with 
the  improvements  made  by  another  :  if  no  such  expense  had  been  on 
the  lessee's  part,  a  bare  promise  of  the  lease  though  accompanied  with 
possession,  as  where  a  lessee  by  parol  agreed  to  take  a  lease  for  a  term 
of  years  certain,  and  continued  in  possession  on  the  credit  thereof, 
there  being  no  writing  to  make  out  this  agreement,  it  is  directly  Avithin 


'Ml  COVENANT   NOT   TO    PLOUGH   UP   PASTUEE. 

the  Statute  of  Frauds,  and  will  not  be  enforced.  See  also  Tr///.s  v. 
Straillimi.  And  per  Lord  Macdonahl  C.B. :  "The  conduct  of  a  landlord 
in  permitting  and  encouraging  improvements  under  sanction  of  a  lease, 
"which  he  knew  to  be  bad,  may  perhaps  in  equity  give  the  lessee  a  claim 
against  him  for  a  new  lease,  though  it  docs  not  at  law  amount  to  a 
confirmation  or  renewal  of  the  old  "  {Hardcastle  v.  Shaffo). 

A  tenant  wider  agreement  to  manage  and  quit  the  premises,  agreeahlg  to 
the  manner  in  which  the  same  had  been  managed  and  quitted  by  the  former 
tenants,  is  not  bound  by  the  terms  npon  which  they  held,  without 
notice  of  the  existence  and  purport  of  the  lease,  and  if  he  have  no  such 
notice  he  is  only  bound  by  the  mode  in  which  the  landlord  shall  have 
permitted  the  former  tenants  to  manage  the  farm,  though  they  may 
have  been  legally  bound  by  stricter  agreements  {Liehenrood  v.  Vines). 
Lord  EJ(1o7i  C.  said  :  "  With  regard  to  the  question  what  is  the  custom  of 
the  country,  that  is  one  which  has  no  place  where  there  is  a  written 
agiTcment'"  {ib.). 

In  a  lease  for  years  of  land,  where  the  lessee  covenants  not  to  'plough 
pasture  land,  and  if  hf.  does,  then  to  pay  after  the  rate  of  20s.  per  annum 
for  every  acre  ploughed,  no  injunction  will  be  granted  against  the 
tenant's  ploughing,  for  the  parties  themselves  have  agreed  to  the 
damage,  and  set  a  price  for  ploughing  (Woodward  y.  Ogles) ;  nor  will 
the  Court  relieve  the  lessee  against  the  penalty  if  he  ploughs  (ib.)  ;  and 
so  in  Forbes  v.  Carneg.  Where  a  farm  was  let  subject  to  certain  yearly 
payments,  independent  of  the  rent,  in  case  the  tenant  should  not  crop, 
manure,  and  manage  it,  in  manner,  specified  and  covenanted  in  the 
lease  ;  and  also  in  case  the  tenant  during  the  hist  three  years  of  the 
term  should  sow  more  than  70  acres  of  clover  in  one  year,  the  additional 
rent  of  £10  an  acre,  for  every  acre  above  70  acres  for  the  residue  of  the 
term — it  was  held  that  the  additional  rents  were  in  the  nature  of 
liquidated  damages,  and  not  of  penalties  ;  and  therefore  on  a  bill  filed 
by  the  landlord  for  a  discovery  of  breaches  of  the  covenants  in  aid  of 
an  action  at  law,  a  plea  that  the  discovery  might  subject  the  tenant  to 
penalties  was  overruled  {Jones  v.  (Ireen).  And  per  Alexander  C.B  : 
"  Since  the  case  of  Rolf e  v.  Paterson,  it  has  always  been  understood  in 
all  cases  between  the  landlord  and  tenant,  whether  the  term  used  has 
been  *  penalty,'  or  '  liquidated  damages,'  or  '  additional  rent,'  or  any 
other  similar  expression,  that  it  should  not  be  considered  as  a  penalty 
in  order  to  protect  the  defendant  from  answering,  but  as  stipulated 
damages  or  additional  rent,  and  as  entitling  the  plaintilf  to  a  discovery 
of  the  transaction." 

In  Boirers  v.  N'i.ron,  the  reddendum  of  the  lease,  on  whirh  covenant  was 
brought,  was  "yielding  and  paying  therefore  "  to  the  lessor  "the  yearly 


RESERVATION   OF    PENALTIES.  313 

rent  or  sum  of  £100,"  "  to  be  paid  by  two  equal  half-yearly  days  of 
payment  in  the  year,"  "  and  also  yielding  andpaijimj  unto  "  the  lessor  on 
the  said  days,  "■  a  farilter  i/oarhj  rent  or  sum  according  to  the  rate  of  " 
£20  an  acre,  for  converting  grazing  land  into  tillage  without  licence, 
and  also,  *'  yiplding  and  iKUjing  over  and  above  the  said  rent  hereinbefore 
reserved,  according  to  the  rate  of  £20  per  acre,"  "  for  sowing  any  rape, 
woad,  or  potatoes,  or  above  half  an  acre  at  one  time  of  flax  or  hemp,  or 
from  which  he  or  they  shall  have,  get,  or  take  more  than  three  crops  of 
corn  or  grain,  in  any  one  course  of  tillage,  or  from  which  shall  be  taken 
a  second  or  other  crop  of  wheat,  without  making  a  clean  summer 
fallow,"  &c.  Four  breaches  were  assigned,  and  the  defendants  con- 
tended that  it  was  the  intention  of  the  parties,  that  on  the  specified 
acts  or  defaults  taking  place,  a  penal  sum  should  be  paid,  not  an 
additional  rent  continuing  to  the  end  of  the  term.  The  Court,  how- 
ever, held  that  the  intention  of  the  parties  undoubtedly  was  that  each 
of  these  sums  should  become  i)a\jable  continuaHij  as  additional  rent,  if  the 
act  or  default  upon  which  they  arose  was  once  committed,  and  that  the 
accidental  omission  of  the  term  "  further  rent ''  in  one  of  the  clauses, 
while  "  yielding  and  paying  "  ran  throughout,  left  enough  to  show  the 
necessary  construction.  And  per  Lord  Ellenborough,  C.J. :  "  In  the 
case  of  a  covenant  in  a  lease  not  to  plough  ancient  meadow  or  the  like, 
followed  by  a  proviso  that  in  case  the  same  should  be  ploughed  by  the 
tenant  thereof  he  should  pay  a  certain  increased  rent  for  the  same,  it 
would  certainly  be  in  the  option  of  the  lessor  to  declare  as  for  a  breach 
of  covenant  not  to  plough,  or  he  may  declare  at  once  for  a  breach  of 
covenant  in  not  paying  the  stipulated  satisfaction  for  such  ploughing  " 
{Clarke  v.  Gray).  And  see  Birch  \.  Stej)]ienson ;  IIouwll  v.  Richards; 
and  Denton  v.  Riclnnvnd. 

In  Farrant  v.  Otmius,  which  was  a  case  of  covenant  by  lessor  against 
lessee  one/  tease  reserriny  an  increased  yearly  rent  of  £50  for  every  acre  of 
certain  la/ids  converted  into  tillage,  Abbott  C.J.  said,  "  If  the  argument 
that  the  Court  ought  not  to  disturb  such  a  verdict,  bacause  it  is  con- 
sistent with  justice,  were  to  prevail,  it  would  encourage  jurors  to 
'^.ommit  a  breach  of  duty,  by  finding  verdicts  contrary  to  law,  and 
would  enable  them  to  set  aside  the  contracts  of  mankind.  There  cer- 
tainly is  nothing  unreasonable  in  a  landlord  stipulating  that  particular 
lands  shall  not  be  converted  into  tillage  at  all,  and  that  in  case  that  be 
done  a  large  sum  shall  be  paid  by  way  of  stipulated  damages.  In  this 
case  there  is  an  express  contract  for  stipulated  damages,  and  the  jury 
have  given  a  verdict  for  arbitrary  damages."  The  increased  rent  to 
which  the  plaintiff  was  entitled,  for  the  land  converted  into  tillao-e, 
was  £1,550  ;  whereas  the  jury,  contrary  to  the  direction  of  Richards 


314  PENALTY    FOR    UNDER-LETTING. 

C.B.,  vrho  told  llicm  to  find  for  that  sum  and  half  a  year's  rent  for  the 
land  not  laid  down  for  grass,  returned  their  verdict  for  £1,100;  and 
when  I'cquested  to  reconsider  it,  and  specify  how  much  was  for  repairs, 
(according  to  the  covenants  of  the  lease),  and  how  much  for  the  land, 
they  stated  tliat  they  found  £500  for  the  repairs,  and  £600  for  the  in- 
jury done  to  the  land.  The  rule  for  a  new  trial  was  made  absolute,  on 
the  ground  tliat  they  were  bound  to  give  the  increased  rent.  At  the 
following  assizes,  Ahlott  C.J.  refused  to  receive  evidence  that  the  actual 
damage  to  the  land  was  less  than  the  sum  claimed  as  increased  rent; 
and  the  plaintiff"  recovered  the  increased  rent. 

The addiiionaJ rcntv}?i.?,d.d.\mQd.m  GreensladeY.  T(q)s(oifimdcv  peculiar 
circumstances.  There  the  lease  contained  a  stipulation  that  for  every 
acre,  and  so  in  proportion  for  a  less  quantity  of  the  land,  which  the 
lessee  should  suffer  to  be  occiq)ie(l  by  any  other  person,  without  the  con- 
sent of  the  landlord,  an  additional  rent  should  be  paid.  The  tenant 
undertook  to  use,  occupy,  dross,  and  manure  the  land  according  to  the 
custom  of  the  country ;  and  /fithouf  the  consent  of  the  tandlord,  suffered 
other  persons  to  use  stnatt portions  of  the  tan d  for  six  months  at  a  time,  for 
the  purpose  of  raising  a  potato  crop.  It  was  proved  to  be  the  custom  of 
Somersetshire  for  the  farmers  to  pursue  tliat  course,  and  after  the  potatoes 
were  taken  out,  and  the  land  delivered  up  in  October,  wheat  was  sown. 
The  Court  considered  Lord  Ettenljoroucjh's  decision  in  Doe  dem,  Pitt  v. 
Laming  to  be  unsatisfactory,  and  held  that  the  landlord  was  held  entitled 
to  the  additional  rent,  this  being  an  occupation  of  land  "/>//  any  other 
person.''  And  jwr  Parle  B,  :  "  8uch  an  occupation  as  this  for  12 
months  would  have  conferred  a  settlement,  and  the  party  in  occupa- 
tion would  be  the  only  person  entitled  to  maintain  trespass  for  an  in- 
jury done  to  the  possession." 

A  covenant  in  a  farming  lease  not  to  sow  any  of  the  lands  demised 
"  with  wheat  more  than  once  in  four  years,  nor  with  more  fJian  two  crops 
of  any  kind  of  grain  whatsoever,  during  the  same  period  of  four  years," 
was  held  to  apply  to  any  four  years  of  the  term,  however  taken,  and  not 
to  each  successive  four  years  from  the  commencement  (Fleeming  v.  Snook). 
And  in  Shrewsbury  (Earl  of)  v.  Goidd,  where  a  lessee  covenanted  that  he 
wonld  '■^ at  all  times  and  seasons  of  burniny  time'"  supply  the  lessor  and 
his  Staffordshire  tenants  wdtli  lime  at  a  stiimlated  price  for  the  im- 
provement of  their  lands  and  repair  of  their  houses ;  it  was  held  that 
this  was  an  implied  covenant  also  that  he  would  l)U]'n  lime  at  all  such 
seasons,  and  that  it  was  not  a  good  defence  to  plead  that  there  was 
no  lime  burned  on  the  premises,  out  of  which  the  lessor  could  be 
supplied. 

In  Brown  v.  Crump,  a  declaration  which  stated  that  in  consideration 


OVERCROPPING    NOT   WASTE.  315 

that  the  defendant  Iiad  become  tenant  to  the  plaintiff  of  a  farm,  the 
former  imdertooh  to  make  not  less  ilian  thirty  acres  of  fallow,  and  to  spend 
£60  ivorth  of  manure  annually,  and  to  Iceep  the  Inildings  in  repair,  being 
allowed  timber  m  the  rough,  was  held  bad  on  general  demurrer,  those 
obligations  not  arising  out  of  the  bare  relation  of  landlord  and  tenant. 
Gibbs  C.J.  said,  "  The  doctrine  which  I  have  often  heard  Mr.  Justice 
Bidler  lay  down  is,  that  every  tenant,  where  there  is  no  particular 
agreement,  dispensing  with  that  engagement,  is  bound  to  cultivate  his 
farm  in  a  husbandlike  manner,  and  to  consume  the  produce  on  it  ;  this 
is  an  engagement  which  arises  out  of  the  letting,  and  which  the  tenant 
cannot  dispense  with,  unless  by  special  agreement  ;  but  it  does  not 
follow  that  a  tenant  shall  be  bound  to  have  a  certain  portion  of  land 
every  year  in  a  certain  tillage," 

■  In  an  action  against  a  tenant,  on  promises  that  he  ivoidd  occupy  the 
farm  in  a  good  and  husbandlilcc  mcmnrr,  according  to  the  custom  of  the 
country,  the  allegation  that  a  tenant  has  treated  his  estate  contrary  to 
good  husbandry  and  the  custom  of  the  country  (Cheshire)  is  proved  by 
showing  that  he  had  treated  it  contrary  to  the  prevalent  course  of  good 
husbandry  in  his  neighbourhood,  as  by  tilling  half  of  his  farm  at  once, 
when  no  other  farmer  tilled  more  than  a  third,  and  sowing  nearly  half 
of  that  with  wheat  {Legh  v.  Hewitt).  But  evidence  of  a  breach  of 
covenant  by  mismanagement  in  overcropping  or  by  deviating  from  the 
usual  rotation  of  crops,  is  inadmissible  in  ejectment  by  landlord  against 
tenant,  where  particulars  of  breaches  delivered  are  for  selling  hay  and 
straw  off  the  land,  removing  manure,  and  non-cultivation  {Doe  dem. 
Winnall  v.  Broad).  And  ^;er  Curiam :  "  Overcropping  does  not  come 
within  the  ordinary  meaning  of  the  term  'non-cultivation,'  which 
means  leaving  the  land  to  go  to  waste  "  (/7^.). 

In  Angerstcin  v.  Handson  the  declaration  stated  that  tiie  defendant 
vndcrtoolz  to  cultivate  and  manage  the  farm  and  lands  according  to  the 
course  of  good  husbandry  and  the  custom  of  the  cou)iiry  where  the  farm 
was  sUuafe,  and  then  averred  that  according  to  the  course  of  good 
husbandry  and  the  custom  of  the  country,  tlie  defendant  ought  to  have 
had  about  one-half  only  of  the  arable  land  in  corn,  one-fourth  in  seeds, 
and  the  remaining  fourth  part  in  turnips  or  fallow.  That  was  an  aver- 
ment of  the  custom  ;  and  the  breach  alleged  was  that  the  defendant 
had  more  than  one-half  of  the  arable  lands  in  corn,  had  not  one-fourth 
in  seeds,  and  less  than  one-fourth  in  fallow  or  turnips.  The  defendant 
traversed  the  custom  in  the  same  terms  as  it  was  alleged  in  the  declara- 
tion, and  the  jury  found  that  the  custom  was  not  as  the  plaintiff 
alleged,  but  that  there  was  a  different  custom  ;  and  that  the  farm  had 
been  cultivated  contrary  to  the  course  of  good  husbandry  in  the  neigh- 


ol(j  ALLOWANCE    FOR   LASTING    IMPllOVEMENTS. 

bourhood.  The  Court  held  tliat  the  plnintifV  had  tied  liimself  np  to 
tlie  precise  custom  as  alleged  in  the  declaration,  and  having  ftiiled  to 
prove  it  was  not  entitled  to  recover. 

AVhere  the  declaration,  as  in  Hartley  v.  Burlcdl,  charged  tlie  defendant, 
as  tenant  to  the  plaintiff,  with  carrtjinij  atrai/  in  an  vnfcnantahU  manner, 
and  contrary  to  the  custom  of  the  country,  several  loads  of  Itay  off  the  farm 
without  hrinyiny  back  and  spendiny  on  the  2)remises  an  equal  number  of 
loads  of  duny,  the  plea  that  there  was  not  any  such  custom  of  the 
country  (which  the  plaintiff  contended  was  bad  as  amounting  to  the 
general  issue)  was  held  to  be  good.  There  was  a  covenant  in  Bichards 
V.  JJIack  to  spend  the  green  crops  on  tlie  lands,  or  to  bring  back  for  every 
such  ton  of  green  crop  sold  off,  a  ton  of  good  stable  manure  within 
three  mouths.  The  plaintiflF  set  out  the  first  part  only,  and  assigned 
for  breach  that  the  defendant  carried  away  fourteen  acres  of  turnips 
without  converting  the  same  into  manure  and  spreading  it  on  the 
demised  premises.  It  was  objected  that  there  was  a  material  variance 
between  the  covenant  in  the  declaration  and  that  contained  in  the 
lease,  and  the  Court  considered  that  the  judge  was  right  in  refusing  to 
amend,  and  that  the  covenant  being  an  alternative  one,  the  plaintiff 
should  have  negatived  the  bringing  back,  within  the  time  limited,  an 
equivalent  in  manure. 

A  lessee  under  a  lease  void  for  his  own  fraud,  is  not  en  I  if  led  to  alluwances 
for  tastiny  improrements  {Pierre  v.  Wehh).  But  where,  as  in  Atlorney- 
General  v.  Preiyman,  an  order  was  made  in  a  suit  that  tlie  master  of  a 
charity  should  be  at  liberty  to  let  a  farm  to  the  old  tenant  for  twenty- 
one  years  at  a  rent  of  £800  a-year,  and  the  lease  had  been  approved  of ; 
but  before  it  had  been  executed  by  the  master,  an  offer  was  made  of  an 
increased  rent  of  £220,  the  tenant  in  tlie  meanwhile  having  laid  out 
£2,925  12s.  \d.  in  artificial  manures  and  improvements  on  the  faith  of 
such  future  lease  ;  the  Master  of  the  liolls  held  that  the  offer  of  such 
an  increase  of  rent  as  £220  could  not  be  refused  (supported  as  it  was 
by  the  valuation  of  four  land-agents  and  surveyors),  but  that  the  old 
tenant  was  entitled  to  be  saved  harmless,  and  have  an  allowance  for  his 
outlay,  if  he  did  not  make  fresh  proposals  for  a  lease  on  the  same  terms. 
In  Whitalier  v.  Barler  a  bargain  was  made  between  the  defendant  and 
the  jilaintiff  that  the  latter  should  take  the  farm  for  fourteen  years,  and 
pay  £'J5  at  coming  in  for  tillages,  and  receive  compensation  at  qidttiny 
acrordiny  to  a  fresh  valuation,  from  an  inc.ominy  tenant,  for  the  tillayes 
and  impn'ovemenls  he  miyht  leave  on  the  farm.  On  account  of  some  dis- 
pute, tlie  tenant,  without  making  any  new  bargain  as  to  the  tillages 
and  iniitrovements,  said  he  would  quit  at  the  end  of  the  year,  and  the 
landlord  said  he  might,  and  the  Court  considered  that  as  such  quitting 


tAYtNG    FOR   TILLAGES.  31 7 

Was  not  a  quitting  under  the  terms  of  the  tenancy,  but  in  reality  a  running 
away,  the  landlord  was  entitled  to  possession,  without  making  him  any 
compensation  for  the  tillages  and  improvements  he  left  on  the  farm. 

In  Cleghorn  \.  Durrant,  the  tenant  of  a  farm  contemjilaflng  talcing  a 
lease  and  pending  negotiations  for  the  same,  being  desirous  of  carrying  out 
certain  thatching  and  draining  improvements,  and  anxious  as  to  repayment 
of  them,  wrote  thus  to  her  landlord — "I  should  feel  obliged  if  you 
would  send  us  a  rough  draft  of  the  agreement  at  your  earliest  couveni- 
ance,  as  I  do  not  feel  comfortable  to  proceed  Avith  the  necessary  im- 
provements of  thatching  the  barn  and  draining  the  land,  &c.,  without 
some  little  assurance  from  you  that  we  are  acting  safely."  The  land- 
lord replied  as  follows — "  I  will  send  you  a  copy  of  the  lease  next  week, 
and  trust  you  will  make  yourself  comfortable  as  to  the  thatching  of  the 
barn  and  the  draining,  &c, ;  I  will  pay  for  the  thatching  and  draining 
if  we  do  not  come  to  terms  ;  but  as  the  covenants  will  not  be  unusual,  I 
trust  there  will  be  no  necessity  for  that."  The  tenant,  who  was  under 
notice  from  the  landlord  to  quit  at  tlie  end  of  the  half-year,  declined 
continuing  tenant  of  the  farm  under  the  terms  of  the  new  lease,  an 
event  for  which  no  provision  had  been  made  in  the  correspondence,  and 
the  landlord,  on  the  determination  of  the  tenancy,  brought  his  action 
for  the  half-year's  rent.  The  tenant  pleaded  by  way  of  set-off,  the 
money  she  had  paid  for  thatching  and  draining,  and  paid  into  Court 
the  balance  of  the  landlord's  claim  ;  and  it  was  held  by  the  Court  of 
Common  Pleas,  on  the  interpretation  of  the  correspondence,  that  the 
defendant  was  entitled  to  set-off'  against  plaintiff's  claim  for  rent,  the 
money  she  had  expended  on  the  said  improvements. 

The  question  of  the  custom  of  the  countrg  as  to  paging  for  tillages 
between  tlie  out-going  and  in-coming  tenant,  was  very  much  considered  by 
the  Court  of  Exchequer  in  Faviell  v.  Gaslcoin,  which  was  an  action  in 
assumpsit  to  recover  the  amount  of  the  usual  valuation  paid  by  an  in- 
coming tenant  for  fallows,  half  fallows,  dressings,  &c.  The  defendant's 
testator  being  in  possession  of  an  estate,  of  part  of  which  he  was  the 
owner,  and  another  part  Crown  lands,  on  a  lease  which  was  to  expire 
on  the  10th  of  October,  1849,  contracted  with  the  plaintiff'  to  sell  to 
him  his  part  of  the  estate,  and  demised  to  him  the  Crown  lands  for  one 
year  from  the  29th  of  September,  1848.  The  plaintiff  agreed  to  keep 
all  the  Crown  lease  covenants,  and  the  testator  agreed  that  in  case  he 
could  get  a  further  lease  from  the  Crown  for  fourteen  years,  he  would 
grant  to  the  plaintiff  a  lease  for  thirteen  years,  subject  to  the  same 
covenants.  On  February  2nd,  1849,  the  plaintiff"  signed  a  memorandum 
agreeing  to  take  (with  others)  the  Crown  lands,  "  subject  to  the  same 
rents,  covenants,  and  obligations  in  all  respects,"  as  were  contained  and 


318  CUSTOM    OF    THE    COUNTRY. 

provided  for  iu  the  leases,  by  which  the  testator  held  or  shuuld  hold  the 
same.  The  plaintiff,  on  taking  possession  in  the  course  of  that  month, 
paid  to  the  defendant  s  testator,  according  to  the  custom  of  the  country, 
the  amount  of  the  valuation,  £2,233  196'.,  for  fallows,  dressings,  &c.,  as 
well  of  the  other  lands  as  of  the  Crown  lands,  which  latter  only 
amounted  to  £240.  By  the  terms  of  the  Crown  lease,  the  custom  of 
the  country  as  between  landlord  and  out-going  tenant  was  excluded. 
At  the  desire  of  tlie  plaintiff  the  Crown  lease  was  not  renewed,  and  the 
plaintiff  gave  up  possession  of  the  Crown  lands  on  the  lOtli  of  October, 
1849,  when  he  claimed  as  out-going  tenant  to  be  paid  for  fallows  and 
dressings,  &c.,  according  to  the  custom  of  the  country.  The  defendant 
objected  first  that  the  custom  of  the  country  was  excluded  by  the  terms 
of  the  contract,  and  secondly  that,  if  not,  the  custom  did  not  include  a 
case  where  the  term  was  determined  by  the  expiration  of  the  landlord's 
interest. 

It  was  also  objected  that  there  was  no  obligation  on  a  landlord  to 
pay  according  to  the  custom  of  the  country.  Jervis  C.J.  left  it  to  the  jury 
to  say  whether  the  custom  for  a  landlord  to  pay  the  out-going  tenant 
was  proved  ;  and  the  jury  having  found  in  the  affirmative,  his  Lordship 
directed  a  verdict  for  the  plaintiff,  reserving  leave  for  the  defendants  to 
move  to  enter  a  verdict  for  them,  if  the  Court  should  be  of  opinion  that 
on  the  construction  of  the  documents  the  custom  of  the  country  was 
excluded  by  the  agreement  between  the  parties.  The  rule  was  discharged, 
and  the  Court  held,  first,  that  the  custom  of  the  country  was  not  ex- 
cluded by  the  agreement ;  and  that  where  such  a  custom  exists  there  is 
an  implied  contract  on  the  part  of  the  landlord,  that  if  there  be  no  in- 
coming tenant,  he  Avill  pay  the  out-going  tenant  according  to  the 
custom  ;  but  scniihle  that  such  a  custom  does  not  apply  to  cases  where 
the  term  is  put  an  end  to  by  the  determination  of  the  landlord's 
interest. 

Parlce  B.  said :  "The  plaintiff  was  to  indemnify  the  testator  as  to  all 
covenants  which  he  had  entered  into  with  the  Crown.  The  latter  re- 
ceived the  amount  of  valuation  from  the  plaintiff  as  in-coming  tenant, 
and  is  bound  to  pay  him.  The  agreement  does  not  exclude  the  custom 
of  the  country.  It  merely  contemplates  a  lease  which  would  expire  on 
the  29th  of  September,  1849,  so  that  the  time  of  quitting  is  not  the 
same  as  under  the  Crown  lease.  The  obligation  created  by  taking  this 
particular  property  literally  turns  out  to  be  nothing  more  than  a  demise 
for  a  year,  and  the  custom  of  the  country  ap^tlies  to  that."  And  ^;<'r 
Alderson  B.  :  "The  plaintiff  agrees  to  take  the  whole  of  the  lands,  and 
he  stipulates  that  he  will  save  harmless  his  landlord  from  all  covenants 
entered  into  between  the  latter  and  the  Crown.     But  there  is  nothing 


REMEDY    AGAINST    ASSIGNEES    OF    REVERSION.  319 

in  such  an  agreement  inconsistent  with  the  custom  of  the  country." 
Martin  B.  added  :  "I  am  of  the  same  opinion.  With  respect  to  the 
second  point,  the  meaning  of  such  a  contract  is  this,  that  at  the  time 
the  tenancy  commences  the  landlord  and  tenant  enter  into  a  special 
contract,  the  one  to  receive  and  the  other  to  pay  the  value  of  the  tillages, 
to  be  repaid  by  the  landlord  at  the  expiration  of  the  term.  That  is  as 
much  a  part  of  the  terms  of  the  tenancy  as  if  it  were  contained  in  the 
lease  itself.  It  is  true  that  in  ninety-nine  cases  of  a  hundred  a  new 
tenant  comes  in  and  takes  the  tillages  for  his  own  profit,  and  so 
becomes  a  debtor  to  the  out-going  tenant ;  but  still  the  landlord  is 
liable  upon  his  special  contract ;  and  the  in-coming  tenant  is  liable  in 
videhifaius  assumpsit  by  reason  of  his  taking  the  benefit  of  what  was 
left.  Then  as  to  the  other  point,  the  truth  is  the  verdict  is  conclusive. 
The  agreement  does  not  exclude  the  custom  of  the  country.  What 
Mr.  Clode's  (the  testator's)  intentions  were  is  not  material :  it  may  be 
that  he  never  would  have  entered  into  this  agreement  if  he  had  known 
its  effect ;  but  the  jury  have  found  that  the  custom  of  the  country 
existed." 

According  to  Womersleij  v.  Dally,  asslfjnees  of  fJie  reversion  may  Ve 
sued  by  an  out-yoiny  tenant,  on  a  contract  or  custom  of  tlie  country,  by 
winch  he  is  entitled  to  receive,  on  the  termination  of  his  tenancy  by 
notice  fi'om  the  landlord,  reasonable  allowance  for  the  value  of  labour 
bestowed  on  the  land,  and  the  benefit  of  which  he  loses  by  such  termi- 
nation of  his  tenancy,  although  he  has  paid  all  the  rent  to  the  original 
landlord,  and  received  notice  from  him,  the  assignees  having  renewed 
the  notice  after  the  conveyance  to  them,  and  possession  having  been 
given  to  them.  And  a  stipulation  in  a  contract  of  tenancy,  that  the 
tenant  shall  keep  a  certain  proportion  of  the  land  demised  for  grass,  and 
pay  so  much  per  acre  for  any  deficiency  below  such  proportion,  is  ex- 
tinguished by  severance  of  the  reversion  ;  and  tenants  in  common, 
assignees  of  the  reversion  on  a  lease,  may  join  in  suing,  and  be  jointly 
sued  on  covenants  thereon  (/'&.). 

The  rule  of  law  as  to  imjjortiny  into  the  terms  of  the  tenancy  "the  custom 
of  the  country,'"  does  not  admit  of  evidence  of  the  usaye  of  a  particular 
estate,  or  the  proiJerty  of  a  "particular  individucd,  however  extensive  it 
may  be,  it  not  being  shown  that  tlie  tenant  was  aware  of  it  (Womersley 
T.  Bally).  The  Courts  have  always  inclined  favourably  to  the  introduc- 
tion of  those  regulations  in  the  mode  of  cultivation  which  custom  and 
usage  have  established  in  each  district  to  be  the  most  beneficial  to  all 
parties.  Hence  a  custom  that  tenants,  whether  by  parol  or  by  deed, 
shall  have  the  away-yoiny  crop  after  the  expiration  of  their  term,  was  up- 
held in  Wiylesworth  v.  Dallimn,  which  was  affirmed  on  a  writ  of  error. 


3^0  RIGHT   OF   TENANT   TO    AWAY-GOlNG   CROP. 

This  was  an  action  of  trespass  for  mowing,  carrying  away,  and  convert' 
ing  to  the  defendant's  own  use,  the  corn  of  the  plaintiff  on  Hibaldstow 
Leys,  in  the  connty  of  Lincoln.  Dallison  pleaded  lihcnim  tenemenhim, 
and  the  other  defendant  justified  as  his  servant.  To  this  the  plaintiff 
replied  that  there  was  a  laudable  custom  within  the  parish  of  Hibald- 
stow, that  every  tenant  and  farmer  of  lands  within  it,  whose  term  expired 
on  the  1st  of  May  in  any  year,  had  a  right  to  take  his  (uvaij-goi/uj 
crop ;  and  the  custom  was  found  in  the  words  of  the  replication.  A 
motion  was  made  to  arrest  judgment,  on  the  ground  that  such  a  custom 
might  be  good  in  respect  to  parol  leases,  but  could  have  no  legal  exist- 
ence in  the  cases  of  leases  by  deed,  but  the  Court  of  King's  Bench  dis- 
charged the  rule.  Lord  Mansfield  C.J.  said,  ''  We  have  thought  of  this 
case,  and  are  all  of  oi)inion  that  the  custom  is  good.  It  is  just  ;  for  he 
who  sows  ought  to  reap,  and  it  is  for  the  benefit  and  encouragement  of 
agriculture.  It  is,  indeed,  against  the  general  rule  of  law  concerning 
emblements,  which  are  not  allowed  to  tenants  who  know  when  their 
term  is  to  cease,  because,  it  is  held  to  be  their  fault  or  folly  to  have 
sown  when  they  knew  that  their  interest  would  expire  before  they  could 
reap.  But  the  custom  of  a  particular  place  may  rectify  what  otherwise 
would  be  imprudence  and  folly.  The  lease  being  by  deed  does  not 
vary  the  case.  The  custom  does  not  alter  or  contradict  the  agreement 
in  the  lease  ;  it  only  superadds  a  right  wiiich  is  consequential  to  the 
taking,  as  a  heriot  may  be  due  by  custom,  althougli  not  mentioned  in 
the  grant  or  lease." 

The  question  subsequently  came  under  the  consideration  of  the  Court 
of  King's  Bench,  in  the  case  of  Senior  v.  ArmHage,  where  a  custom  for 
the  tenant  of  a  farm  in  a  particular  district  to  proi'ide  work  and  tallow, 
iillaye,  soicinej,  and  all  materials  for  cultiration  in  his  awaij-going  year 
ami  foi'  the  landlord  to  make  him  a  reasonaliU  compensation  for  the  same, 
was  held  to  operate  notwithstanding  the  farm  is  held  under  a  written 
agreement,  unless  it  can  be  collected  expressly  or  impliedly  from 
Bucli  agreement  that  the  parties  did  not  mean  to  be  governed  by  the 
custom.  Park  B.  observed,  in  Hutton  v.  Warren,  that  fi'om  his  perusal 
of  Mr.  Justice  Bag  leg's  manuscript  notes  of  the  case,  Mr.  Holt  had 
stated  it  too  strongly  when  he  said  that  the  Court  held  the  custom  to 
be  operative,  unless  the  agreement  in  express  terms  "  excluded  it,"  and 
that  their  decision  was  to  the  effect  that,  "  though  there  was  a  written 
contract  between  landlord  and  tenant  the  custom  of  the  country  would 
still  be  binding,  if  not  inconsistent  with  the  terms  of  such  written  con- 
tract ;  and  that  not  only  all  common  law  obligations,  but  those  imposed 
by  custom,  were  in  full  force  where  the  contract  did  not  varg  litem." 
The  custom  in  Senior  v.  Armitage  prevailed  only  in  the  neighbourhood 


RIGHTS   OF   OUT-GOING   TENANT.  321 

of  the  plaintiff's  estates ;  and  there  was  no  doubt  about  its  existence,  as 
the  defendant  had,  on  the  evidence,  paid  the  amount  of  a  former  valua- 
tion under  it  to  the  tenant  of  this  very  farm. 

When  the  lencDicij  of  a  farm  expires,  the  tencmt  must  give  iip  the  pios  ses- 
sion of  the  ivhote  of  it  to  the  landlord,  crops,  and  everything  else,  unless 
there  be  a  custom  of  the  country  for  the  tenant  to  hold  over  any  part, 
or  to  take  any  of  the  crops  ;  and  the  proof  of  the  custom  lies  on  the 
tenant— ?;(9r  Parhe  B.  {Caldecott  v.  Smythies).  But  it  was  held  by  the 
Court  of  Exchequer  in  Griffiths  v.  Puleston,  that  where  it  appeared  that 
by  the  custom  of  the  country  as  between  outgoing  and  incoming  farm 
tenants,  the  former  was  entitled  to  a  tvay-going  share  of  the  croi)  of  wheat 
so/rn  hy  him  in  the  last  year  of  his  tenancy,  and  that  he  cut  the  whole  of 
such  crop,  and  kept  the  fences  of  the  field  in  repair  till  the  whole  crop 
was  cut  and  carried  awaj^,  he  had  under  such  circumstances  the  posses- 
sion, in  law,  of  the  field  until  the  crop  was  carried  away  ;  and  that 
therefore  the  vendee  of  his  share  of  the  crop  had  a  good  defence,  under 
not  possessed,  to  an  action  by  the  new  tenant  for  breaking  and  entering 
the  close  in  which  the  crop  grew,  for  the  purpose  of  carrying  it  away. 
ParTce  B.  said,  "  The  outgoing  tenant  7'emains  in  piossession  witil  all  is 
done  ivhich  he  has  a  right  to  do  in  respect  of  the  crop,  not  merely  until  the 
cutting.  The  case  of  Bevan  v.  Delahay  is  a  strong  authority  to  show 
that  his  interest  amounts  to  a  possession,  and  not  merely  to  an  easement. 
In  that  case  there  was  a  custom  for  the  tenant  to  leave  his  way-yoiny  crops 
in  tlie  hams  a?id  other  buildings  of  the  farm  for  a  certain  time  after  his 
lease  had  expired  and  he  had  quitted  the  premises  ;  and  it  was  held 
that  the  landlord  might  distrain  the  corn  so  left  after  the  expiration  of 
six  months  from  the  determination  of  the  term  (notwithstanding  8  Anne, 
c.  14,  ss.  G  and  7).  The  obligation  on  the  outgoing  tenant  to  repair  the 
fences  is  strongly  confirmatory  of  this  view  of  the  case." 

It  was  held  by  the  Court  of  Exchequer  that  trover  lies  at  the  suit  of  a 
landlord  for  com  cut  and  carried  away  hy  an  outgoing  tenant  after  the 
expiration  of  his  term,  though  sown  by  him  before  that  time,  under  the 
notion  of  being  entitled  to  an  away-going  crop  (Davies  v.  Connop). 
Here  the  plaintiif,  at  the  expiration  of  the  defendant's  term  in  Candle- 
mas, 1813,  had  let  the  same  lands  to  another  by  parol,  reserving  the 
land  on  which  the  wheat  was  sown,  and  on  which,  therefore,  the  new 
tenant  did  not  enter.  On  the  25th  of  August,  1813,  the  plaintiff  sent 
his  reapers  to  cut  it  ;  but  the  defendant,  who  had  sown  a  third  part  of 
the  arable  land  with  wheat,  conceiving,  as  he  said,  that  he  was  entitled 
to  a  way-going  crop,  came  and  turned  them  out,  and  then  cut  and  carried 
away  the  whole.  The  court  decided  that  the  plaintiff  had  such  a  pos- 
session as  enabled  him  to  maintain  trover,  principally  on  the  authority 

Y 


322  TAKING    AWAY    ODD    MARK. 

of  Taunton  v.  Costar,  where  it  was  held  that  a  tenant  holding  over  after 
the  expiration  of  his  term  cannot  distrain  the  landlord's  cattle,  which 
were  put  on  the  premises  by  way  of  taking  possession.  "  Taking  this," 
said  Thomson  C.B,,  "  to  be  a  crop  growing  npon  the  land,  whether  cut 
by  the  defendant  or  a  stranger  not  being  in  possession,  the  moment  it 
was  severed  it  became  the  property  of  the  landlord." 

The  Court  of  King's  Bench  held,  in  Boraston  v.  Gi'een,  that  the  in- 
coming tenant  had  not  such  a  possession  as  enahlcd  hun  to  maintain  trover 
against  the  outgoing  tenant,  who  had  committed  a  breach  of  the  custom 
of  the  country  in  not  leaving  onc-lhird  of  the  ivaij-going  wheat  crop  sown 
vpon  a  ctorer  brush. 

Where,  by  a  clause  in  a  lease,  it  was  agreed  that  in  case  the  tenant 
slioutd  dill//  olmrre  and  perform  the  several  covenants  and  agreements^  &c. 
(one  being  for  the  ])ayment  of  rent),  and  should  peaceably  quit,  &c.,  on 
notice,  &c.,  he  should  be  entitled  to  a  way-going  crop,  which  was  to  be 
left  for  the  landlord  or  his  incoming  tenant  at  a  valuation,  it  was  held 
by  the  Court  of  Exchequer  that  this  clause  did  not  give  the  tenant  the 
right  of  possession  as  against  the  landlord  after  the  determination  of 
the  tenancy,  but  that  the  tenant  at  most  could  only  go  on  the  land  for 
the  purposes  of  a  way-going  crop,  and  could  not  exclude  the  landlord 
{StrichJand  v.  Maxwell).  By  the  custom  of  Herefordshire,  an  oflfgoing 
tenant  is  entitled  to  crop  one-third  of  the  arable  land  of  the  farm  with 
wheat,  which  is  called  his  odd  marJc,  and  to  cut  and  carry  it  away  after 
the  tenancy  has  expired  {Griffiths  v.  Tombs).  And  per  FarJce  B.,  "A 
parol  permission  by  the  landlord  to  the  outgoing  tenant  to  sow  more 
than  his  strict  odd  mark  will  be  good  as  against  the  landlord  himself, 
and  therefore  as  against  the  incoming  tenant."  If  a  lease  containing  a 
covenant  that  the  lessee,  "  at  the  expiration  or  other  sooner  determina- 
tion of  the  term,"  shall  take  the  offgoing  crop,  is  determined  by  the  order 
of  the  Lord  Chancellor  in  Bcrnh-vptcy,  under  the  49  Geo.  III.  c.  121, 
s.  19,  the  assignees  are  entitled  to  the  offgoing  crop  {In  re  Dark). 
And  if  a  lease  is  determinable  upon  notice  at  the  will  of  the  lessor  or 
lessee,  and  the  lessee  covenants  to  leave,  at  quitting,  the  hay,  straw, 
&c.,  on  the  premises,  the  banlcniptcg  of  the  lessee  and  the  election  of  his 
assignees  not  to  talce  to  the  lease  have  the  same  effect  with  reference  to 
the  covenant  as  though  the  lessee  had  quitted  upon  notice  {Ex parte 
Whlttington). 

Where  a  tenant  held  from  Lady-day  in  a  county  in  which  the  custom 
of  waygoing  crops  prevailed  on  the  regular  expiration  of  a  Lady-day 
tenancy,  but  Uie  tenancy  was  determined  on  June  1st,  by  an  award  made 
on  reference  of  a  dispide  between  landlord  and  tenant,  it  was  held  that  the 
award  (which  did  not  of  itself  change  the  property)  was  admissible  in 


CUSTOM  OP  COUNTRY  EXCLUDED  BY  LEASE.     323 

evidence  on  the  part  of  the  landlord,  on  an  issue  between  the  landlord 
and  an  execution  creditor  of  the  tenant,  whether  the  crops  6n  the  land 
at  a  certain  time  were  the  property  of  the  party  so  found  to  have  been 
tenant,  but  that  the  custom  had  no  operation  in  the  case  of  a  tenancy 
so  determined  {TJiorpe  v.  Eyre). 

In  Fetch  v.  Taiin,  where  ihe  tenant  of  a  farm,  hcing  indehted  to  his 
landlord,  assigned  to  him  hy  deed,  among  other  tilings,  "all  the  tenant- 
right  and  interest  yet  to  come  and  unexpired  of  him  the  said  S.  Fetch  in 
and  to  the  said  farm  and  premises,  it  was  considered  that  the  future  crops 
must  fall  within  the  meaning  of  the  words  "  tenant-rigid  jet  to  come  and 
unexpired."  And  jjfr  Alder  son  B. :  "  It  is  impossible  to  give  effect  to 
the  whole  deed  without  holding  that  the  'tenant  right'  includes  the 
way-going  crop.  As  to  the  question  whether  it  may  pass  by  such  deed, 
Grantham  v.  Hcmtey  (where  it  was  held  that  a  party  who  has  the 
interest  in  the  laud  '  may  grant  all  fruits  that  may  arise  upon  it  after, 
and  the  property  shall  pass  as  soon  as  the  fruits  are  extant')  is 
decisive." 

The  question  as  to  ivlietlicr  the  terms  of  a  lease  exclude  the  custom  of  the 
country,  where  the  allowance  claimed  is  not  mentioned  among  others  in  such 
lease,  was  much  considered  in  Wehh  v.  Plummer.  Here  there  was  a  lease 
of  a  Southdown  farm,  with  a  coveuant  to  spend  all  the  produce  on  the 
premises,  and  to  fold  a  flock  of  sheep,  under  a  pcualty  of  £3  each  time 
they  were  folded  off  the  premises,  or  any  other  than  the  usual  part  of 
the  farm  ;  and  also,  in  the  last  year  of  the  term,  to  carry  out  the  manure 
on  parts  of  the  fallowed  f;irm  pointed  out  by  the  lessoi',  the  lessor  paying 
for  the  fallowing  such  land  and  carrying  out  the  dung,  but  nothing  for 
the  dung  itself,  and  paying  for  grass  on  the  ground  and  thrashing  the 
corn.  The  claim  was  for  an  allowance  for  foldage,  wliich  the  outgoing 
tenant  was  entitled,  by  the  custom  of  the  country,  to  receive  from  the 
incoming  tenant ;  but  the  Court  of  King's  Bench  held  that,  as  there  was 
an  express  provision  for  some  payment  on  quitting  for  the  things  cove- 
nanted to  be  done,  and  an  omission  of  foldage,  the  customary  obligation 
to  pay  for  the  latter  was  excluded. 

Bayley  J.  thus  laid  down  the  rule  applicable  to  such  cases :  "  Where 
there  is  a  ivritten  agreement  hetween  the  parties,  it  is  naturally  to  he  expected 
thatittvill  contain  all  the  terms  of  their  bargain ;  hut  if  it  is  entirely  silent 
as  to  the  terms  of  quitting,  it  may  let  in  the  custom  of  the  country  as  to  that 
particular.  If,  however,  it  specifies  any  of  these  terms,  we  must  then  go 
by  the  lease  alone.  The  custom  of  the  country  applies  to  those  cases 
only  where  the  specific  terms  are  unknown ;  and  it  is  founded  upon  this 
principle,  that  justice  requires  that  a  party  should  quit  upon  the  same 
terms  as  he  entered.     If,  therefore,  the  party  when  he  entered  upon  the 

Y  2 


324  CUSTOM   TO   LEAVE   MANURE. 

farm  paid  for  a  way-going  crop,  or  for  foldage,  manure,  fallowing,  or  till- 
age, then  if  the  lease  be  wholly  silent  as  to  the  terms  upon  which  he  is 
to  quit,  the  custom  may  be  introduced,  and  he  may  be  entitled- to  receive 
for  a  way-going  crop,  foldage,  &c.  Upon  this  ground  Senior  v.  Armitage 
was  determined ;  for  the  lease  there  was  wholly  silent  as  to  the  terms  of 
quitting,  and  the  claim  there  was  different  from  the  present,  being  a  claim 
for  labour  done  by  the  outgoing  tenant,  from  which  he  could  not  him- 
self derive  any  benefit.  Here,  too,  there  is  a  specific  contract  to  fold  the 
flock  upon  the  premises  under  a  penalty.  My  judgment,  however,  is 
founded  particularly  on  the  last  stipulation  in  the  lease,  by  which  the 
tenant  is  prohibited  from  carrying  off  the  manure,  and  by  which  the  in- 
coming tenant  is  directed  to  make  certain  payments  to  him  ;  and  if  a 
lease  speaks  distinctly  of  the  allowances  to  be  made  on  quitting,  it  seems 
to  me  to  exclude  all  others  which  are  not  named."  And  j^i^-r  Holroijd  J., 
"  The  covenant  in  the  lease  that  the  tenant  will  fold  his  flock  which  he 
Bhall  keep,  &c.,  is  binding  on  him  to  keep  a  flock  and  fold  it  on  the 
usual  parts  of  the  demised  premises."  Best  J,  added  that,  "  In  Wigejles- 
u'orth  V.  Ballkon  there  were  no  sufficient  circumstances  to  exclude  the 
custom.  Here  the  parties  have  made  some  stipulation  as  to  the  terms 
of  quitting ;  and  if  they  had  intended  that  this  or  any  other  pay- 
ment should  be  also  made,  they  would  have  introduced  them  into  the 
lease." 

Parlte  B.  also  observed  on  the  latter  point,  in  Hutton  v.  Warren,  "  No 
doubt  could  exist,  in  Well  v.  Phnnmrr,  but  that  the  language  of  the 
lease  was  equivalent  to  a  stipulation  that  the  lessor  should  pay  for  the 
things  mentioned,  and  no  more.''  In  Rolerts  v.  Barker  the  principal 
question  teas  ivlietlier  the  words  in  the  lease  exp'essty  hinding  the  tenant 
to  teave  the  manure  in  the  fold,  to  be  expended  on  the  land  by  the  de- 
fendant (the  landlord)  or  his  subsequent  tenant,  without  making  any 
mention  of  payment  for  it,  excluded  the  custom  of  the  country  for  an  out- 
going tenant  to  leave  and  he  paid  for  such  manure  ;  and  the  Court  held 
that  they  did  exclude  it,  and  refused  to  engraft  the  custom  to  pay  for 
the  manure  upon  the  engagement  to  leave  it  for  the  use  of  the  succeed- 
ing tenant. 

All  these  cases  were  reviewed  by  tlie  Court  of  Exchequer  in  Hutton  v, 
Warren,  where,  by  the  custom  of  Lincolnshire,  a  tenant  was  hound  to 
cultivate  the  farm  according  to  a  certain  course  of  hushandry,  and  was  en- 
titled on  quitting  to  a  fair  allov:ance  from  tJie  landlord  or  incoming  tenant 
for  seeds  and  tahour  bestowed  on  the  arable  land  during  the  last  year  of 
the  tenancy,  and  was  obliged  to  leave  the  manure  on  the  land  if  the 
landlr.rd  chose  to  purchase  it.  By  the  terms  of  the  lease  (in  this  in- 
stance oiiginal  lease,  Avhich  had  long  since  run  out,  between  the  fathers 


NO  STIPULATIONS  IN  LEASE  TO  THE  EXCLUSION  OF  CUSTOM.  325 

of  the  plaintiff  and  defendant,  of  tlie  glebe  land  tithes),  the  tenant  was 
bound  to  speud  three -fourths  of  the  hay  and  straw  arising  from  the 
glebe  lands,  iu  the  shape  of  manure  upon  them,  and  to  leave  the 
residue  of  such  manure  for  his  successor  or  the  landlord,  on  being  paid 
a  reasonable  price  for  it.  The  defendant  contended  that  the  effect  of 
the  latter  stipulation  was  to  exclude  the  custom  of  the  country  as  to  the 
allowances  for  seed  and  labour  on  quitting,  as  the  plaintiff  must  be  con- 
sidered to  hold  under  the  terms  of  the  original  lease,  in  which  no  men- 
tion was  made  of  them.  The  plaintiff  had  sown  the  arable  land  for  which 
the  compensation  was  claimed  after  his  notice  to  quit,  in  consequence  of 
the  defendant's  insisting  that  he  was  bound  to  keep  the  farm  in  due  course. 
It  was  decided  that,  in  the  absence  of  evidence  to  the  contrary,  the  plain- 
tiff held  under  the  defendant  on  the  same  terms  as  he  had  held  by  lease 
originally  under  his  father,  so  far  as  those  terms  were  applicable  to  a 
tenancy  from  year  to  year  ;  and  as  the  custom  of  the  country  as  to  culti- 
vation and  the  terms  of  quitting  with  respect  to  allowances  for  seed  and 
labour  were  clearly  applicable  to  a  tenancy  from  year  to  year,  and  as  the 
custom  was  by  implication  imported  into  the  lease,  the  plaintiff  and  de- 
fendant were  bound  by  it  after  the  lease  expired. 

Holding  v.  Pigott,  which  was  an  action  by  an  outgoing  against  an 
incoming  tenant,  differed  from  Wehh  v.  Plumnier,  in  this,  that  there 
ivere  no  exjpress  stipulations  in  the  lease  as  to  the  mode  of  ([uitting  which 
could  exclude  the  custom,  and  hence  the  outgoing  tenant  was  held  to  be 
entitled  to  his  way-going  crop  of  one-half  of  the  wheat  sown  after  a 
crop  of  turnips,  according  to  the  custom  of  the  country,  though  the 
terms  of  his  holding  were  that  wheat-land  should  be  summer  fallowed. 
The  Court  considered  that  Boraston  v.  Green,  both  in  its  decision  and 
the  reasons  given  by  Lord  EUenhorough  and  Mr.  Justice  Bayleg,  went 
strongly  to  the  principle  that  the  landlord  would  have  his  remedy  by 
action  for  breach  of  covenant,  and  the  tenant  the  wheat  under  the  cus- 
tom; and  that  if  that  was  the  conclusion,  in  case  the  landlord  had 
taken  to  the  premises  at  the  expiration  of  the  term,  it  must  be  equally 
so  at  least  where  there  is  a  new  incoming  tenant.  Here  the  landlord 
laid  no  claim  at  all  to  the  crop,  and  did  not  even  insist  upon  damages 
for  the  breach  of  covenant ;  but  the  tenant,  who  was  not  entitled  to 
those  damages,  set  up  the  breach  of  covenant  made  with  his  landlord 
as  a  ground  for  divesting  the  outgoing  tenant  of  the  property  in  the 
corn,  which  he  claimed  under  the  custom. 

The  principles  of  the  decision  in  Munceg  v.  Dennis  are  to  be  found 
in  Holding  v.  Pigott.  It  was  to  the  effect  that,  as  under  the  custom 
of  the  country  the  tenant  would  have  been  entitled  to  be  paid  for  the 
straw  and  manure  on  leaving,  the  covenant  that  the  tenant  should  consume 


326  CONSUMPTION    OF    HAY    AND    STEAW. 

icUh  stock  on  tlie  farm  all  the  hay,  straw,  and  clover  groicn  thereon,  and 
containing  as  it  did  no  provisions  as  to  straw  vnconsamed  on  quitting, 
was  not  inconsistent  with  the  custom  of  the  country,  and  that  therefore 
the  pUiintiff  was  entitled  to  be  paid  for  it.  The  action  was  brought  to 
recover  £13  10s.  from  the  incoming  tenant,  according  to  the  custom  of 
the  country,  for  the  value  of  straw  left  by  the  plaintifip,  the  outgoing 
tenant,  at  Michaelmas,  1854,  on  quitting  the  occupation  of  two  pieces 
of  land,  leased  by  one  Flanders  to  the  plaintiff.  The  lease  contained 
covenants  by  the  plaintiff  that  he  would  cultivate  the  farm  according  to 
the  custom  of  the  country,  and  that  "he  should  with  the  last  wheat  crop 
lay  down  the  same  with  20lbs.  weight  of  good  clover-seed  per  acre,  and 
continue  the  same  so  laid  down  for  feeding,  not  to  exceed  three  gi'ounds 
belonging  to  the  farm ;  and  should  and  would  during  all  the  said  term 
consume  with  stock  on  the  said  farm,  all  the  hay,  straw,  and  clover 
grown  thereon,  which  manure  sliould  be  used  on  the  said  farm:  and 
that  the  said  iSmith  Flanders,  his  heirs  and  assigns,  should  and  would 
allow  the  said  Ellis  Muncey  to  occupy  half  the  rooms  in  the  house  and 
the  barn-yards  and  granary  until  Midsummer  day  after  the  expiration 
of  the  said  term,  if  necessary,  to  end  the  cropping  of  the  said  Ellis 
]\Iuncey  grown  on  the  said  premises  thereby  demised."  The  defendant 
objected  that  evidence  of  the  custom  of  the  country  (Cambridgeshire) 
was  inadmissible ;  but  the  under-sheriff  decided  that  he  would  admit  it. 
The  custom  was  proved  to  be  that  when  an  incoming  tenant  pays  for 
straw  and  manure,  he  is  paid  when  he  goes  out :  when  the  dung  belongs 
to  the  landlord,  the  incoming  tenant  pays  for  the  thrashing,  dressing, 
and  carting  to  market,  and  has  for  that  the  straw,  chaff",  and  colder;  but 
when  the  dnng  belongs  to  the  tenant,  then  the  straw  is  valued  by  the 
ton  at  a  consuming  price. 

On  taking  possession  of  the  farm,  the  plaintiff  had  [»aid  for  the  ha}', 
straw,  and  manure  according  to  the  former  valuation,  and  on  his 
leaving  the  farm  the  straw  was  valued  by  a  person  named  by  the 
defendant,  who  admitted  that  he  agreed  to  the  valuation  "if  it  was 
lawful."  "Ending  the  cropping"  was  explained  by  one  of  plaintiff's 
witnesses  to  mean  the  hiirvcstiug  and  thrashing  out  of  the  corn,  and 
so  turning  it  into  straw  ;  but  not  consuming  the  straw.  The  plaintiff 
had  a  verdict  for  the  amount  claimed ;  and  a  rule  for  a  new  trial  on 
the  gi'ound  that  the  lease  excluded  the  custom  of  the  country  was  dis- 
charged. Pollock  C.B.  said:  "  I'lie  defendant's  contention  was  that 
by  the  lease  the  plaintiff  v.as  bound  to  consume  all  the  straw,  and  not 
to  leave  any,  and  that  th'.refure  he  could  have  no  right  to  be  paid  for 
any  which  he  did  leave.  But  we  think  this  is  not  the  meaning  of  the 
clause.     The  meaning  is  that  no  straw  shall  be  removed  off  the  pre- 


COVENANT   NOT   TO   CAEPtY   OFF   HAY.  3:Z7 

mises.  If  the  defendant's  construction  is  riglit,  the  tenant  breaks  his 
covenant  by  leaving  any  straw,  and  therefore  as  the  right  of  onstand 
does  not  apply  to  the  consumption  of  the  straw,  he  must  keep  his  straw 
and  cattle  so  nicely  adjusted,  that  the  last  stalk  is  finished  by  the  11th 
of  October,  1854,  including  that  produced  at  the  previous  harvest,  or 
he  will  be  liable  to  an  action,  although  it  is  certain  that  the  consuming 
of  the  straw  is  a  benefit  to  the  consumer,  and  that  it  would  be  a  gain 
to  the  succeeding  tenant  to  have  the  straw  left  gratis  for  him,  rather 
than  the  manure,  its  produce." 

A  covenant  in  a  farming  lease,  that  the  lessee  ''shall  not  nor  will 
during  the  last  year  of  the  term  sell  or  remove  from  the  lands  demised, 
any  of  the  hay,  straw,  and  fodder  which  shall  arise  and  grow  thereon," 
prohibits  the  lessee  from  removing  any  of  the  hay  or  straw  during  the 
last  year  of  the  term,  at  whatever  period  of  the  term  it  may  have 
grown  {Gale  v.  Bates,  33  L.J.  N.S.  Exch.  235). 

An  outgoing  tenant,  on  quitting  his  farm  at  Michaelmas,  gave  up  to 
the  incoming  tenant,  and  the  incoming  tenant  exercised  it,  the  right  he 
had  under  the  lease  of  converting  the  straw  on  the  farm  into  manure 
with  his  cattle  from  Michaelmas  to  Lady-day.  The  incoming  tenant's 
cattle,  in  the  process  of  so  converting  the  straw  into  manure,  ate  a 
portion  of  straw  calculated  at  one  third  of  the  bulk';  the  outgoing  tenant 
is  entitled  to  be  paid  for  this  by  the  incoming  tenant  {Stafford  v. 
Gardner,  7  L.R  C.P.  212). 

Effect  of  covenant  not  to  carrij  away  liaij  and  .sfraa%  dr.,  vndcv  a 
Ijencdtij. — On  a  covenant  in  a  farming  lease,  that  the  lessee  would  not 
sell  or  carry  away  from  the  demised  premises  any  hay,  straw,  or  manure, 
which  should  be  grown  or  produced  thereon,  without  the  consent  of  the 
lessor  first  had  and  obtained,  under  the  increased  rent  of  £10  for  every 
ton  so  sold  or  carried  away,  and  so  in  proportion  for  any  greater  or  less 
quantity,  but  that  the  lessee  would  eat  and  consume  the  hay  and  straw 
Avith  his  cattle  ;  the  breach  alleged  was  that  the  lessee,  without  the  con- 
sent of  the  lessor,  did  sell  a  large  quantity  of  hay  and  straw  grown  and 
produced  on  the  demised  premises,  to  wit,  &c.  It  was  held  by  the 
Court  of  Exchequer,  that  the  covenant  was  one  covenant,  which  gave 
the  lessee  the  right  to  sell  the  hay,  &c.,  on  payment  of  the  increased 
rent,  and  that  therefore  the  breach  was  not  well  assigned.  And  per 
Bramwetl  B.,  "  The  expression  is  first,  that  he  should  not  sell  or  carry 
away  from  the  demised  premises  any  manure,  and  so  forth,  but  it  is 
said  under  an  increased  rent  of  £10.  That  is  to  say,  he  shall  not  do 
it,  except  on  liability  to  pay  a  rent.  I  think  that  is  the  fair  meaning 
of  it.  If  you  do  it,  you  may  do  it  on  a  liability  to  pay  rent.  If  that  is 
the  true  construction  of  the  document,  he  covenants  to  pay  an  increased 


3:28  DEFINITION   OF   HAY. 

rent.  There  is  no  absolute  covenant  that  lie  will  not  do  it.  If  that  is 
the  true  construction  of  the  document,  then  undoubtedly  the  declara- 
tion ought  to  have  alleged  that  increased  rent,  and  though  the  time  for 
payment  arrived,  that  it  had  not  been  paid.  *  *  It  seems  to  me 
that  Hio\sl  V.  Hi'ist  (4  Ex.  571,  19  L.J.  (N.S.)  Ex.  401)  was  well 
decided  on  principle,  and  that  it  is  distinguishable  from  this  case.  In 
If  tost  V.  Iliirsl  the  Court  says  the  meaning  of  the  covenant  is,  "  You 
shall  not  lop  the  trees  ;  further,  if  you  do  you  shall  pay  £20."  If  the 
covenantee  think  fit  to  avail  himself  of  it,  then  the  consequence  is  there 
may  be  a  good  breach  of  the  original  covenant :  therefore  the  declaration 
is  a  good  one.  But  the  Court  came  to  that  conclusion  on  the  ground 
that  there  were  two  covenants  there  ;  one  an  absolute  one — not  to  cut 
the  trees,  and  the  other  an  absolute  one — to  pay  liquidated  damages  if 
he  did  so.  But  we  decide  this  case  on  the  ground  that  this  is  not  so 
here.  There  is  no  covenant  that  the  defendant  will  not  remove  the 
manure,  but  a  covenant  that  he  will  not  do  it  without  paying  £10  ;  in 
fact,  there  is  only  one  covenant,  which  is  a  complex  covenant  that  he 
shall  pay  £10  if  he  remove  it.  It  seems  to  me  in  this  case,  the  plaintiff 
can  only  recover  the  agreed  £10,  that  he  is  not  entitled  to  claim  un- 
liquidated damages,  and  consequently  he  ought  in  the  declaration  to 
have  shown  he^is  entitled  to  £10  per  ton,  and  made  a  good  breach  as  to 
its  non-]jayraent ;  and  in  that  case  the  declaration  would  be  good  ;  not 
having  done  so,  it  is  bad,  and  is  distinguishable  from  Hurst  v.  Hurst 
on  the  ground  I  have  named." 

"  Hay  "  ill  farming  lease  includes  haij  not  fit  for  fodder. — Where  it 
was  coA'enanted  in  a  farming  lease  that  an  additional  rent  of  £10  per 
ton  should  be  payable  "  if  hay,  straw,  or  other  dry  fodder  "  should  be 
sold  and  taken  off  from  the  farm,  and  hay  had  been  taken  off  by  the 
defendant  which  was  not  fit  for  food,  it  was  held  by  the  Court  of  Ex- 
chequer that  such  damaged  hay  was  still  within  the  meaning  of  the 
covenant,  which  implied  that  everything  grown  on  the  farm  should 
remain  and  be  used  there  (Fielden  v.  Taitersalt). 

Construction  of  drainage  covenant  in  lease. — An  agricultural  lease 
contained  a  covenant  on  the  part  of  the  lessor,  his  heirs,  &c.,  that  he 
and  they  would  "  drain  with  proper  drain-tiles,  one  rood  apart,  ten 
acres  of  the  land  now  in  rye  grass,  at  his  and  their  costs,  except  the 
caiTiage  of  the  said  drain-pipes,  which  is  to  be  borne  and  paid  by  the 
lessee  ;  and  will  drain  tlie  remainder  of  the  lands  hereby  demised,  in 
manner  aforesaid,  upon  being  paid  a  further  yearly  rent  of  £5  for  every 
£100  60  expended."  It  was  held  by  the  Court  of  Common  Bench, 
that  the  words  "  in  manner  aforesaid  "  referred  only  to  the  mode  of 
performing  the  work,  viz.,  placing  the  drain-tiles  one  rood  apart  ;  and 


COMPENSATION   TO   OUT-GOING   TENANT.  329 

consequently  that  the  tenant  was  not  chargeable  with  the  expense  of 
carriage  of  the  drain-pipes  beyond  the  first  ten  acres  {Beer  appf.  v, 
Santer  reftpt.). 

A  mcuje  for  a  landlord  la  pay  a  sum  in  compenmtion  to  the  offyoing 
tenant,  for  the  labour  and  e.rjmue  bestowed  by  him  upon  tiUijig,  failowing, 
and  manuriny  tlie  arable  and  meadow  land,  according  to  the  course  of 
good  husbandry,  the  advantage  of  which  the  tenant  could  not  otherwise 
reap,  is  a  reasonable  usage  ;  and  such  practice  being  a  mere  usage  of 
the  neighbourhood  (Bradford)  is  not  a  custom  strictly  speaking,  and 
need  not  be  immemorial  {Datby  v.  Hirst).  And,  in  fact,  where  an  out- 
going tenant  does  the  necessary  ploughing,  and  sows  the  land  in  the 
ordinary  and  proper  course  of  husbandry,  and  leaves  manure  for  the 
benefit  of  the  landlord,  which  is  accepted  by  him,  the  law,  without 
allegation  or  proof  of  the  custom  of  the  country,  will  imply  an  assumpsit 
on  the  part  of  the  landlord  to  pay  the  tenant  the  value  of  such  labour 
and  manure,  and  the  plaintiff  is  not  deprived  of  that  right  by  reason  of 
his  having  held  over  after  the  expiration  of  the  term  {Martin  v,  Coulman). 

This  principle  of  compensation  by  a  landlord  to  his  outgoing  tenant  ivas 
extended  by  Coleridge  and  Erie  JJ.  to  the  case  of  drainage,  in  Mousley  v 
Ludlam,  where  their  Lordships  held  that  it  is  not  an  unreasonable 
custom  that  a  tenant  who  is  bound  to  use  and  cultivate  his  farm  ac- 
cording to  the  rules  of  good  husbandry  and  the  custom  of  the  country, 
should  be  entitled  on  quitting  to  charge  the  landlord  with  a  certain 
portion  of  the  expense  of  the  necessary  drainage  done  without  his  con- 
sent or  knowledge.  This  was  a  County  Court  action  by  an  outgoing 
yearly  tenant  to  recover  £50  from  his  landlord,  for  having  given  up  to 
him  his  farm  at  his  request  with  the  appurtenances,  and  the  benefit 
and  advantage  of  work  done,  manure,  soughing  tiles,  and  other  materials 
expended  and  bestowed  by  the  plaintiff  in  and  about  the  cultivation 
and  improvements  thereof,  together  with  stone  posts,  grass,  herbage, 
crops,  chattels,  and  effects  then  growing  and  being  thereon.  The 
plaintiff  had  been  a  yearly  tenant  to  the  defendant  in  Derbyshire,  on 
condition  that  he  should  use  the  farm  in  a  good  and  tenantable  manner, 
according  to  the  rules  of  good  husbandry  and  the  cnstom  of  the  coun- 
try, and  the  valuation  of  his  tenant-right  included  charges  under  each 
of  the  above  heads.  For  draining,  which  had  been  done  two  years,  he 
charged  the  landlord  with  five-sevenths  of  the  cost,  and  for  that  which 
had  only  been  done  one,  with  six-sevenths.  This  draining  was  done 
without  the  defendant's  consent,  and  his  witnesses  stated,  in  contradic- 
tion of  the  plaintiff's,  that  where  it  was  done  without  such  consent,  the 
custom  of  the  country  that  the  offgoing  tenant,  in  addition  to  com- 
pensation for  crops,  &c.,  should  be  paid  for  the  expense  of  drainage  and 


330  COMPENSATION   FOR  DRAINING. 

tiles,  did  not  apply.  No  question  was  raised  as  to  the  propriety  of  the 
di-aiuage.  The  defendant  merely  contested  the  right  of  the  plaintiff  to 
chai-ge  him  for  drainage  done  without  his  knowledge.  The  jury  be- 
lieved the  plaintiff's  witnesses,  and  found  for  him  Avith  damages. 

It  was  contended  for  the  defendant,  among  other  things,  that  the 
judge  ought  to  have  directed  the  jury  that  the  alleged  custom  under 
which  the  plaintiff  charged  the  landlord  with  the  expense  of  draining, 
could  not  be  supported  in  law.  Coleridge  J.  considered  that  it  was 
inyolved  in  the  alleged  custom  that  the  tenant  is  to  farm  according  to 
the  rules  of  good  husbandry,  especially  as  certain  lands  absolutely  re- 
quire drainage  to  make  them  bear.  His  liordship  added,  "The  finding 
must  be  taken  with  reference  to  the  terms  upon  which  the  tenant  held 
the  farm.  We  must  assume  that  the  jury  have  found  that  this  draining 
is  according  to  the  rules  of  good  husbandry.  It  seems  to  me  that  it  is 
not  an  unrensonable  custom  that  a  tenant,  who  is  bound  to  use  a  farm 
in  a  good  and  tcnantable  manner,  and  according  to  the  rules  of  good 
husbandry,  should  be  at  liberty  on  quitting  the  farm  to  charge  his 
landlord  with  a  portion  of  the  expenses  of  draining  the  land  that 
requires  draining,  according  to  good  husbandry,  though  the  drainage 
be  done  without  his  landlord's  knowledge  or  consent,"  Erie  J,  added  : 
"  I  think  that  the  finding  of  the  jury  fairly  means  that  the  custom  is 
that  the  drainage  must  be  according  to  the  rules  of  good  husbandry. 
If  a  tenant  contracts  to  hold  according  to  the  custom  of  the  country, 
the  usage  of  the  country  becomes  part  of  the  contract.  It  would  not  be 
an  unreasonable  contract  between  landlord  and  tenant  that  the  tenant 
should  be  at  liberty  to  put  in  such  drainage  as  was  necessary,  and  that 
the  landlord  should  pay  a  portion  of  the  expense.  If  it  be  not  un- 
reasonable as  a  contract,  I  do  not  sec  how  it  is  unreasonable  as  a 
custom."     The  appeal  was  dismissed,  with  costs. 

In  Clarice  v.  Roijsione  the  declaration  stated  that  the  plaintiff  was 
possessed  of  a  farm  on  which  he  had  laid  certain  manure,  and  in  con- 
siderafion  that  tj/e  'plaintiff  would  give  v^i  the  farm  to  his  landlord  (the 
defendant)  and  let  him  have  the  benefit  of  the  manure,  the  latter  2^1'onmed 
to  pay  him  so  much  money  as  he  deserved  to  have,  according  to  the 
custom  of  the  country.  Breach — nonpayment  of  the  value  of  the  manure. 
In  the  memorandum  of  agreement  between  them,  and  signed  by  both — 
*'Be  it  remembered  that  the  above  closes  of  land  have  been  only  clipi^ed 
or  mown  once,  and  since  manured  with  eight  loads  of  rotten  manure 
per  acre,  v/hich  the  tenant  agrees  when  given  up  by  him  to  leave  in  the 
same  state,  or  allow  a  valuation  to  be  made."  This  agreement  having 
Tjeen  proved  l^y  the  plaintiff,  it  was  contended  for  the  defendant  that 
there  was  a  variance  between  the  allegation  in  the  first  count  and  the 


PAYMENT   FOR   MANURE.  331 

proof  adduced  in  support  of  it,  and  that  the  count  was  not  proved. 
FoUocIc  C.B.  was  of  that  opinion  ;  and  the  jury  having  found  for  the 
plaintiff,  gave  the  defendant  leave  to  enter  a  verdict  on  the  first  count 
(the  two  others  were  for  use  and  occupation  to  recover  the  rent),  and 
the  Court  made  the  rule  absolute,  on  the  ground  that  the  written 
agreement  excluded  the  custom  of  the  country,  as  being  inconsistent 
with  it,  and  that  therefore  there  was  a  variance  between  the  declaration 
and  the  proof,  AJderson  B.  said  :  "  It  appears  to  me  that  the  reason- 
able and  natural  construction  of  the  agreement  is  that  the  party  is  to 
pay  nothing  down,  but  that  he  is  to  do  something  when  he  goes  out  of 
possession,  or  to  pay  for  the  deterioration  of  the  property  if  he  does  not; 
and  that  this  stipulation  being  inconsistent  with  the  custom  of  the 
country,  the  contract  must  prevail,  and  the  custom  of  the  country  must 
be  excluded," 

In  Stafford  v,  Gardner  (7  L.R.  C.P,  242)  the  plaintiff  was  tenant  of 
a  farm  with  a  right  to  the  use  of  a  certain  part  of  the  premises  without 
payment  until  the  25th  March  next  after  the  expiration  of  the  term  for 
threshing  and  spending  the  last  year's  crop,  and  by  the  custom  of  the 
country,  he  was  entitled  at  the  expiration  of  the  term  to  be  paid  by  the 
landlord  or  incoming  tenant  for  certain  tillages.  He  gave  up  the  farm  to 
the  defendant  as  incoming  tenant  at  Michaelmas,  1870,  and  valuers  were 
appointed  by  both  parties  and  duly  made  their  valuation.  After  the  defen- 
dant had  entered  into  possession,  but  before  25th  March,  1871,  the  land- 
lord gave  him  notice  that  rent  was  due  from  the  plaintiff,  and  requested 
him  to  pay  the  amount  of  the  valuation,  which  was  less  than  the  rent  due, 
to  him,  the  landlord,  and  not  to  the  plaintiff.  This  the  defendant  did, 
and  the  plaintiff  brought  an  action  to  recover  the  amouut  due  for  the 
tillages  :  he  was  non-suited,  and  the  Court  of  Common  Pleas  confirmed 
the  non-suit. 

Payment  by  landlord  for  manure  and  tillayes,  ([•(•,— In  Newson  v. 
Smithies,  the  plaintiff  covenanted  with  the  defendant,  his  landlord,  to 
deliver  up  possession  of  a  certain  farm  and  land  on  a  day  named,  and 
that  in  the  meantime  he  would  cultivate  the  land  according  to  the 
custom  of  the  country,  and  that  upon  the  delivering  up  of  the  land  he 
would  surrender  and  yield  up  a  certain  agreement  to  be  cancelled,  and 
all  his  unexpired  term  and  interest  in  the  farm,  and  would  afterwards, 
on  request,  execute  any  farther  de<3d  for  effectually  surrendering  the 
term  ;  and  the  defendant  covenanted  that  if  the  plaintiff  did  on  the  day 
named  deliver  up  possession,  and  did  and  should  in  the  meantime  cul- 
tivate the  land,  according  to  the  custom  of  the  country,  and  also  did 
and  should  well  and  truly  olservc, perform  and  Iceep  all  and  singidar  other 
the  covemtnts  and  agreements  IhereinUfore  contained,  and  on  his  'part  to  U 


332         VALUATION    BETWEEN    LANDLORD    AND   TENANT. 

j)erfan»c(J,  he,  the  defendant,  would  upon  the  delivery  up  of  possession 
of  the  said  land,  on  the  day  specified,  so  cultivated  as  aforesaid,  a/id  on 
such  performance  of  such  other  covenants  aforesaid,  pay  the  plaintiff  for 
the  manure,  tillages,  hay,  clover,  and  all  other  things  then  upon  the 
laud,  as  were  usually  paid  for  between  an  outgoing  and  incoming  tenant. 
It  was  held  by  the  Court  of  Common  Pleas,  on  the  authority  of  Boone 
V.  Eijre  (1  H.  B.  273  n),  that  the  delivery  up  of  the  agreement  was  not 
a  condition  precedent  to  the  payment  for  manure,  &c." 

Bight  to  have  letters  'produced  on  question  respectincj  valuation  of  tillage, 
Ac. — In  Brice  v.  Harrison,  the  declaration  stated  an  agreement  between 
the  plaintiff  and  defendant,  that  the  plaintiff  should  lease  to  the 
defendant  a  fixrra,  and  that  defendant  should  forthwith,  after  making 
the  agreement,  pay  to  the  plaintiff  the  amount  of  certain  tillages  on  the 
farm,  at  a  valuation  ;  and  the  breach  averred  was  the  non-payment  of 
the  valuation.  The  defendant  on  an  aflBdavit  stating  that  during  the 
treaty  for  the  farm,  he  had  written  letters  to  the  plaintiff,  which  were 
in  the  plaintiff's  possession,  but  of  which  the  defendant  had  no  copies, 
and  that  he  believed  it  was  on  such  letters  that  the  plaintiff  relied  to 
establish  such  agreement,  and  that  he  had  a  just  ground  to  defend  the 
action,  and  that  it  was  necessary  for  the  purpose  of  his  pleading  that 
he  should  inspect  the  letters,  obtained  an  order  from  a  Judge  at. 
Chambers  to  inspect  them.  It  was  held,  on  cause  being  shown  against 
a  rule  to  rescind  the  order,  that  the  defendant  was  entitled  to  insp)ection 
at  common  law.  And  per  Williams  J.,  "  It  did  not  follow  in  Shadwell 
V.  Shadu-ell  (28  L.J.  (N.S.)  C.P.  275),  that  a  writing  must  be 
necessarily  produced  to  prove  the  agreement  referred  to  ;  but  here  the 
declaration  could  not  be  proved  by  parol  evidence  only.  The  plea 
there  might  have  been  supported  by  a  release  by  parol,  a  writing  was 
not  necessary ;  and  it  also  appeared  to  me  that  there  was  only  a  surmise 
that  the  defendant  intended  to  rely  on  some  document  supposed  to  exist." 

Where  persons  are  appointed  under  an  agreement  merclg  to  value  the 
goods  and  repairs  of  a  farm,  an  appraisement  stamp  upon  the  written 
valuation  is  sufficient  without  an  award  stamp  (Leeds  x.  Burroics), 
although  in  fact  the  appraisement  is  in  the  nature  of  an  award  (BerJcins 
V.  Botts).  And  2>er  Wilde  C.J. :  "  '  Tivo  sworn  appraisers  '  in  statute  2 
Will  d;  Marg,  sess.  1,  c.  5,  s.  2,  must  be  persons  reasonably  competent, 
but  need  not  be  professional  appl-aisers  "  {Boden  v.  Egton).  Where  an 
agreement  in  writing  relating  to  an  interest  in  land  contains  also  stipu- 
lations for  the  mode  in  which  the  straw  and  manure  upon  the  premises 
was  to  be  valued,  the  Court  of  King's  Bench  held  that  the  agreement 
was  entire,  and  that  the  mode  of  valuation  could  not  be  validly  altered 
by  a  subsequent  parol  agreement  between  the  parties  [Harvog  v.  Grah- 


VALUERS  01"  ECCLESIASTICAL  PROPERTY.       333 

hum).  There  may  possibly  be  (though  qimre)  an  abandonment  of  the 
entire  agreement  by  parol,  but  at  all  events  there  can  be  no  such  partial 
abandonment  {ih.).  It  was  decided  in  Cooper  v.  ShiiUlcwortli,  that  an 
agreement  to  settle  disputes  between  two  parties,  as  to  the  amount  to 
be  paid  by  one  of  them  in  respect  of  the  value  of  the  goods  belonging 
to  or  work  done  by  the  other  of  them,  by  a  reference  io  iiro  valuers,  one 
to  be  appointed  by  each  party,  does  not  import  any  undertaking  by  the 
former  that  the  valuer  whom  he  may  appoint  shall  act  in  the  valuation, 
nor  any  liability  for  his  not  acting.  The  party  is  only  bound  to  appoint 
a  valuer  on  his  part,  and  if  the  person  appointed  does  not  act,  the  other 
party  is  remitted  to  his  original  cause  of  action,  and  may  revoke  his 
submission,  or  may  possibly,  if  the  valuer  has  undertaken  to  act  and 
failed  in  his  duty,  have  a  right  of  action  against  him  ;  but  has  no  right 
of  action  against  the  party  who  appointed  him.  And  see  Lcdfimore  v. 
Garrard. 

One  who  holds  himself  out  as  a  valuer  of  ecclesiastical ^^t'oper I u,  though 
he  is  not  bound  to  possess  a  precise  and  accurate  knowledge  of  the  law 
(as  laid  down  in  Wise  v.  Metcalfe)  respecting  the  valuation  of  the 
dilapidations  as  between  outgoing  and  incoming  incumbents,  is  bound 
to  bring  to  the  performance  of  the  duty  he  undertakes  a  knowledge  of 
the  general  rules  applicable  to  the  subject,  and  of  the  broad  distinction 
which  exists  between  the  cases  of  a  valuation  as  between  an  incoming" 
and  outgoing  tenant,  and  an  incoming  and  outgoing  incumhent  (Jenkins 
V.  Betham). 

In  Branscomhe  v.  Rowdiffe,  the  Court  of  Common  Pleas  upheld  the 
valuer,  and  declined  to  decide  in  a  case  where  the  defendant  had  refused 
to  abide  by  a  valuation,  whether  he  was  right  or  wrong  in  only  allowing 
one  ploughing  on  a  part  of  the  land  where  there  had  been  a  crop  of 
turnips,  one  portion  only  of  which  had  come  to  maturity,  and  had  been 
consumed  by  the  plaintiff;  while  he  allowed  three  in  respect  of  another 
portion,  which  had  not  arrived  at  maturity,  and  had  been  ploughed 
in  ;  besides  other  charges  for  "  working  out  and  turning  stroyle,"  and 
spreading  lime,  which  the  defendant  contended  was  out  of  the  scope  of 
the  agreement  of  reference.  The  second  objection  in  Cumberland  v. 
Boives  was,  that  there  was  no  such  valuation  as  entitled  the  plaintiff  to 
recover,  because  the  valuation  delivered  out  by  the  umpire  did  not 
pursue  his  authority,  and  the  latter  was  functus  officio  when  he  altered 
it.  On  this  Maule  J.  observed  :  "The  umpire  was  not  functus;  he  had 
not  valued  at  all  till  he  gave  out  the  perfect  valuation.  If  a  man  does 
not  communicate  the  value  of  a  specific  thing  which  he  is  employed  to 
value,  he  does  not  value  it  at  all."  When  it  was  urged  by  the  defen- 
dant's counsel,  that  by  this  ruling  every  objection  in  the  case  of  an 


331^  FAIR   VALUATIOX. 

award  -which  is  bad  for  excess  would  be  cured,  his  lordship  added:  ''Not 
so.  The  award  is  bad,  not  because  the  arbitrator  has  exceeded  his 
authority,  but  because  he  has  not  done  that  which  the  parties  had 
required  him  to  do." 

The  dilliculty  here  arose  from  the  substitution  in  the  draft  lease,  "  of 
fair  valuation  "  for  "  consuming  price"  The  action  was  brought  by  an 
outgoing  tenant  of  a  Herts  farm  against  his  landlady,  to  recorer  com- 
pensation for  certain  hay,  straw,  and  manure,  left  by  him  on  the  farm, 
and  the  defendant  pleaded — first,  that  the  umpire  did  not  duly  yalue, 
and  secondly,  payment  into  Court  of  £520.  The  farm  was  taken  by 
the  plaintiiT,  subject,  amongst  others,  to  these  covenants  contained  in  a 
draft  lease,  under  which  plaintiff's  father  had  held  :  first,  to  house  the 
produce  on  the  farm,  and  to  thrash,  feed,  and  fodder  the  same  thereon, 
and  not  to  sell  or  dispose  of  any  part  thereof,  e3;ce2:jf  as  after-mentioned  ; 
secondly,  that  he  should  be  at  liberty  to  sell  and  dispose  of  his  hay  and 
wheat  straw  (except  that  of  the  last  year's  produce),  bringing  back 
immediately  for  every  load  of  hay  and  straw  so  disposed  of,  two  loads  of 
o-ood  rotten  dung,  or  other  equivalent  manure ;  and  thirdly,  that  he 
should,  on  the  determination  of  his  tenancy,  leave  all  the  hay,  straw, 
and  manure  arising  during  the  last  year  of  his  tenancy,  for  the  use  of 
his  landlord  or  the  incoming  tenant,  being  i)uid  for  the  hay  and  wheat 
straw  at  a  fair  valuation.  These  latter  words  were  substituted  in  the 
draft  lease  for  "consuming  price."  "When  the  plaintiff  gave  up  his 
farm  at  Michaelmas,  1853,  a  dispute  arose  between  him  and  the  defen- 
dant as  to  the  valuation  of  the  hay  and  straw  left  liy  him,  the  plaintiff 
insisting  that  he  was  entitled  to  be  paid  for  them  at  a  "fair  valuation," 
and  not  a  "consuming  price,"  as  was  contended  by  the  defendant. 
Valuers  were  appointed  on  each  side,  and  then,  as  they  could  not  agree, 
an  umpire,  who  valued  the  hay,  straw,  &c.,  left  on  the  premises,  at 
£77-1  1 1  s.  od.,  sent  in  the  following  certificate:  "I  certify  that  I  have  valued 
the  above  at  a  marketa1)le  price  in  its  present  situation."  This  umpire 
was  the  only  witness  called  at  the  trial,  and  stated  that  he  did  not  value 
at  a  "consuming  price  "or  at  "a  market  price,"  but  at  a  fair  valuation." 
After  delivering  out  his  valuation,  he  discovered  that  he  had  improperly 
included  in  it  a  small  quantity  of  old  hay,  worth  £2,  and  the  jury 
returned  a  verdict  for  the  plaintiff  for  £252  Us.  dd.,  being  the  difference 
between  the  sum  paid  into  Court,  and  the  amount  of  the  valuation  when 
go  altered. 

Leave  Avas  reserved  to  the  defendant  to  move  to  enter  a  nonsuit  or 
for  a  new  trial,  but  the  court  discharged  the  rule. 

In  Clarice  v.  Westrojye,  the  struggle  letween  the  mroming  and  outgoing 
tenants  was  whether  the  former  should  pay  the  latter  for  the  straAv  at  a 


FODDER   OR    CONSUMING    PRICE.  335 

^' fodder p'ke'"  or  "a  consuming  price.''  The  plaintiff  entered  in  1848 
on  the  occupation  of  Morden  Heath,  a  farm  of  Lord  Hardwicke's,  under 
a  written  agreement  made  between  his  lordship's  steward  on  his  behalf 
and  the  plaintiff's  father  and  brother,  at  the  commencement  of  a  four- 
teen years'  lease  in  1839.  By  clause  A,  the  latter  agreed  ''  to  pay  £5 
for  every  load  of  fodder,  straw,  haulm,  dung,  or  turnips  which  shall 
be  sold  or  carried  off  the  premises,  and  the  same  sum  for  every 
load  of  hay  or  wheat-straw  sold  or  carried  off  the  premises,  fur  which 
there  shall  not  be  two  loads  of  good  dung  or  other  manure  (at  the 
option  of  the  landlord)  to  be  spent  on  the  premises.  Clause  15  was  to 
the  effect  that  they  agreed  "  to  purchase  all  the  hay,  sainfoin,  and  tares 
now  in  the  yard,  also  all  tlic  dung  and  manure  now  on  the  'premises,  also 
all  the  straw  from  the  crops  now  stacked  or  about  to  be  stacked  in  the 
yard,  paying  a  fair  price  for  the  same,  to  be  ascertained  by  valuers  on 
both  sides.  Lord  Hardwicke  also  engaged  in  a  supplementary  agree- 
ment, when  the  tenant  quitted  the  farm  "  to  purchase  all  hay,  sainfoin, 
and  tares  in  the  yard  the  produce  of  the  farm "'  (''  all  dung  and  manure 
on  the  premises"  struck  out),  "also  all  straw  from  the  crops  of  the 
previous  harvest  that  may  be  on  the  premises,  paying  a  fair  price  for 
the  same,  to  be  ascertained  by  valuers."  The  plaintiff  quitted  the  farm 
at  Michaelmas,  1853,  and  two  valuers  were  appointed  to  value  between 
him  and  the  incoming  tenant.  On  the  subject  of  the  tillages,  the  fold- 
ings, the  fixturep,  and  some  other  matters,  they  agreed.  The  market 
value  of  the  straw  at  the  tune  was  admitted  to  be  25s.  per  ton,  but  the 
plaintiff's  valuer  estimated  it  at  a  "  consuming  price,"  or  two-thirds  of 
the  market  value,  while  the  defendant's  valuer  estimated  it  at  a  fodder 
or  browsage  price,  being  one-half  of  the  market  value.  On  this  point 
they  failed  to  agree,  and  as  the  negociations  respecting  a  referee  went 
off,  the  valuation  came  to  nothing,  and  an  action  was  brought.  It  was 
proved  that  according  to  the  custom  of  the  country,  the  incoming 
tenant,  in  the  absence  of  a  special  agreement,  usually  paid  the  outgoing 
tenant  for  the  straw  at  a  consuming  price ;  but  that  if  the  outgoing 
tenant  was  bound  to  consume  all  the  manure  on  the  farm,  the  allowance 
in  respect  of  straw  as  between  him  and  the  incoming  tenant  would  be 
only  at  fodder  price. 

The  defendant  insisted  that,  firstly,  plaintiff  could  not  maintain  his 
action,  as  there  had  been  no  valuation  pursuant  to  an  agreement  of 
May  30th,  1853  ;  and  secondly,  that  the  terms  of  the  contract  under 
which  plaintiff  had  entered  on  the  farm  precluded  any  claim  on  his  part 
to  be  paid  more  than  a  fodder  price  for  the  straw  on  quitting  it.  The 
above  agreement  was  to  the  effect  that  the  defendant  would  pay  the 
plaintiff  for  all  the  cultivation  done  upon  the  falloAVS,  for  the  carriage 


33G  SELLING   HAY   OR   STRAW. 

and  labour  of  dung,  and  the  folding  of  sheep  on  the  farm,  such  valua- 
tion to  be  made  before  September  29th,  1853.     In  answer  to  the 
questions  put  them  by  WilUams  J.  on  the  trial,  the  jury  found  that  it 
was  agreed  between  tlie  parties,  that  the  valuation  of  the  straw  should 
be  made  on  the  same  terms  as  that  of  the  other  matters  mentioned  in 
the  agreement  ;  that  supposing  the  outgoing  tenant  entitled  to  the 
manure,  the  straw  was  to  be  paid  for  at  two-thirds  of  the  market  price, 
but  if  he  was  not,  at  one-half  of  the  market  price  ;  and  that  when  there 
was  no  special  agreement  to  the  contrary  the  tenant  was  entitled  to  go 
out  as  ho  came  in.     It  was  agreed  that  the  Court  should  decide  by 
whose  lault  the  valuation  went  otf.     A  verdict  was  accordingly  entered 
for  the  plaintitf  for  £311  2.^.  1(/.,  beiug  the  whole  amount  claimed  in 
the  particulars  on  the  higher  valuation,   less  £25   125.  8d.  for  price 
and  value  of  work,  seeds,  &c.,  supplied  by  the  plaintiff,  and  leave  was 
reserved  to  the  defendant  to  move  to  enter  a  nonsuit  on  the  first  point, 
or  to  reduce  the  damages  on  the  second  to  £215,  the  amount  agreed 
to  be  due  upon   the  valuation   at  the   lower  price.     The  Court  of 
Common  Pleas  held  upon  the  first  point,  that  us  inasmuch  the  valua- 
tion ^s•ent  off,  and  the  straw  had  been  consumed  by  the  beasts  of  the 
defendant,  so  that  a  valuation  had  become  impossible,  an  action  would 
lie,  in  order  to  have  the  value  assessed  by  a  jury  ;  and  on  the  second, 
that  such  an  action  would  only  lie  to  recover  the  value  of  the  straw  at 
the  lower  valuation,  on  the  ground  that  the  terms  upon  which  the 
valuation  as  between  outgoing  and  incoming  tenant  w\as  to  be  made, 
were  contained  in  a  written  agreement,  which  provided  only  that  the 
outgoing  tenant  should  be  paid  for  the  straw  on  the  premises,  and  not 
for  the  dung,  and  according  to  the  clear  and  established  rule  in  these 
cases,  he  was  entitled  to  be  paid  for  the  straw  only  at  a  fodder  price. 
And  per  GresswcU  J. :  "  The  ground  of  the  Court's  decision  on  the 
second  point  is,  that  there  is  an  express  stipulation  that  the  tenant  shall 
pay  for  the  manure  on  going  in,  but  no  stipulation  that  he  shall  be  paid  for 
it  on  going  out."    Accordingly  the  verdict  was  ordered  to  stand  for  £215. 
In  Lowndes  v.  Fountain  a  farming  agreement  contained  among  others 
this  clause — "No  luoj  or  siraiv  io  be  sold  of  i/ie  said  land,  without 
consent  of  the  landlord  or  his  agent,  except  the  ralue  of  the  straw  so 
sold  off  be  returned  in  manure  on  the  said  laud,"  and  tiie  Court  of 
Exchequer  was  equally  divided  as  to  whether  "value''  was  to  be  con- 
strued as  a  manure  or  money  value.     The  defendants  took  possession 
of  the  land  as  assignees  of  one  Boreham,  under  the  agreement,  in  April, 
1854,  and  continued  to  occupy  it   until   Lady-day,   1855,  when  the 
]ilaintiff  determined  the   tenancy  by  notice  to  quit.     During  their 
tenancy  the  defendants  sold  all  the  straw  off"  the  land,  claiming  to  do 


MEANING    OF    VALUE    OF    STRAW.  337 

SO  for  the  benefit  of  the  creditors  of  Boreham,  and  did  not  return  any 
manure  on  to  the  land.     The  seUing  pi'ke  of  the  straw  was  £1  per  ton, 
but  its  vcdue,  if  spent  in  manure,  about  Is.  per  ton.     Tiie  defendants 
contended  that  according  to  the  true  construction  of  the  agreement, 
they  were  only  liable  in  damages  for  the  value  of  the  straw  if  spent  in 
manure,  and  it  was  urged  for  the  plaintiffs  that  the  measure  of  damage 
was  the  selling  price  of  the  straw.     Alderson  B.  was  of  that  opinion, 
and  there  was  a  verdict  for  tlie  plaintiff,  with  damages  so  calculated, 
leave  being  reserved  to  the  defendants  to  move  to  reduce  the  damages, 
if  the  Court  should  be  of  opinion  that  the  learned  Judge  had  erro- 
neously construed   the  agreement.     Parke   B.  said :   "  The  difficulty 
arises  from  the  use  of  the  word  '  value.'     If  the  word  had  been  '  price  ' 
instead  of  '  value,'  then  all  the  hay  or  straw  sold  off  must  have  been 
expended  in  the  purchase  of  manure,  and  a  much  larger  quantity  of 
manure  would  have  been  returned  than  the  hay  and  straw  could  have 
produced,  if  it  had  not  been  sold  off.     My  brother  Alderson  retains  his 
opinion,  and  my  brother  Plait  concurs  with  him.     They  think  that  the 
term  '  value '  means  the  value  of  the  straw  itself,  and  that  that  is  to  be 
laid  out  in  the  purchase  of  manure,  and  spent  upon  the  land.     If, 
indeed,  this  were  in  the  nature  of  a  penal  clause,  there  would  be  reason- 
able ground  for  concluding  that  the  word  '  value '  meant  the  market 
value  of  the  hay  or  straw,  because  that  would  be  required  to  be  brought 
back  in  order  to  prevent  the  tenant  from  carrying  off  the  hay  or  straw 
at  all.     The  Lord  Chief  Baron  and  myself  think  that  this  is  not  a  penal 
clause,  and  that  it  merely  meant  to  keep  the  parties  in  statu  quo.     You 
may  sell  the  hay  and  straw  off  the  land,  but  you  shall  do  no  injury  to 
the  farm.     You  shall  buy  back  a  quantity  of  manure  equal  to  that 
which  the  hay  or  straw  if  left  on  the  land  would  have  produced.     There 
being  a  difference  of  opinion,  no  rule  will  be  granted."     PolJoch  C.B.  in 
the  course  of  the  argument  thus  pointed  out  the  special  hardship  of 
construing  *' value"  as  money  value:  "Some  person  might  want  the 
straw  and  be  willing  to  give  for  it  a  price  beyond  its  farm  value,  or  it 
may  be  that  there  is  a  greater  quantity  than  the  tenant  has  occasion 
for,  so  that  it  would  be  more  profitable  to  sell  it,  and  return  its  value 
in  manure ;  but  if  the  tenant  is  merely  at  liberty  to  take  the  price  for 
which  it  sells,  and  bring  back  that  in  manure,  he  would  receive  no 
benefit."     And  it  is  submitted  that  the  view  of  the  Chief  Baron  and 
Baron  Parlce  is  the  most  in  accordance  with  public  feeling,  and  most 
likely  to  be  upheld  if  the  question  is  re-opened. 

A  nice  point  also  arose  m  Masscij  v.  Goodall,  where  the  declaration 
alleged  that  the  defendant  had  become  tenant  from  year  to  year  to  the 
plaintiff  on  certain  conditions  and  stipulations,  one  of  which  was  that 

z 


338  PENALTY    FOR   SELLING   STRAW. 

he  "  shotiU  not  sell  any  straw,  &e.,  or  manure  grown  or  jJ^'odwed  on  the 
said  farm,  without  the  ivritten  licence''  of  the  plaintiff,  under  ceiiain 
penalties,  which  were  to  be  recoverable  by  distress  or  otherwise  as  addi- 
tional rent,  at  the  rate  of  £7  for  every  load  of  hay  and  £5  for  every 
load  of  straw,  &c.     To  this  allegation  of  a  positive  and  unqualified 
stipulation,  that  the  defendant  should  not  sell  straw  grown  upon  the 
farm,  it  was  assigned  as  a  breach  that  the  tenant  did  sell  ten  loads  of 
straw  grown  on  the  farm  during  the  tenancy,  and  did  not  pay  the  £50 
penalty  for  which  the  action  was  brought.     The  defendant  pleaded  that 
the  straw  was  sold  after  the  determination  of  the  tenancy  ;  and  it  was 
held  by  Lord   Campbell  C.J.  and  Patteson  J.,  on  demurrer,  that  the 
breach  was  well   assigned,  and   came  within   the  express  words  and 
intention  of  the  agreement,  and  that  it  was  immaterial  whether  the 
straw  alleged  to  have  been  sold  by  the  defendant  was  sold  by  him  before 
or  after  the  determination  of  the  tenancy,  provided  it  was  straw  grown 
on  the  farm  during  the  tenancy.     Lord  Campbell  said :  "  If  the  stipula- 
tion were  confined  to  sales  during  the  continuance  of  the  tenancy,  there 
would  be  nothing  to  prevent  the  tenant  during  the  last  year  from 
hoarding  up  all  the  produce  of  the  farm,  spending  no  part  of  the  ma- 
nure on  the  farm,  and  the  day  after  the  tenancy  determined,  selling  it 
all,  leaving  the  farm  ruined  and  exhausted.     I  do  not  think  that  such 
a  construction  would  make  the  agreement  reasonable  as  between  land- 
lord and  tenant."    Judgment  was  given  for  the  plaintiff.     Erie  J.,  how- 
ever, thought  that,  looking  at  the  stipulations  as  set  out,  which  did  not 
include  any  provision  that  the  landlord  should  take  the  unconsumed 
produce  at  the  end  of  the  term,  the  tenant  was  entitled  to  use  it  as  his 
own  after  the  tenancy  expired,  and  need  not  leave  it  as  manure  for  the 
landlord,  without  any  remuneration. 

Manure  is  assignable  by  the  tenant,  though  he  thereby  subjects  himself 
to  an  action  for  bad  husbandry  (Burbago  v.  King).  A  covenant  by  a 
lessee  that  he  will  sufficiently  muck  and  manure  the  land  with  two  suffi- 
cient sets  of  murk,  within  the  space  of  six  of  the  last  years  of  the  term, 
the  last  set  of  muck  to  be  laid  upon  the  premises  within  three  years  of 
the  expiration  of  the  term,  is  satisfied  by  the  tenant  laying  on  two  sets 
of  muck  within  the  last  three  years  of  the  term  {Pownall  v.  Moores). 
Abbot  C.J.  said :  "  The  object  of  the  last-mentioned  stipulation  was  that 
all  the  benefit  of  the  manure  should  not  be  exhausted  during  the  lessee's 
holding,  but  should  at  least  partially  continue  at  the  expiration  of  the 
term.  But  the  lessee  has  nowhere  restricted  himself  from  laying  on 
both  the  sets  of  manure  within  the  last  three  years,  if  he  should  think 
l)roper,  and  we  cannot  by  construction  bind  him  beyond  the  terms  of 
his  covenant."     Parke  B.  ruled  in  Higgon  v.  Mortimer  that  if  a  tenant 


MEANING    OF    MANURE    MADE    ON    FARM.  339 

during  his  tenancy  remove  a  dung-heap,  and  at  the  time  of  so  doing 
dig  into  and  remove  virgin  soil,  the  latter  becomes  by  operation  of  law 
the  personal  property  of  the  landlord,  and  is  so  completely  revested  in 
him  as  to  enable  him  to  bring  trespass  de  bonis  asjportatis  and  d,  fortiori 
trover. 

Where  at  the  sale  of  the  defendant's  stock  the  tenant  of  an  adjoining 
farm  bought  two  cows,  and  by  the  defendant's  permission  left  them  in 
a  shippon  in  the  defendant's  farm-yard  for  some  weeks,  bringing  pro- 
vender from  his  own  farm  to  feed  them,  it  was  held  that  their  manure 
was  manure  made  on  the  farm,  and  that  the  removal  of  it  by  the  cows' 
owner  to  spread  on  his  own  farm  was  a  breach  of  a  condition  in  the  de- 
fendant's lease,  "  to  put  and  spread  all  the  manure  and  compost  then 
collected  in  the  midden-stead  or  any  other  part  of  the  farm  on  the 
meadow  land,  and  not  to  sell,  cart,  or  convey  away  any  dung,  compost, 
or  manure  from  the  said  farm  "  {H indie  v.  Follett). 

Where  the  outgoing  tenant  is  lound  by  his  coveiumt  not  to  carry  away 
the  dung,  his  property,  off  the  premises,  but  to  sell  it  to  the  incoming 
tenant  at  a  valuation,  he  has  a  right  of  on-stand  on  the  farm  for  it,  till 
he  can  sell  it  to  the  incoming  tenant ;  and  as  the  possession  and 
property  must  remain  in  him  in  the  meantime,  he  may  maintain  tres- 
pass against  the  incoming  tenant  for  taking  it  before  it  is  valued  {Beaty 
V.  Gibbons). 

In  iSmith  V.  Chance,  which  was  an  action  of  assumpsit  for  hay  sold 
and  delivered,  one  of  the  terms  on  which  the  plaintiff  held  the  land  was 
that  he  tvoidd  consume  the  hay  on  the  premises,  or  for  every  load  of  hay 
removed  ivould  bring  two  waggon-loads  of  Worcester  mucli,  and  spread  the 
same.  When  the  plaintiff  quitted,  part  of  a  rick  of  hay  was  left  stand- 
ing, which  he  sold  to  the  defendant,  but  without  mentioning  the  muck 
agreement.  The  new  tenant,  in  consequence  of  some  dispute  with  the 
plaintiff  as  to  terms,  would  not  let  the  defendant  carry  away  the  hay 
till  he  had  bought  the  manure.  At  the  end  of  a  month,  permission 
was  given  ;  and  as  the  hay  had  been  spoiled  in  the  meanwhile,  by 
exposure  to  the  weather,  the  defendant  refused  to  take  or  pay  for  it. 
The  jury  found  for  the  plaintiff,  but  the  Court  of  Queen's  Bench 
ordered  a  new  trial,  on  the  ground  that  although  by  the  agreement 
the  plaintiff  was  not  bound,  while  in  possession  of  the  land,  to  bring 
on  the  manure  till  after  the  hay  had  been  removed,  still,  after  the 
expiration  of  the  plaintiff's  tenancy,  the  then  succeeding  tenant  might 
make  the  bringing  on  of  the  dung  a  condition  precedent  to  carrying  off 
the  hay. 

The  following  nmnxire  agreement  was  held  by  the  Court  of  Exchequer 
to  be  a  contract  relating  to  the  sale  of  goods,  wares,  or  merchandize 

z  2 


340  STREET-SWEEPINGS    CONSIDERED    MANURE. 

withiu  the  exemption  in  the  Stamp  Act  55  Geo.  III.  c.  184,  schedule 
part  I,  title  "  Agreement." 

Agreement  between  Mr.  Wm.  Gnrr  and  Mr.  Scudds  :— 

"I  doll  aggree  {sic passim)  to  take  all  the  raannure  at  4^7.  each  horse, 
a  week  for  45  horses  by  the  year  ;  and  to  keep  it  cleared  away  every 
week  ;  and  likewise  to  let  the  few  Gardners  have  a  few  loads  at  the 
same  price,  and  serve  them  ;  and  to  let  me  have  during  the  year  60 
loads  of  straw  at  £l  Os.  per  load  :  began  the  year  23  July,  1852,  and 
ends  23  July,  1855.  "Wm.  Gurr." 

A  horse  and  cart  employed  by  a  dust  contractor  in  conveying  street 
siveej)ifi(/s  (found  in  this  case  to  be  manure)  to  a  place  of  deposit,  partly 
for  the  contractor's  own  use  as  manure,  but  principally  for  the  purpose 
of  sale  as  manure,  was  held  in  Heg.  v.  Frei/Jce,  to  be  within  the  following 
exemptions  in  a  local  turnpike  act  (59  Geo.  III.,  c.  95,  s.  25) :  "  For 
any  horse  or  other  cattle  or  carriage  employed  in  carrying  or  conveying 
(among  other  things)  manure  employed  in  husbandry  for  manuring  or 
improving  the  land."  Lord  Camphell  C.J.  said  :  "  I  am  of  opinion 
that  this  exemption  was  properly  claimed ;  and  this  exemption  being 
for  the  benefit  of  agriculture,  that  is  as  much  affected  by  this  case 
being  exempted  from  liability  to  toll,  as  by  the  case  where  the  manure 
is  being  actually  conveyed  by  the  farmer  to  be  laid  on  his  own  land." 
His  lordship  also  ruled  that  a  cart  carrying  guano  to  a  place  of  deposit 
to  be  sold  again  was  within  the  exemptions  (/?;.). 

Gurncy  B.  had  previously  ruled  in  Pratt  v.  Brown  that  uncrushed 
hones  which  are  taken  through  a  turnpike  to  a  farm,  to  be  there 
crushed,  and  part  of  them  there  used  as  manure,  and  the  residue  to 
be  afterwards  sold,  and  to  be  used  for  manure  at  other  farms,  are 
exempt  from  toll  under  3  Geo.  IV.,  c.  126,  s.  32,  and  5  &  6  117//.  lY., 
c.  18,  s.  1.  By  section  1  of  the  latter  act  "no  toll  shall  be  demanded 
or  taken  on  any  turnpike  road  for  or  in  respect  of  any  horse,  beast, 
cattle,  or  carriage  when  employed  in  carrying  or  conveying  only  dung, 
Boil,  compost,  or  manure  for  land  [save  and  except  lime),  and  the  neces- 
sary implements  used  for  filling  the  manure,  and  the  cloth  that  may 
have  been  used  in  covering  any  hay,  clover,  or  straw  which  may  have 
been  conveyed."  P>ut  by  sec.  2  of  this  act  it  is  provided  that  "nothing 
herein  contained  shall  extend  or  be  construed  to  extend  so  as  to  exempt 
any  waggon,  cart,  or  other  carriage  laden  with  dung  or  manure  for 
manuring  land,  or  any  horse  or  other  beast  drawing  the  same  from  any 
toll  imposed  in  respect  thereof,  by  virtue  of  any  local  act  or  acts  now 
passed,  whereby  such  toll  has  been  imposed  for  the  maintenance  of  the 


THKASHING    MACHINES    IMPLEMENTS    OF    HUSBANDRY.    341 

roads  therein  respectively  mentioned,"  As  the  non-exemption  of  lime 
was  felt  to  be  a  hardship  by  agriculturists,  the  statute  13  &  14  Vict. 
c.  79,  s.  3,  empowered  the  trustees  or  commissioners  of  any  turnpike  road, 
notwithstanding  any  local  act,  and  without  the  consent  of  those  who 
have  lent  money  on  the  credit  of  the  tolls,  to  reduce  or  wholly  take  off, 
if  they  think  fit,  tolls  on  lime  used  for  the  improvement  of  land. 

It  was  enacted  by  sec.  4  of  stat.  14  &  15  Vict.  c.  38,  that  the  words 
*' implements  of  Imshafidri/,"  in  3  Geo.  IV.,  c.  126,  s.  36,  should  be 
deemed  to  include  thrashmg-'machines ;  and  it  was  held  by  the  Court 
of  Queen's  Bench  in  Reg.  v.  Matty  that  horses  employed  in  conveying 
a  steam-engine,  which  is  intended  to  be  used  as  the  motive  power  of 
a  thrashing-machine,  which  accompanies  it,  are  exempt  from  toll. 
The  steam-engine  in  this  case  was  drawn  by  horses,  and  was  follow- 
ing a  thrashing-machine  also  drawn  by  horses,  and  both  were  going 
along  a  turnpike -road  to  a  farm,  to  be  employed  in  thrashing  corn. 
The  thrashing-machine  was  allowed  to  pass  through  the  turnpike-gate 
free  of  toll,  but  toll  was  taken  for  the  steam-engine,  and  the  toll-keeper 
was  afterwards  convicted  for  improperly  taking  such  toll,  and  his  con- 
viction was  affirmed  by  the  Worcester  June  Quarter  Sessions,  sul)ject 
to  a  case  for  the  Court  of  Queen's  Bench,  which  affirmed  the  con- 
viction. 

Lord  CampMl  C.J.  said:  "Looking  at  statute  3  Geo.  IV.  c.  126,  I 
should  rather  think  that  a  thrashing-machine  is  an  implement  of  hus- 
bandry within  the  meaning  of  that  act,  were  it  not  for  the  particular 
words  '  ploughs  or  harrows,'  which  precede  that  expression ;  and  may 
therefore  narrow  its  meaning.  But  stat.  14  &  15  Vkt.  c.  38,  s.  4,  having 
expressly  enacted  that  implements  of  husbandry  shall  be  deemed  to  in- 
clude thrashing-machines,  that  point  is  settled ;  and  the  question  is 
whether  this  steam-engine,  which  was  to  be  used  for  the  thrashing- 
machine,  and  for  no  other  purpose,  is  to  be  considered  as  part  of  the 
thrashing-machine.  I  think  that  it  is.  Both  the  machines  belonged 
to  the  same  man,  were  travelling  together,  and  if  the  same  horses  had 
dragged  the  whole  machine  together,  it  is  not  doubted  that  the  exemp- 
tion would  exist  as  to  the  whole.  Suppose,  for  convenience,  that  the 
thrashing-machine  had  been  divided  into  two  carts,  both  would  have 
been  entitled  to  be  exempted  from  toll ;  and  it  can  make  no  difference 
that  the  thrashing- machine  and  the  steam-engine  were  in  like  manner 
separated.  I  think  further,  that  if  the  steam-engine  had  been  travel- 
ling by  itself  for  the  sole  purpose  of  working  the  thrashing-machine, 
in  such  case  the  exemption  would  arise.  We  here  distinguish  between 
horses  or  animal  power,  which  cannot  be  an  implement  within  Dr.  John- 
son's definition  of  the  word,  and  a  steam-engine,  which  is  within  the 


343         LIABILITY    OF   THEASHING    MACHINES    TO    TOLL. 

definition.  If  spades  were  employed  for  husbandry,  the  cart  carrying 
them  would  be  exempt  from  toll ;  but  not  so  if  the  spades  were  intended 
to  be  sent  out  to  California,  or  to  be  used  for  some  purpose  foreign  to 
husbandry."  But  Colpridge  and  Cronipfon  JJ.  seemed  to  doubt  whether, 
if  a  person  ke^t  a  steam-engine  to  go  about  to  different  tkr asking -machines, 
it  would  be  exempt. 

Where  a  person  sent  by  a  horse  and  cart  thrashed  barley,  which  had 
grown  upon  his  farm,  to  the  mill  for  the  purpose  of  having  it  brought 
back  as  meal  to  be  consumed  by  pigs  on  the  farm,  it  was  held  that  the 
horse  and  cart  were  exempt  from  toll,  on  the  ground  that  meal  came 
within  the  words  '  fodder  for  cattle  '  {Clements  v.  Smith). 

Thrashing-machines,  though  exempt  from  toll  by  General  Tunipike 
Act,  may  be  made  liable  to  a  toll  by  a  local  act,  14  &  15  Vict.  c.  38,  s.  4 
(Ablest  V.  Pritchard,  1  N.R.  C.P.  210). 


TRESPASS.  343 


CHAPTER     XI. 

TRESPASS    AND    GAME. 

To  entitle  a  man  to  hring  trespass,  he  must  at  the  time  when  the  act 
was  done  which  constitutes  the  trespass,  either  have  the  actual  pos- 
session in  him  of  the  thing  which  is  the  object  of  the  trespass,  or  else 
he  must  have  a  constructive  possession,  in  respect  of  the  right  being 
actually  vested  in  him  {Smith  v.  Miller). 

Where  A.  commissioned  her  brother  to  buy  her  a  cow,  and  a  fort- 
night afterwards  he  bought  her  one,  but  as  it  was  being  driven  home, 
and  before  she  had  assented  to  the  purchase,  the  cow  was  taken  by 
the  defendant  ;  it  was  held  by  Lord  Demnan  C.J.  that  A.  had  such  a 
property  in  the  cow  as  would  enable  her  to  maintain  trespass  ;  the 
evidence  here  showed  a  property  in  the  plaintiff  at  her  election  ;  and  by 
bringing  the  action  she  had  elected  to  take  to  the  bargain  and  to  make 
the  cow  hers  {T/wmas  v.  Philips). 

The  plaintiffs,  churchwardens  and  overseers  of  a  piarish,  ivho  inclosed 
parcel  of  a  waste  under  statute  39  Geo.  III.  c.  12,  and  1  &  2  Will.  IV. 
c.  42,  were  held  to  have  a  sufficient  possession  to  maintain  trespass 
against  an  inhabitant  of  the  parish,  who  destroyed  their  fence,  without 
establishing  any  right  of  common,  notwithstanding  they  failed  to  show 
the  consent  of  the  lord  of  the  manor  to  their  inclosure  {Matson  v. 
Cook).  A  possessory  right,  sufficient  to  sustain  trespiass,  may  be  resorted 
to,  even  after  it  has  appeared  that  the  plaintiff  has  in  fact  no  legal 
title  ;  and  when  the  locus  in  cpio  is  the  soil  of  a  street,  and  the  only 
actual  possession  he  sets  up  is  by  his  recent  commencement  of  a 
building  upon  the  hcus  in  quo,  the  pulling  down  of  the  incomplete 
walls  of  which  was  the  trespass  complained  of,  and  which  were  pulled 
down  on  the  suggestion  that  they  constituted  a  nuisance  to  the  high- 
way {Every  v.  Smith).  The  defendants,  who  were  highway  commis- 
sioners, pleaded  Not  possessed,  and  justified  in  abatement  of  a  nuisance 
on  the  highway,  but  did  not  justify  under  the  owner  of  the  soil.  And 
2)er  Bramivell  B.  :  "  They  not  having  justified  under  the  owner  of 
the  soil,  that  would  be  a  trespass,  at  the  suit  of  the  parties  in  actual 
possession"  {ib.). 


S4^i  PLEA    OF    NOT    GUILTY    TO    TRESPASS. 

The  Coiu't  of  King's  Bench  held  that  where  a  person  has  an  ex- 
chisive  right  to  dig  turf  and  peaf,  or  a  right  to  a  sole  and  separate 
pasture,  for  a  time,  trespass  lies  by  him,  though  he  has  not  the 
absolute  right  to  the  soil  ( Wilson  v.  Jlarlcrrfh).  But  ^w  Wihnot  J.  : 
"If  this  was  only  a  right  of  common  of  turbary,  trespass  would  not 
lie  "  (/7^).  In  Pearce  v.  Lodge,  which  was  an  action  of  trespass  for 
taking  and  carrying  away  furze,  the  defendant  pleaded  the  general  issue, 
and  several  special  pleas,  in  which  he  claimed  a  right  to  estovers  from 
a  common.  It  was  held  by  the  Court  of  Common  Pleas  that  under 
the  general  issue  he  might  give  evidence  of  an  exclusive  right  of  pos- 
session, and  that  persons  who  had  a  right  of  common  were  competent 
witnesses  for  the  defendant,  to  prove  that  he  was  entitled  to  the  exclu- 
sive possession  of  the  land  from  which  the  furze  was  taken. 

In  an  action  for  a  trespass  to  land,  the  plea  of  Not  guilty  operates  as 
a  denial  that  the  defendant  committed  the  trespass  alleged  in  the  place 
mentioned  ;  but  not  as  a  denial  of  the  plaintifTs  possession,  or  right  of 
possession  of  that  place,  which,  if  intended  to  be  denied,  must  be  traversed 
specially  {Reg.  Gen.  H.T.  1853,  PL,  r.  16).  In  such  action  a  regular 
judgment  may  be  set  aside  upon  an  affidavit  of  a  defence  on  the  merits, 
or  that  there  was  no  probability  of  the  plaintiff's  recovering  more  than 
£5,  or  obtaining  the  judge's  certificate  under  stat.  13  &  14  Vict.  c.  61 
{WihonN.  Greenrogd).  Under  a  plea  to  trespass  upon  land,  that  the 
close  is  not  the  close  of  the  plaintiff,  the  defendant  may  show  a  lawfal 
right  to  tlie possession  of  the  dose  either  in  himself  or  in  some  other  person 
under  whose  authority  he  claims  to  have  acted  {Jones  v.  Chapman). 

No  person  has  at  common  law  a  right  to  glean  in  the  harvest  field 
{Steel  V.  Houghton).  Neither  have  the  poor  of  a  parish  legallg  settled 
(as  such)  any  such  right  (/&.). 

In  the  case  of  «  trespass  in  law  merelg,  ivithout  actual  force,  the  owner 
of  the  close,  &c.,  must  first  request  the  trespasser  to  depart  before  he 
can  justify  layuig  his  hand  on  him  for  the  purpose  of  remoWng  him  ; 
and  even  if  he  refuse,  he  can  only  justify  so  much  force  as  is  necessary 
to  remove  him  {Green  v.  Goddard)  :  but  if  the  trespasser  use  force, 
then  the  owner  may  oppose  force  to  force  {ih.).  Trespass  lies  for 
working  an  estrag,  though  the  original  taking  be  admitted  to  be  unlawful 
{Oxleg  v.  Watts). 

Trespass  will  lie  for  hrealdng  a  dovecote.  Pigeons  hept  in  an  ordlnarg 
dovecote,  having  liberty  of  ingress  or  egress  at  all  times  by  means  of 
holes  at  the  top,  may  be  the  subjects  of  larceny  {Reg.  v.  Cheafor)  ;  and 
jier  Curiam :  "  It  lias  been  mistakenly  supposed  that  Pctrke  B.,  in  Lalie's 
case,  decided  that  pigeons  were  not  tiie  sul)ject  of  larceny  except  strictly 
confined;  there  is  no  question  that  they  arc,  even  though  they  are 


ENTRY    BY    LORD    OF    THE    MANOR.  84-5 

allowed  the  liberty  of  going  to  enjoy  the  air  when  they  please  {lb.)  In 
Comyn's  Digest  {Biens  B.)  it  is  said  that  '  deer  in  a  park,  conies  in  a 
warren,  and  doves  in  a  dove-house  go  with  the  inheritance  to  the  heir.' 
A  man  may  prescribe  to  have  a  game  of  swans  within  his  manor,  and 
may  prescribe  that  his  swans  may  swim  in  the  manor  of  another.  A 
swan  may  be  an  estray,  and  cygnets  belong  equally  to  the  owner  of  the 
cock  and  the  hen,  and  shall  be  divided  betwixt  them  "  {Reg.  v.  Lady 
Joan  Young).  The  punishment  for  stealing  a  swan  used  to  be  that  it 
should  be  tied  up  by  the  neck,  and  the  offender  should  pile  wheat  on  it 
till  it  was  covered.  And  per  Bagleg  J.  :  "  Bees  are  property,  and  the 
subject  of  larceny  "  {Hamiam  v.  Mockett).  But  dogs  are  not  the  subject 
of  larceny  at  common  law,  and  therefore  not  chattels  within  statute 
7  &  8  Geo.  IV.  c.  29,  s.  53  {Reg.  v.  Robmson). 

Any  possession  is  legal  possession  as  against  an  evil-doer  {Graham 
V.  Peat;  Oughfon  v,  Sejipings).  A  pfcirtg  ivho  has  the  legal  title  to  land, 
having  entered,  may  maintain  trespass  against  a  person  wrongfully  in 
possession  at  the  time  of  entry,  and  continuing  in  such  possession  after- 
wards {Butclw  V.  Butcher).  And  per  Bagleg  J.  :  "  Taunton  v.  Costar 
is  an  authority  to  show  that  a  party  wrongfully  holding  possession  of 
land  cannot  treat  the  rightful  owner,  who  enters  on  the  land,  as  a  tres- 
passer. I  think  that  a  party  having  a  right  to  the  land,  acquires  by 
entry  the  lawful  possession  of  it,  and  may  maintain  trespass  against  any 
person  who  being  in  possession  at  the  time  of  his  entry  wrongfully  con- 
tinues on  the  land."  And  2^cr  Lord  Tenterden  C.J. :  "  It  is  not  neces- 
sary that  the  party  who  makes  the  entry  should  declare  that  he  enters 
to  take  possession  ;  it  is  sufficient,  if  he  does  any  act,  to  show  his  inten- 
tion. Here  his  servants  ploughed  the  land  :  it  is  manifest,  therefore, 
that  he  intended  to  take  possession." 

Since  3  &  4  Will.  IV.  c.  27,  a  mere  entrg  Inj  a  lord  of  the  manor 
(where,  as  possession  had  commenced  adversely  more  than  twenty  years 
before,  and  nothing  had  occurred  to  interrupt  or  put  an  end  to  it, 
ejectment  was  too  late)  is  not  enough  to  bar  the  tenant's  right,  unless 
accompanied  by  circumstances  which  would  restore  the  possession  of 
the  land  to  the  lord  {Doe  dem.  Baiter  v.  Goombes).  Here  the  defendant, 
more  than  twenty  years  ago,  without  permission  of  the  lord,  inclosed  a 
small  portion  of  the  waste  of  a  manor,  on  which  he  built  himself  a  hut. 
In  1835,  the  encroachment  having  been  presented  at  the  lord's  court 
the  then  lord  of  the  manor,  accompanied  by  his  steward,  went  to  the 
premises,  Coombes'  family  being  there,  and  stating  that  he  took  pos- 
session, directed  that  a  stone  should  be  taken  out  of  the  wall  of  the  hut 
and  that  a  portion  of  the  fence  should  be  removed.  All  this  was  done 
in  the  absence  of  Coombes,  and  the  lord  and  the  steward  then  retired 


346  INCLOSUEE    OF   WASTE   LAND. 

without  doing  anything  more.  It  was  held  by  the  Court  of  Common 
Pleas  that  the  acts  so  done  by  the  lord  did  not  amount  to  a  dispos- 
session of  Coorabes,  and  a  resumption  of  possession  by  the  lord,  so  as 
to  entitle  the  latter  to  maintain  ejectment  within  twenty  years,  from 
that  time. 

Cressicell  J.  said  :  "  Pritchard,  the  lord,  when  he  intended  to  resume 
possession  of  the  land  in  question,  in  1835,  from  a  feeling  of  kindness 
to  the  incroacher,  abstained  from  doing  enough  to  resume  his  rights. 
It  is  clear  that  he  was  out  of  possession,  and  that  there  was  no  tenancy 
at  will  before  the  year  1835.  The  defendant  was  there  as  a  trespasser. 
The  10th  and  11th  sections  of  3  &  4  Will.  IV.  c.  27,  must  be  looked 
at  together.  The  latter  throws  light  upon  the  former :  it  enacts  that 
'  No  continual  or  other  claim  upon  or  near  any  land  shall  preserve  any 
right  of  making  an  entry  or  distress,  or  of  bringing  an  action.'  That 
section  treats  the  making  an  entry  as  something  more  than  merely 
being  on  the  land,  and  claiming  it.  The  10th  section  seems  to  require 
something  more  than  merely  formally  going  on  the  land.  The  making 
an  entry  amounts  to  nothing,  unless  something  is  done  to  divest  the 
possession  out  of  the  tenant,  and  revest  it  in  fact  in  the  lord.  We  are 
bound  by  the  plain  words  of  the  statute."  And  see  Doe  clem.  Bennet  v. 
2h(r?ier. 

And  ivhere  a  tenant  encloses  land,  tvhether  adjacent  to,  or  distant  from 
the  demised  premises,  and  whether  the  land  be  part  of  a  waste,  or  belong 
to  the  landlord  or  a  third  person,  it  is  a  presumption  of  fact  that  the 
inclosure  is  part  of  the  holding,  unless  the  tenant  during  the  term  does 
some  act  disclaiming  his  landlord's  title  {Kingsmill  v.  Millard). 

Incroachments  by  tenant  on  waste  are  presumably  for  the  benefit  of 
the  landlord  (Earl  of  Lishurne  v.  David  Davids,  1  L.R.  C.P.  259). 

The  8  &  9  Vict,  c,  118,  s.  123,  which  gives  a  right  to  the,  Inclosure 
Commissioners  or  their  vahier  to  enter  land  to  be  inclosed  or  dealt  with 
under  the  Act,  extends  to  land  over  which  there  is  a  right  of  common, 
and  which  by  an  order  for  inclosure  is  to  be  retained  by  the  owner, 
freed  from  the  right  of  common  {Gruhh  v.  Broivn). 

Upon  a  question  ivJiether  a  piece  of  ivaste  land  Iging  hetii'een  a  highivay 
and  the  plaintiff's  inclosed  land,  belonged  to  the  plaintiff,  or  to  the  lord 
of  the  manor,  it  was  held  in  an  action  for  breaking  and  entering  the 
close  of  the  plaintiff,  that  grants  by  the  lord  of  other  slips  of  waste  land 
on  either  side  of  the  same  road,  abutting  on  inclosed  lands  of  the  lord 
himself  and  of  other  persons,  were  admissible  for  the  purpose  of  showing 
that  the  locus  in  quo  was  part  of  the  waste  of  the  manor  without  showing 
continuity  {Dendg  v.  Simpson). 

One  who  has  contracted  ivith  the  owner  of  a  close  for  the  purchase  of  a 


TRESPASS  MAINTAINABLE  BY  PURCHASER  OP  GROWING  CROP.  347 

growing  crop  of  grass  there,  for  the  purpose  of  being  mown  and  made  into 
hag  bg  the  vendee,  has  such  an  exckisive  possession  of  the  close,  though 
for  a  limited  purpose,  that  he  may  maintain  trespass  quare  dausuni 
fregit  against  any  person  entering  the  close,  and  taking  the  grass  even 
with  the  assent  of  the  owner  {Crosbg  v.  Wads  worth).  Where  A.  is  seised 
in  fee  of  a  close,  upon  which  the  burgesses  of  B.  have  a  right  during 
a  certain  portion  of  the  year,  to  depasture  their  cattle,  and  have  during 
that  period  exclusive  possession  of  the  close,  A.  may  maintain  trespass 
against  a  party  who  during  that  period  commits  a  trespass  in  the  subsoil 
by  digging  holes,  but  not  against  one  who  during  that  period  merely 
rides  over  the  close  {Cox  v.  Glue,  and  Mousleg  v.  Saint).  With  respect  to 
the  latter  point  llaule  J.  said,  "You  might  as  well  contend  that  a  man 
who  owns  a  stratum  of  coal  a  thousand  fathoms  deep,  can  bring  trespass 
against  another  for  walking  over  the  surface  of  the  land.  That  is  this 
case,  differing  only  in  degree."  And  per  Curiam  ;  "  The  word  'dose'  in 
a  declaration  in  trespass  includes  the  subsoil  as  well  as  the  surface  "  {ib.) 
The  possession  of  the  surface  mag  be  in  one  person,  and  the  possession  of 
and  the  right  to  the  subsoil,  in  another  ;  and  such  rights  may  be  derived 
by  gi'ant ;  or  may  be  inferred  from  a  long  and  uniform  course  of  enjoy- 
ment, which  will  be  supposed  to  correspond  with  the  interest  created  by 
some  grant "  {ib.)  In  Comyn's  Digest  Common  {H)  it  is  said  that  a 
commoner  cannot  maintain  trespass  for  damage  to  the  soil  or  grass  ;  for 
he  has  no  interest  but  to  take  the  pasture  by  the  mouths  of  his  cattle. 
One  person  may  hold  the  prima  tonsura  of  land  as  copyhold,  and  another 
may  have  the  soil  and  every  other  beneficial  enjoyment  of  it  as  freehold  ; 
and  as  the  word  close  imports  in  the  abstract  the  interest  in  the  soil,  if 
the  defendant  in  trespass  (who  by  his  plea  alleged  the  plaintiff's  close 
to  be  copyhold,  holden  under  a  certain  manor  of  Hatfield  Peverell,  and 
justified  the  trespass  therein  under  a  grant  from  the  lord,  and  by  com- 
mand of  the  copyholder)  only  make  out  that  he  has  a  partial  interest  in 
the  land,  such  as  the  right  primes  tonsurce,  the  issue  must  be  found 
against  him  {Stammers  v.  Dixon). 

Trespass  does  not  lie  for  ths  occupier  of  land  against  a  partg,  who 
enters  to  retake  goods  wrongfully  brought  into  the  close  by  the  plaintiff 
(2  Roll.  Abr.  565,  1.  54) ;  and  in  trespass  for  breaking  and  entering 
a  yard,  the  defendant  was  allowed  to  plead  that  he  entered  for  the 
purpose  of  viewing  a  mare  then  in  the  stable  in  the  yard,  which  had 
recently  been  stolen  from  him  ( Webb  v.  Beavan).  A  plea  to  a  declara- 
tion in  trespass  for  breaking  and  entering  the  plaintiff's  close,  that  the 
defendant  being  possessed  of  certain  goods,  the  plaintiff",  without  his 
leave  and  against  his  will,  took  the  goods  and  placed  them  on  the 
close  in  the  declaration  mentioned,  wherefore  the  defendant  made  fresh 


MS  ACTION    BY    REVERSIONER    FOR    TRESPASS. 

pursuit,  aud  entered  to  retake  the  goods,  is  a  good  plea  aud  a 
good  justification  of  the  entry  on  the  plaintilf's  close  {Patrick  v. 
CoJericTc). 

A  rerersionor  cannot  maintain  an  action  against  a  stranger  for  cuts  of 
trespass  on  the  land  unattended,  with  any  other  injury  to  the  reversion 
than  as  being  committed  in  assertion  of  the  claim  of  a  right  of  way 
{Baxter  \.  Taylor).  And  per  FarJce  J . :  "No  injury  has  been  done  to 
the  reversion.  My  notion  is  that  there  must  be  some  destruction  of 
the  land  to  enable  the  reversioner  to  maintain  this  action.  No  case 
has  ever  gone  so  far  as  to  constitute  a  simple  trespass  like  this  an 
injury  to  the  reversion.  The  case  of  Young  v.  Sj^encer  is  distinguish- 
able from  the  present.  The  words  of  Lord  Tenterden  C.J,  in  that  case 
are  to  be  considered  with  reference  to  the  subject-matter  of  decision  ; 
and  he  is  there  stating  what  in  his  opinion  are  acts  of  wast/?."  {il).) 

An  auctioneer  put  into  possession  of  fixtures  {spouting)  attached  to  tlie 
freehold,  for  tlie  purpose  of  setting  them,  fJie  purcliaser  being  hound  to 
detach  and  remove  them,  has  not  such  a  possession  as  will  support  tres- 
pass de  bonis  asportatis  for  their  wrongful  removal  {Davis  v.  Banks). 
And  per  Parke  B.  :  "  There  is  no  doubt  as  to  the  law,  that  an 
auctioneer  has  a  special  property  as  bailee  in  goods  and  chattels  which 
are  put  into  his  possession  for  the  purpose  of  sale,  whether  such  goods 
and  chattels  be  in  his  own  rooms  or  in  the  house  of  another  person. 
The  case  of  Witti((ms  v.  Mitlington  is  a  decision  to  that  effect.  On  the 
ground  that  he  is  a  bailee,  he  may  maintain  trespass  de  bonis  asjwrtatis, 
or  trover,  for  such  chattels.  But  is  he  bailee  of  the  roof  of  the  house 
which  is  part  of  the  freehold  ?  He  cannot  be  considered  to  have  such 
a  possession  of  the  house  and  fixtures  as  would  entitle  him  to  maintain 
an  action  of  trespass  quare  clausum  f regit  against  a  party,  for  an  injury 
to  them  ;  and  that  is  conceded  to  be  so  by  the  plaintiff's  counsel.  He 
was  only  authorized  at  the  time  of  his  employment  to  sell  the  right  of 
detaching  and  removing  the  fixtures,  and  he  had  no  possession  of  them 
as  materials,  and  he  was  not  in  possession  of  the  freehold.  But  it  was 
said  that  on  their  severance  they  were  bailed  to  him.  That  depends 
upon  the  ciuestion,  whether  or  not  the  real  owner  of  the  fixtures  ever 
intended  that  the  plaintiff'  should  have  possession  of  them  after  they 
were  detached.  The  evidence  is  that  the  lots  were  to  be  sold  as 
fixtures,  which  the  purchaser  was  to  detach  and  remove.  The  evi- 
dence, therefore,  is  opposed  to  the  plaintiff's  view  of  the  question. 
The  present  action,  therefore,  bo  far  as  it  respects  those  fixtures,  is  no 
more  maintainable  than  an  action  of  quare  clausum  f regit  would  be,  if 
brought  for  the  removal  of  growing  crops  by  an  auctioneer  who  has  been 
directed  to  sell  them." 


LEAVE    AND    LICENCE.  319 

Plea  of  leave  and  licence  in  trespass. — In  trespass,  a  plea  of  leave  and 
licence  means  leave  and  licence  in  fact,  and  a  licence  in  law  must  be 
specially  pleaded,  and  semble  it  may  be  pleaded  to  part  of  a  count  if 
severable  and  distinct :  per  Cockdurn  C.J.     {Moxon  v.  Savage.) 

Leave  and  licence. — To  a  declaration  in  trespass,  and  for  breaking 
open  a  gate  and  lock,  the  defendant  pleaded  as  an  equitable  defence, 
that  disputes  having  arisen  between  the  plaintiff  and  the  defendant 
and  other  persons  about  a  right  of  way,  an  agreement  in  writing  was 
entered  into  between  the  plaintiff  and  the  defendant  and  the  said  other 
persons,  that  without  prejudice  on  either  side  to  the  question  of  right, 
a  way  over  the  locus  in  quo  should  remain  open  for  the  passage  of  the 
defendant  and  the  said  other  persons,  until  the  plaintiff's  solicitor  and 
the  defendant  should  come  to  a  definite  understanding  as  to  the  course 
to  be  pursued  in  deciding  the  question  in  dispute  ;  that  all  things 
happened  necessary,  &c.,  and  that  the  alleged  trespasses  were  com- 
mitted in  the  use  by  the  defendant  of  the  said  way,  because  the  said 
gate  had  been  wrongfully  and  contrary  to  the  said  agreement  placed 
across  it.     It  was  held  by  the  Court  of  Exchequer — 1st,  that  the  plea 
did  not  amount  to  a  plea  of  leave  and  licence  at  common  law,  as  the 
locking  of  the  gate  was  a  revocation  of  the  licence  to  use  the  way  ;  and 
2ndly,  that  it  was  not  good  as  an  equitable  plea,  the  circumstances 
disclosed  not  being  such   as  would  in  equity  entitle  the  defendant  . 
to  have  the  plaintiff  restrained  by  an  unconditional  injunction  from 
prosecuting  the  action  {Hyde  v.  Graham). 

Reasonableness  of  a  horse-^-acing  custom. — To  an  action  of  trespass 
qi(are  clausi/m  f regit,  the  defendant  pleaded  that  from  time  immemorial, 
on  Ascension  Day,  horse  races  had  been  held,  and  of  right  ought  to  be 
held  on  land  in  a  certain  extra-parochial  place,  and  that  there  was  a 
custom  for  the  freemen  of  the  town  of  C  to  enter  on  the  close  for  the 
purpose  of  horse-racing  ;  and  it  was  held  on  a  demurrer  to  the  plea  and 
the  authority  of  Fitch  v.  RaivUngs  and  others  (2  H.  Bl.  C.  B.  393)  and 
Abbott  V.  Weeldy  (1  Levinz,  176)  that  the  custom  was  good  and  reason- 
able. The  Court  of  Exchequer  distinguished  this  case  ft'om  Milli- 
clmmp  V.  Johnson  and  Bell  v.  Wardell  (Willis,  202),  because  the  right  to 
go  on  the  land  in  question  was  limited  to  a  few  days  about  the  time  of 
Ascension  Day  or  Holy  Thursday,  whereas  in  these  cases  the  custom  to 
enter  on  land  for  the  purpose  of  playing  any  rural  sports  or  games  was 
held  bad,  as  being  too  general  and  uncertain  {Mounsey  v.  Ismay). 

A  trespasser  may  have  a  right  of  action  for  an  injury  sustained  whilst 
in  the  act  of  trespassing  {Burnes  Adx.  v.  Ward).  And  per  3faule  J. : 
"  With  respect  to  the  case  of  Blyfh  v.  Topham,  and  Alderson  B.'s 
dictum  in  Jordin  v.  Crump,  it  must  be  observed  that  in  those  instances 


350  RIGHT    OF    ACTION    BY    TRESPASSER. 

the  existence  of  the  pit  in  the  waste  or  field  adjoining  the  road  is  not 
said  to  have  been  dangerous  to  the  persons  or  cattle  of  those  who 
passed  along  the  road,  if  ordinary  caution  were  employed.  In  the 
present  case,  the  jury  expressly  found  the  way  to  have  existed  imme- 
morially,  and  they  must  be  taken  to  have  found  that  the  state  of  the 
area  made  the  way  dangerous  for  those  passing  along  it,  and  that  the 
deceased  was  using  ordinary  caution  in  the  exercise  of  the  right  of  way, 
at  the  time  the  accident  happened.  ^Yith  regard  to  the  objection  that 
the  deceased  was  a  trespasser  on  the  defendant's  land  at  the  time  the 
injury  was  sustained,  it  by  no  means  follows  from  this  circumstance 
that  the  action  cannot  be  maintained.  A  trespasser  is  liable  to  an 
action  for  the  injury  which  he  does,  but  he  does  not  forfeit  his  right 
of  action  for  an  injury  sustained.  Thus  in  the  case  oi Bird  v.  Hulhrooh, 
the  plaintiif  was  a  trespasser  (and  indeed  a  voluntary  one),  but  he  was 
held  entitled  to  maintain  an  action  for  an  injury  sustained,  in  conse- 
quence of  the  wrongful  act  of  the  defendant,  without  any  want  of 
ordinary  caution  on  the  part  of  the  plaintiff,  though  it  would  not  have 
occurred  if  the  plaintiff  had  not  trespassed  on  the  defendant's  land. 
This  decision  was  approved  of  in  Lynch  v.  Nurden,  and  also  in  Jordin 
V.  Crumby,  in  which  the  Court  of  Exchequer,  though  expressing  a  doubt 
whether  the  act  of  the  defendant  in  settiug  a  spring-gun  was  illegal, 
agreed  that  if  it  was,  the  fact  of-  the  plaintiff  being  a  trespasser  would 
be  no  answer  to  the  action."  (/&.) 

It  was  decided  by  the  Court  of  Exchequer  in  Hardcastk  Adz.  v.  South 
Yorkshire  Railway  &  River  Don  Gompayiy,  in  accordance  with  the 
principle  of  the  case  of  Blyth  v.  Topham,  that  ivhen  the  oivner  of  land 
makes  upon  it  an  excavation,  adjoininy  a  public  iray,  so  that  a  person 
walking  upon  it  might,  by  making  a  false  step,  or  being  affected  with  a 
sudden  giddiness,  or  by  the  sudden  starting  of  a  horse,  be  thrown  into 
the  excavation,  the  party  making  the  excavation  is  liable  for  the  conse- 
quences ;  but  it  is  otherwise  when  the  excavation  is  made  at  some 
distance  from  the  way,  and  the  person  falling  into  it  would  be  a  tres- 
passer upon  the  land  of  the  party  making  the  excavation  before  he 
reached  it.  And  semble,  the  proper  and  true  test  of  legal  liability  in 
such  cases  is  whether  the  excavation  is  substantially  adjoining  the 
way,  and  these  principles  apply  to  actions  brought  under  stat.  9  &  10 
Vict.  c.  93. 

The  authorities  show  that  if  a)i  accident,  such  as  the  defendunt  driving 
his  cart  and  horse  against  the  plaintiff,  resulted  entirely  from  a  superior 
agency,  that  is  a  defence,  and  may  be  proved  under  the  general  issue  ; 
but  a  defence  stating  that  there  was  no  negligence  on  the  part  of  the 
defendaut,  and  that  the  plaintiff  slipped  from  the  kerb-stone  just  as  the 


RIGHTS    OF    PUBLIC    COMPANY.  351 

cart  was  passing,  and  so  got  his  leg  under  the  wheel,  cannot  be  proved 
under  that  issue  {Hall  v.  Fearnley). 

It  was  decided  by  the  Court  of  Common  Pleas,  on  the  authority  of 
Boyfield  v.  Porter,  that  tresjjasa  does  not  lie  against  a  surveyor  of  }dyh- 
ivays  for  entering  lands  and  cutting  drains  undw  the  powers  of  the 
Highway  Act,  without  tendering  amends  for  the  injury  done  {Peters  v. 
Clarson).  The  justices  at  Special  Sessions  are  the  only  persons  to 
ascertain  and  settle  the  amount  of  damages  to  be  paid,  and  the  surveyor 
is  not  bound  to  have  the  amount  of  damages  ascertained  within  twenty- 
one  days  of  his  committing  the  injury,  {ih.) 

Where  a  ivater-work  company  were  empoiv&red  by  Act  of  Parliament 
"  to  dig  and  hrealc  up  the  soil,  &c.,  of  any  of  the  roads,  highways,  foot- 
ivays,  &c.,"  and  by  a  subsequent  clause  it  was  provided  that  they  should 
not  enter  upon  the  private  lands  and  grounds  of  any  person  without 
the  consent  of  their  owner,  &c.,  the  Court  of  Common  Pleas  held  that  a 
footway  across  a  field  was  not  within  the  meaning  of  the  Act  (Scales  v. 
PicJcering). 

The  ownership  acquired  in  land  hy  a  ptiMc  company,  under  their 
compulsory  powers  for  the  purpose  of  their  works,  is  a  qualified  owner- 
ship, to  be  restricted  to  the  purposes  expressed  in  the  act,  those  pur- 
poses being  the  essence  of  the  contract  ;  and  therefore  the  landowner 
in  Bostock  v,  Noi^th  Staffordshire  Railway  Company^  whose  comfort  and 
enjoyment  of  the  remainder  of  his  estate  is  affected  by  the  company 
applying  the  ownership  for  other  purposes  not  contemplated  by  the 
act,  had  a  perpetual  injunction  granted  to  her  by  Stuart  V.  C.  to  restrain 
the  use  of  the  land  for  such  purposes.  Part  of  the  plaintiff's  estate  had 
been  taken  by  the  company  to  form  a  reservoir  to  supply  their  canal, 
and  for  no  other  purpose  ;  whereas  they  had  persisted  in  holding  a 
"  grand  fete  or  regatta"  on  the  lake.  The  legal  right  of  the  plaintiff  had 
been  aflBrmed  {Erie  J.  diss)  in  a  case  which  was  argued  before  the  Court 
of  Queen's  Bench. 

^Mlere  there  were  several  adjacent  closes  called  H,  and  the  plea  to 
a  declaration  for  seizing  pigs  was,  that  defendant  was  possessed  of  a 
close  named  H,  in  which  the  pigs  were  eating,  &c.,  and  were  taken 
damacje  feasant ;  and  the  replication  was  that  the  defendant  was  not 
possessed  of  the  said  close  in  the  said  plea  mentioned,  in  which  tlie  pigs 
were  alleged  to  be  eating,  &c.  ;  and  issue  was  taken  thereon— it  was 
held  that  the  defendant  was  bound  to  show  that  he  was  possessed  of  a 
close,  in  which  the  pigs  were  eating,  &c.,  and  that  it  was  not  enough 
for  him  to  show  his  possession  of  a  close  named  H  {Botidy.  Downton). 
But  a  plea,  justifying  an  alleged  trespass  as  committed  in  exercise  of  a 
right  of  way,  is  sufficiently  certain,  as  to  the  premises  in  respect  of 


35:J  PLEA    OF    LIBERUM    TEXEMENTUM. 

which  the  way  is  claimed,  if  it  describe  them  as  "  a  close  in  the  parish," 
&c.,  "and  county,"  &c.,  "  called  B,  with  certain  lands  thereunto  ad- 
joinmg  ;  and  another  close  called  M,  and  divers,  to  wit  two,  other 
closes  next  adjoining  thereunto  ;  "  claiming  a  way  from  B  to  M  and 
back  for  the  better  use,  occupation,  &c.,  of  B  and  the  said  lands  ad- 
joining thereto,  and  of  M  and  the  said  adjoining  closes  respectively 
{Holt  V.  Daw). 

And  per  Lord  CamphcU  C.J. :  "  It  appears  with  sufficient  certainty 
that  there  is  but  one  way  in  question  ;  and  the  tenn'uii  are  specifically 
described  by  name,  as  well  as  of  the  two  closes  in  respect  of  which  it  is 
claimed.  The  other  lands  and  closes  in  respect  of  which  it  is  claimed 
are  stated  to  be  adjoining  to  those  that  are  expressly  named  ;  and  if 
they  had  been  described  by  name,  or  by  metes  and  bounds,  the  plain- 
tiff would  have  derived  little  advantage  from  such  particularity,  as  the 
defendant  was  not  ])0und  to  prove  his  right  in  respect  of  any  but  the 
two  closes  named  as  the  termini,  and  would  have  been  entitled  to  the 
verdict  if  he  had  proved  his  right  in  respect  of  them,  though  he  had 
failed  as  to  all  the  others,  as  appears  from  Ricketts  v.  Salwey" 

"  In  Stott  V.  Stott  the  defendant  justified  under  a  right  of  way  in  re- 
spect of  a  certain  messuage,  and  divers  (to  wit,  50)  acres  of  laud.  In 
Simpson  V.  Lcwthivaite  the  defendant  claimed  the  right  of  way  in  re- 
spect of  100  acres  of  land  contiguous  and  next  adjoining  to  one  of  the 
closes  in  which,  &c.  In  Colchester  v.  Rol>erts  the  defendant  justified 
under  a  claim  of  a  right  of  way  in  respect  of  a  messuage,  and  divers 
(to  wit,  three)  closes  of  land  near  to  the  close  in  which,  &c.  There  is, 
therefore,  abundant  authority  in  the  precedents  for  such  a  mode  of 
Dleadiuo-  and  no  case  was  cited  in  point  to  show  that  such  a  form  is 
objectionable." 

In  trespass  quare  clausum  fregit,  the  defendant  is  entitled  to  plead 
liherum  tenementim,  together  wdth  a  plea  denying  that  the  close  ■  in 
which,  &c.,  is  the  plaintiflTs  {Slocomhe  v.  Lijall).  And  per  Parke  B.  : 
"  They  do  not  necessarily  relate  to  the  same  subject-matter  of  defence. 
Under  the  plea  that  the  close  is  not  the  plaintift^'s,  he  must  prove  him- 
self in  possession,  and  that  is  sufficient  until  the  defendant  shows  a 
better  title  •  but  the  plea  of  liherum  lenementum  sets  up  the  title  of  the 
defendant.  Under  the  denial  that  the  close  is  the  plaintiff's,  both  pos- 
session and  title  may  be  in  issue,  which  is  not  the  case  with  liherum 
tenementumJ'  (ih.)  As  to  new  assignment  see  Bracegirdle  v.  Peacock, 
Rohertson  v.  Gauntlett,  Bowen  v.  Jenkin,  Norman  v.  Wescomhe, 
Brancker  v.  Molijneaax,  and  Hayling  v.  Oakey,  and  the  review  of 
the  older  authorities  laid  down  in  the  note  to  the  case  of  Gree7ie  v. 
Jones. 


REMEDY    FOR    CONTINUING    A    BUILDING    ON    LAND.       353 

Trespass  is  the  proper  remedy  for  wronjfullij  conlinuim/  a  hidhUng 
on  plaintiff's    kind,   for   the   erection   of  which  plaintiff  has   ah-eady 
recovered  compensation  ;  and  a  recovery,  witli  satisfaction  for  erecting 
it,  does  not  operate  as  a  purchase  of  the  right  to  continue  such  erec- 
tion.    And  hence  where,  as   in  Holmes  v.   Wilson,   the  trustees  of  a 
turnpike  road  built  butti-esses  to  support  it  on  the  land  of  the  plaintiff, 
w^ho  sued  them  and  their  workmen  in  trespass  for  such  erection,  and 
accepted  money  paid  into  Court  in  full  satisfaction  of  the  trespass, 
it   was  held  by  the   Court   of    Queen's   Bench,    that    after  notice  to 
defendants  to  remove  the  buttresses,  and  a  refusal  to  do  so,  the  plaintiff' 
might  bring  another  action  of  trespass  against  them  for  keeping  and 
continuing  the  buttresses  on  the  land,  to  which  the  former  recovery 
was   no   bar.      And  per   Lord   Denman  C.J. :  "  The  former  and  the 
present  action  are  for  different  trespasses.     The  former  was  for  erect- 
ing the  buttresses.     This  action  is   for  continuing  the  buttresses  so 
erected.     The  continued  use  of  the  buttresses  for  the  support  of  the 
road   under   such  circumstances  was  a  fresh  trespass."      And   so   in 
Boicijer  v.  Coolc,  where  the  defendant  was  sued  in  trespass  for  placing 
stumps  and  stakes  on  the  plaintiff's  land,  and  paid  into  Court  40s., 
which  the  plaintiff  took  out  in  satisfaction  of  that  trespass ;  and  the 
plaintiff  afterwards  gave  the  defendant  notice,  that  unless  he  removed 
the  stumps  and  stakes,  a  further  action  would  be  brought  against  him  ; 
it  was  held  that  the  leaving  the  stumps  and  stakes  on  the  land  was  a 
new  trespass,  and  that  the  plaintiff  was  entitled  to  full  costs  in  an  action 
for  their  continuance  after  the  notice,  though  he  recovered  less  than 
40s.     ParJce  B.  had  refused  to  certify  that  the  trespass  was  wilful  and 
malicious  under  the  3  &  4  Vict.  c.  24,  s.  2,  and  said  that   the  proper 
mode  of  obtaining  such  costs  was   by  entering  a  suggestion  on  the 
record,  under  the  3rd  section,  that  the  trespass  was  committed  after 
notice. 

And  per  Curiam.-  "In  Sherwin  v.  Sicindall,  the  judge  clearly  had 
power  to  certify  as  he  did  under  3  &  4  Vict.  c.  24,  s.  2.  In  Daw  v. 
Hole  the  attention  of  the  Court  of  Queen's  Bench  does  not  seem  to 
have  been  called  to  the  effect  of  the  8  &  9  117//.  III.  c.  11,  in  con- 
nection with  the  22  &  23  Car.  II.  c.  9  :  they  appear  to  have  thought 
that  the  costs  are  given  only  where  the  judge  certifies,  not  adverting  to 
the  circumstance  of  the  only  statute  depriving  the  plaintiff  of  costs  in 
these  cases  having  been  repealed.  The  next  question  is— was  the  trespass 
in  this  case  committed  after  notice  ?  That  depends  upon  whether  or 
not  the  continuance  of  the  stumps  and  stakes  on  the  plaintiffs  land, 
after  the  notice  to  remove  them,  was  a  new  trespass.  The  cases  of 
Hudson  V.  Nicholson  and  Holmes  v,  Wilson  clearly  show  that  it  was. 


354  CERTIFICATE    OF    COSTS. 

And  ^jpr  Cressurll  J. :  "  Prima  facie,  the  i^laintiff  having  recovered 
damages  is  entitled  to  costs ;  if  he  is  not,  it  must  be  by  virtue  of  soine 
statutory  enactment.  It  has  been  very  properly  admitted  that  the  only 
statute  that  can  have  the  effect  of  depriving  the  plaintiff  of  costs  in 
this  case,  is  the  3  &  4  Vict.  c.  24.  The  2nd  section  of  that  statute 
enacts,  that  if  the  plaintiff,  in  any  action  of  trespass,  or  of  trespass  on 
the  case,  shall  recover  less  damages  than  40s.,  he  shall  be  entitled  to 
no  costs,  unless  the  judge  shall  certify  on  the  back  of  the  record  that 
the  action  was  really  brought  to  try  a  right,  or  that  the  trespass  or 
grievance  was  wilful  and  malicious.  Then  comes  the  3rd  section, 
which  provides  that  nothing  in  that  act  shall  extend  to  deprive  any 
plaintiff  of  costs  in  any  action  for  a  trespass  over  any  lands,  &c.,  in 
respect  of  which  a  notice  not  to  trespass  thereon  shall  have  been  pre- 
viously given  to  the  defendant.  If  this  3rd  section  had  enacted  that  the 
plaintiff  should  not  be  deprived  of  costs,  if  it  should  appear  at  the  trial 
that  a  previous  notice  not  to  trespass  had  been  given,  there  might 
have  been  ground  for  contending  that  the  judge  must  certify  to  entitle 
the  plaintiff  to  costs.  But  the  notice  is  not  required  to  appear  at  the 
trial.  The  proper  course  clearly  is  to  suggest  the  fact  upon  the  record, 
leaving  the  defendant  to  traverse  it,  if  so  advised." 

The  certificate  to  deprive  the  plaintiff  of  costs  under  23  &  24  Vict. 
c.  126,  s.  34,  where  in  an  action  for  a  wrong  he  recovers  less  than  £5, 
must  negative  not  only  the  trespass  being  wilful  and  malicious,  but 
also  the  fact  that  the  action  was  brought  to  try  a  right,  and  that  it  was 
not  fit  to  be  brought.  Andjoer  WiUiams  J. :  "The  case  of  Saunders 
V,  Kirwan''  (30  L.  J.  (N.  S.)  C.P.  351)  applies  to  the  negative  that  the 
trespass  was  wilful  and  malicious,  and  the  decision  there  is  quite 
correct,  inasmuch  as  if  the  certificate  negatives  the  trespass  being 
either  wilful  or  malicious,  it  necessarily  negatives  its  being  both  wilful 
and  malicious  {Gooduuj  v.  Brifnull). 

It  is  now  perfectly  settled  that  a  man  may  he  guilty  of  a  nuisance  in 
erecting,  or  continuijig  a  huilding  on  the  land  of  another.  And  it  was 
so  held  by  the  Court  of  Queen's  Bench  in  Holmes  v.  Wilson,  by  the 
Court  of  Exchequer  in  Thompson  v.  Gibson,  and  by  the  Court  of 
Common  Pleas  in  Boivyer  v.  CooJc,  and  BattishiU  v.  Reed.  And  per 
V.  Williams  J.  :  "Where  an  action  has  been  brought  for  erecting  and 
leaving  a  building  on  the  plaintiffs  land,  a  fresh  action  will  lie 
for  continuing  it  there  ;  and  action  after  action  may  be  brought 
till  it  is  removed.  Whether  this  case  falls  within  the  principle  of 
Jlobnes  v.  Wilson,  T  will  not  undertake  to  say  ;  but  assuming  that  it 
docs,  Holmes  v.  Wilson  has  been  followed  by  Thompson  v.  Gihson ; 
and  Thompson  v.   Gibson  and  Bowycr  v.   Cook  have  established  that 


KEMEDY    FOR    CONTINUANCE    OF   NUISANCE.  355 

fresh  actions  may  be  brought  as  long  as  the  nu'sance  is  continued  " 
{BattishiU  v.  Reed).  And  per  Jervis  C.J.  :  "  It  was  for  the  jury  to  say 
what  damages  the  ]3laintiif  was  entitled  to  ;  but  as  a  principle  of  com- 
putation, tiie  diminution  in  the  saleable  value  of  the  premises  was  not 
the  true  criterion.  Every  day  that  the  defendant  continues  the  nuisance 
he  renders  himself  liable  to  another  action.  I  think  the  jury  did  right 
to  give,  as  they  generally  do,  nominal  damages  only  in  the  first  action  ; 
and  if  the  defendant  persists  in  continuing  the  nuisance,  then  they 
may  give  such  damages  as  will  compel  him  to  abate  it,  but  not  as  was 
insisted  here,  the  difference  between  the  original  value  of  the  premises 
and  their  present  diminished  value  "  {id.).  And  ^^rr  V,  Williams  J.  : 
"  Where  the  action  is  for  a  nuisance  in  the  defendant's  own  land,  he 
may  always  discontinue  it ;  but  where  it  is  for  a  trespass,  in  respect  of 
an  act  done  in  the  plaintiff's  land,  he  cannot  enter  to  remove  it  without 
committing  another  trespass  (/&.).  The  rule  suggested  in  Holmes 
V,  Wilson,  and  ThomiJson  v.  Gibson,  is  adopted  by  Professor  Sedgwick 
(see  Sedgwick  on  Damages,  2nd  edit.  p.  144),  where  it  is  said,  'Every 
continuance  of  a  nuisance  is  held  to  be  a  fresh  one,  and  therefore  a 
fresh  action  will  lie,'  " 

In  an  action  for  a  nuisance  by  the  luryiing  of  briclrs  near  the  house 
of  the  plaintiff,  the  Court  of  Common  Pleas  decided  (confirming  the 
ruling  by  B//les  J.)  that  the  judge  may  properly  direct  the  jury  that  the 
plaintiflF  was  not  bound  to  show  that  the  brick-burning  was  injurious 
to  health  ;  but  that  if  it  rendex'ed  the  enjoyment  of  his  life  and  pro- 
perty substantially  uncomfortable,  he  was  entitled  to  recover  ;  and  that 
the  jury  ought  to  take  into  consideration,  as  an  element  of  the  inquiry, 
whether  the  brick-burning  was  carried  on  in  a  proper  and  convenient 
place  for  that  purpose  (Hole  v.  Barloiv). 

The  Court  rested  their  judgment  on  Com.  Dig.  "  Nuisance,"  C,  where 
it  is  said,  "  An  action  does  not  lie  for  the  reasonable  use  of  any  right, 
although  it  be  to  the  annoyance  of  another  ;  as  if  a  butcher,  brewer, 
&c.,  use  his  trade  in  a  convenient  place,  though  it  be  to  the  annoyance 
of  his  neighbour."  Willes  J.  said,  "  Comyn  lays  it  down  that  every 
person  has  a  right  to  fresh  air  ;  but  that  right  must  be  limited  by  this, 
that  those  matters  which  must  be  done  in  ordinary  life  may  be  done." 
Hence  a  work  of  reasonable  necessity  cannot  be  made  the  foundation  of 
an  action  for  a  nuisance,  which  is  a  limitation  of  the  doctrine  in  Aldred's 
case,  9  Rep.,  57  "  {ih.). 

In  Corhy  v.  Hill  the  facts  were  these  :  The  defendant  being  about  to 
Imild,  laid  his  materials  (having  received  leave  so  to  do)  on  a  private 
road  leading  to  a  county  lunatic  asylum,  along  which  peisons  had  been 
ficcustomed  to  pass  by  leave  of  the  owners,  and  were  likely  to  continue 

A  A  2 


356  MEASURE    OF    DAMAGES    FOR    REMOVING    SOIL. 

to  jiass,  so  as  to  obstruct  the  road  and  make  it  dangerous  to  persons 
using-  it,  and  gave  no  notice  by  signal  or  otherwise.    It  was  held  by  the 
Court  of  Common  Pleas  that  the  defendant  was  liable  to  an  action  by 
the  plaintiff  for  the  injury  sustained  by  his  horse,  and  senible  it  was  not 
necessary  to  aver  in  the  declaration  that  the  materials  were  so  placed 
by  the  defendant  without  the  permission  of  the  owners  and  occupiers  of 
the  soil,  as  such  allegation  would  raise  an  immaterial  issue.     And  ^jer 
Wi/ks  J. :  "A  statement  of  the  facts  was  sufficient  to  show  that  the 
]>laintiff  had  a  remedy,  because  the  defendant  had  no  right  to  set  a  trap 
for  the  plaintiff.     A  person  coming  on  lands  by  licence  has  a  right  to 
suppose  that  the  person  who  gives  the  licence,  and  much  more  a  person 
wlio  is  a  wrong-doer,  will  not  do  anything  which  will  cause  him  an 
injury.     In  this  case  I  do  not  think  that  tlie  defendant  has  shown  a 
licence  to  place  the  materials  in  the  way  he  did."    And  per  Williams  J. : 
"  Suppose  you  have  a  piece  of  land,  and  give  your  neighbour  leave  to  j)ut 
his  harrows  upon  it,  and  just  before  dusk  he  puts  them  the  wrong  way 
■upwards,  and  your  friend  conies  to  dine  with  you,   and  is  damaged 
thereby,  will  he  not  have  a  right  of  action  against  that  man  ?  "     On  the 
counsel  objecting  tliat  according  to  Southcote  v.  Stanley  he  had  not,  his 
Lordship  observed,  "  The  exception  is  the  case  of  Southcote  v.  Stanley, 
and  that  case  stands  entirely  on  the  relation  of  host  and  guest,  and  is 
founded  on  the  proposition  that  a  man  who  becomes  a  guest  cannot 
complain  of  the  want  of  good  appointments  in  the  house  in  which  he  is 
a  guest." 

In  trespass  for  cutting  into  the  plaintiff's  close,  and  carrying  away 
the  soil,  the  proper  measure  of  damages  is  the  value  to  the  plaintiff  of  the 
land  removed,  not  the  expense  of  restoring  it  to  its  original  condition 
{Jones  V.  Gooday).  To  a  plea  of  the  Statute  of  Limitations  in  an  action 
of  trespass,  or  trespass  on  the  case,  the  plaintiff  will  not  be  allowed  to 
reply  as  an  equitable  answer  under  sec.  85  of  the  Common  Law  Pro- 
cedure Act,  1854,  that  the  trespasses,  &c.,  were  under-ground,  and  had 
been  fraudulently  concealed  from  the  plaintiff  till  within  six  years  before 
suit  {Hunter  v.  Gibbons). 

With  respect  to  giving  acts  of  ownership  in  evidence  in  an  action  of 
trespass,  Parke  B.  observed  in  Jones  v.  Williams,  "  In  ordinary  cases  to 
prove  his  title  to  a  close,  the  claimant  may  give  in  evidence  any  acts  of 
ownership  in  any  part  of  the  same  inclosure  ;  for  the  ownership  of  one 
part  causes  a  reasonable  inference  that  the  other  belongs  to  the  same 
person  ;  though  it  Ijy  no  means  follows  as  a  necessary  consequence,  for 
different  persons  may  have  balks  of  land  in  the  same  inclosure  ;  but 
this  is  a  fact  to  be  submitted  to  the  jniy.  So  I  apprehend  the  same 
rule  is  a[.plicablc  to  a  wood,  which  is  nut  inclosed  by  any  fence ;  if  you 


EEASONABLE    USE    OF    RIGHT    OF    WAY.  357 

prove  tlie  cnttin.o-  of  tim])er  in  one  part,  T  take  that  to  l)e  cyidcnce  to 
go  to  a  jury  to  prove  a  right  in  the  whole  wood,  although  there  should 
be  no  fence  or  distinct  boundary  surrounding  the  whole  ;  and  the  case 
of  Stanley  v.  White,  I  conceive,  is  to  be  explained  on  this  principle  ; 
there  was  a  continuous  belt  of  trees,  and  acts  of  ownership  on  one  part 
were  held  to  be  admissible  to  prove  that  the  plaintiff  was  the  owner  of 
another  part,  on  which  the  trespass  was  committed.  So  I  should  apply 
the  same  reasoning  to  a  continuous  hedge,  though  no  doubt  the  defendant 
might  rebut  the  inference  that  the  whole  belonged  to  the  same  person, 
by  showing  acts  of  ownership  on  his  part  along  the  same  fence." 

Where  premises  are  demised  or  conveyed  "  with  right  of  way  thereto," 
it  may  be  a  question  for  the  jury  what  is  a  reasonable  use  of  such  right. 
And  so  in  Hawldm  v.  Carbines,  which  was  an  action  in  tresjmss  for 
breaking  locks  and  chains,  and  the  defendant  justiiied  under  an  alleged 
right  of  way  through  a  gateway,  across  which  the  chain  was  fixed,  and 
the  right  of  way  was  expressed  to  be  "  through  the  gateway  "  of  the 
plaintiff  (which  gateway  led  to  other  premises  of  the  plaintiff),  and  at 
the  time  of  the  lease  carts  could  come  in  to  load  and  unload,  and  turn 
round  and  go  out  again,  but  through  alterations  of  the  premises  could 
not  now  do  so  without  slightly  trenching  upon  the  plaintiff's  pre- 
mises, the  Court  of  Exchequer  held  that  in  the  reasonable  use  of  the 
right  of  way  the  defendants  had  a  right  to  do  this  ;  and  that  what 
was  a  reasonable  user  was  for  the  jury. 

It  was  decided  by  the  Court  of  Common  Pleas  in  Delctneij  v.  Fox,  that 
tJie  rule  hij  which  a  tenant  is  estopped  from  denying  the  title  of  the  land- 
lord who  let  Mm  into  possession,  is  applicable  in  an  action  of  trespass  as 
well  as  an  ejectment,  thus  qualifying  Pollock  C.B.'s  dictum  in  Watson 
V.  Lane,  that  the  doctrine  which  prevents  a  party  from  denying  his 
landlord's  title  is  peculiar  to  ejectment.  On  the  termination  of  a  lease, 
the  landlord  cannot  maintain  trespass  before  entry.  And  so  the  cus- 
tomary heir  of  a  copyhold  tenement  cannot  maintain  trespass  without 
entry  ;  but  after  entry  there  is  a  relation  back  to  the  actual  title,  as 
against  a  wrong-doer,  and  he  may  maintain  an  action  for  trespasses 
committed  prior  to  his  entry  (Barnett  v.  Earl  of  Guildford). 

3Iere  permissive  tenant  has  no  right  to  sue  a  claimant  under  owner  for 
forcible  entry. — Where  the  plaintiff  used  land  as  a  garden  for  more  than 
20  years,  under  permission  fi-oin  the  owner  to  do  so  in  order  to  keep 
it  from  trespassers,  the  owner  from  time  to  time  coming  on  to  the  land, 
and  giving  directions  as  to  the  cutting  of  trees,  &c.,  it  was  held  by  Erie 
C.J.,  that  he  had  not  got  a  title  so  as  to  enal)le  him  to  sue  a  claimant 
under  the  owner  for  forcible  entry.  The  learned  judge  observed,  "  It 
may  be  taken  that  the  plaintiff  had  a  beneficial  occupation  for  more  than  20 


358  FORCIBLE    ENTRY    ON    COMMON    OF    PASTURE. 

yciirs,  and  if  that  will  give  liim  a  title  I  will  give  hini  leave  to  move  ; 
but  iu  my  opiuiou  every  time  Cox  the  owner  put  his  foot  on  the  land,  it  was 
so  far  iu  his  possession  that  the  statute  would  begin  to  run  from  the 
time  he  was  last  on  it.  Mr.  Bovill  moved  in  the  Common  Pleas,  and 
took  nothing  {Allen  v.  England). 

Forcible  entry  in  exercise  of  riijht  of  common  of  imsture. — To  an  action  of 
trespass  for  breaking  and  entering,  and  pulling  down,  and  destroying 
the  plaintiff's  house,  whilst  he  and  his  family  were  therein,  and  assault- 
ing the  plaintiff,  and  by  so  pulling  it  down  endangering  the  lives  and 
injuring  the  persons  of  the  plaintiff'  and  his  family,  and  ejecting  them 
therefrom,  and  taking  the  materials  of  the  house ;  the  defendant  as  to 
the  breaking  and  entering  and  pulling  down  and  destroying  the  house, 
and  taking  the  materials,  justilied  in  the  exercise  of  a  right  of  common 
of  pasture  over  the  land,  on  which  the  plea  alleged  the  house  was  wrong- 
fully erected,  so  that  without  pulling  it  down  the  defendant  could  not 
enjoy  the  right  of  common  of  pastui'e.  It  was  held  by  the  majority  of 
the  Court  of  Exchequer  that  the  case  was  governed  by  Perry  v.  Fitzhoive 
(8  Q.  B.  757,  15  L.  J.  (N.  S.),  Q.  B.  239),  which  is  an  authority  that 
a  house  cannot  be  pulled  down,  a  man  being  in  it,  and  that  the  plea  did 
not  answer  the  action.  The  Court  intimated  that  it  was  doubtful  whe- 
ther if  the  case  had  been  before  them  for  the  first  time  they  would  have 
concurred  in  the  judgment  pronounced  by  the  Court  of  Queen's  Bench 
in  Perry  v.  Fitzhowe,  but  that  as  the  question  was  of  no  importance  to 
the  parties  in  the  cause,  except  as  to  the  question  of  costs,  it  was  better 
to  abiile  by  that  decision.  And  per  Wilde  B.,  "  Burling  y.  Read  {11 
Q.  B.  890,  and  19  L.  J.  (N.  S.),  Q.  B.  291),  and  Perry  v.  Fitshowe  estab- 
blish  a  clear  distinction  between  a  man  entering  on  his  own  land,  and 
an  entry  to  abate  a  mere  infringement  of  a  right  of  common  "  {Jones  v. 
Jones). 

Construction  of  the  Malicious  Trespass  Act. — The  occupier  of  land  found 
a  man  (employed  by  the  owner)  felling  trees  on  to  the  land  in  such  a  way 
as  to  damage  growing  barley  ;  and  after  again  and  again  desiring  him 
to  desist  gave  him  into  custody  for  wilfully  damaging  the  barley.  In 
an  action  of  trespass,  the  man  recovered  £20  ;  and  the  judge  having 
declined  to  certify  for  costs,  a  suggestion  was  entered  to  deprive  him 
of  ct>sts,  on  the  ground  that  the  defendant  was  acting  in  pursuance  of 
the  Malicious  Trespass  Act  (7  &  8  Geo.  IV.,  c.  30,  s.  22).  BlacMurn 
J.  on  the  trial  of  the  suggestion  having  left  it  to  the  jury  to  say  whether 
the  defendant  really  and  reasonal)ly  believed  he  was  acting  according  to 
law,  and  they  found  in  the  affirmative,  it  was  held  that  whether  the 
question  was  for  the  judge  or  the  jury  the  verdict  was  right,  and  semhle 
that  it  was  rightly  left  to  the  jury  {Norwood  v.  Pitt). 


DAMAGES    FOR    TRESPASS.  359 

Estimating  damnges  for  frcymss  or  ju'gligrnf  act. — In  an  action  fur  a 
wrong,  whether  arising  out  of  trespass  or  a  negligent  act,  the  jury  in 
estimating  the  daniages  may  take  into  considei-ation  all  tlie  circumstances 
attending  the  committal  of  the  wrong.  In  an  action  for  wrongfully  and 
injuriously  palling  down  a  building  adjoining  the  plaintiff's  stable  in  a 
negligent  and  improper  manner,  and  with  such  a  want  of  proper  care, 
that  by  reason  thereof  a  piece  of  timber  fell  upon  the  plaintiff's  stable 
and  destroyed  the  roof,  and  by  reason  of  the  defendant's  negligence, 
carelessness,  and  unskilfulness,  part  of  the  building  fell  upon  and 
injured  the  plaintiff's  horse,  and  evidence  was  given  showing  that  the 
defendant  had  acted  wilfully  and  with  the  object  of  forcing  the  plaintiff 
to  give  up  possession  of  the  stable,  it  was  held  by  the  Court  of  Exche- 
quer that  the  jury  were  properly  directed,  that  if  they  thought  the 
defendant  had  acted  with  a  high  hand  wilfully,  and  with  the  object  of 
getting  the  plaintiff  out  of  possession,  the  damages  might  be  higher 
than  if  the  injury  was  the  result  of  pure  negligence.  And  per  Bramwell 
B.,  "  Suppose  a  man  was  to  put  an  offensive  mixen  on  his  own  lands, 
opposite  his  neighbour's  window,  so  as  to  be  a  nuisance,  and  for  the 
mere  purpose  of  annoyance,  do  you  conceive  that  the  damage  could 
be  limited  to  a  mere  pecuniary  compensation  in  such  a  case  as  that 
it  may  be  said  the  act  is  wilful  as  it  is  here  ? "  And  per  Clumnd  B,, 
"My  brother  Bramwell  has  observed  that  in  an  action  of  trespass, 
that  is  in  some  action  of  tort,  you  may  give  evidence  of  damage  beyond 
the  actual  injury  sustained,  in  consequence  of  insulting  circumstances 
connected  with  the  trespass  ;  and  I  can  see  no  reason  why  that  should 
be  limited  to  one  kind  of  action  of  tort,  by  trespass,  and  should  not 
extend  to  an  action  which,  in  substance,  is  for  negligence  committed 
under  circumstances  which  might  have  supported  an  action  of  trespass  " 
{Emhlen  v.  Mgers). 

Entry  unlaivfal  on  day  ivhen  pUiintiff  has  ivholc  of  day  to  remove 
crops. — In  trespass  for  entering  land  and  breaking  gates  (the  interest  of 
the  plaintiff  under  a  contract  for  growing  crops  expiring  on  the  day  of 
which  the  entry  was  made  by  the  defendant,  who  was  entitled  to  the 
property),  it  was  held  by  Wightman  J.  that  as  the  plaintiff  was  entitled 
to  the  whole  of  the  day  to  remove  his  crops,  the  entry  was  unlawful,  but 
the  damages  must  be  nominal,  and  an  amendment  to  include  the  crops 
in  the  declaration  was  refused  {Archer  v.  Sadler). 

In  an  action  against  a  railway  company  for  rarefe^s/?//  letting  sparks 
fly  from  their  engines,  so  as  to  set  the  herbage,  &c.,  on  fire,  Watson  B. 
ruled  that  it  is  not  necessary  to  prove  any  specific  negligence,  and  that 
the  compensation  in  sujh  a  case  should  be  measured,  as  in  that  of  an 
unwilling  vendor  {Gibson  v.  South  Eastern  Railway  Company). 


300  FIKE    CAUSED    BY    SPARKS    FROM    LOCOMOTIVE. 

But  a  railway  company  authorised  by  the  Legislature  to  use  locomotive 
engines  is  not  responsible  for  damage  by  fire  occasioned  by  the  sparks 
fi'om  an  engine,  provided  they  have  taken  every  precaution  wliicli 
science  can  suggest  to  prevent  injury  from  fire,  and  are  not  guilty  of 
negligence  in  the  management  of  the  engine  ( Vaughan  v.  Taff  Vale  Rail- 
vay  Company),  29  L.  J.  N".  S.  Ex.  247,  see  also  Frcinantte  v.  London 
and  Xorth  Western  Raihcaij  Company. 

It  is  a  question  of  fact  for  a  jury,  and  not  of  laiv  for  a  judge,  ivhether 
the  farmer  in  setting  his  stark  of  beans  where  it  was  jdared,  or  the  railway 
company  who  ignited  it  by  tlie  sparks  which  flew  from  their  engine,  had 
been  the  most  negligent  {Aldridge  v.  Great  Western  Railway  Company). 
In  Rex  V.  Pease  it  was  held  that  no  indictment  for  a  nuisance  lay 
against  a  railway  which  ran  five  yards  from  a  highway,  for  frightening 
horses. 

According  to  Vaughan  v.  Menlove,  an  action  lies  against  a  party  for 
so  negligently  constructing  a  hay-rick  on  the  extremity  of  his  land,  tJiat 
in  consequence  of  its  spontaneous  ignition  his  neighbour'' s  house  is  burnt 
doivn.  At  the  trial  it  appeared  that  the  rick  in  question  had  been 
made  by  the  defendant  near  the  boundary  of  his  own  premises  ;  that 
the  hay  was  in  such  a  state  when  put  together  as  to  give  rise  to  dis- 
cussions on  the  probability  of  fire  ;  that  though  there  were  conflicting 
opinions  on  the  subject,  yet  during  a  period  of  five  weeks  the  defendant 
was  repeatedly  warned  of  his  peril ;  that  his  stock  was  insured  ;  and  that 
upon  one  occasion  being  advised  to  take  the  rick  down,  to  avoid  all 
danger,  he  said  "  he  would  chance  it."  He  made  an  aperture  or  chimney 
in  the  rick  ;  but  in  spite,  or  perhaps  in  consequence,  of  this  precaution, 
the  rick  at  length  burst  into  flames,  which  communicated  to  the  defen- 
dant's barn  and  stables,  and  thence  to  the  plaintiff's  cottages,  wliich 
were  entirely  destroyed.  The  pleas  were  Not  guilty,  and  that  there 
was  no  negligence  ;  and  the  ruling  of  Patleson  J.,  who  told  the  jury 
that  the  question  for  them  to  consider  was,  whether  the  fire  had  been 
occasioned  by  gross  negligence  on  the  part  of  the  defendant  ;  adding 
tliat  he  was  bound  to  proceed  with  such  reasonable  caution  as  a  prudent 
man  would  have  exercised  under  such  circumstances — was  upheld  by 
the  Court  of  Common  Pleas,  and  a  new  trial  refused  after  a  verdict  for 
the  plaintiff. 

In  Tuhervill  v.  Stamp,  which  applied  very  closely  to  the  present  case 
in  principle,  it  was  decided  that  if  an  occupier  burns  weeds  so  near  to 
tlu  boundary  of  his  own  land  that  datruige  ensues  to  the  property  of  his 
neighbour,  he  is  liable  to  an  action  for  the  amount  of  injury  done, 
unless  the  accident  were  occasioned  by  a  sudden  blast  which  he  could 
not  foresee. 


USING   POISONED    CORN.  861 

Scars  V.  Lyons  was  an  action  of  trespass  for  hroftlrijifi  ilir  plaintiff's 
dose  and  lai/iag  poisonM  harlei/  upon  it  to  dcstroij  his  poultry.  The 
defendant  had  strewn  it  botli  on  the  plaintiff's  premises  and  his  own, 
into  which  the  fowls  soraetiraes  escaped,  and  several  of  them  had  died 
in  conseqnence.  In  summinir  up  Abbott  C.J.  told  the  jury  that  "It 
had  always  been  held  that  for  trespass  and  entry  into  the  house  or 
lands  of  the  plaintiff,  a  jury  might  consider  not  only  tho  pecuniary 
damage  sustained  by  the  plaintiff,  but  also  the  intention  with  which 
the  act  had  been  done,  whether  for  insult  or  injury;"  and  added, 
"  that  they  were  not  confined  in  this  case  to  the  mere  damage  resulting 
from  throwing  poisoned  barley  on  the  land  of  the  plaintiff,  but  might 
consider  also  the  object  with  which  it  was  thrown,  taking  care  at  the 
same  time  to  guard  their  feelings  against  the  impression  likely  to  have 
been  made  by  the  defendant's  conduct,"  The  plaintiff  had  a  verdict 
for  £50. 

Horses  frightened  by  traction  engine  on  highway. — It  was  held  by 
Erie  C.J.,  that  a  plaintiff  has  a  right  to  recover  against  the  owner  of 
a  traction  engine  used  on  a  highway  under  24  &  25  Vict.  c.  70,  if 
he  knew  from  his  men  or  other  persons,  or  from  the  nature  of  the 
engine  itself,  that  the  engine  was  calculated  by  its  noise  and  appear- 
ance to  frighten  horses.  The  defendant  has  clearly  no  right  to  make 
a  profit  at  the  expense  of  the  security  of  the  public  {Watkins  v. 
Reddin). 

Evidence  of  negligence  necessary  to  entitle  ijlaintiff  to  recover. — In  an 
action  for  an  injury  occasioned  by  defendant's  negligent  driving,  the 
plaintiff  to  warrant  the  judge  in  leaving  the  case  to  the  jury,  must 
give  proof  of  well-defined  negligence  on  the  part  of  the  defendant ;  and 
where  the  evidence  given  is  equally  consistent  with  there  having  been 
no  negligence  on  the  part  of  the  defendant,  as  with  there  having  been 
negligence,  it  is  not  competent  for  the  judge  to  leave  it  to  the  jury  to 
find  either  alternative  ;  such  evidence  must  be  taken  as  amounting  to 
no  proof  of  negligence.  Foot-passengers,  in  crossing  a  highway,  are 
bound  to  take  due  caution  to  avoid  vehicles  ;  and  the  drivers  of 
vehicles  are  bound  to  take  due  caution  to  avoid  foot-passengers.  And 
per  Pollock  C.B.  :  "  To  sustain  an  action  for  an  injury  caused  by  the 
negligent  driving  of  the  defendant,  the  injury  must  have  been  caused 
by  the  negligence  of  the  defendant  only,  without  the  negligence  of  the 
plaintiff  contributing  in  any  way  to  the  accident  "  {Cotton  v.  Wood,  13 
C.  &  K.,  81).  The  mere  happening  of  an  accident  is  not  sufl&cient 
evidence  of  negligence  to  be  left  to  the  jury,  but  the  plaintiff  must 
give  some  aflfirraative  evidence  of  negligence  on  the  j^art  of  the  defen- 
dant.    Where,  therefore,  it  was  shown  that  the  defendant  was  riding  a 


36:2  XEGLTOENT    RIDING    OX    HIGHWAY. 

horse  at  a  walk,  wlieu  the  animal  became  restive,  and  rushing  on  to  the 
pavement  knocked  down  and  killed  the  husband  of  the  plaintiff,  but 
the  witnesses  for  the  plaintitf  also  proved  that  the  defendant  was  doing 
his  best  to  prevent  the  accident,  it  was  held  that  this  was  no  proof  of 
negligence  ;  that  taking  the  evidence  of  the  witnesses  for  the  plaintiff 
altogether,  it  was  clear  that  the  defendant  was  carried  on  to  the  pave- 
ment against  his  will,  and  that  there  was  therefore  nothing  to  turn 
the  scale  of  evidence  against  the  defendant,  and  to  show  that  he  was 
responsible  for  the  consequences  of  the  accident,  but  qiucre  whether  on 
an  indictment  for  manslaughter  the  same  presumption  would  be  made 
in  favour  of  a  prisoner  as  for  the  defendant  in  an  action  for  death 
caused  by  negligence  {Hammnck  v.  White), 

Xc(]ltgence  in  riding  along  a  public  highicay. — =The  plaintiff  was  driving 
a  waggon  with  three  horses  along  a  highway,  walking  in  the  usual  way 
at  the  head  of  the  leading  horse,  on  his  proper  side  of  the  road.  The 
defendant  and  his  groom  were  riding  at  a  foot's-pace  (meeting  the 
waggon  on  the  wrong  side)  when,  just  as  he  passed  the  plaintiff,  the 
groom  touched  his  horse  with  a  spur  and  he  kicked  out,  and  struck  the 
plaintiff.  It  was  held  by  the  Court  of  Common  Bench  that  the  act  of 
using  the  spur  when  so  near  to  the  plaintiff,  was  such  an  improper  act 
on  the  part  of  the  groom  as  to  justify  the  jury  in  finding  the  defendant 
to  have  been  guilty  of  negligence  {North  v.  Smith). 

Kuisance  hg  hricJc-hurning. — Where  a  man  by  an  act  on  his  own  land, 
such  as  burning  bricks,  causes  so  much  annoyance  to  another  in  the 
enjoyment  of  a  neighbouring  tenement  as  to  amount  ]»-imd  facie  to  a 
cause  of  action,  it  is  no  answer  that  the  act  was  done  in  a  proper  and 
convenient  spot,  and  was  a  reasonable  use  of  the  land,  The  fitness  of 
the  locality  does  not  prevent  the  carrying  on  of  an  offensive  though 
lawful  trade  from  behig  an  actionable  nuisance,  but  whenever,  taking 
all  the  circumstances  into  consideration,  including  the  nature  and  ex- 
tent of  the  plaintiff's  enjoyment  before  the  acts  complained  of,  the 
annoyance  is  sufficiently  great  to  amount  to  a  nuisance,  an  action  will 
lie  whatever  the  locality  may  be,  and  the  decision  of  the  Queen's  Bench 
was  overruled  by  Erie  C.J,,  Williams  J.,  Bramivell,  B.,  Keating  J., 
and  Wilde  B.  ;  Pollock  C.B.  diss.  Thus  Hole  v.  Barlow  is  overruled, 
the  case  upon  which  the  Queen's  Bench  grounded  their  judgment 
{Bamford  v.  Turnhg).  Without  expressly  overruling  Hole  v.  Barlow, 
Stuart  V.S,,  had  decided  to  the  same  effect  in  Beardmore  v.  Treadwell. 

Onus  on  defendant  to  show  that  trade  is  carried  on  in  a  reasonable 
and  proi)er  nuinner. — The  carrying  on  a  lawful  trade  in  the  usual  man- 
ner is  not  necessarily  the  canying  it  on  in  a  reasonable  and  proper 
manner,  and  where  to  an  action  for  canning  on  a  trade  in  such  a 


NOTICE    TO    TRESPASSERS.  363 

manner  as  to  cause  injury  to  the  plaintiff,  the  defendant  rehes  for  a 
defence  upon  the  fact  of  the  trade  being  carried  on  in  a  reasonable  and 
proper  manner,  the  onus  of  proving  that  it  is  so  carried  on  is  on  the 
defendant,  and  not  on  the  plaintiff  of  showing  that  it  is  not  so  carried 
on,  and  the  case  does  not  come  within  the  principle  enunciated  in 
Hole  V.  Barlow  (4  C.  B.  (N.  S.)  437,  27  L.  J.  (N.  S.),  C.  P.  207),  {The 
StocTcjJort  Waterivorks  ConijKimj  v.  Potter  and  Others). 

In  Wanstead  Local  Board  of  Health  (appt.)  v.  Hill  {resp.)  it  was 
decided  by  the  Court  of  Common  Pleas  that  brick-maldng  is  not  an 
offensive  or  noxious  trade  or  business  within  sec.  G4  of  the  Public 
Health  Act  (11  &  12  Vict.  c.  63). 

No  notice  is  required  by  the  1  &  2  Will.  IV.  c.  32,  under  which 
trespassers  may  be  punished  if  in  pursuit  of  game,  on  conviction  before 
a  justice  of  the  peace.  Notice  for  an  ordinary  trespass  must  be  served 
either  verbally  or  in  writing,  and  should  come  from  the  tenant  of  the 
particular  parcel  of  land  on  which  the  trespass  is  committed.  Game- 
keepers or  other  persons  deputed  to  do  so  may  serve  a  notice,  but  they 
must  name  the  occupier  as  giving  them  orders.  The  form  of  notice 
should  be  as  follows  : 

"■  To  A.  B.,  residing  at  ,  in  the  parish  of  , 

county  of  .     I  do  Jterely  give  you  notice  not  to  come  into  or 

upon  any  of  the  lands  or  Woods  occupied  hy  me  in  the  parish  of  , 

and  commonly  known  as  the  farm  or  woods  of  ;  and  in  case 

of  your  so  doing  I  shall  j^'oceed  against  you  as  a  ivilful  trespasser. 

"  Witness  my  hand  this  day  of  ,  18       .  A.  D." 

The  provisions  against  trespassers  in  the  above  act  do  ?iof  apply  to  any 
person  hunting  or  coursing  upt)n  any  lands  with  hounds  or  greyhounds^ 
and  being  in  fresh  pursuit  of  any  deer,  hare,  or  fox  already  started  upon 
any  other  land. 

A  2)erson  who  causes  the  apprehension  of  another  for  a  malicious 
trespass  to  property,  of  which  the  former  is  the  reversioner  only,  is 
entitled  to  notice  of  action  under  the  Malicious  Trespass  Act,  7  &  8 
Geo.  IV.  c.  30  (which  repeals  1  Geo.  IV.  c.  56),  if  he  causes  such  appre- 
hension under  the  hoimfide  belief  that  he  is  acting  in  pursuance  of  the 
statute  {Hum  v.  Thornhorough).  And  per  ParJce  B.  :  "  The  defendant 
was  entitled  to  notice  of  action  provided  he  Ijona  fide  believed  that  he 
was  acting  in  pursuance  of  the  statute  ;  or  according  to  the  cases  in 
the  Court  of  Queen's  Bench,  if  he  bona  fide  so  believed,  and  had 
reasonable  ground  for  that  belief.  It  was  decided  by  the  case  of  Hughes 
V.  BucJckcnd,  that  the  protection  afforded  by  the  statute  is  not  to  be 


304  AEEEST    WHEN   JUSTIFIABLE. 

strictly  confined  to  the  owner  of  the  property  injured,  but  is  extended 
to  all  persons  who  have  a  hona  fide  belief  that  they  fill  the  character 
mentioned  in  the  statute,  and  act  bona  fide  under  that  belief.  Most  of 
the  authorities  were  considered  in  Hvyhes  y.  BucMcmd,  where  the  ser- 
vants of  the  owner  of  a  fishery,  lona  fide  believing  the  plaintiff  to  be 
fishing  within  the  boundary  of  their  master's  fishery,  caused  him  to  be 
apprehended,  although  in  fact  he  was  not  within  the  boundary.  The 
same  rule  was  laid  down  in  Beechci/ \.  Sides  and  Rtidd  \.  Scott ;  and 
there  is  no  doubt  that  those  decisions  are  correct,  for  no  benefit  would 
be  conferred  by  the  statue  if  it  were  to  be  confined  to  those  persons 
only  who  have  the  legal  power  to  an-est.  The  only  apparent  difficulty 
in  the  present  case  arose  out  of  Parrhujton  v.  Moore,  to  which  refer- 
ence was  made  in  the  course  of  the  argument ;  but  that  case,  on  a 
closer  inspection,  has  no  bearing  whatever  upon  the  present.  The 
only  question  there  was,  whether  the  defendant  was  jiist/fied  in  arrest- 
ing the  plaintiff,  who  was  in'hnCi  facie  a  trespasser,  but  who,  it  appeared, 
had  acted  under  the  bona  fide  belief  that  he  had  a  right  to  do  what  he 
did  :  and  the  Court  there  held  that  the  defendant  was  not  warranted  in 
arresting  him.  That  distinguishes  that  case  from  the  present,  and 
leaves  us  to  the  other  authorities,  and  the  later  case  of  Hughes  v.  Buck- 
land  leaves  no  doubt  upon  the  matter.  These  observations  do  not 
apply  to  justices,  as  in  such  case  the  protection  is  only  given  nomi- 
natim  to  those  who  actually  fill  that  character  ;  and  the  same  with 
respect  to  certain  cases  of  trustees  and  commissioners  ;  but  by  the 
present  Act,  this  protection  is  granted  to  every  person  who,  when  he 
commits  the  trespass  complained  of,  acts  under  the  hona  fide  belief  that 
he  is  acting  in  pursuance  of  the  statute." 

In  Thomas  (appt.)  v.  Evans  (resp.),  the  appellant  was  convicted  for 
fishing  for  salmon  with  a  net,  the  meshes  of  which  were  less  than  2\ 
inches  broad.  The  net  in  question  had  its  meshes  H  inches  broad 
from  knot  to  knot.  Statute  1  EUz.  c.  17,  s.  3,  enacts  that  no  one  shall 
take  fish  as  therein  mentioned,  "  but  only  with  net  or  trammel,  whereof 
the  mesh  shall  be  2\  inches  broad,"  and  does  not  describe  what  is  the 
meaning  of  the  word  "  mesh"  ;  while  stat.  3  Jac.  I.  c.  12,  s.  2,  which 
speaks  of  a  mesh  of  3  inches,  describes  it  as  "  1|^  inches  from  knot  to 
knot."  The  Court  of  Queen's  Bench  held  that  the  conviction  was 
right  ;  and  that  the  meaning  of  the  word  "  mesh  "  in  stat,  1  Eliz.  c.  17, 
8.  3,  is  that  every  space  between  the  threads  of  the  net  should  be  2i 
inches  from  one  thread  to  the  opposite  thread,  and  that  the  superficial 
area  which  bounded  each  mesh  should  be  2^  inches  at  least. 

It  has  been  held  that  a  person  may  justify  trespass  in  following  a  fox 
with  hounds  over  the  grounds  of  another,  if  he  do  no  more  than  is  neces- 


FOLLOWERS    OF    HOUNDS    TllESPASSERS.  365 

sary  to  kill  the  fox  {Oimdry  v.  Fdtkam).  So  in  PopMm  (162)  it  was 
adjudged  that  a  man  may  start  a  fox  on  his  own,  and  hunt  him 
into  another  man's  land,  because  it  is  "  a  noysom  creature  to  the  com- 
monwealth." 

But  in  the  case  of  the  Earl  of  Essex  v.  Cajwl,  Lord  EUenhoroufjh 
C.J.  denied  the  authority  of  Gimdrij  v.  FeWiam,  and  ruled  i\\Qi  persons 
hunting  for  their  own  amuseinent  over  the  lands  of  another  are  trespassers, 
and  may  he  ivarned  off ;  and  the  plaintiff  will  have  full  costs,  though 
the  jury  do  not  give  40s.  damages.  His  Lordship  said  :  "  The  de- 
fendant stated,  in  his  plea,  that  the  trespass  was  not  committed  for  the 
purpose  of  diversion  and  amusement  of  the  chase  merely,  but  as  the 
only  way  and  means  of  killing  and  destroying  the  fox.  Now  if  you 
were  to  put  it  upon  this  question,  which  was  the  principal  motive  ? 
Can  any  man  of  common  sense  hesitate  in  saying  that  the  principal 
motive  and  inducement  was,  not  the  killing  of  vermin,  but  the  enjoy- 
ment of  the  sport  and  diversion  of  the  chase.  And  we  cannot  make  a 
new  law  to  suit  the  pleasures  and  amusements  of  those  gentlemen 
who  choose  to  hunt  for  their  own  diversion.  These  pleasures  are  to 
be  taken  only  where  there  is  the  consent  of  those  who  are  likely  to  be 
injured  by  them,  and  they  must  be  necessarily  subservient  to  the  con- 
sent of  others.  There  may  be  such  a  public  nuisance  by  a  noxious 
animal  as  may  justify  the  running  him  to  his  earth,  but  then  you  can- 
not justify  the  digging  for  him  afterwards.  That  has  been  ascertained 
and  settled  by  the  law.  But  even  if  an  animal  may  be  pursued  with 
dogs,  it  does  not  follow  that  fifty  or  sixty  people  have  a  right  to  follow 
the  dogs,  and  trespass  on  other  people's  lands."  His  Lordship  also 
ruled  in  Hame  v.  Oldacre,  which  was  an  action  of  trespass  against  the 
huntsman  of  the  Berkeley  Hunc,  that  damages  might  be  recovered, 
not  only  for  the  mischief  immediately  occasioned  by  the  defendant 
himself,  but  also  for  that  done  by  the  concourse  of  people  who  accom- 
panied him. 

TJie  rule  as  to  hunting  trespasses  was  made  still  more  stringent 
in  Baker  v.  Berkeley,  where  the  plaintiff  had  £100  damages.  The 
defendant  had  received  notice  not  to  trespass  on  the  plaintilf  s  land. 
Some  time  after,  his  field  went,  and  did  damage  to  the  amount  of  £23, 
while  he  rode  along  a  road  to  avoid  it.  The  stag  ran  into  a  barn 
followed  by  six  couple  of  hounds,  where  it  was  worried  ;  and  the 
defendant,  who  was  not  allowed  to  go  into  the  barn  to  rescue  it,  gave 
the  plaintiff  a  blow.  Lord  Tenterden  C.J.  ruled  "that  if  a  gentleman 
sends  out  his  hounds  and  servants,  and  invites  other  gentlemen  to  hunt 
with  him,  although  he  does  not  himself  go  on  the  lands  of  another,  but 
those  other  gentlemen  do,  he  is  answerable  for  tlie  trespass  they  may 


3G6  EULE    AS   TO    HUNTING   TRESPASSES. 

commit  in  so  doing,  unless  he  distinctly  desires  them  not  to  go  on 
those  lands  ;  and  if  (as  in  the  present  case)  he  does  not  so  desire  them, 
lie  is  answerable,  in  point  of  law,  for  the  damage  that  they  do.  With 
regard  to  the  defendant's  attempt  to  go  into  the  plaintiff's  barn,  it  is 
clear  that  the  plaintiflFhad  a  right  to  refuse  any  person's  going  into  it, 
if  he  chose  to  do  so,  Whether  it  might  be  discreet  in  him  is  another 
thing  ;  but  undoubtedly  he  had  a  right  to  say  tliat  they  should  not  go 
into  his  barn,  and  if  they  did  so  they  are  trespassers." 

And  so  it  was  ruled  by  Lawrance  J.,  in  the  case  of  H'dl  v.  Walker, 
that  where  a  person  goes  out  sport inrj  ivith  Ms  friends,  and  ivilfidlij  teads 
them  on  to  another's  land,  he  is  equally  guilty  of  a  trespass,  although 
he  may  remain  off  the  laud  whilst  his  friends  go  on  it,  as  if  he  had 
entered  himself  or  sent  his  dog.  Here  the  defendant  Walker  and 
several  otlier  gentlemen  being  out  sporting,  attended  by  tlie  other 
defendant  (Walker's  servant),  two  of  the  party  went  into  the  Withy 
Bed,  and  shot  several  times,  the  rest  remaining  in  the  adjoining  high- 
road. As  the  pheasants  rose  very  fast,  the  defendant  ordered  his  servant 
to  go  and  fetch  his  dog  out,  which  was  done.  The  two  shooters  swore 
that  they  only  entered  the  Withy  Bed,  and  that  the  defendants  held 
the  horses  outside,  and  did  not  even  let  Walker's  dogs  enter.  On 
cross-examination,  it  appeared  that  Walker  having  had  notice  to 
keep  off  the  land,  before  the  party  came  to  the  Withy  Bed,  told  the 
shooters  that  he  would  show  them  where  jjlenty  of  game  was  to  be 
found  ;  and  he  took  them  to  the  plaintiffs  close,  and  pointed  that  out 
as  the  place.  But^w  Alderson  B.  :  "  If  I  give  a  man  leave  to  go  on 
a  field  over  which  I  have  no  right,  and  he  goes,  that  will  not  make  me 
a  trespasser;  but  if  I  desire  him  to  go  and  do  it.  and  then  he  does  it, 
that  is  a  doing  of  it  by  my  authority,  which  is  quite  a  different  thing, 
and  I  should  be  liable  as  a  joint  trespasser.  An  order  to  go  on  land, 
in  spite  of  the  owner,  is  a  great  deal  more  than  leave  and  licence,  it  is 
an  authority  "  {Robinson  v.  Yaia/ltion). 

And  the  Court  of  Queen's  Bench  also  held  in  Merest  v. ,  that 

£.500  were  not  excessive  damages  for  a  tresjxiss  in  siiorting,  persevered 
in  defiance  of  notice,  and  accompanied  with  offensive  language.  The 
defendant  (who  had  been  sporting)  left  his  carriage  on  the  road,  and 
told  the  plaintiff,  witli  an  oath,  that  he  would  slioot  with  his  party  in 
spite  of  his  notice  ;  fired  several  times  at  the  birds,  which  the  plaintiff 
found,  and  proposed  to  borrow  shot  of  him  when  he  had  exhausted  his 
own  belt,  besides  threatening,  in  his  capacity  of  magistrate,  to  commit 
him,  and  defying  him  to  bring  an  action.  Heath  J.  cited  a  case  where 
£r)00  was  given  for  merely  knocking  a  man's  hat  off  And  it  is  no 
reason   for  changing  the  venue,  in  an  indictment  for  a  supposed  con- 


PKOPERTY    IN    GAME.  367 

spiracij  to  dpstroij  foxes  and  otJicr  vermin,  that  the  gentry  of  the  county 
(Cheshire)  in  which  tlie  indictment  was  found  are  addicted  to  fox-hunting 
{Rex  V.  King). 

In  the  case  of  Sutton  v.  Moody,  it  was  said  by  Holt  C.J.  tliat  "  If  A. 
start  a  hare  in  tJie  ground  of  B.,  and  hunt  and  kill  it  there,  the inoferty 
contimies  all  IM  lohile  in  B. ;  but  if  A.  start  a  hare  in  the  ground  of  B., 
and  hunt  it  into  the  ground  of  C,  and  kill  it  there,  the  property  is  in  A. 
the  hunter  ;  but  A.  is  liahle  to  an  action  of  trespass  for  himting  in  the 
grounds  as  well  of  B,  as  ofCP  The  latter  part  of  this  dictum  was  relied 
upon  for  the  plaintiff  in  Churchward  v,  Studdy,  which  was  an  action 
of  trespass  for  carrying  away  a  dead  hare.  The  plaintiff  had  part 
management  of  the  hounds,  and  was  hunting  them,  when  they  started 
a  hare  in  a  third  person's  grounds,  and  followed  her  into  defendant's 
grounds,  where  she  was  seized,  quite  spent,  by  one  of  the  dogs  between 
the  legs  of  a  labourer,  who  took  her  up  alive  ;  and  she  was  killed  by 
the  defendant.  The  plaintiff  demanded  the  hare  ;  and  the  labourer 
said  he  had  taken  it  up  not  for  his  own  use,  but  in  aid  of  the  hunters  ; 
but  the  defendant  refused  to  give  it  up.  Lord  Ellenhorough  C.J.  con- 
sidered "  that  the  plaintiff,  through  the  agency  of  his  dogs,  had  reduced 
the  hare  into  his  possession  :  that  makes  an  end  of  the  question,  even 
though  the  labourer  had  first  taken  hold  of  it  before  it  was  actually 
caught  by  the  plaintiff's  dogs  ;  yet  it  now  appears  that  he  took  it  for 
the  benefit  of  the  hunters,  as  an  associate  of  them,  which  is  the  same  as 
if  it  had  been  taken  by  one  of  the  dogs.  If,  indeed,  he  had  taken  it  up 
for  the  defendant  before  it  was  caught  by  the  dogs,  that  would  have 
been  different  ;  or  even  if  he  had  taken  it  as  an  indifferent  person  in 
the  nature  of  a  stake-holder." 

No  actio7i  iti  ge)ieral  lies  for  an  involuntary  trespass ,-  and  it  is  laid 
down  in  2  Eoll.  Ab.  566  pi.  1,  that  if  cattle  in  passage  on  the  highway 
eat  herbs  or  corn  raptim  et  sparsim  against  the  will  of  the  owner,  it  will 
excuse  the  trespass.  So  in  Millen  v.  Frandrye,  where  sheep  trespassed 
on  a  neighbour's  land,  and  he  drove  them  out  with  a  dog,  it  was  held 
that  trespass  could  not  be  brought.  If  a  person  goes  along  a  footpath, 
and  his  dog  happens  to  escape  from  him,  and  run  into  a  paddock,  and 
pull  down  a  deer  against  his  will,  it  is  no  trespass  {Beckwith  v.  Sluir- 
dike).  kni^ij^Pf  Parke  J.,  a  dog  jumping  into  a  field  without  the  consent 
of  its  master  is  not  a  trespass  for  which  an  action  will  lie  {Brown  v. 
Giles).  A  plea  to  an  action  for  trespass  for  killing  the  plaintiffs  dog 
cannot  justify  the  act  by  stating  that  the  lord  of  the  manor  was  pos- 
sessed of  a  close,  and  that  the  defendant,  as  his  gamekeeper,  killed  the 
dog,  when  running  after  liares  in  that  close,  for  the  preservation  of  the 
hares  ;  such  plea  not  even  stating  that  it  was  necessary  to  kill  the  doo- 


308  DOG    DAMAGE    FEASANT. 

for  the  preservation  of  the  hares,  nor  that  it  was  tlie  dog  of  an  unquali- 
fied person  {Vire  v.  Lord  Caicdor).  But  it  was  held  by  Taunton  J.,  in 
Protheroe  v.  Mathews,  which  his  Lordship  (who  mentioned  Wadhurst  v. 
Damme  and  Barrington  v.  Turner  as  being  in  point)  considered  to  be 
very  distinguishable  from  Yere  v.  Lord  Cawdor,  that  the  servant  of  the 
ou'tier  of  an  ancient  2MrJc  may  justify  shootiny  a  day  that  is  chasiny  the 
deer,  although  the  dog  may  not  have  been  chasing  deer  at  the  moment 
when  he  was  shot,  if  the  chasing  of  the  deer  and  the  shooting  of  the 
dog  were  all  one  and  the  same  transaction,  but  that  if  the  chasing  was 
at  an  end,  and  the  dog  would  not  have  recommenced,  the  plaintiff  ought 
to  have  a  verdict,  which  he  had  for  one  farthing. 

AVhere  it  was  replied,  in  an  action  of  trespass  for  taking  plaintiff's 
dog  as  a  distress  damaye  feasant  in  a  close,  that  the  dog,  when  taken, 
was  in  the  actual  possession  of,  and  under  the  care  of,  and  being  used 
by  the  plaintiff's  son  and  servant,  it  was  held  by  the  Court  of  Quean's 
Bench  that  the  averments  in  the  replication  were  insufficient  as  applied 
to  a  dog,  to  show  such  user  of  it  as  exempted  it  from  seizure  {Bunch 
V.  Kenninytun).  And  2)er  Pattcson  J.  :  "  The  averments  in  the  replica- 
tion would  be  satisfied  by  proof  that  the  dog  was  wiihin  sound  of 
Bunch's  whistle,  and  that  Bunch  was  out  of  sight." 

A  yamelcceper  authorised  to  seize  the  doys  of  unquaUfied persons  sporting 
on  a  manor,  by  deputation  given  hefore  stat.  1  &  2  Will.  IV.  c.  32,  and 
not  renewed,  cannot  justify  seizing  the  dogs  of  uncertificated  persons 
committing  such  trespass,  since  the  passing  of  the  Act  {Lidster  v. 
Barrow).  Nor  is  he  entitled  to  notice  of  action  under  sec.  47  of  the 
statute,  on  the  ground  that  he  bond  fide  supposed  himself  to  be  acting 
in  pursuance  of  the  statute  {it).).  The  Court  of  Queen's  Bench  con- 
sidered themselves  bound  by  the  case  of  Bush  v.  Green,  where  the  Court 
of  Common  Pleas  held  that  a  gamekeeper  acting  under  a  deputation 
granted  and  registered  previously  to  the  1st  of  November,  1831,  when 
the  Act  1  &  2  Will.  IV.  c.  32,  came  in  force,  was  not  entitled  to  notice 
of  action,  or  to  give  all  matters  in  evidence  under  the  generah  issue. 
knUper  Abbot  C.J.,  The  2nd  section  of  22  &  23  Car.  II.  c.  25  (which 
was  one  of  the  twenty-seven  game  acts  repealed  by  the  above)  contains 
no  prohibition  against  keeping  or  using  hounds,  and  therefore  the 
gamekeeper  of  a  lord  of  the  manor  is  not  authorized  by  his  deputation 
to  seize  them  {Grajit  v.  Hulton).  And  in  Hooher  v.  Wilkes,  it  was  held 
that  a  hound  was  not  within  the  statute  of  5  A^ine,  c.  14. 

I'he  clutrye  of  talriny  yame  without  a  certificate  under  1  &  2  Will.  IV. 
c.  32,  8.  23,  is  a  criminal  proceeding  for  an  offence  punishable  on 
summary  conviction,  within  14  &  15  Vict.  c.  99,  s.  3,  and  therefore  a 
person  so  churyed  was  held  by  the  Court  of  Queen's  Bench  as  not  compietent 


NIGHT    POACHING.  309 

to  give  ovidmco  for  Jdniself  {Cattell,  a]ipellant,  v.  Treson,  respondent).  And 
2)er  Crompfon  J.  :  "  It  has  been  said  that  if  an  action  of  trespass  were 
brought  the  defendant  might  be  a  witness,  but  that  is  not  the  same 
thing  ;  the  action  is  for  damages  to  the  plaintiff  and  to  the  land, 
but  this  proceeding  is  a  punishment  for  taking  game,  and  the  penalty 
goes  to  the  poor.  Again,  consider  the  absurdity  of  i3utting  a  poacher  into 
the  box  and  compelling  him  to  answer  so  as  to  criminate  himself"  {lb.) 

Stat.  9  Geo.  IV.  c.  f!9,  s.  1,  gives  a  summary  conviction  if  any  person 
"  shall  by  night  unlawfully  enter  or  be  in  "  any  land,  whether  open  or 
enclosed,  with  any  gun,  net,  &c.,  "  for  the  purpose  of  taking  or  destroy- 
ing game  or  rabbits ; "  but  the  conviction  under  sec.  1,  in  Fletcher  v. 
Calthrop,  setting  forth  that  one  Fletcher  did  by  night  "unlawfully  enter 
certain  enclosed  land  "  "  with  a  net  for  the  purpose  of  taking  game,  to 
wit  partridges  and  jjheasants  contrary  to  the  form,"  &c.,  was  held  bad  for 
not  stating  the  intent  to  be  to  take,  game  there.  But  in  the  case  of  Reg. 
V.  Western,  1  L.  R.  C.  C.  122,  it  was  held  that  an  information  under  this 
statute  is  good  though  it  does  not  allege  that  the  entry  was  for  the  pur- 
pose of  taking  game  there. 

In  Reg.  v.  Whitaker,  it  was  held  by  seven  judges  out  of  twelve,  ParTce 
B.,  Pattoson  J.,  Rolfr  B.,  Cresswell  J.,  and  Piatt  B.  diss.,  that  under  the 
9  th  section  of  9  Geo.  IV.  c.  69,  if  several  persons  are  indicted  for  entering 
enclosed  land  hg  night,  armed  for  the  purpose  of  talcing  game,  it  is  not  ne- 
cessary to  pi-ove  that  all  entered  the  enclosed  land;  it  is  enough  if  some 
are  proved  to  have  entered  the  land,  and  the  rest  are  shown  to  have  been 
engaged  with  them  in  a  common  object,  and  to  have  been  near  enough 
to  render  assistance.  Sending  on  a  dog,  to  drive  hares  into  a  net  set  in 
the  fence,  was  ruled  by  Patteson  J.  not  to  be  an  entering  of  the  land 
within  this  section  {Reg.  v.  NicMess).  If  persons  to  the  number  of 
three  or  more  are  together  in  one  party  ai'med  by  night  in  any  land  for 
the  purpose  of  destroying  game  there,  and  the  land  consists  of  several 
closes,  and  one  of  such  persons  be  in  one  close,  and  another  in  a 
different  close  of  the  land,  they  may  be  convicted  under  the  above 
section  ;  and  the  conviction  will  not  be  affected  by  the  circumstance 
that  one  of  the  closes  is  an  enclosed  field,  and  another  an  open  waste, 
and  that  each  is  in  the  occupation  of  different  tenants  {Reg.  v.  Uezzell). 
And^er  ParTce  B. :  "  The  words  'open  or  inclosed'  lands  were  inserted 
to  prevent  parties  from  supposing  that  they  might  destroy  game  on 
waste  land  with  impunity  "  («'&.). 

To  constitute  the  offence  of  trespassing  upon  land  in  search  or  pursuit 
of  game  under  1  &  2  Will.  IV.  c.  32,  s.  30  (which  enacts  that  if  any 
person  shall  commit  any  trespass  by  entering  or  being  in  the  daytime 
upon  any  land  in  search  of  or  pursuit  of  game,  or  woodcocks,  snipes, 


370  SHOOTING    PHEASANT    ON    HIGHWAY. 

quails,  landrails,  or  conies,  such  person  shall  on  conviction  thereof  be- 
fore a  justice  of  the  peace,  forfeit  and  pay  a  sum  of  money  not  exceed- 
ing £5,  together  with  the  costs  of  the  conviction),  there  must  be  a 
bodily  ''entering  or  being"  of  the  person  upon  the  land,  upon  which 
the  trespass  is  alleged  to  have  taken  place  :  and  there  may  he  a  trespass 
u'iihin  ihe  act,  t/ioiiz/h  at  the  time  the  person  be  upon  a  highway.  Where, 
therefore,  the  appellant,  whilst  on  a  highway  carrying  a  gun,  waved  his 
dog  into  a  cover  on  one  side  of  it,  and  flushed  a  pheasant,  at  which  he 
fired  as  it  crossed  the  highway,  it  was  held  that  he  was  properly  con- 
victed under  the  above  statute,  of  a  trespass  in  search  of  game,  upon 
land  in  the  possession  and  occupation  of  one  George  Bo^^7er,  who  was 
lord  of  the  manor,  and  the  owner  of  the  land  on  both  sides  of  the  high- 
way {Reg.  V.  Pratt). 

Evidence  that  a  party  has  exercised  the  right  of  kitting  game  for  seven 
years  iipoi  laiid,  is  prima  facie  evidence  of  the  right  under  1  &  2  Wilt. 
IV.  c.  32,  B.  36,  which  makes  it  lawful  for  any  person  having  the  right 
of  killing  the  game  upon  any  land,  by  virtue  of  any  reservation  or 
otherwise,  or  for  the  occupier  of  such  land  (whether  there  shall  or  shall 
not  be  any  such  right  by  reservation  or  otherwise),  or  for  any  game- 
keeper or  servant  of  either  of  them,  or  for  any  officer  of  Her  Majesty's 
forest,  park,  chase,  or  warren,  or  for  any  person  acting  by  the  order  and 
in  aid  of  any  of  the  said  several  persons,  to  seize  game  (if  not  imme- 
diately given  up  on  demand)  recently  killed,  found  in  the  possession  of 
any  person  upon  such  land,  by  day  or  by  night,  in  search  or  pursuit  of 
game  {Beg.  v.  }Vatl).  Under  the  stat.  9  Geo.  IV.  c.  69,  s.  2,  the  servant 
of  a  person  being  neither  the  owner  nor  occupier  of  the  wood,  nor 
the  lord  of  the  manor,  but  having  only  permission  to  preserve  the  game 
there,  has  no  authority  to  apprehend  poachers  {Rex  v.  Addis).  Section 
4  of  this  statute  requires  pn^o  send  ions  under  it  to  t)e  comme7iced  within  a 
year,  and  the  provision  is  complied  with  if  the  information  is  laid  before 
the  magistrates,  and  the  prisoners  are  apprehended  within  the  year, 
although  the  indictment  is  not  preferred  till  after  the  year  has  elapsed 
{Reg.  V.  BrooTcs  &  Git)son). 

A  person  having  only  a  right  of  shooting  over  land,  has  no  right  to 
empower  keepers  to  apprehend  trespassers  in  search  of  game  ;  and  on 
their  resisting  with  no  greater  violence  than  is  used  by  the  keepers, 
they  will  not  be  liable  for  an  assault  ;  but  if  the  trespass  is  in  the  night 
tliey  may  be  indicted  for  night-poaching  {Reg.  v.  Wood)  1  F.  &  F.  470  ; 
and  a  gamekeeper  appointed  by  a  person  who  had  only  permission  to 
shoot,  trying  to  take  a  gun  ft"om  a  poacher,  and  in  the  scuffle  causing  a 
gun  to  go  off  which  killed  a  poacher,  was  held  by  Lord  Campbeli  C.J. 
guilty  of  manslaughter  {Reg.  v.  Wateg)  F.  &  F.  528. 


OCCUPIER    OF    LAND    NEED    NOT    PROVE    A    NEGATIVE.    371 

It  was  held  by  the  Court  of  Criminal  Appeal  that  it  is  not  necessary 
OH  the  part  of  the  prosecution  to  call  the  occupier  or  the  oivner  of  the  land  to 
p>rove  that  the  persons  charged  ivere  not  vpon  the  land  hy  their  permission 
{Reg.  V.  Wood).  This  case  was  reserved  by  Bramivell  B.,  in  conse- 
quence of  a  decision  of  Martin  B.,  in  Reg.  v.  Edge,  to  the  effect  that  in 
a  case  of  night  poaching,  the  landlord  or  occupier  of  the  land,  whichever 
was  entitled  to  the  game,  ought  to  be  called  to  show  that  the  prisoner 
was  not  on  the  land  by  their  permission.  Jervis  C.J.  said  :  "  There 
must  have  been  something  more  in  that  case.  If  men  are  on  land  at 
night  armed  and  doing  violence,  is  the  occupier  to  be  called  to  deny  that 
he  had  allowed  them  a  day's  shooting  ?  "  And  it  is  sufficient  to  allege 
in  the  indictment,  that  the  land  is  land  "of  and  belonging  to  J."  without 
stating  it  to  be  in  the  occupation  of  J.  {Reg.  v.  Riley). 

In  Cox  V.  Reid  &  Another,  the  defendant,  Eeid,  who  rented  some  land 
in  Surrey,  discovered  the  plaintiff  shooting  on  the  land,  and  warned  him 
off.  The  latter  handed  his  game-certificate  (which  the  defendant  desig- 
nated as  "  all  humbug,"  on  account  of  some  seeming  insufficiency  in  the 
plaintiff's  description),  when  asked  for  his  address,  but  refused  to  give 
up  his  gun  or  quit  the  premises,  and  the  defendant  with  the  assistance 
of  his  gamekeeper,  the  other  defendant,  took  away  his  gun,  removed  him 
hy  force  into  a  lane,  and  detained  him  there  (after  a  scuffle,  in  which  he 
was  thrown  down  and  injured)  till  a  policeman  came.  Ultimately  he 
was  not  given  into  charge,  but  summoned  for  trespass,  and  convicted. 
He  then  brought  an  action  of  trespass  for  assaulting  and  wounding, 
&c.,  to  which  the  defendants  pleaded  Not  guilty  by  statute,  relying  on 
1  &  2  Will.  IV.  c.  32,  s.  31,  and  Parke  B.  left  it  to  the  jury  to  say, 
whether  or  not  the  defendants  at  the  time  of  the  alleged  assault  and 
imprisonment  acted  under  the  belief  that  they  had  authority  under  the 
provisions  of  that  section,  and  if  so,  whether  they  had  reasonable 
grounds  for  so  believing.  The  jury  found  that  the  defendants  had  no 
right  to  take  away  the  gun,  but  the  defendants  thought  they  were  act- 
ing in  pursuance  of  the  statute  ;  and  his  lordship  then  directed  a  non- 
suit, on  the  ground  that  the  plaintiff  had  not  given  a  month's  notice  of 
trial  in  compliance  with  sec.  47.  It  was  held  that  the  question  of  rea- 
sonable or  not  reasonable  belief  in  this  case  was  a  question  simply  whe- 
ther there  was  such  bona  fides  as  entitled  the  defendants  to  notice  of 
action,  and  that  the  case  was  properly  left  to  the  juiy,  and  that  the 
defendants  were  entitled  to  notice  whether  the  trespass  was  justifiable 
under  the  statute  or  not. 

Reg.  V.  George  Prestneg,  which  was  an  indictment  for  felonious  cutting 
and  'Wounding,  turned  upon  the  construction  of  the  same  section.  The 
prosecutor  found  the  prisoner  in  a  field  of  his,  with  another   man, 

B  B  2 


372  FORCIBLE    RESCUE    ILLEGAL. 

ferreting  rabbits.  TTis  dog  had  slightly  damaged  the  hedge  in  two  or 
three  places,  by  breaking  through  it.  The  defendant  ran  away,  and 
was  caught  after  a  struggle,  and  would  not  tell  his  name.  It  was 
submitted  that  the  charge  could  not  be  sustained  for  more  than  a 
mere  assault,  as  the  apprehension  and  detainer  of  the  prisoner  were 
both  unlawful,  for  that  by  stat.  1  &  2  Will.  TV.  c.  32,  s.  31,  before 
apprehending  the  prisoner,  the  prosecutor  was  bound  to  ask  his  Chris- 
tian name,  surname,  and  place  of  abode,  and  also  to  require  him  to 
quit  the  land.  PavTce,  B.  held  that  damage  done  fn  a  fence  hj  a  jwacJiefs 
dog  in  jjursuif  of  game  is  not  a  "  malicious ''  injury  within  the  meaning 
of  stat.  7  &  8  Geo.  IV.  c.  30,  s.  23  ;  and  'that  to  justify  the  appre- 
hension of  an  offender  under  1  efe  2  Will  IV.  c.  32,  s.  31,  it  is  only 
necessary  that  he  should  have  been  made  to  understand  by  the  person 
authorised  under  that  section,  that  he  is  requio'ed  to  tell  his  Christian 
name,  surname,  and  place  of  abode,  and  that  he  should  have  refused  to 
co77i])ly  with  such  requisition,  and  that  it  is  not  necessary  that  he  should 
have  been  required  both  to  quit  the  land  and  also  to  tell  his  name. 
The  prisoner  was  found  guilty  upon  the  first  count,  which  alleged  an 
intent  to  prevent  his  lawful  apprehension  and  detainer. 

The  forcihle  rescue  of  a  person  from  unlauful  custody  is  illegal.  And 
so  it  was  held  in  Beg.  v.  Almey  and  Spencer,  where  the  prisoners  were 
charged  with  feloniously  assaulting  and  wounding  one  James  Rayson, 
a  gamekeeper,  who  saw  them  with  one  Kenney  and  four  others  beat- 
ing for  game.  Kenney  had  a  gun,  and  on  being  asked  his  name  refused 
to  give  it,  and  was  taken  into  custody,  and  the  gamekeeper  was 
wounded  by  the  prisoners  in  their  attempt  to  rescue  him.  It  was 
contended  for  the  prisoners  that  the  apprehension  was  unlawful,  inas- 
much as  before  the  apprehension  Kenney  had  only  refused  to  give  his 
name,  and  had  not  refused  to  go  off*  the  land,  and  that  the  prisoners 
were  therefore  justified  in  using  violence  to  effect  his  rescue.  But 
Erie  J.  (after  consulting  Cresswell  J.)  considered  that  Kenney  himself 
might  perhaps  have  lawfully  resisted  his  apprehension,  but  that  the 
prisoners  had  no  right  to  take  part  in  that  resistance,  and  overruled 
the  objection. 

A  conviction  of  sevei'al  p)ersons  for  tresjMssing  in  pursuit  of  game  in 
the  daytime,  under  1  &  2  Will.  IV.,  c.  32,  s,  30,  was  drawn  up,  includ- 
ing them  all  in  one  conviction,  and  adjudicating  "  each  of  them  ; " 
the  said  C,  B,  W,  and  S,  so  making  default,  to  be  imprisoned  for  one 
month,  unless  the  said  several  sums  and  the  costs  and  charges  of  con- 
veying each  of  them  the  said  C,  B,  W,  and  S,  so  making  default  to  the 
said  gaol,  shall  be  sooner  paid."  It  was  held  by  the  Court  of  Queen's 
Bench  that  the  conviction  was  bad,  as  it  made  each  defendant  liable 


TAKING    HARES    OR    RABBITS    BY    NIGHT.  373 

to  be  imprisoned  until  he  had  paid  the  penalty,  and  the  expense  of 
conveying,  not  only  himself,  but  the  other  persons  convicted,  and  that 
this  was  not  a  case  in  which  to  exercise  the  power  of  amendment  under 
12  &  13  VicL,  c.  45,  s.  7  {Eer/.  v.  Cridland).  And  semhle,  where  to 
an  information  for  an  offence  under  1  &  2  Will.  IV.  c.  32,  s.  30,  the 
defendants  bond  fide  claimed  a  right  to  enter  upon  the  land  under  an 
authority  from  S,  who  was  alleged  to  be  the  owner  of  the  land,  and 
asked  for  an  adjournment,  as  they  were  not  then  prepared  with  evidence, 
which  was  refused  ;  this  was  such  a  hond  fide  claim  of  right  as  put  an 
end  to  the  jurisdiction  of  the  justices  {ih.) 

By  statute  7  &  8  Geo.  IV.  c.  29,  s.  30,  to  take  or  kill  any  hare  or 
rabbit  in  the  night  time,  in  any  warren  or  ground  lawfully  used  for  the 
keeping  or  breeding  of  the  same,  is  a  misdemeanour ;  and  to  take  and 
kill  them  in  any  warren  or  ground  in  the  daytime,  or  at  any  time  to 
set  any  snare  or  engine  for  the  taking  them,  is  punishable  upon  sum- 
mary conviction  by  fine,  not  exceeding  £5.  But  nothing  in  this  act 
affects  any  person  taking  or  killing  in  the  daytime  any  rabbits  on  any 
sea-bank  or  river-bank  in  the  county  of  Lincoln,  so  far  as  the  tide  shall 
extend,  or  within  one  furlong  of  the  bank.  Statute  7  t^  8  Vict.  c.  29, 
s.  1,  recites  statute  9  Geo.  IV.  c.  69,  s.  1,  and  extends  the  provisions 
of  that  act  to  any  person  by  night  unlawfully  taking  or  destroying  any 
game  or  rabbits  on  the  public  road,  highway,  or  path,  or  the  sides 
thereof,  or  at  the  openings,  outlets,  or  gates  from  any  such  land  into 
any  such  public  road,  highway,  or  path,  in  the  like  manner  as  upon 
any  land  open  or  inclosed.  Night-time  in  both  of  these  acts  means 
some  time  between  the  expiration  of  the  first  hour  after  sunset  and  the 
beginning  of  the  last  hour  before  sunrise. 

By  section  1  of  statute  11  &  12  Vict.  c.  29  (which  did  not  disturb 
the  existing  agreements  for  the  reservation  of  game),  persons  in  the 
actual  occupation  of  inclosed  ground,  or  any  oivner  thereof,  who  has  the 
right  of  killing  game  thereon,  by  himself  or  by  any  person  directed 
or  authorised  by  him  in  writing  so  to  do  according  to  the  form  given 
in  the  schedule  of  the  act,  may  take,  kill  or  destroy  hares  thereon  tvith' 
out  a  game  certificate.  Section  2  provides  that  the  authority  so  to 
take,  kill,  and  destroy  hares,  which  holds  good  till  February  1st  in 
the  year  following  that  in  which  it  is  granted,  shall,  when  granted,  be 
limited  to  one  person  at  the  same  time  in  any  one  jjarish  ;  that  such 
authority  shall  be  sent  to  the  Clerk  of  the  Petty  Sessions,  who  shall 
register  it  ;  and  if  it  be  revoked,  notice  must  be  given  to  him  of  the 
same.  Section  4  allows  an  uncertificated  person  to  join  in  coursing 
and  hunting  ;  and  sections  5  and  6  render  it  illegal  to  lay  any  poison 
on  the  ground,  whether  open  or  enclosed,  or  on  the  highway,  or  for 


37  i  TAK1]SG    GAME    OX    SUNDAY. 

any  person  to  use  any  fire-arms  or  guns  of  any  description  by  night, 
for  the  purpose  of  kilhng  any  game  or  liares.  The  above  act  appHes 
only  to  England  and  Wales,  but  11  &  12  Vicf.  c.  30,  extends  it  to 
Scotland.  The  form  given  in  the  schedule  of  the  former  act  is  as 
follows  : — 

"I,  AB,  do  authorize  C  D  to  kill  hares  on   ['my  lands,'  or  'the 

lands  occupied  by  me,'  as  the  case  may  he']  within  the of  ^ 

\Jiere  insert  ilie  name  of  the  ^larisli  or  of/ier  jiJace,  as  the  case  may  he']. 
Dated  this day  of ,  a.d.  18—. 

"  Witness,  E  F."  "  A  B. 

"  By  the  1  &  2  TT7//.  IV.  c.  32,  s.  3,  the  penalty  for  killing  or  taking 
gatne  on  Sunday  or  Christmas  Day  is  a  sum  not  exceeding  five  pounds, 
to  be  recovered  before  two  justices  with  costs.  And  to  kill  or  take 
any  partridge  between  the  1st  of  February  and  the  1st  of  September  ; 
or  zx\^  pheasant  between  the  1st  of  February  and  the  1st  of  October  ; 
or  any  hlac'k  ganw,  except  in  Somerset  or  Devon,  or  in  the  New  Forest, 
between  the  10th  of  December  and  the  20th  of  August  ;  or  in  Somer- 
set or  Devon  or  the  New  Forest,  between  the  10th  of  December  and 
the  1st  of  September;  or  any  ^rM^^e,  commonly  called  red  game,  be- 
tween the  10th  of  December  and  the  12th  of  August ;  or  any  hustard, 
between  the  1st  of  March  and  the  1st  of  September,  is  an  offence 
punishable  upon  conviction  before  two  justices  with  a  penalty  not  ex- 
ceeding £1  for  any  head  of  game,  with  costs.  It  is  no  offence  to  have 
in  possessiofi  after  the  1st  of  Fehruary  partridges  and  pheasants  ivithin 
a  reasonahle  time,  as  on  the  9th  February  {/Simpson  v.  Univin).  And 
now  under  s.  4  of  the  1  &  2  Will.  IV.  c.  32,  it  is  illegal,  and  punish- 
able with  a  forfeiture  not  exceeding  £1  for  each  head  of  game  for  a 
dealer  to  buy,  sell,  or  have  game,  after  ten  days  from  the  dates  above 
specified,  and  after  forty  days  for  any  other  person.  The  onus  of 
proving  the  rightful  possession  lies  upon  the  defendant.  And  by  sec.  42 
any  exception  in  his  favour  must  now  be  made  good  by  witnesses  on  his 
])ehalf.  Uncontradicted  or  unexplained  possession  is  a  fact  sufficient  to 
warrant  a  conviction.  Under  some  statutes  the  exception  must  be 
negatived  by  the  prosecutor  in  his  information  (Spieres  v.  Parker; 
R.  V.  Turner ;  and  see  R.  v.  Stone).  By  11  &  12  Vid.  c.  43,  s.  14,  if 
the  information  or  complaint  in  any  case  shall  negative  any  exemption, 
exception,  &c.,  in  the  statute,  the  prosecutor  or  complainant  need  not 
prove  the  negative,  but  the  defendant  may  ])rove  the  affirmative,  if  he 
would  have  the  advantage  of  the  same." — Serjeant  Woolrych  on  the 
Game  Laws,  p.  135. 


TAME    PHEASANTS    SUBJECTS    OF    LAECENY.  375 

A  contract  by  a  licensed  dealer  in  game  to  deliver  jiheasants  in  good 
feather  on  request,  followed  by  a  request  to  deliver  them  more  than  ten 
days  from  the  time  (February  1)  when  it  is  unlawful  to  kill  them  is 
good,  notwithstanding  that  statute  1  &  2  Will.  IV.  c.  32,  s.  4,  prohibits 
the  sale  of  birds  of  game  at  that  period,  because  that  section  applies 
to  dead  game  only  (Porritt  v.  Baker).  And  jjer  Parke  B.  :  "  There  is 
nothing  in  the  statute  to  prevent  the  defendants  selling  and  delivering 
live  pheasants  out  of  season,  since  they  can  either  buy  pheasants  from 
a  person  who  keeps  them  in  a  mew,  or  can  keep  them  in  a  mew  of 
their  own  "  {ib.)  And  it  was  ruled  by  Lord  Camjjhell  C. J.,  in  Reg.  v. 
Head,  that  'pheasants  which  have  been  reared  under  hens  in  coops,  through 
the  bars  of  which  they  could  pass,  and  which  had  at  the  time  of  the 
robbery  been  hatched  a  month,  and  could  fly  thirty  rods,  and  answer  to 
the  keeper's  whistle  at  night,  were  as  much  the  subject  of  larceny  as 
the  hens  themselves. 

Deer  in  a  park  {though  an  ancient  and  legal  park)  mag  be  so  tamed 
and  reclaimed  from  their  natural  wild  state  as  to  pass  to  executors  as 
personal propertg ;  and  so  it  was  held  by  the  Court  of  Common  Pleas, 
in  Morgan  v.  Abergarenng,  where  the  executors  successfully  brought 
trover  against  the  heir. 

But  it  is  laid  down  in  Paslet  v.  Gray,  that  where  a  man,  having 
fishes  in  a  pond,  made  his  executors,  and  died,  and  defendant  as  exe- 
cutor takes  fishes,  plaintiff  as  heir  brings  trespass  rightly  ;  for  they  are 
as  profits  of  the  freehold,  which  the  executor  shall  not  have,  but  the 
heir,  or  he  who  hath  the  water.  Ti'espass  Iks  for  breaking  and  entering 
the  several  fisherg  of  A.  on  the  soil  of  B.  (Baileg  v.  Holford) ;  but  the 
words  "sole  and  exclusive  fishery"  are  not  equivalent  to  "  several " 
fishery  (/&.). 

In  the  case  of  Saunders  v,  Baldg,  1  N.  R.  Q.  B.  87,  an  information 
was  laid  by  the  appellant,  under  1  &  2  Will.  IV.  c.  32,  s.  23,  against  the 
respondent,  charging  him  with  having,  on  the  13th  of  March,  1865,  used 
a  trap  for  the  purpose  of  taking  game,  he  not  having  a  game  certificate. 
The  1  &  2  Will.  IV.  c.  32,  s.  3,  forbids  the  taking  game  during  certain 
intervals  of  the  year,  and  the  justices  dismissed  the  information  on  the 
ground  that  as  no  certificate  would  authorize  persons  to  take  or  kill 
game  at  the  period  mentioned,  the  respondent  could  not  be  said  not  to 
be  authorized  for  want  of  a  certificate,  and  therefore  could  not  be  legally 
convicted  upon  an  information  which  charged  him  with  using  an  instru- 
ment for  the  purpose  of  taking  game  without  a  certificate,  when  no 
game  certificate  could  be  obtained  which  would  authorize  his  act.  The 
Court,  however,  decided  that  the  respondent  ought  to  have  been  con- 
victed. 


370  FEIGHTENING    GEOUSE. 

In  the  cases  of  Vetjsey  v.  Hoslcins  and  Harris  v.  Hoslins,  34  L.  J. 
(N.  C.)  M.  C.  145,  the  appellants  were  found  with  a  net  for  the  purpose 
of  taking  game  on  land  which  had  a  hedge  on  either  side  and  a  metalled 
road  through  it,  but  the  land  on  each  side  of  the  road  was  waste,  and 
varying  in  extent ;  it  was  held  that  this  land  was  neither  open  nor 
inclosed  within  the  meaning  of  the  9  Geo.  IV.  c.  69,  s.  1. 

In  the  case  of  Sfacei/  v.  Whitehurst,  34  L.  J.  (N.  S.)  M.  C.  94,  White- 
hurst  and  another  person  were  driving  along  a  turnpike  road  when  the 
other  person  got  out  of  the  conveyance,  entered  a  field,  shot  a  hare,  and 
handed  it  to  Whitehurst,  who  then  drove  away,  it  was  held  that  White- 
hurst could  be  found  guilty  of  aiding  and  abetting  to  commit  the  oflfence 
of  trespass  in  pursuit  of  game. 

In  Kvnijon  v.  H((rt,  34  L.  J.  (N.  S.)  M.  C.  87,  the  respondent  was 
shooting  on  his  own  laud  when  a  pheasant  rose  and  flew  over  the  land 
of  anotlier  person ;  the  respondent  fired  at  and  killed  the  bird,  which 
fell  upon  the  other  person's  land.  The  respondent  went  with  his  dog, 
and  picked  up  the  pheasant  and  took  it  away.  He  was  afterwards 
summoned  for  "  trespassing  in  search  of  game,"  but  the  justices  dis- 
missed the  case,  and  the  Court  held  that  they  were  right. 

In  Iblotson  v.  Peat,  to  a  declaration  alleging  that  the  defendant,  with 
intent  to  frighten  away  grouse  from  plaintiff's  land,  fired  and  exploded 
rockets  and  fireworks,  so  as  to  be  a  nuisance,  the  defendant  pleaded 
that  he  committed  the  acts  complained  of  in  order  to  prevent  the  plaintiff 
from  shooting  grouse  which  had  been  enticed  by  the  plaintiff  from  de- 
fendant's land,  and  from  enticing  other  grouse  from  defendant's  land, 
it  was  held  that  the  plea  was  no  answer  to  the  action,  and  judgment 
was  given  for  the  plaintiif"  (34  L.  J.,  (JST.  S.)  Exch.  118). 

In  the  case  of  Hall  v.  Knox,  a  constable  saw  a  person  with  a  gun  in 
his  hand,  on  a  public  footway,  in  tlie  act  of  picking  up  a  rabbit  which 
was  thrown  over  the  hedge  by  another  person  ;  it  was  held  that  to  sustain 
a  conviction  under  the  Prevention  of  Poaching  Act,  25  &  26  Vict.  c.  114, 
s.  2,  an  actual  search  was  not  necessary  {Hall  v.  Knox,  33  L.  J.  (N.  S.) 
M.  C.  1),  and  in  Evans  v.  Bolter  ill  and  Others,  33  L.  J.  (N.  S.)  M.  C.  50, 
where  the  defendants  were  found  on  the  highway  at  6  a.m.,  with  a  bag 
containing  a  hare  and  rabbits,  and  with  nets  and  stakes,  it  was  held 
that  they  could  be  convicted  of  having  obtained  the  game  by  having 
been  unlawfully  on  land  in  pursuit  of  game,  without  direct  proof  that 
any  of  the  defendants  had  been  upon  any  land,  or  had  used  any  of  the 
nets. 

It  is  not  sufficient  to  oust  the  jurisdiction  of  justices  in  regard  to  a 
charge  of  trespass  in  pursuit  of  game,  under  1  &  2  Will.  IV.  c.  32,  s.  30, 
that  there  is  an  honest  claim  of  right,  if  such  claim  is  absurd  and  im- 


CONVICTION    FOR    TRESPASS.  377 

possible  in  point  of  law.  Game  statutes  are  not  mere  criminal  statutes, 
but  are  statutes  passed  for  the  purpose  of  protecting  the  peculiar  right 
of  those  entitled  to  shoot  game  (Wafkins  v.  Ifajor,  10  L.  R.  C.  P.  662  ; 
see  llorden  v.  Porter,  29  L.  J.  M.  C.  213  ;  Leatt  v.  Vim,  30  L.  J.  M.  C. 
207  ;  Gornwell  v.  Saunders,  32  L.  J.  M.  C.  6 ;  Hudson  v.  M'Crea,  33 
L.  J.  M.  C.  65). 

Picking  up  ^^heasmit  shot  in  another'' s  land  a  tresjiass. — A  person  who 
in  his  own  land  shoots  a  pheasant  in  the  land  of  another,  and  goes  on  to 
such  land  to  pick  the  bird  up,  commits  a  trespass  of  entering  land  in 
pursuit  of  game  within  the  meaning  of  1  &  2  Will.  IV.  c.  32,  s.  30,  the 
shooting  and  picking  up  of  the  bird  being  one  transaction,  but  qua>re 
whether  entering  land  for  the  purpose  of  picking  up  dead  game  is  a 
trespass  within  that  Act.  And  per  Byles  J. :  "  If  it  were  necessary 
for  us  to  decide  on  this  occasion,  that  dead  game  is  within  the  statute, 
I  should  have  desired  time  to  consider.  But  I  agree  that  the  pursuit 
commenced  with  the  shot,  and  terminated  with  the  picking  up.  There 
was  a  pursuit  and  a  trespass.  It  would  be  highly  inconvenient  to  have 
to  inquire  in  every  case  wliether  the  bird  had  breathed  its  last  or  not 
when  picked  up"  (Oslond  appt.  v.  Meadows  resp.). 

Not  essential  to  conviction  for  trespass  in  pursuit  of  game,  that  there 
should  have  heen  an  intention  to  commit  such  tresjMss. — It  is  not  necessary 
that  a  conviction  under  1  &  2  Will  lY.  c.  32,  s.  30,  for  a  trespass  in 
pursuit  of  game,  should  be  on  the  information  of  the  owner  or  occupier 
of  land,  or  of  a  party  interested  in  the  game,  and  on  this  point  Middleton 
V.  Gale  (8  Ad.  &  E.  155)  is  decisive,  and  semble  per  Williams,  J.  and 
Willes  J.,  dubitante  Keating  J.,  that  it  is  not  necessary,  in  order  to 
support  a  conviction  under  the  above  section,  that  the  defendant  should 
have  intended  to  commit  or  have  been  conscious  that  he  was  committing 
a  trespass.  And  per  Willknns  J.  :  "  The  dictum  of  Erie  J.  in  Reg.  v. 
Cridland  (7  E.  &  B.  853,  27  L.  J.  (N.  S.)  M.  C.  28)  is  relied  on  by  the 
defendant's  counsel ;  but  that  case  is  wholly  distinguishable,  for  it  only 
decides  that  where  the  entry  is  made  under  a  hand  fide  claim  of  right,  no 
proceedings  can  be  maintained  against  the  person  so  entering  upon  the 
land.  But  that  is  upon  a  principle  not  peculiar  to  this  case,  but  appli- 
cable to  all  cases,  that  no  conviction  can  take  place  for  an  act  done 
under  a  bond  fide  claim  of  right  to  do  it.  In  the  case  of  Reg.  v.  Pratt 
(2-1  L.  J.  (N.  S.)  M.  C.  113),  where  the  defendant  was  convicted  of  a 
trespass,  although  he  never  left  the  high  road,  the  whole  discussion  was 
whether  there  was  a  trespass  on  another  man's  land  ;  no  one  thought  of 
suggesting  that  the  defendant  would  not  be  liable  if  he  had  thought 
that  he  had  a  right  to  shoot  on  the  high  road.  With  regard  to  the 
hardship  of  thus  deciding,  I  confess  I  cannot  see  it.    If  a  person  goes 


378  EETAKIXG    RABBITS    FROM    POACHERS. 

on  to  land  to  enjoy  the  diversion  of  shootin^:,  he  must  take  care  that  he 
has  the  leave  of  the  person  justified  to  give  him  leave  ;  if  he  chooses  to 
risk  it,  he  must  suffer  the  penalty  if  it  is  enforced  against  him" 
{Morden,  appt.  v.  Porter,  respt.). 

Retaking  rabbits  from  poachers. — If  A.  wrongfully,  after  request  to 
give  it  up,  detain  a  chattel  from  B.,  the  owner  entitled  to  possession,  B. 
has  the  possession  in  law,  and  A.'s  wrongful  detention  against  B.'s 
request  is  no  possession,  but  is  the  same  violation  of  the  right  of  pro- 
perty as  the  taking  the  chattel  out  of  the  actual  possession  of  B.,  and 
B.  (or  his  servants  acting  under  his  command)  is  justified  in  using 
force  sufficient  to  defend  his  right  and  retake  the  chattel.  This  was  a 
declaration  for  assault  and  battery,  and  the  plea  was  that  the  plaintiff 
became  the  holder  thereof,  and  had  wrongfully  in  his  possession  dead 
rabbits  belonging  to  E.,  and  being  about  to  carry  them  away,  the  de- 
fendants as  servants  of  E,,  and  by  his  command,  requested  the  plaintiff 
to  refrain,  which  he  refused  to  do,  and  thereupon  defendants  as  servants 
of  E.,  and  by  his  command,  gently  laid  their  hands  on  the  plaintiff, 
and  took  the  rabbits  from  him,  using  no  more  force  than  was  neces- 
sary. This  was  held  a  good  plea,  although  it  did  not  allege  how  the 
plaintiff  took  the  property  of  E.  And  per  Curiam .-  "  It  has  been 
decided  that  the  owner  of  land  entitled  to  the  possession  may  enter 
thereon  and  use  force  sufficient  to  remove  a  wrong-doer  therefrom.  In 
respect  of  land  as  well  as  chattels,  the  wrong-doers  have  argued  that 
they  ought  to  be  allowed  to  keep  what  they  are  wrongfully  holding,  and 
that  the  owner  cannot  use  force  to  defend  his  property,  but  must  bring 
his  action  lest  the  peace  should  be  endangered  if  force  was  justified  ; 
see  Newton  v.  HarJand  (1  Man.  &  G.  G44).  But  in  respect  of  land,  the 
argument  has  been  overruled  in  Harvey  v.  Bridges  (14  M.  &  W.  437, 
14  L.  J.  (N.  S.)  Ex.  384).  Here  Parks  B.  says :  'Where  a  breach  of 
the  peace  is  committed  by  a  freeholder,  who,  in  order  to  get  possession 
of  his  land,  assaults  a  person  wrongfully  holding  possession  of  it  against 
bis  will,  although  the  freeholder  may  be  responsible  to  the  public  for  a 
forcible  entry,  he  is  not  liable  to  the  other  party,  and  I  cannot  see  how 
it  is  possible  to  doubt  that  it  is  a  perfectly  good  justification  to  say, 
that  the  plaintiff  was  in  possession  of  the  land  against  the  will  of  the 
defendant,  who  was  owner,  and  that  he  entered  upon  it  accordingly, 
even  though  in  so  doing  a  breach  of  the  peace  was  committed.'  In 
our  opinion,  all  that  is  so  said  of  the  right  of  property  in  land  applies 
in  principle  to  the  right  of  property  in  a  chattel,  and  supports  the 
present  justification.  If  the  owner  was  compelled  by  law  to  seek  redress 
by  action  for  a  violation  of  his  right  of  property,  the  remedy  would  be  often 
worse  than  the  mischief,  and  the  law   would  aggravate  the  mischief 


PROPERTY    IN    RABBITS.  379 

instead  of  redressing  it ;  and  on  these  grounds,  our  judgment  is  for  the 
defendants  "  {Blades  v.  Higgs  and  Another,  34  L.  J.  (N.  S.)  C.  P.  286). 

The  decision  of  the  Court  of  Common  Pleas  and  Exchequer  Chamber 
was  upheld  by  the  House  of  Lords. 

Rdhhits  the  propertg  of  the  person  on  tvhose  lands  they  are  started  and 
killed. — If  rabbits  be  started  and  killed  on  the  land  of  another,  they  are 
the  property  of  the  person  on  whose  land  they  are  killed,  but  the  Court 
were  not  prepared  to  decide  whether  there  would  be  any  distinction  if 
the  rabbits  were  driven  off  the  land  of  one  person  on  to  another ;  and 
per  Willes  J.  :  "  It  is  impossible  to  get  over  the  case  of  Lord  Lonsdale 
V.  Eigg  (1  H.  &  N.  923,  and  26  L.  J.  (N.  S.)  Ex.  196).  It  will  be  well 
when  this  case  is  further  considered,  if  it  should  ever  be  so,  to  compare 
the  dictum  of  Lord  ffoU  in  Sutton  v.  Moodg,  with  the  passage  in  the 
Institutes  of  Justinian,  where  it  is  laid  down  that  wild  animals : 
*  Simul  atque  ab  aliquo  capta  fuerint  jure  gentium  statum  illius  esse 
incipiunt  quod  enim  ante  nullius  est,  id  naturali  ratione  occupanti  con- 
ceditur.  Nee  interest  feras,  bestias  et  volucres  utrum  in  suo  fundo 
quisque  capiat  an  in  alieno.'  The  same  rule  has  been  adopted  in  all 
countries  professedly  governed  by  the  Roman  civil  law."  Here  the 
defendants,  servants  of  the  Marquis  of  Exeter,  claimed  the  bags  with 
rabbits  in  them  out  of  the  luggage-van,  and  emptying  out  the  rabbits 
returned  the  bags  {Blades  v.  Iliggs  and  Another).  This  decision  was 
affirmed  in  the  Exchequer  Chamber,  on  the  ground  that  Lord  Lonsdale 
V.  Eigg  had  settled  the  question. 

Eeg.  V.  Paul  Eead.  This  was  a  case  stated  by  the  Vice-Chairman  of 
the  Berkshire  Quarter  Sessions.  The  prisoner  was  indicted  at  the  Berks 
Epiphany  Sessions,  December  31,  1877,  for  stealing  18  rabbits  the  pro- 
perty of  Mr.  Smith,  his  master.  The  evidence  showed  that  the  prisoner 
was  the  gamekeeper  of  Smith,  and  Was  employed  to  look  after  a  wood  in 
which  the  game  and  rabbits  and  rights  of  sporting  had  been  granted  to 
Smith  by  the  owner.  The  prisoner  was  not  at  liberty  to  take  or  kill 
rabbits  in  the  wood  for  his  own  use,  but  he  took  and  killed  and  removed 
18  wild  rabbits  from  the  wood,  and  had  bargained  to  sell  them  when 
they  were  seized  in  the  possession  of  the  purchaser's  agent,  the  capture, 
killing,  removing,  and  selling  being  part  of  one  continuous  act.  The 
counsel  for  the  prisoner  asked  the  Court  to  stop  the  case  because  there 
was  not  any  evidence  to  go  to  the  jury  that  the  rabbits  had  ever  as  sub- 
jects of  larceny  been  in  the  possession  of  Smith,  and  that,  therefore,  the 
prisoner  could  not  be  guilty  of  stealing  or  embezzling  them.  The  counsel 
for  the  prosecution  insisted  that  when  the  rabbits  were  captured  and 
killed  by  the  prisoner,  they  were  by  that  act  reduced  into  the  possession 
of  his  master  and  became  subjects  of  larceny  or  embezzlement.     The 


3S0  rjGHT    OF    TENANT    TO    KILL    RABBITS. 

case  was  left  to  the  jury,  the  Court  telling  them  that  the  criminal 
offence  of  the  prisoner — if  any — was  embezzlement  and  not  larceny,  and 
that  if  in  their  opinion,  the  prisoner,  being  the  servant  of  Smith,  cap- 
tured and  killed  the  rabbits,  although  against  the  orders  of  his  master, 
they  so  came  into  the  possession  of  the  prisoner  for  and  on  behalf  of  his 
master,  and  the  prisoner  converting  them  to  his  own  use  was  guilty  of 
embezzlement.  The  jury  found  the  prisoner  guilty  of  embezzlement, 
and  he  was  sentenced  to  four  months'  imprisonment,  with  hard  labour. 
But  the  Court  reserved  for  the  opinion  of  the  Superior  Court  the  ques- 
tion whether  the  prisoner  by  capturing  and  killing  the  rabbits  against 
liis  master's  orders  did  so  bring  them  into  the  possession  of  his  master 
that  he  could  by  appropriating  them  to  himself  be  guilty  of  embezzling 
them.  The  enactment  on  which  the  question  turned  is  one  of  the 
Common  Law  Consolidation  Acts — 24  &  25  Vic.  cap.  96,  sec.  68 — as  to 
larceny  or  embezzlement  by  servants  : — 

"Whosoever  being  a  servant,  or  being  employed  for  the  purpose  or 
in  the  capacity  of  a  servant,  shall  fraudulently  embezzle  any  chattel, 
money,  or  valuable  security  which  shall  be  delivered  to,  or  received,  or 
taken  into  possession  by  him,  for  or  in  the  name,  or  on  the  account  of 
his  master  or  employer,  shall  be  deemed  to  have  feloniously  stolen  the 
same  fi'om  his  master,  although  it  was  not  received  into  his  possession 
otherwise  than  by  the  actual  possession  of  his  servant." 

The  Court  held  that  the  prisoner  could  not  be  convicted  of  embezzle- 
ment, because  the  killing  and  taking  away  were  one  continuous  act. 
The  conviction  was  therefore  quashed,  but  the  Court  expressed  no 
opinion  as  to  whether  the  prisoner  might  have  been  convicted  of 
larceny. 

Tenant  killing  raihits  where,  " game^''  reserved  to  landlord. — Spker 
&  Others  (appts.)  v.  Barnard  (resp.)  decided  that  where  a  tenant  occu- 
pies land  under  a  lease,  which  reserved  to  the  landlord  the  exclusive 
liberty  to  shoot,  hunt,  fish,  and  sport  over  the  land,  the  tenant  may 
lawfully  employ  his  servants  to  kill  rabbits  on  the  land.  This  was  a 
case  stated  by  Justices  in  Petty  Session.  When  the  appellants  were 
called  on  to  plead,  their  solicitor  handed  in  a  written  notice,  by  which 
they  denied  that  they  had  committed  any  trespass,  but  admitted  that 
they  were  at  the  place  by  direction  of  Jesse  Spicer  (who  proved  the 
fact),  the  occupier  of  the  land,  in  search  of  rabbits,  under  a  bond  fide 
claim  of  right,  but,  if  such  right  were  disputed,  they  submitted  that  the 
magistrates  had  no  jurisdiction  to  decide  on  the  hearing  of  an  informa- 
tion for  a  penalty,  but  must  leave  the  landlord  to  his  action  at  law. 
The  justices  convicted  the  appellants,  on  the  ground  that  they  appeared 
to  have  been  guilty  of  the  otience,  and  that  the  defence  set  up  by  them 


BONA    FIDE    ASSERTION    OF    RIGHT    UNDER    GAME    ACT.     381 

amounted  not  to  a  bond  fide  claim  of  right  or  title,  so  as  to  oust  the  ju- 
risdiction of  the  justices,  but  merely  to  a  plea  of  leave  and  licence  of  the 
occupier  of  the  land,  and  that  such  plea  was  no  defence  under  sec.  30  of 
1  &  2  Will  IV.  c.  32. 

Labourer  taking  rabbit  by  order  of  farmer  whose  lease  made  no  mentmi 
of  rabbits  in  its  game  reservation. — A  labourer  employed  upon  a  farm, 
the  right  of  sporting  over  which  was  reserved  to  the  landlord,  was 
authorized  by  the  tenant  to  go  and  kill  a  rabbit  for  his  wife,  who  had 
been  confined  ;  and  the  justices  having  found  that  he  killed  the  rabbit 
as  the  servant  of  the  tenant,  and  by  his  order,  it  was  held,  on  the  autho- 
rity 0^  Spicer  v.  Barnard  (28  L.  J.  (N.S.)  M.  C.  176),  that  the  labourer 
was  not  liable  to  be  proceeded  against  under  1  &  2  Will.  lY.  c.  32,  s.  30, 
for  a  trespass  in  pursuit  of  coneys.  Hawkins,  his  master,  had  succeeded 
one  Christmas  as  tenant  on  the  terms  generally  of  Christmas's  lease,  of 
which  there  had  been  no  assignment,  and  had  constantly  killed  rabbits 
on  the  land  in  his  occupation.  The  original  lease  between  Christmas 
and  Padwick  contained  no  mention  of  rabbits  in  its  reservation  of  game, 
and  in  the  agreement  between  Hawkins  and  Padwick  there  was  this  ex- 
ception in  reference  to  game — "  excepting  that  the  said  H.  J.  Hawkins 
shall  have  permission  to  sport  over  the  said  farm  and  lands  "  {Padwick, 
appt.  V.  King,  resp.). 

Bond  fide  assertion  of  right  under  Game  /Ic^.  — The  jurisdiction  of  the 
justices  to  convict  summarily  under  1  &  2  Will.  IV.  c.  32,  s.  30,  for  trespass 
in  pursuit  of  game  is  ousted  when  a  question  of  right  to  be  on  the  land 
is  bond  fide  raised  between  the  complainant  and  defendant,  according  to 
Reg.  V.  Cridland  (7  E.  &  B.  853,  27  L.  J.  (N.S.)  M.  C.  28)  and  Morden 
V.  Porter  (7  C.  B.  (N.S.)  641,  and  29  L.  J.  (N.S.)  M.  C.  22(^).~Legg, 
appt.  V.  Pardoe,  resp. 

Mere  vague  belief  of  right  not  sufficient  to  oust  jurisdiction  of  magistrates 
under  Game  Act. — A  person  charged  under  stat.  1  &  2  Will.  IV.  c,  32,  s. 
30,  with  trespassing  in  pursuit  of  game  in  the  daytime  on  land  in  the 
occupation  of  a  tenant  to  A.,  set  up  a  claim  of  right  to  shoot  over  the 
land  on  the  ground  that  he  and  every  one  who  chose  had  always  shot 
there  till  some  recent  acts  of  interruption,  and  declared  his  readiness  to 
try  the  right  with  A.  It  was  held  by  the  Court  of  Queen's  Bench  that 
the  mere  assertion  of  such  a  general  right  in  himself  and  every  one  else, 
though  he  really  believed  it,  without  showing  any  such  claim  of  right  as 
would  be  a  defence  to  an  action  of  trespass,  did  not  oust  the  jurisdiction 
of  the  magistrates  to  convict  under  the  statute  in  question. 

Ousting  justices'  jurisdiction. — In  a  prosecution  for  a  trespass  in  pur- 
suit of  game  under  1  &  2  Will.  IV.  c.  32,  s,  30,  the  defendant  cannot 
oust  the  jurisdiction  of  the  justices  by  disputing  the  title  of  the  person 


38:2  OUSTING   JUSTICES'    JUEISDICTIOX. 

"who  is  alleged  in  tbo  information  to  be  in  occupation  of  the  land 
in  question.  In  order  to  do  that,  he  must  make  a  hond  fide  claim  of 
title  on  behalf  of  himself  or  of  those  under  whom  he  claims.  The 
justices  are  to  consider  ^-liether  the  occupation  is  proved  as  alleged  in 
the  information.  It  -svas  held  by  CocMmni  C.J.,  BlacJchurn  J.,  and 
Mellor  J.,  that  if  there  ^as  any  evidence  before  the  justices  proving 
the  occupation  as  laid,  they  would  be  justified  in  deciding  that  the  in- 
formation was  proved  ;  and  that  a  superior  court  ought  not,  upon  a 
case  granted  by  them  under  20  &  21  Vic.  c.  43,  to  interfere  with 
their  decision.  It  was  shown  on  the  evidence  on  behalf  of  the  lord 
and  in  support  of  the  prosecution  that  the  appellant  was  beating  for 
game  with  a  dog  and  a  gun  on  the  day  in  question  in  a  part  of  the 
pai'ish  of  Slow  cum  Quy  called  Quy  Fen,  and  that  he  asked  a  witness 
not  to  say  anything  about  it,  and  that  Quy  Fen  was  within  the  manor 
of  Slow  cum  Quy,  the  bounds  of  which  were  coterminous  with  the 
parish.  The  appellant  gave  evidence  to  prove  that  he  had  been  in  the 
habit  of  shooting  over  Quy  Fen  for  forty  years,  and  that  the  inhabitant 
householders  had  paid  a  tax  raised  for  the  draining  of  Quy  Fen. 

Young  pheasants  still  under  protection  of  hen  in  coop  hy  day  are  not 
game. — It  was  held  by  PollocTc  C.B.  and  Williams  J.  that  a  prisoner  can- 
not be  convicted  under  9  Geo.  IV.  c.  69,  s.  9,  for  entering  land  by  night, 
armed  for  the  purpose  of  taking  game,  when  his  object  is  to  steal  young 
pheasants  which  had  been  hatched  by  a  hen,  and  had  not  yet  become 
wild.  Although  they  roosted  on  trees  near  the  coops,  they  were  still 
under  the  care  and  protection  of  the  hen,  and  therefore  were  Dr.  Ver- 
non's property,  and  not  game,  which  is  not  the  subject  of  property, 
and  the  prisoner  was  convicted  of  a  common  assault  {Reg.  v.  Garnham). 
Tame  deer  in  parTc  personal  property. — Tame  deer  in  a  park  are  per- 
sonal property,  and  the  Court  will  not  interfere  to  restrain  waste  in  not 
keeping  up  the  herd  {Ford  v.  Tynte,  in  which  case  Morgan  v.  Lord 
Abergavenny,  8  C.  B.  768,  was  cited). 

Loi'd  of  Manor's  exclusive  right  to  sport  over  allotments. — Ewart  v. 
Graham  (Bart.)  was  confirmed  with  costs  in  the  House  of  Lords  (29 
L.  J.  (N.  S.)  Ex.  88).  It  was  a  proceeding  by  way  of  writ  of  error, 
brought  for  the  purpose  of  reversing  a  decision  of  the  Court  of  Ex- 
chequer Chamber,  partly  affirming  and  partly  reversing  a  judgment  of 
the  Court  of  Exchequer,  pronounced  on  a  special  case  stated  for  the 
opinion  of  that  Court.  Lord  Wenslcydale  adhered  to  his  Exchequer 
decision,  that  there  was  a  reservation  of  the  de  facto  right :  he  only 
doubted  whether  this  case  could  be  distinguished  from  Greethead  v. 
Morley  (3  M.  &  G.  139,  and  10  L.  J.  (N.  S.)  C.  P.  246);  but  if  it 
could  not,   he  was  prepared  to  say  that  case  was  wrongly  decided. 


SPORTING    EIGHTS    OF    LORD    OF    MANOR.  383 

Hence  the  lord  still  possesses  the  exclusive  right  of  hunting,  shooting, 
&c.,  over  the  allotments. 

Lord  of  Manor  not  entitled  to  shoot  over  allotments  of  Common. — In 
Bruce  v.  HellhveU,  an  Inclosure  Act,  after  directing  one-sixteenth  of 
the  common  land  to  be  allotted  to  the  Lord  of  the  Manor  as  a  com- 
pensation for  his  right  to  the  soil,  and  the  residue  (with  certain  ex- 
ceptions) among  the  commoners,  contained  a  proviso  that  nothing  in 
the  act  should  defeat,  lessen,  or  prejudice  the  right,  title,  or  interest  of 
the  lord  to  the  mines  and  minerals  in  or  under  the  said  commons,  or 
to  any  seignories  or  royalties  incident  and  belonging  to  the  manor, 
the  same  being  thereby  reserved  to  the  lord,  with  full  power  for  him 
at  all  times  to  hold  and  enjoy  all  rents,  fines,  duties,  customs,  and  ser- 
vices, and  all  courts  and  perquisites,  and  liberty  of  hunting,  coursing, 
fishing,  and  fowling  within  and  throughout  the  said  manor  ;  and  all 
goods  and  chattels  of  felons,  treasure  trove,  waifs,  estrays,  forfeitures, 
royalties,  jurisdictions,  purchases,  and  privileges  whatsoever  to  the  said 
manor  incident  or  appertaining  (other  than  and  except  such  right  as 
could  or  might  be  claimed  by  him  as  owner  of  the  soil  and  inheritance 
of  the  said  commons)  in  as  full  ample  and  beneficial  manner  to  all  in- 
tents and  purposes  as  if  the  said  act  had  not  been  passed.  As  owner 
of  the  soil  of  the  commons,  the  lord  had  before  the  act  the  free  and 
exclusive  right  and  liberty  of  sporting  and  killing  game  thereon,  but 
there  was  no  right  of  free  share  or  free  warren  within  the  manor.  It 
was  held  that  the  lord  retained  no  right  to  shoot  over  the  allotments. 
And  per  Bramivell  B.  :  "  Eioart  v.  Graham  is  distinguishable  from  this 
case,  inasmuch  as  the  words  in  it  were  that  the  lord  was  to  have  the 
right  of  shooting,  fowling,  coursing,  and  so  forth  over  the  allotted 
lands.  It  might  be  that  that  right  had  been  conferred  upon  him  under 
some  mistake  as  to  its  previous  existence  ;  but  whether  it  was  conferred 
upon  him  owing  to  that  mistake  or  not,  the  answer  is  that  it  was  con- 
ferred upon  him.  It  might  have  been  conferred  upon  him  under  a 
mistake,  namely,  under  the  misapprehension  which  my  brother  Martin 
referred  to  as  to  the  rights  of  lords  of  manors.  Whatever  be  the  origin 
of  it,  there  it  was." 

In  Reg.  v.  Inhabitants  of  Thurlstone,  a  tenant  occupied  land  under 
an  agreement  with  his  landlord,  that  he  was  to  have  no  right  to  the 
game  upon  it.  He  was  assessed  to  the  poor-rate  on  the  land  valued  with 
the  game,  and  on  appeal  before  the  West  Riding  Magistrates  it  was 
agreed  that  the  proper  assessment  should  be,  if  for  the  land  only,  without 
a  right  to  the  game,  £11  os.  8d.  ;  and  if  with  the  game,  £26  19s.  8d. ; 
and  the  Court  of  Queen's  Bench  held  that  he  ought  to  be  assessed  only 
for  the  lower  amount. 


384-      FREE    LTBEr.TY    TO    SPORT    A    LICEXCE    OF    PROFIT. 

"Where,  as  in  DayreU  v.  Hoare,  estates,  hereditaments,  and  premises 
were  demised  to  R.  for  life,  with  power  to  the  tenant  for  life  to  make 
any  lease  of  the  same,  or  any  part  or  parts  thereof,  for  21  years,  re- 
serving the  most  improved  yearly  rent,  with  a  condition  for  re-entry  on 
non-payment,  so  that  there  should  be  no  clause  giving  the  lessee  power 
to  commit  waste,  and  so  as  the  rent  should  be  incident  to  and  go  along 
with  the  reversion,  it  was  held  by  the  Court  of  Queen's  Bench  that 
thisjwirer  did  not  authorize  a  lease  of  jmrt  of  the  land,  tcith  liberty  to 
sport  over  the  rest ;  and  where  defendant  in  trespass  justifies,  in  a  righ  t 
which  he  claims  under  the  estate  of  tenant  for  life,  simply  as  such,  he 
must  aver  the  continuance  of  the  life. 

Any  one  may  lease  or  convey  his  land,  and  reserve  to  himself  the  right 
of  entering  to  kill  ya me  without  being  subject  to  being  sued  as  a  trespasser ; 
but  an  exception  to  a  deed,  made  a.d.  1655,  of  the  free  liberty  of 
hunting  and  hawking,  will  not  extend  to  shooting  feathered  game  with 
a  gun,  because  guns,  not  being  in  common  use,  could  not  have  been  in 
the  contemplation  of  the  parties  (dloorev.  Lord  Plymouth)  ;  and  semble 
that  the  liberty  of  hawking  and  hunting  for  the  grantee,  his  friends 
and  servants,  is  a  tenement,  and  entailable  {ib.).  The  grant  to  a 
person,  his  heirs  and  assigns,  of  "  free  liberty,  with  servants  or  otherwise, 
to  come  into  and  upon  lands,  and  there  to  hawk,  hunt,  fish,  and  fowl," 
is  a  grant  of  a  license  of  profit,  and  not  of  a  mere  personal  licence  of 
pleasure ;  and  therefore  it  authorizes  the  grantee,  his  heirs  and  assigns, 
to  hawk,  hunt,  &c.,  by  his  servants  in  his  absence  ( WicJcham  v.  ffawJcer). 
Such  a  liberty  is  therefore  a  j^^ofit  «  prendre  within  the  Prescription 
Act  2  &  3  Will.  IV.  c.  71,  s.  2  (ib.).  And  per  Curiam,  "  What  relates  in 
a  lease  to  the  privilege  of  hawking,  hunting,  fishing  and  fowling  is  not 
either  a  reservation  or  an  exception  in  point  of  law  ;  it  is  only  a  privi- 
lege or  right  granted  to  the  lessor,  though  words  of  reservation  and  excep- 
tion are  used."  {Doe  dem.  Douglas  v.  LocTi:).  It  is  also  decided  by  the 
case  of  the  Duchess  of  Norfolk  v.  Wiseman  (Year  Book,  12  Hen.  VIII. 
25),  that  if  there  be  2i  personal  licence  of  pleasure,  it  extends  only  to  the 
individual,  and  it  cannot  be  exercised  with  or  by  servants  ;  but  if  there 
is  a  licence  of  profit,  and  not  for  pleasure,  it  may. 

The  franchise  of  free  ivarren  is  of  very  great  antiquity,  and  very  sin- 
gular in  its  nature.  It  gives  a  property  in  wild  animals  ;  and  that  pro- 
perty may  l)e  claimed  in  the  land  of  another,  to  the  exclusion  of  the 
owner  of  the  land.  And  "  no  one  can  make  a  park,  chase,  or  warren 
without  the  king's  licence"  (2  Inst.  109). 

As  rooks  are  birds /«yc  naturce,  not  known  as  a  regular  article  of  food, 
causing  no  expense  to  keep,  and  not  protected  either  by  common  law 
or  statute,  the  owner  of  a  rookery  can  have  no  pro})crty  in  them,  or 


DECOYS.  385 

show  any  right  to  have  them  resort  thither,  and  therefore  he  cannot 
maintain  an  action  against  any  one  for  firing  guns  near  it  and  causing 
them  to  desert  {Hannam  v.  Mockott). 

This  case  differed  from  Keehle  v.  Hickeringill,  where  it  was  decided 
that  an  action  on  the  case  lies  for  discharging  guns  near  the  decoy  of 
another,  ivith  design  to  damnify  ths  owner  hy  frightening  away  the  tvild- 
fowl  resorting  thereto,  and  by  which  the  wild-fowl  are  ftightened  away 
and  the  owner  damnified.  In  the  first  place,  wild-fowl  are  protected 
by  25  Hen.  YIII.  c.  11  (a.d.  1533-34),  which  forbids  every  one  except 
a  forty- shilling  fi-eeholder  to  take  wild-fowl,  to  wit,  "  ducks,  mallards, 
widgeons,  teals,  wild-geese,  and  divers  other  kind  of  wild-fowl,"  and 
only  permits  them  the  use  of  a  spaniel  and  a  longbow  for  that  pur- 
pose. The  statute  of  3  &  4  Edii\  VI.  c.  7,  which  repeals  that  of 
25  Hen.  VIII.,  takes  notice  of  wild-fowl,  and  hath  the  general  word 
wildrfoivl,  without  coming  to  particulars.  They  also  constitute  a 
known  article  of  food  ;  and  a  person  keeping  a  decoy,  spends  money 
and  employs  skill  in  taking  that  which  is  of  use  to  the  public.  It  is 
consequently  a  profitable  mode  of  employing  his  land,  and  is  con- 
sidered by  Lord  Holt  C.  J.  as  a  description  of  trade.  Carrington  v. 
Taylor  vfSi's,  governed  by  Keehle  y.  Hiclcer in giU ;  and  it  was  there  held 
that  as  the  defendant,  being  out  shooting  wild-fowl  on  part  of  an 
open  salt-water  creek  called  The  Blackwater,  on  the  Essex  shore,  first 
fired  his  fowling-piece  about  a  quarter  of  a  mile  from  the  plaintiff's 
decoy,  when  200  or  300  wild-fowl  came  out,  and  afterwards,  ap- 
proaching nearer,  fired  at  wild-fowl  on  the  wing  at  the  distance  of  200 
yards  from  the  decoy,  where  he  killed  several  widgeons,  and  caused 
400  or  500  wild-fowl  to  fly  from  the  decoy,  though  he  did  not  fire  into 
it,  this  was  evidence  of  a  wilful  disturbance  of  the  decoy,  for  which  an 
action  on  the  case  would  lie. 

Where  a  demise  was  made  of  a  mansion-house  and  land,  with  the 
sole  licence  of  shooting  and  sporting  over  all  other  the  lands  of  the 
lessor,  "  subject  to  the  liberty  for  each  tenant  on  hi^farm  to  Mil  rabbits 
thereon  with  ferrets  07ilg ;"  this  exception  as  to  killing  rabbits  extends 
not  only  to  farms  existing  at  the  time  of  the  demise,  but  also  to  other 
lands,  as  plantations,  subsequently  let  as  farms  {Newton  v.  Wilmot). 
A  demise  of  lands,  excepting  and  reserving  all  rogalties,  with  a  clause 
for  the  lessor  to  be  allowed  to  prosecute  actions  against  persons  tres- 
passing for  the  purpose  of  hunting,  &c.,  does  not  amount  to  a  grant 
by  the  lessee  of  a  liberty  for  the  lessor  to  enter  for  the  purpose  of  pur- 
suing, killing,  and  taking  birds  of  warren  (Pannell  v.  Mill).  And  per 
Coltman  J.  :  "The  present  case  is  distinguishable  from  that  of  TlVr^-- 
ham  V.  Hawker ;  as  in  that  case  the  clause  excepting  and  reserving 

0  c 


386  SPORTING    OVER    CATTLEGATES. 

the  liberty  to  hunt,  &c.,  could  not  by  possibility  operate  as  an  excep- 
tion or  reservation.  In  the  present  case  it  is  not  so,  for  a  royalty  may 
by  laT?  be  appurtenant  to  land  as  in  this  very  case  of  warren  ;  a  man 
may  have  warren  in  his  own  land,  or  in  that  of  another  man  by  pre- 
scription (Bro.  Abr.  tit.  "Warren,  pi.  2),  And  in  the  case  of  Boivhton  v. 
Hanh/,  it  is  said  a  warren  is  not  parcel,  nor  any  member  of  a  manor  ; 
though  it  may  be  appertaining,  but  that  is,  by  prescription.  And  it  is 
said  in  Di/cr,  page  30,  n  (209),  and  in  the  '  Year  Book,'  in  SliJe  v. 
Abbot  of  Tctrhxhiiri/  (T.  8  H,  7,  fo.  4),  that  a  man  may  have  warren 
in  the  land  of  another  as  appendant  to  his  manor  ;  and  if  the  manor  is 
granted  cinn  periineniiis,  the  warren  will  pass."  [ib.) 

It  was  decided  in  error  from  the  Court  of  Exchequer  (which  had  been 
equally  divided  on  the  point)  that  the  customary  right  of  pasture  in  a 
manor  or  cattlrgates  gives  the  owners  no  right  to  possession  of  the  soil ; 
but  the  ownership  of  it  remains  in  the  lord  of  the  manor,  subject  to 
the  right  of  several  pasture  upon  it  by  the  cattlegate  owners,  and 
therefore  the  lord  may  maintain  trespass  against  a  cattlegate  owner 
for  sporting  over  it  without  his  permission  {Rigg  v.  Earl  of  Lonsdale.) 
And  it  was  held  by  the  Court  of  Common  Pleas,  in  Greathead  v.  Morley, 
that  the  right  of  sporting  over  the  allotments  of  the  moor  or  common  in 
question  was  not  reserved  to  the  lord  of  the  manor  by  the  saving  clause  in 
the  Inclosure  Act,  "with/re^  uxirren,  and  liberty  of  hunting,  hawking, 
fishing  and  fowling,"  the  object  of  that  clause  being  to  reserve  to  the 
lord  all  those  manorial  rights  which  he  possessed  before  the  inclosure, 
as  lord,  except  the  right  to  the  soil ;  the  power  of  a  lord  to  sport  over 
a  waste  within  his  manor  being  not  a  licence  or  liberty,  but  a  mode  of 
enjoyment  of  his  own  property. 

The  ai.pellant  in  Meddins  v.  Williams  had  been  convicted  under  stat. 
1  &  2  Will.  IV.  c.  32,  s.  32,  for  tresjiassing  upon  certain  land  inclosed 
under  an  Inclosure  Act,  in  company  with  five  or  more  persons.  It  ap- 
peared that  the  appellant  had  the  consent  of  the  allottee  of  the  inclosed 
land,  but  not  of  Sir  "Watkin  W.  Wynn,  who  was  the  lord  of  the  manor, 
to  whom  the  right  of  taking  game  was  said  to  be  reserved.  It  was  con- 
tended, in  support  of  the  conviction,  upon  the  authority  of  Graham  v. 
Ewart,  that  the  right  to  take  the  game  was  clearly  in  the  lord  of  the 
manor,  and  that  although  the  appellant  had  the  consent  of  the  allottee, 
he  was  nevertheless  a  trespasser  within  the  Act.  Lord  Campbell  C.  J. 
said,  "  It  was  clear,  after  the  decision  in  that  case,  that  the  right  to  take 
game  in  the  locus  in  quo  was  exclusively  in  the  lord  of  the  manor. 
The  question  was  a  nice  and  difficult  one,  but  the  Court  was  bound 
by  that  decision.  The  lord  of  the  manor  was  not  entitled  to  the 
right  ralione  soli,   but    it  was  confiimed  to  him  in  the  hands  of  the 


DEMISE    OF    SPORTING    UNDER    SEAL.  387 

allottee.  It  was  impossible  for  lancjnape  to  he  better  calculated  to 
secure  this  than  that  used  in  the  12th  section,  which  enacted  that 
when  the  game  was  reserved  to  another  person  than  the  occupier,  the 
latter  should  be  liable  to  a  penalty  for  giving  permission  to  kill  game 
on  the  land  so  occupied  by  him.  The  rest  of  the  judges  concurred,  and 
the  conviction  was  affirmed,  with  costs. 

Under  an  ancient  charter,  granting  to  the  mayor,  aldermen,  and 
burgesses  of  a  dorough  the  right  to  sport  over  lands  within  the  liherties 
thereof,  individual  burgesses,  in  the  absence  of  all  evidence  of  the 
exercise  of  the  right,  are  not  entitled  to  enter  a  field  within  the  liber- 
ties, but  in  the  occupation  of  a  third  party,  to  kill  rabbits  with  a  dog 
or  ferret,  or  for  any  other  kind  of  sporting.  Coleridge  and  Wight- 
man  J.J,  referred,  in  support  of  their  judgment,  to  the  authority  of 
The  Mayor  of  Colchester  v.  Prestney,  w^here  (argued  June  23,  1857,  but 
not  reported)  the  right  of  individual  burgesses  to  dredge  for  oysters 
was  attempted  to  be  made  out  ;  but  the  Court  of  Queen's  Bench 
held  that  the  right  was  in  the  corporation,  but  not  in  the  individual 
corporators. 

A  demise  in  writing,  lid  not  under  seal,  of  a  messvage,  and  full  and 
exclusive  licence  and  leave  for  the  lessee,  his  friends,  gamekeepers,  &c.,  to 
hvnt,  hawk,  course,  shoot,  and  sport  on,  over,  and  upon  a  manor  of  the 
lessor,  and  to  fish  in  the  ponds  and  waters  thereof,  from  August  to 
February  following,  at  an  entire  rent,  is  altogether  void  {Bird  v.  Hig- 
ginson).  And  so  it  was  ruled,  in  The  Dulce  of  Somerset  v.  Fogivell,  that 
where  a  suhject  is  owner  of  a  several  fishery  in  a  navigalde  river,  where 
the  tide  flows  and  reflows,  granted  to  him  (as  must  be  presumed)  before 
Magna  Charta  by  the  description  of  '■'•  separatem piscariam"  that  is,  an 
incorporeal,  and  not  a  territorial  hereditament,  and  a  term  for  years  in 
it  cannot  be  created  without  deed.  But  in  Thomas  v.  FredericJcs,  where 
a  written  agreement  7iot  under  seal  was  declared  on,  by  which  plaintiff 
agreed  to  let  land  to  defendant  with  right  of  sporting,  defendant  to 
make  satisfaction  to  plaintiff's  tenants  for  damage  done  by  game  on 
their  farms,  the  amount  to  be  ascertained  by  valuers  and  an  umpire  ; 
and  defendant  neither  made  satisfaction  nor  appointed  a  valuer  ;  it  was 
decided  that,  though  the  right  to  shoot  did  not  pass  under  this  contract, 
being  an  incorporeal  hereditament,  yet  the  agreement  to  make  com- 
pensation was  valid,  and  good  ground  for  an  action,  defendant  having 
had  the  full  benefit  of  such  agreement. 

Jf  a  purchaser  after  the  delivery  of  the  abstract,  on  the  face  of  which 
part  of  the  estate  appears  to  he  suhject  to  a  right  of  sporting,  not  mentioned 
in  the  particulars  of  sale,  enters  into  possession,  he  waives  that  objection 
{Burnell  v.  Brown).     Where  a  vendor  fails  to  make  a  good  title  pur- 

c  c  2 


38S  SALE   OF   SHOOTING. 

suant  to  his  contract,  the  purchaser  (in  the  absence  of  fraud  or  mis- 
representation on  the  part  of  the  vendor)  is  not  entitled  to  damages  for 
the  loss  of  his  hargain.  Thus  in  Pounsett  v.  Fuller,  the  defendant 
agreed  to  sell  to  the  plaintiff  shooting  on  a  certain  manor,  and  it  was 
afterwards  discovered  that  the  defendant  had  a  mere  equitable  title,  in 
tact,  a  mere  agreement  from  the  owner  of  the  manor  to  let  the  shooting 
to  him  for  four  years,  he  supplying  his  house  with  game.  The  plaintiff 
brought  an  action  for  the  breach  of  the  contract  ;  but  it  was  held  that 
he  was  entitled  only  to  recover  nominal  damages,  and  the  expenses 
incurred  in  tlie  investigation  of  the  defendant's  title,  but  not  damages 
for  the  loss  of  his  bargain,  or  expenses  incurred  in  obtaining  shooting 
elsewhere,  or  in  fruitless  endeavours  to  substitute  a  new  contract  on  the 
failure  of  the  original  bargain.  The  Court  of  Common  Pleas  thought 
the  case  fell  within  Flureau  v-  Thornliill,  which  decided  that  where  a 
man  undertakes  to  sell  an  estate,  the  bargain  is  to  be  understood  as 
being  subject  to  this  qualification  or  condition,  viz.,  that  he  has  a  good 
title  to  convey  ;  and  in  the  judgment  it  is  said  to  result  from  that,  that 
the  vendee,  where  the  bargain  goes  off  by  reason  of  the  vendor's  inability 
to  perform  the  condition,  gets  no  damages  beyond  the  mere  expenses  of 
investigating  a  title  which  turns  out  to  be  bad. 

In  TotnUnson  v.  Day,  the  defendant  took  a  mansion-house  and  farm 
from  the  plaintiff  under  an  agreement,  by  which  the  plaintiff  agreed, 
among  other  things,  tlial  the  defendant  should  have  the  exclusive  right  of 
sporting  over  the  manor  in  tvMch  the  farm  lag,  and  should  occupy  the 
glebe  land  of  the  parish.  The  rent  was  to  be  £450,  and  the  defendant 
occu})ied  the  farm  for  some  time  ;  but  the  agreement,  although  acknow- 
ledged and  recognised,  was  never  signed  by  the  defendant.  The  chief 
inducement  of  the  latter  to  take  the  farm  was  the  promised  privilege  of 
an  exclusive  right  to  sport  ;  but  it  turned  out  that  the  plaintiff'  (not 
being  the  owner  of  all  the  lands  in  the  manor,  and  not  having  free 
warren)  had  no  power  to  grant  any  such  privilege  ;  and  the  defendant 
was,  in  fact,  warned  off  by  the  several  occupiers  within  the  manor. 
The  plaintiff  also  failed  in  procuring  the  glebe  for  the  defendant's 
occupation,  and  for  this  he  offered  to  make  a  proportionate  abatement 
of  the  rent.  The  defendant  was  sued  in  Use  and  Occupation  for  £450, 
one  year's  rent,  as  reserved  by  the  agreement,  and  paid  £350  into 
Court,  and  had  a  verdict,  the  jury  considering  that  to  be  the  annual 
value  of  the  land,  independently  of  the  glebe  and  the  privilege  of  sport- 
ing. The  Court  of  Common  Pleas  held  that  it  was  clearly  the  ]3rovince 
of  the  jury  to  ascertain,  independently  of  any  agreement,  what  the 
defendant  ought  to  pay,  and  that  an  eviction  of  part  of  the  subject 
matter  of  the  demise  (namely,  of  the  exclusive  privilege  of  sporting) 


LAYING  TRAPS  FOR  DOGS.  389 

having  been  clearly  proved  in  the  present  instance,  the  rule  for  a  new 
trial  must  be  discharged. 

The  ])rincij)Je  of  compensation  for  damage  hy  game  was  upheld  in 
Barrow  v.  Ashhurnham,  where  evidence  was  given  of  a  conversation 
between  the  plaintiff  who  subsequently  became  the  tenant,  and  the 
steward  of  the  defendant,  in  which  the  former  said,  "  I  have  no  objection 
to  take  the  farm,  if  the  game  is  destroyed  ;  I  don't  care  so  much  about 
the  birds,  as  the  hares  and  rabbits."  To  this  the  steward  replied  : 
"Why,  you  are  a  man  who  keep  no  dog.  and  use  no  gun,  and  you  ought 
not  to  be  annoyed  with  hares  and  rabbits ;  you  must  let  the  keepers 
know,  and  they  must  kill  them."  The  plaintiff  rejoined,  "  Then  upon 
these  terms  I  will  take  the  farm."  This  conversation  was  held  by  the 
Court  of  Queen's  Bench  to  infer  a  contract  on  the  ])art  of  the  landlord 
to  kill  the  hares  and  rabbits  ;  and  that  the  landlord  was  liable  to 
damages  (in  this  case  £150)  committed  by  the  hares  and  rabbits  on  the 
tenant's  farm. 

A  bequest  of  money  (£5,000)  to  le  applied  in  purchasing  the  disclmrge, 
of  persons,  who,  at  the  time  of  the  testator's  decease,  or  within  five  years 
afterwards,  should  be  committed  to  jn-ison  for  non-payment  of  fines,  fees, 
and  expenses  under  the  game  laws,  was  held  by  Sir  J.  RomiUg  M.C.  to  be 
invalid,  as  contrary  to  public  policy  (Thrupp  v.  Collett). 

The  subject  of  laying  traps  for  dogs  was  first  considered  in  Toumsend 
V.  Wathen.  Here  the  defendant  owned  a  large  wood  within  150  yards 
of  the  plaintiff's  house,  which  was  intersected  with  public  highways 
and  paths.  In  the  blind  tracks,  traps  large  enough  to  catch  sheep  or 
deer  were  laid  and  baited  with  fresh  or  stinking  flesh.  But  no  notice 
was  given  of  the  traps  being  set.  Besides  this,  paunches  rubbed  with 
aniseed  had  been  dragged  by  the  gamekeeper  at  a  circle  round  the 
traps,  to  di'aw  animals  to  them,  for  which  defendant  recompensed  the 
keeper,  at  the  rate  of  2s.  6d.  for  every  fox  and  badger,  and  Is.  for  every 
dog.  Some  of  these  traps  were  set  so  near  the  plaintiff's  house  that  the 
baiting  and  aniseed  might  be  scented  by  the  dogs  there.  It  was  held 
by  the  Court  of  Queen's  Bench  that  an  action  on  the  case  lay. 

In  Deane  v.  Clayton,  where  the  plaintiff'  had  a  verdict  for  £15,  subject 
to  a  point  which  Dallas  J.  reserved,  on  the  authority  of  Toivnsend  v. 
Wathen,  the  Court  of  Queen's  Bench  was  divided  in  opinion  as  to 
whether,  if  plaintiff's  dog  started  off  the  unfe need  puMic  footpath  through 
defendant's  tvood,  and  ran  against  spikes  placed  in  the  hare-paths  {of 
which  due  notice  ivas  given),  the  plaintiff  was  entitled  to  compensation 
for  his  £50  pointer  if  he  chased  a  hare  and  was  killed.  ParTc  and 
Burrough  JJ.  held  that  he  was,  and  Gibbs  C.J.  and  Dallas  J.  that  he 
was  not.     The  Court  of  Exchequer  adopted  the  ruling  of  the  latter  two 


390  SPRING-GUNS. 

judges,  in  Jordin  v.  Crump.  The  questiou  here  was  whether  the 
plaintitf  was  entitled  to  compensation  for  the  death  of  or  an  injury 
done  to  his  dog,  who  by  reason  of  his  own  natural  instinct,  and  against 
the  will  of  his  master,  ran  off  the  path,  after  a  rabbit  which  crossed  it, 
against  certain  dog-spears,  which  were  set  by  the  defendant  in  his 
wood,  and  of  whicli  tlie  plaintitf  admitted  he  had  notice.  The  Court 
considered  that  this  was  a  stronger  case  than  Deane  v.  Clayton,  and  said 
that  if  a  man  chose  to  walk  with  his  dog  along  a  footpath  through 
ground  on  which  the  latter  might  commit  a  trespass,  he  knew  the  risk 
he  was  running. 

Per  Ahlerson  J.  :  "  Illoff  v.  Wilkes  was  decided  previously  to  the 
passing  of  the  7  &  8  Geo.  IV.  c.  18,  and  was  the  case  of  a  party  tres- 
passiny  in  a  wood,  ivith  notice  that  spriny-yuns  were  set  there ;  but  the 
Court  of  Queen's  Bench  held  that  he  was  not  entitled  to  recover  against 
the  owner  of  the  wood  for  damage  done  him  thereby,  it  having  been  his 
own  fault  to  go  where  spring-guns  were  set,  for  with  that  knowledge  on 
his  part  spring-guns  ceased  to  be  secret  engines  of  mischief.  The  case 
was  similar  to  that  of  a  trespasser  endeavouring  to  climb  a  wall,  who 
should  hurt  himself  by  coming  in  contact  in  the  dark  with  spikes,  or 
broken  glass  stuck  upon  it,  in  a  case  where  it  appeared  that  he  had  a 
previous  opportunity  of  observing  in  broad  daylight  that  such  means  of 
mischief  were  placed  on  the  wall.  The  otlier  was  the  case  of  Bird  v. 
Holbrooh,  which  was  decided  after  the  passing  of  the  statute  7  &  8 
Geo.  IV.  c.  18.  That  was  a  case  where  the  defendant,  for  the  protection 
of  his  propert}^  set  a  spriny-yim  in  a  walled  yarden,  not  only  without 
giving  notice,  but  where  it  appeared  by  tlie  evideuce  that  he  had  pur- 
posely abstained  from  giving  any,  in  order  that  the  thief  (as  he  said) 
miglit  be  detected.  The  plaintiff"  was  in  search  of  a  stray  pea-hen  ;  and 
liaving  trespassed  in  the  garden,  the  spring-gun  went  off,  and  injured 
him  severely.  On  this  the  Court  of  Common  Pleas  held  that  he  was 
entitled  to  maintain  an  action  against  the  defendant ;  but  the  reason  of 
this  decision  was  that  seiliny  spriny-yans  'without  a  notice  was,  even 
independently  of  the  statute,  an  unlawful  act.  The  correctness  of  this 
position  may  perhaps  be  questioned  ;  but  if  it  be  sound,  the  decision  in 
that  case  was  right.  Our  judgment,  however,  in  the  present  case 
proceeds  on  the  ground  that  to  set  dog-spears  in  this  wood  was  a  per- 
fectly legal  act  on  the  part  of  the  defendant."  The  setting  of  dog-spears 
is  not  in  itself  an  illegal  act,  nor  is  it  rendered  such  by  the  stat.  7  &  8 
Geo.  IV.  c.  18,  s.  1,  which  prohibits  the  setting  or  placing  of  man-traps 
or  other  engines  calculated  to  destroy  human  life,  or  inflict  grievous 
liodily  harm,  with  intent  that  or  whereby  the  same  may  destroy  human 
life  or  inflict  grievous  bodily  harm. 


DAMAGE    BY   GAME.  39J 

But  it  was  decided  by  the  Courts  of  Queen's  Bench  (where  a  rule  had 
been  moved  for  by  mistake)  and  Common  Pleas,  in  Wootton  v.  Dawkins, 
that  an  engine  intended  to  give  alarm  hy  loud  explosion  is  not  "  a  spring- 
gun  "  within  the  meaning  of  that  section,  and  that  a  trespasser,  though 
in  a  degree  injured  thereby,  cannot  recover  for  such  injury  at  common 
law ;  nor  in  the  absence  of  evidence  that  it  was  caused  by  a  spring-gun 
or  other  engine  "  calculated  to  inflict  grievous  bodily  harm,"  under  the 
statute.  Here  the  plaintiif,  having  obtained  permission  during  the 
daylight  to  go  into  the  defendant's  garden  to  look  for  a  lost  bantam, 
climbed  over  the  wall  into  it  by  a  ladder,  without  permission,  at  night ; 
and  whilst  groping  among  the  bushes,  came  in  contact  with  a  wire, 
which  caused  something,  the  nature  of  which  was  not  in  evidence,  to 
explode  with  a  loud  noise,  knocking  him  down  and  slightly  injuring  his 
face  and  eyes. 

In  Read  v.  Edwards,  34  L.  J.  (N.  S.)  C.  P.  31,  the  plaintiff  brought 
an  action  against  the  defendant  for  damages  sustained  by  him  in  respect 
of  a  dog  which  was  in  the  habit  of  hunting  game  in  plaintiff's  woods, 
and  thereby  causing  damage  to  the  plaintiff,  and  the  Court  held  that 
such  action  was  maintainable. 

In  the  case  of  Barlcer  v.  Davis,  the  appellant  shot  game  on  land 
which  he  occupied  as  tenant.    Before  the  commencement  of  the  tenancy, 
the  landlord  had  granted  the  right  of  shooting  to  a  Mr.  Garnett,  by 
deed.     The  tenant,  the  appellant  in  the  case,  was  summoned  and  con- 
victed before  justices,  on  the  evidence  of  Mr.  Garnett,  that  he  had  the 
exclusive  right  of  shooting  on  the  land  in  question,  that  he  preserved 
the  game,  and  had  given  no  permission  to  the  tenant  to  shoot.     It  was 
held  that  upon  this  evidence  the  justices  ought  not  to  have  convicted, 
as  there  was  not  sufficient  evidence  that  the  right  of  shooting  was  in 
Garnett,  without  the  production  of  the  deed  (34  L.  J.  (N.  S.)  M.  C.  141). 
In  the  case  of  Dawson  v.  Fitzgerald,  9  L.  R.  Ex.  7,  the  defendant  hired 
of  the  plaintiff  the  right  of  shooting  over  certain  lands  upon  the  terms, 
amongst  others,  that  the  defendant  during  his  tenancy  would  only  keep 
such  a  number  of  hares  and  rabbits  as  would  do  no  injury  to  the  woods 
or  plantations  on  the  estate,  or  the  growing  crops  of  the  tenants,  and  if 
such  damage  or  injury  did  result  to  the  crops  of  the  tenants  or  the  trees 
of  the  plaintiff,  then  the  defendant  should  pay  the  plaintiff  or  the 
tenants  a  fair  and  reasonable  compensation  for  such  injury.    It  appeared 
that  injury  was  done  to  the  trees  and  crops  ;  and  to  an  action  brought 
for  compensation  for  such  injury,  the  defendant  pleaded  that  "  one  of 
the  terms  of  the  tenancy  was,  that  in  case  of  any  such  injury,  the 
defendant  would  pay  a  fair  and  reasonable  compensation,  the  amount  of 
such  compensation,  in  case  of  difference,  to  be  referred  to  two  arbitra- 


392  PURSUIT    OF    GAME. 

tors  or  an  umpire  ;  that  a  difference  arose,  and  that  no  arbitrators  or 
umpire  were  appointed,  and  no  award  made."  Held,  on  demurrer,  that 
this  was  a  good  plea. 

To  sustain  an  indictment  under  the  9  Gpo.  IV.  c.  69,  s.  4,  it  must  be 
proved  that  proceedings  were  commenced  within  twelve  months  from 
the  time  of  the  offence,  and  the  warrant  under  which  the  prisoners 
are  apprehended  is  not  sufficient  evidence  :  the  information  also  must 
be  proved  (7?^y/.  v.  Parlm;  33  L.  J.  (N.  S.)  M.  C.  135). 

In  the  case  of  Jeffnjes  v.  Evans,  34  L.  J.  (N.  S.)  C.P.  261,  the  plaintiff 
hired  of  the  defendant  the  exclusive  right  of  "  shooting  and  sporting 
over  and  taking  the  game,  rabbits,  and  wild  fowl  upon  "  a  farm  of 
which  one  Rees  was  tenant,  the  defendant  having  in  his  lease  to  Rees 
reserved  this  exclusive  right  to  himself.  Rees  shot  a  quantity  of  rabbits 
and  grubbed  up  a  large  extent  of  gorse,  and  the  plaintiff  brought  an 
action  against  the  defendant  in  consequence  of  these  acts  of  Rees.  It 
was  held  that  Rees  had  no  right  to  shoot  the  rabbits,  and  that  his  act  was 
a  wrongful  one,  for  which  defendant  was  not  liable,  but  that  Rees  had 
a  right  to  grub  up  the  gorse  in  the  reasonable  course  of  husbandry,  and 
that  there  was  no  implied  covenant  with  the  plaintiff  that  this  should 
not  be  done,  and  that  defendant  was  therefore  not  liable  for  such  act  of 
Rees. 

A  person  who  has  a  right  of  shooting  over  land  the  property  of  ano- 
ther by  an  agreement  not  under  seal  has  not  such  an  interest  as  to 
entitle  him  to  compensation  from  a  railway  company  under  the  Lands 
Clauses  Consolidation  Act,  8  &  9  Vict  c.  18,  s.  68,  in  respect  of  the 
shooting  being  diminished  in  value  by  the  company  taking  a  portion 
of  such  land  for  the  purposes  of  constructing  a  railway  {Bird  v.  Great 
{Eastern  Railway  (34  L.  J.  (N.  S.)  C.  P.  366). 

Pursuit  of  game  under  25  &  26  Vict,  c.  1 14,  s.  2.  Under  the  2nd  section 
of  the  new  Game  Act,  empowering  constables  to  stop  and  search  persons 
suspected  of  poaching,  and  on  finding  game,  or  instruments  for  taking 
game  upon  them,  to  summon  them  before  justices,  the  justices  may  con- 
vict without  direct  proof  that  the  persons  charged  have  gone  upon  any 
land  in  pursuit  of  game,  circumstantial  evidence  that  they  must  have 
done  so  being  sufficient  {Broivn  &  Others  v.  Turner). 

In  order  to  justify  a  conviction  under  25  &  26  Vict.  c.  114,  s.  2,  it  is 
necessary  that  game  or  instruments  for  taking  game  should  be  found  on 
the  accused  on  a  highway  ;  it  is  not  sufficient  that  the  accused  should 
be  seen  on  a  highway  and  game  found  on  him  elsewhere  {Clarke  v. 
Crowder,  4  L.  R.  C.  P.  638  ;  see  also  Turner  v.  Morgan,  10  L.  R. 
C.  P.  587). 

In  Jenkins  &  Dennis  v.  Kinrj,  7  L.  R.  Q.  B.  478,  the  appellants  were 


APPREHENSION    UNDER    GAME    ACT.  393 

convicted  under  the  25  &  26  Vict  c.  114,  s.  2,  of  having  used  a  net  for 
unlawfully  taking  game  ;  they  were  met  at  about  half-past  nine  at  night 
on  the  highway  by  a  policeman,  one  of  the  appellants  had  a  game-net  under 
his  arm,  and  a  lurcher  dog  accompanied  them  ;  nothing  else  was  found 
upon  them,  but  the  net  was  wet,  and  the  policeman  had  shortly  before 
heard  the  yapping  of  a  dog  as  if  in  pursuit  of  game,  held  that  the  con- 
viction was  riffht. 


S94  VALUATION   OF   TITHES. 


CHAPTER    XII. 

TITHES. 

The  value  of  the  rent  charge,  charged  upon  any  land  in  lieu  of  tithes 
hy  the  apportionment,  is  reckoned  as  if  one-third  of  it  were  invested  in 
wheat,  one-third  in  barley,  and  one-third  in  oats,  at  certain  fixed  prices, 
which  were  declared  by  7  Will  IV.  and  1  Vict.  c.  69,  s.  7,  to  be  7s.  Oid. 
for  a  bushel  of  wheat,  3s.  ll^d.  for  a  bushel  of  barley,  and  2s.  9d.  for  a 
bushel  of  oats  ;  and  by  6  &  7  Will.  IV.  c.  71,  s.  56,  the  average  is  settled 
each  January  from  the  returns  of  the  seven  previous  years,  ending  on 
the  Thursday  next  before  the  preceding  Christmas-day.  The  sum  in 
question  is  payable  half-yearly,  and  issues  out  of  the  lands,  and  is  liable 
to  rates,  charges,  and  assessments  in  all  respects  as  tithes  were.  And  by 
14  &  15  Vict.  c.  25,  s.  4,  if  any  occupying  tenant  of  land  shall  quit, 
leaving  such  tithe  rent-charge  unpaid,  and  the  tithe-owner  shall  give  or 
have  given  notice  of  proceeding  by  distress  on  the  land  for  its  recovery, 
the  landlord  or  the  succeeding  tenant  or  occupier  may  pay  it,  and  re- 
cover the  sum  and  expenses  as  if  it  were  a  debt  by  simple  contract  due 
from  such  first-named  tenant  or  occupier. 

The  several  Acts  of  Parliament  for  the  commutation  of  tithes  in 
England  and  Wales  were  lately  extended  by  the  23  &  24  Vict.  c.  93. 
According  to  the  new  law,  corn  rents  under  local  acts  may  be  converted 
into  rent-charges,  which  rent-charges  are  to  be  appointed  by  the  com- 
missioners with  power  to  appeal  to  a  court  of  law.  Tithes  commuted 
for  a  sum  or  rate  per  head  of  cattle  may  be  converted  into  a  rent-charge. 
"  Whenever  a  sum  or  rate  per  head  sliall  be  in  arrear,  the  arrears  shall 
be  recoverable  by  distress  and  impounding  of  any  cattle,  stock,  goods,  or 
chattels  belonging  to  the  person  in  respect  of  whose  cattle  or  stock  such 
sum  or  rate  per  head  is  in  arrear,  wherever  the  same  may  be  found." 
The  commissioners  have  access  to  the  books  of  the  comptroller  of  corn 
returns,  and  are  to  be  iui'iiislied  by  him  with  such  information  as  they 
may  require  for  the  purpose  of  any  award  of  rent-charge  in  lieu  of 
com  rents. 

Twenty  yearn''  perception  nf  tithes  does  not  give  a  title  or  right  to  them  ; 


LIABILITY    OF    OWNER    OF    LAND.  395 

and  stat.  3  &  4  Will  TV.  c.  27  cannot  be  applied  to  the  case  of  tithes,  in 
the  same  way  as  it  has  been  held  to  operate  as  a  parliamentary  convey- 
ance of  land  {Bunhury  v.  Fuller). 

A  lequest  of  pnre  personalty  to  a  cJiarity,  the  object  of  which  is  the 
purchase  and  restoration  of  the  church  of  impropriate  tithes,  was  held 
by  the  Lords  Justices,  confirming  the  judgment  of  Sir  J.  Romilly  M.R. 
to  be  void  under  the  Mortmain  Act  (stat.  9  Oeo.  II.  c.  3G),  notwithstanding 
stat.  6  &  7  Vid.  c.  37,  s.  25,  and  stat.  13  &  14  Vict.  c.  94,  s.  23  {Denton 
V.  Lord  John  Planners). 

The  6  &  7  Will.  c.  71,  creates  no  personal  liability  iqwn  the  oivner  of 
lands  charged  with  the  tithe-rent.  In  Griffeiihoofe  v.  Daiibuz  the  de- 
claration alleged  that  the  plaintiff  was  tenant  of  a  farm  to  defendant  for 
a  term  of  years,  after  the  expiration  of  which  there  became  due  and 
payable  from  defendant  to  the  Ecclesiastical  Commissioners  money  in 
res|)ect  of  a  tithe  commutation  rent,  charged  on  the  farm  and  the  land, 
which  defendant,  as  owner  of  the  farm,  and  entitled  to  the  rents  and 
profits,  was  liable  to  have  paid,  and  ought  to  have  paid.  Defendant 
having  neglected  to  pay  it,  the  commissioners  distrained  for  it  a  stack 
of  wheat  of  plaintiflF  then  lawfully  on  the  farm  and  land,  and  afterwards 
sold  it,  and  defendant,  though  requested  had  not  indemnified  plaintifp. 
The  defendant  pleaded  that  he  was  not  liable  to  pay,  nor  ought  to  have 
paid,  and  it  was  held  by  the  Court  of  Queen's  Bench  that  the  issue 
ought  to  be  found  for  him,  as  stat.  6  &  7  Will.  IV.  c.  71,  s.  67,  provides 
that  nothing  in  the  statute  contained  shall  be  taken  to  render  any 
person  whatsoever  personally  liable  to  the  payment  of  any  such  rent- 
charge  ;  the  land  only  is  liable.  The  commutation  rent-charge,  as  thus 
settled,  is  simply  a  payment  issuing  out  of  the  land,  and  by  sec.  80  may 
be  deducted  from  the  rent.  The  plaintiff  had  covenanted  to  pay  such 
rent-charge,  and  here  endeavoured  to  charge  the  defendant  with  it  on 
the  ground  of  personal  liability,  which  is  not  created  by  the  act.  This 
judgment  was  affirmed  in  the  Exchequer  Chamber,  where  Taylor  v. 
Zamira  was  cited  for  the  defendant  as  an  authority  that  the  defendant 
was  bound  to  indemnify  him. 

The  intention  of  tJie  TitJie  Commutation  Acts  is,  that  the  lands  on  which 
the  cqij^ortiomnent  of  the  tithe  in  each  jKirish  is  cast,  and  these  lands  only, 
shall  be  liable  in  respect  of  the  tithe  payable  for  any  lands  in  the 
parish  ;  and  that  lands  on  which  no  apportionment  is  cast,  shall  not  be 
liable  to  tithe  ;  and  lands  which  on  the  agreement  and  apportionment 
under  the  Tithe  Commutation  Acts  (confirmed  by  the  Tithe  Commis- 
sioners) are  treated  as  ft-ee  from  tithe,  cannot  be  afterwards  made 
subject  to  it  {Walker  \.  Be nf ley).  A  lessee  of  tithes  is  liable  on  his 
covenant  to  pay  rent,  notwithstanding  the  tithes  have  been  commuted 


396       APrORTIONMEXT    OF    TITHES    BY    COMMISSIONERS. 

for  a  rent-charge,  his  remedy  being  by  the  surrender  of  his  lease  under 
the  88th  section  of  6  &  7  TT7//.  IV.  c.  71  {Taslcer  v.  Bidhnan). 

Where  there  is  evidence  that  a  vicarage  teas  endowed  with  small  tithes, 
the  vicar's  right  to  them  is  established  against  all  lands  in  the  parish, 
as  to  which  no  particular  discharge  is  proved,  although  no  small  tithes 
have  ever  been  paid  {Glee  v.  Hall).  By  the  common  law  the  rector  has 
a  right  to  all  such  tithes  as  the  vicar  is  not  proved  to  be  entitled  to,  and 
the  title  of  the  vicar  must  rest  either  on  direct  proof  of  an  endowment, 
or  on  an  endowment  to  be  inferred  by  prescription  or  usage  {Attorney- 
General  V.  Ward).  Tithes  of  beans  and  peas  have  been  held  to  be  com- 
prised in  the  description  of  tithes  of  corn  {ih.). 

AVhere  an  enclosure  act  enacted  that  it  should  be  lawful  for  the 
commissioner  to  apportion  the  rent-charge  in  lieu  of  tithes  upon  such 
portion,  as  he  should  think  fit,  of  the  lands  of  A.  B.,  the  Court  of  Queen's 
Bench  held  that  it  was  not  necessary  for  him  to  specify  in  his  award  the 
lands  on  ivliich  the  rent  teas  to  be  charged  (WiUoughby  v.  Willoughby). 
The  above  case  principally  governed  the  decision  of  the  Court  of 
Common  Pleas  in  S'ih'ester  v.  Bedford,  and  Bedford  v.  The  Warden  and 
/Society  of  Si' f  ton  Coldfeld.  By  a  local  enclosure  act  (5  Geo.  IV.  c.  14) 
tithes  were  abolished,  and  yearly  rents  imposed  in  lieu  thereof,  which 
yearly  rents  it  declared  should  be  charged  on  the  land,  and  should  be 
paid  at  the  rectory-house.  The  rector,  "  in  addition  to  all  present 
])Owers  for  recovery  of  tithes  and  compositions,"  was  to  have  "  the  same 
powers  and  remedies  for  recovering  the  said  yearly  rents,"  when  in 
arrear,  "  as  by  common  law  or  statute  are  provided  and  given  to  land- 
lords for  the  recovery  of  rack-rent."  Provision  was  made  for  the  ap- 
portionment of  the  rent-charge  in  case  of  the  division  of  the  lands, 
which  apportioned  part  was  "  to  be  recovered  from  the  lands  or  heredi- 
taments so  charged  therewith,  or  from  the  owners  thereof,  in  such  and 
the  same  manner  as  the  whole  of  the  yearly  corn  rents  "  were  thereby 
made  recoverable.  The  commissioner  was  to  determine  what  yearly 
sums,  according  to  the  aggregate  annual  amount,  were  equivalent  to 
the  tithes  of  each  proprietor's  old  enclosed  lands  within  the  parish, 
which  said  yearly  sums  were  to  be  charged  upon  the  old  enclosed  lands 
of  the  respective  proprietors  as  yearly  rents  payable  thereout.  The 
Court  of  Common  Pleas  held  firstly,  2^eT  totam  Curiam,  that  the  statute 
did  not  authorise  an  action  by  the  rector  against  the  owner  of  inclosed 
lands  in  his  parish  for  the  non-payment  of  such  rent-charge  ;  that  a 
distress  for  the  aggregate  amount  of  a  rent-charge  imposed  upon  lands 
acquired  before  and  subsequently  to  the  act,  was  illegal  ;  and  secondly 
{Coclcbnrn  C.J.  diss.)  that  a  distress  on  the  occujiier  for  the  amount  of 
the  whole  rent-charge  on  all  the  lands  in  the  parish  belonging  to  the 


PRINCIPLE    OF   APPORTIONMENT.  397 

same  proprietor,  though  comprising  lands  not  in  tlic  occupation  of  such 
occupier,  was  a  legal  one. 

The  -person  entitled  to  the  rent-charge  in  lieu  of  tithes,  who  distrams 
vnder  the  Tithe  Act,  6  &  7  Will.  IV.  c.  71,  s.  81,  is  not  entitled  to  in- 
demnity in  lieu  of  double  costs  under  5  &  6  Vict.  c.  97,  s.  2,  if  such 
person  avows  under  11  Geo.  II.  c.  19,  s.  22,  and  the  plaintiff  discon- 
tinues his  action  of  replevin  {Neumham  v.  Bever). 

The  princvple  upon  which  an  apportionment  should  he  made  was  con- 
sidered In  re  Appledore  Commutation,  where  the  valuer  made  an  ap- 
portionment which  was  objected  to  by  landowners  in  the  parish,  and 
such  objectors  were  heard  first  by  the  assistant  commissioners,  who  re- 
ceived evidence  for  and  against  the  objections,  and  then  by  the  Tithe 
Commissioners,  according  to  sec.  Gl.  The  tithes  of  corn  and  grain  in 
the  parish  of  Appledore  (part  of  which  was  woodland)  were  payable  to 
the  rector,  and  moduses  for  all  other  tithes  to  the  vicar,  and  a  rent- 
charge,  in  lieu  of  such  tithes  and  moduses,  had  been  awarded  under 
sec.  36  of  6  &  7  Will.  IV.  c.  71.  Sir  J.  E.  Honeywood,  a  landowner, 
held  ancient  pasture  land  of  the  Dean  and  Chapter  of  Canterbury,  by 
lease,  which  forbade  him  to  plough  the  land  without  their  licence  in 
writing,  for  which  he  had  never  applied  or  purposed  applying,  but 
lands  of  the  Dean  and  Chapter  within  the  same  district  had  been 
ploughed  within  living  memory.  The  valuer  in  apportioning  the  rent- 
charge  under  sees.  33  &  34,  upon  Sir  John  Honeywood's  pasture  lands, 
assessed  them  with  the  vicar's  rent-charge  according  to  the  modus,  and 
added  a  small  portion  of  rent-charge.  Is.  per  acre,  to  be  paid  to  the 
rector,  as  part  of  the  gross  rent-charge  awarded  to  him,  where  it 
seemed  that  the  productive  quality  of  the  land  admitted  of  its  being 
arable,  and  that  there  was  a  reasonable  probability  of  its  being  tilled  ; 
but  he  made  no  additional  assessment  on  the  woodland,  not  considering 
that  a  reasonable  probability  existed  of  that  land  becoming  arable.  The 
commissioners  confirmed  the  principle  of  the  apportionment,  and  the 
Court  of  Queen's  Bench  decided  that  a  prohibition  did  not  lie,  as  the 
possibility  of  the  land  reverting  to  a  different  state  of  culture  must  be 
taken  into  account  in  the  apportionment ;  and  the  commissioners  must 
make  the  best  average  they  can. 

The  onus  of  proving  tluit  the  land  is  hairen,  in  an  action  for  not 
setting  out  tithes,  is  on  the  defendant  {Lord  Selsea  v.  Potvell).  The 
seven  years  during  which  heath  or  waste  ground  which  has  lain  barren, 
and  paid  no  tithes  by  reason  of  the  barrenness,  but  which  is  afterwards 
improved  and  converted  into  arable  ground  or  meadow,  is  exempt  from 
tithe  by  2  &  3  EduK  VI.  c.  13,  s.  5,  begin  to  run  from  the  time  when 
some  act  has  been  done  to  make  the  land  more  productive  than  before 


398  EXEMrXTON    FROM    TITHE. 

(Ross  V.  Smill>).  In  Hi/lrJiins  v.  MavgMn,  cited  by  Eyre  O.B.  in  Jones 
y.  Le  David,  it  was  held  tbat  land  which  from  its  exposed  situation 
would  not  LTOW  corn  without  the  expense  of  erecting  stone  walls  to 
protect  it  from  the  severity  of  the  climate,  is  exempt.  Land  which  is 
of  a  good  natural  quality  is  not  to  be  considered  as  "barren"  withiu 
2  &  t  E(hi\  VI.  c.  13,  but  shall  pay  tithe  immediately,  although  the 
expense  attending  the  breaking  it  up  and  liming  it  exceeds  the  return 
made  to  the  farmer  in  the  several  first  years  of  cultivating  it  {Warwkk 
V.  Collins).  The  proper  test  of  barrenness  within  this  statute  is,  whether 
the  land  requires  extraordinary  expense  either  in  manure  or  labour  to 
bring  it  into  a  proper  state  of  culture  {Lord  Sehca  v.  Povdl. 

The  enjoyment  of  land  producing  titheable  matters,  without  payment 
of  tithe  for  the  period  prescribed  by  2  &  3  Will.  lY.  c.  100  (an  Act  for 
shortening  the  time  required  in  claims  of  modus  dmmandi,  or  exemp- 
tion fi-om  or  discharge  of  tithes),  if  adverse  and  as  of  right,  creates  a 
valid  and  indefeasible  exeynpfion  from  and  discharge  of  tithes.  But  the 
nonpayment  of  tithes  of  a  particular  thing  for  such  period,  in  respect  of 
lands  for  which  tithes  or  other  titheable  produce  have  been  paid  within 
the  statutable  period,  does  not  operate  as  an  exemption  from  the  pay- 
ment of  the  tithes  of  that  particular  thing  (SalMd  (clerk)  v.  Johnson). 
The  legislature  by  stat.  5  &  6  Will  IV.  c.  75,  did  away  with  the  dis- 
tinction in  regard  to  turnips,  expressly  providing  that  turnips  severed 
and  eaten  on  the  ground  should  be  titheable  in  the  same  manner  07ilg  as 
if  eaten  without  being  severed.  And  the  Court  of  Queen's  Bench 
decided  in  Fisher  v.  Burrel  that  milk  drawn  from  the  cow  by  hand, 
and  given  to  the  calf  before  it  becomes  titheable,  is  exempt  from  tithe, 
as  well  as  milk  sucked  by  the  calf. 

The  enactment  of  the  Tithe  Commutation  Amendment  Act  (9  &  10 
Vict.  c.  73,  s.  19),  that  everg  instrument  purporting  to  merge  any  tithes, 
and  made  with  the  consent  of  the  Tithe  Commissioners,  shall  be  abso- 
lutely confirmed  and  made  valid  both  at  law  and  in  equity  in  all 
respects,  is  not  limited  to  cases  in  which  the  person  executing  the 
instrument  has  a  title  to  the  tithe,  but  operates  as  well  where  such 
person  has  no  estate  in  the  tithe,  as  where  his  estate  is  insufficient  to 
effect  the  merger  {Walker  v.  Bentley).  The  intention  of  the  legislature 
was  to  preclude  all  questions  of  merger  of  tithe  in  all  cases  where 
declarations  of  merger  had  been  made  with  the  consent  of  the  Tithe 
Commissioners,  leaving  the  parties  affected  by  an  erroneous  declaration 
to  their  remedy  against  the  party  making  it ;  and  such  being  the  inten- 
tion, the  merger  is  effected,  although  the  sanction  of  the  commissioners 
has  been  erroneously  given  {ih.). 

A  commissioner  has  by  his  award  under  the  Tithe  Commutation  Act 


AWARD    BY    COMMISSIONERS.  399 

C  &  7  Will.  IV.  c.  71)  to  fix  tJir  amount  of  rent-charge  pnyalle  in  lieu  of 
tithe,  and,  for  that  purpose,  to  decide  upon  the  titheability  of  lands ; 
but  he  has  no  jurisdiction  to  decide  thereby  who  is  the  party  entitled 
to  receive  the  rent-charge  {Edwards  v.  Bunl)iiry).  And  on  a  feigned 
issue  under  sec.  46,  the  landowner  cannot  deny  that  the  lands  were 
subject  to  the  payment  of  tithe  to  B.,  for  the  purpose  of  raising  tlie 
question  of  title,  as  between  B.  and  a  third  party  {ih.). 

The  award  to  he  made  hy  Tithe  Commissioners  under  6  &  7  WilL  IV.  c. 
71,  is  for  the  purpose  only  of  settling  disputes  between  tithe-otvner  and 
land-owner,  and  not  of  deciding  questions  of  title  between  rival  claim- 
ants of  tithe.  Hence  where  tithes  of  agistment  were  claimed  by  both 
rector  and  vicar,  and  the  latter  called  upon  them  to  determine  such 
claims  before  making  their  award,  it  was  held  on  a  return  to  a  manda- 
mus that  the  commissioners  were  not  bound  so  to  determine,  the  difier- 
ence  not  being  one  within  sec.  45,  by  which  the  making  of  the  award 
was  hindered  ;  but  they  would  do  rightly  in  awarding  rent-charge  for 
the  tithes,  including  that  of  agistment,  to  the  parties  respectively  in 
possession,  leaving  them  to  litigate  the  title  subsequently,  as  they 
might  do  under  sect.  72,  notwithstanding  the  award,  and  that  no  state- 
ment appearing  as  to  the  receipt  of  agistment  tithe  by  any  party,  the 
commissioners  might  properly  consider  the  rector  as  the  person  in 
actual  possession  within  sect.  12  {Reg.  v.  Tithe  Commissioners).  TJie 
confirmed  atrard,  under  the  Tithe  Commutation  Acts  (6  &  7  Will.  IV. 
c.  71,  amended,  &c.,  by  7  117//.  IV.  and  1  Vid.  c.  69  ;  1  &  2  Vict.  c. 
64  ;  2  &  3  Vict.  c.  62  ;  and  5  &  6  Vict.  c.  54),  though  final  as  between 
the  tithe-owners  and  tithe-payers,  does  not  exclude  from  farther  inves- 
tigation a  case  between  the  tithe-owners  themselves,  in  which  there 
was,  before  the  award,  a  just  title  to  tithes,  which  by  accident  and 
mistake  was  not  brought  forward  until  after  the  award  was  made. 
Thus  where  by  an  award  made  with  the  concurrence  of  A.,  the  patron, 
the  whole  rent-charge  was  made  payable  to  B.,  the  rector,  A.  being  at 
the  time  entitled  to  one-half  of  the  corn  tithes,  but  ignorant  of  his 
rights,  he  was  held  entitled  to  relief  in  equity  as  against  B.  {Clarice  v. 
Yonge).  But  where  at  the  time  of  the  making  an  award  of  a  rent- 
charge  in  lieu  of  certain  tithes  under  the  act,  a  suit  in  equity  was 
pending  for  an  account  of  the  same  tithes,  in  which  the  question  was  as 
to  the  title  of  the  claimant  to  receive  the  tithes,  the  Court  of  Queen's 
Bench  held  that  the  validity  of  the  award  was  not  thereby  affected, 
such  suit  not  being  one  "  touching  the  right  to  any  tithes,"  and 
"  whereby  the  making  of  the  award  sliall  be  hindered,"  within  the 
meaning  of  the  45th  section  of  the  6  &  7  Will  IV.  c.  71  {Sliepherd  y. 
Marquis  of  Londonderry). 


400  DISPUTE    AS    TO    PARISH    BOUNDARY. 

Stat.  6  &  7  Will  IV.  c.  71,  s.  45,  empowering  the  Tithe  Commis- 
siouers  to  decide  any  question  touching  "  the  houmlary  of  anij  lands,'' 
does  not  authorize  thera  to  settle  by  their  award  a  dlspide  as  to  the 
houndanj  of  parishes  (In  re  YstradginJais  Commutation).  Nor  can  they 
do  so  imder  the  powei's  granted  by  stat.  7  Will  lY.  and  1  Vict  c.  69, 
B.  2,  even  at  the  request  of  two-thirds  in  value  of  the  landowners,  if  the 
boundary  of  the  parishes  be  also  a  boundary  between  counties  ;  for  by 
stat.  2  &  3  Vict.  c.  62,  s.  37,  this  and  the  two  prior  acts  are  incor- 
porated ;  and  sect.  34  of  stat.  2  &  3  Vict.  c.  62  forbids  the  coijimis- 
sioners  to  adjudicate  on  a  boundary  which  divides  counties  as  well  as 
parishes  (//>.).  And  quaere  whether  a  parochial  agreement  for  a  com- 
mutation rent-charge  can  legally  be  made  and  confirmed  under  stat. 
6  &  7  Will  IV.  c.  71,  ss.  17,  27,  &c,,  while  a  dispute  exists  as  to  the 
boundary  of  the  parish  (ih.).  The  award  of  an  Assistant  Tithe  Com- 
missioner, employed  to  settle  the  boundaries  of  a  township  on  request 
of  the  landowners,  under  7  Will.  IV.  and  1  Vict.  c.  69,  s.  2,  should 
state  the  district  to  be  one  of  which  the  tithes  are  "  to  he  commuted," 
and  the  request  to  have  been  signed  "  at  a  parochial  meeting  called  for 
that  purpose,"  "according  to  the  provisions  of"  stat.  6  &  7  Will.  IV. 
c.  71,  s.  17,  referred  to  by  7  Will.  IV.  and  1  Vict.  c.  69,  s.  2  (In  re  Dent 
Commutation).  An  award  under  the  latter  section  can  be  made  only 
where  the  tithes  are  "  to  be  commuted,"  and  there  is  no  jurisdiction 
under  it,  if  the  tithes  have  been  commuted  already  {ib.).  And  in  a  case 
under  it,  the  commissioners  may  ascertain  the  existing  boundary  of  a 
parish,  though  it  be  also  that  of  a  county,  or  of  a  copyhold  in  a  manor, 
the  lord  of  which  does  not  consent  to  the  inquiry  {ib.).  The  interpre- 
tation clause,  sec,  12  of  6  &  7  Will  IV.  c.  71,  with  which  7  Will  IV. 
and  1  Vict.  c.  69,  is  incorporated,  enacts  that  the  word  ''parish  "  shall 
include  "township  "  (ib.). 

By  stat.  2  &  3  Vict  c.  62,  s.  34,  which  defines  the  mode  of  proceeding 
to  ascertain  boimdaHes,  the  commissioners  are  empowered  "to  ascertain, 
adjust,  set-out,  and  define  the  ancient  boundaries,"  "or  draw  and  define 
a  new  line  of  boundary  as  they  may  see  fit "  ;  and  the  boundary  line  so 
ascertained  or  newly  defined  "  shall  thenceforward  be  the  boundary  line 
of  and  between  such  parishes."  Whether  they  ascertain  old  or  set  out 
new  boundaries,  the  word  "thenceforward"  applies  ;  and  the  reasonable 
construction  is,  that  the  award  in  this  respect  is  to  be  conclusive  from 
thenceforward  only,  leaving  past  transactions  and  the  state  of  things  on 
which  they  depended  to  be  ascertained  as  under  the  former  law  {Reg.  v. 
InJuiUtants  of  Madeley): 

An  award  by  the  Tithe  Commissioners  under  1  Vict  c.  69,  and  2  &  3 
Vict  c.  62,  as  to  IM  boundary  of  a  jmrish,  is  not  conclusive  as  to  ivhat 


ACTIONS    AGAINST    TITHE    COMMISSIONERS.  401 

was  the  'boundary  inior  to  the  time  when  the  award  was  made  {ll>.) ;  and 
see  7i(?a;  v.  St.  Mary,  Bury  St.  Edmunds.  A  dispute  as  to  the  title  to 
tithes  between  the  rector  and  the  yicar  is  not  "a  difference  whereby 
tlie  making  of  the  award  is  hindered  "  under  G  &  7  Will.  IV.,  c.  71, 
s.  45,  and  which  the  commissioners  are  bound  to  decide  before  making 
their  award  ;  and  an  award  of  a  rent-charqe  in  lieu  of  certain  tithes  to 
which  it  states  that  the  rector  is  entitled,  does  not  conclusively  vest  the 
title  to  those  tithes  in  the  rector,  and  the  vicar  may  notwithstanding 
try  his  right  to  the  substituted  rent-charge  {Reg.  v.  Titlie  Commissioners). 
Where  on  a  hearing  before  the  Assistant  Tithe  Commissioner,  appointed 
to  ascertain  the  amount  of  a  commutation  rent-charge,  under  statute  6 
&  7  Will.  lY.  c.  71,  a  landowner  denied  the  right  of  B.,  an  alleged 
tithe-owner,  to  rectorial  tithe  of  his  lands,  asserting  that  they  were 
tithe  free,  and  the  Assistant  Tithe  Commissioner  decided  that  B.  was 
owner  of  the  rectory,  and  as  rector  entitled  to  the  said  tithe — it  was 
held  by  the  Court  of  Queen's  Bench,  on  a  feigned  issue  under  section 
4C,  that  the  landowner  could  not  deny  that  the  lands  were  subject  to 
the  payment  of  tithe  to  B.  for  the  purpose  of  raising  the  question  as 
between  B.  and  a  third  party  (Edwards  v.  Banbury). 

As  to  actions  against  Tithe  Commissioners,  &c.,  under  6  &  7  Will.  IV. 
c.  71,  s.  94,  see  AcJcland  v.  Buller.  By  the  Tithe  Commutation  Act,  6 
&  7  Will.  IV.  c.  71,  s.  46,  any  person  claiming  an  interest  in  lands  or 
tithes  who  shall  be  dissatisfied  with  any  decision  of  the  commissioners 
(deciding  upon  an  amount  above  £20)  may,  within  three  months  after 
notice  to  him  of  the  decision,  bring  an  action  by  feigned  issue  to  dispute 
the  decision.  AVhere,  in  proceedings  before  a  Tithe  Commissioner 
under  6  &  7  Will.  IV.  c.  71,  s.  45,  several  moduses  are  set  up  in  res]3ect 
of  distinct  farms,  and  the  annual  value  of  the  payment  to  be  made 
in  respect  of  each  farm  is  less  than  £20,  his  decision  is  final  under 
section  46,  notwithstanding  the  whole  is  in  the  hands  of  the  same 
proprietor,  and  the  aggregate  yearly  value  exceeds  £20  {Tomlinson, 
clerk,  V.  Burgliey). 

The  yearly  value  of  the  payment  to  be  made  under  the  award  by  the 
individual  ap^pellant  must  exceed  £20,  to  entitle  Iiim  to  appeal  {Flanders 
V.  Bunbury  and  Matthews  v.  Leapingwell).  And  semble,  that  in  esti- 
mating such  value  he  is  not  entitled  to  take  into  account  lands  held  by 
him  as.  tenant  in  common  with  another  person  who  is  no  party  to  the 
appeal  {ib).  The  "  payment  to  be  made  or  withholden  according  to 
such  decision,"  is  the  difference  between  the  modus  claimed  aud  the 
asserted  value  of  the  tithes  in  kind,  payable  under  the  award  {ib.) 
Reputation  is  not  admissible  evidence  of  a  farm  modus  {Pritchett  v. 
Honeybourne).     And  in  an  action   by  a  rector  for  tithes,  where  the 


402  PROPER    FARM    MODUS. 

question  is,  whether  a  modus  exists  of  a  certain  sum  of  money  for  a 
particular  farm  in  a  township  within  the  parish,  the  plaintiff  may 
inquire  whether  other  farms  in  the  same  township  are  not  subject  to 
the  same  payment  for  the  purpose  of  showing  that  such  payments  can- 
not be  a  farm  modus  {BlundcU  v.  Howard). 

A  modus  and  its  incidents  were  thus  described  by  KindersUy  V.C., 
in  Clmpneys  x.  Buchan  :  "  A  proper  farm  modus  is  a  7nodus  payable  in 
lieu  of  the  tithes  in  kind  of  a  particular  parcel  of  ground.  A  modus 
decimandi  properly  means  a  particular  mode  or  manner  of  tithing,  which 
custom  or  prescription  has  substituted  for  the  ordinary  common  law 
mode  of  rendering  tithes  in  kind.  A  modus,  indeed,  can  only  exist  by 
virtue  of  a  custom  or  prescription  ;  but  it  is  a  custom  not  creating,  but 
modifying  and  altering,  the  original  common  law  liability  to  pay  tithe. 
AVhenever  there  is  a  valid  inodus,  the  law  presumes  that  at  some  period 
before  the  time  of  legal  memory  tithes  were  payable  in  kind  in  the 
ordinary  common  law  manner,  and  that  by  some  ancient  composition, 
or  agreement,  or  practice,  dating  before  the  time  of  legal  memory,  some 
other  manner  of  tithing  became  substituted  for  it,  which  was  at  the 
time  a  fair  and  reasonable  equivalent  for  the  tithe  payable  by  the  com- 
mon law.  The  modus  does  not  create  the  liability  to  tithe,  so  as  that  if 
there  were  no  modus  there  would  be  no  liability  to  tithe  ;  on  the  con- 
trary, the  existence  of  a  modus  pre-supposes  the  original  liability  to 
tithe  ;  so  that  if  there  were  no  modus,  tithes  would  be  payable  in  kind, 
according  to  the  common  law.  The  term  modus  decimandi  is  therefore 
properly  applicable  to  those  things  only  which  are  titheable  at  common 
law,  and  not  to  things  which  de  communi  jure  are  not  hable  to  tithe  at 
all.  Whenever  tithe  is  payal)le  for  a  thing  which  de  communi  jure  is 
not  liable  to  tithe,  this  can  only  be  by  virtue  of  a  special  custom  which 
creates  the  original  liabihty  to  tithe  ;  so  that,  if  there  were  no  custom, 
there  could  be  no  liability  to  tithe.  And  the  same  custom  which 
creates  the  liability  to  tithe  must  also  prescribe  what  is  payable  for  the 
tithe,  and  how  its  amount  is  to  be  ascertained,  and  in  what  manner  the 
tithe  is  to  be  rendered  or  paid." 

If  the  incumhent  against  whom  an  award  is  made  in  favour  of  a  modus 
dies  within  the  three  months,  having  had  notice  in  writing  of  the  decision 
without  having  brought  an  action  to  dispute  it,  his  successor  cannot 
do  so  after  the  three  months  have  expired  ;  and  if  he  does,  the  Court 
will  set  the  proceedings  aside  on  motion  {Homfray,  clerk,  v.  Scrope). 
A  claim  of  modus  decimandi  from  time  immemorial  may  be  pleaded,  not- 
withstanding the  statute  2  &  3  Will.  IV.  c.  100,  and  may  be  proved  by 
the  same  evidence  as  would  have  been  sufficient  before  the  statute  ;  but 
Buch  claim  will  be  liable  to  be  defeated  by  showing  payment  of  tithes 


ACTION    FOR    TREBLE    VALUE    OF    TITHES.  403 

in  kind  at  any  time  within  leg^al  memory  {Earl  of  Stamford  v.  Danhar) 
Where  a  sum  of  money  has  been  expressly  paid  and  received  during  the 
whole  statutable  period  mentioned  in  2  &  3  Will.  IV.  c.  100,  s.  1,  as  a 
modus  or  composition  for  the  tithe  only,  such  payment  renders  the 
modus  valid  and  indefeasible,  although  the  abandonment  by  the  rector 
of  certain  rights  of  common  originally  formed  part  of  the  consideration 
for  the  payment  ifToymbee  v.  Broiun). 

In  order  to  take  the  payment  of  a  modus  for  the  statutable  period  out  of 
the  operation  of  this  section,  by  virtue  of  the  concluding  part  of  it,  it 
must  be  made  by  a  consent  or  agreement  in  writing  for  the  payment  of 
that  very  modus,  during  all  or  some  part  of  that  time,  and  that  by  a 
person  who  could  otherwise  have  objected  to  the  payment  ;  for  by  the 
words  of  the  statute,  the  payment  for  the  statutable  period  must  be 
made  by  consent  in  writiny  expressly  yiven  for  that  purpose  {ih). 

It  was  held  by  the  Exchequer  Chamber,  in  Barker  v.  The  Tithe  Com- 
missioners confirming  the  judgment  of  the  Court  of  Exchequer,  that 
where  a  claim  of  a  modus  or  other  exemption  from  tithe  is  preferred 
before  the  Tithe  Commissioners,  under  6  &  7  Will.  lY.  c.  71,  who  de- 
cide against  the  claim  set  up,  the  party  is  not  precluded  from  setting  up 
another  clai7u  to  a  different  modus  on  the  same  lands,  unless  the  commis- 
sioners have  made  their  final  award  under  the  act,  even  though  a  feigned 
issue  delivered  under  the  46th  section  be  pending  to  try  the  validity  of 
the  first  modus. 

In  an  action  of  debt  on  2  &  3  Edw.  VI.  c.  13,  s.  1,  for  treble  value  of 
tithes  carried  away  before  setting  out  the  same,  the  defendant  should  not 
plead  several  pleas  of  nil  debet  by  statute  as  to  several  parts  of  the  lands 
on  which  the  titheable  matters  were  produced,  but  should  plead  one 
plea  of  nil  debet  by  the  statute  to  the  whole  (Graburn  v.  Brown).  And 
he  will  be  obliged  to  give  a  particular  of  all  grounds  of  exemption,  modus, 
&c.,  intended  to  be  insisted  on  at  the  trial  {ib.).  Statute  5  &  6  Will.  IV. 
c.  74,  s.  1,  extends  to  the  prohibition  of  actions  of  debt  for  treble  value 
under  2  &  3  Edw.  VI.  c.  13,  s.  1,  for  not  setting  out  tithes  where  the 
annual  value  is  less  than  £10  {Peyton  v.  Watson).  As  the  account  for 
tithes  is  merely  incidental  to  the  rector's  legal  title,  a  court  of  equity 
cannot  interpose  in  his  favour  until  he  has  established  his  right  at  law 
{3Iarquis  of  Waterford,  appel.  v.  Knight,  clerk,  respt.).  A  court  of 
equity  will  compel  discovery  and  production  of  documents  in  aid  of  pro- 
ceedings at  law  to  try  a  disputed  right  under  the  Tithe  Commutation 
Act,  notwithstanding  special  pi'ovisions  are  contained  in  that  act  for 
those  purposes  {Morris  v.  Diike  of  Norfolk).  A  defendant  is  entitled  to 
judgment,  as  in  case  of  a  nonsuit,  where  the  plaintiff  has  allowed  two 
assizes  to  elapse  without  proceeding  to  trial,  after  issue  joined  on  a 

D  D   2 


404  DISQUALIFICATION    BY    INTEEEST   IN    VALUER. 

feigned  issue,  under  the  Tithe  Commutation  Act,  6  &  7  Will  IV.  c.  71, 
s.  46  {S(Oidi/s  V.  Maijor,  Ar.,  of  Bevrrhi/).  Error  does  not  lie  on  a  judg- 
ment of  a  superior  court  upon  a  feigned  issue  brought  under  such 
section  (Thorpe  v.  Ploirdcn).  Since  5  &  6  Will.  IV.  c.  74,  if  any  tithe, 
oblation,  or  composition  not  excepted  in  7  &  8  Will.  III.  c.  G,  or  exceed- 
ing £10  yearly  value,  due  from  any  one  person,  is  in  arrear,  it  must  be 
proceeded  for  before  two  justices.  And  if  the  title  of  the  claimant,  or 
liability  of  the  party  sought  to  be  charged  is  undisputed,  two  years' 
arrears  may  be  there  recovered  ;  whereas,  if  such  title  or  liability  is 
denied  viva  voce  before  the  justices,  or  at  any  time  in  wi'iting,  the 
claimant  may  proceed  by  suit  in  equity,  and  recover  six  years'  arrears 
{Robinson,  clerk,  v.  Purdajj). 

Expenses  incurred  by  the  emploijmejit  of  mi  attorney  by  the  landoivners 
of  a  parish  to  conduct  the  proceedings  toivards  a  commutation  of  the  tithes 
of  the  parish,  under  6  &  7  Will.  IV.  c.  71,  are  not  "expenses  of  or  in- 
cident to  making  the  apportionment"  within  the  75th  section  of  that 
act,  and  the  attorney  may  therefore  recover  the  amount  of  his  bill  for 
such  services  in  an  action  against  the  landowners  who  were  parties  to 
employing  him  {Ilinchcliffe  v.  Armistead,  clerk). 

Disqualification  by  interest  in  a  valuer  was  the  subject  of  The  Lan- 
caster and  Carlisle  Railway  Company  v.  Heaton.  Here,  under  a  local 
tithe  commutation  act  (5  Geo.  IV.  c.  28),  on  application  made  to  the 
quarter  sessions,  that  court  was  to  appoint  "  one  or  more  fit  and  proper 
])ersons  not  interested  in  the  said  tithes  or  dues"  to  value  the  lands  in 
a  certain  township,  with  a  view  to  the  apportionment  between  different 
landowners  of  the  corn  rent-charge  substituted  in  lieu  of  the  vicarial 
titlies  ;  and  the  sessions  ap]5ointed  as  valuer  a  shareholder  in  a  railway 
which  passed  through  the  township  in  question.  No  steps  were  taken 
to  set  aside  the  order  of  sessions  ;  but  afterwards  the  collection  of  the 
rent-charge,  as  assessed  on  the  valuation,  was  resisted.  The  Court  of 
Queen's  Bench  held,  in  an  action  of  replevin,  that  even  if  the  valuer  ap- 
pointed was  an  interested  person  within  the  meaning  of  the  local  act, 
the  sessions  had  jurisdiction  to  make  the  appointment,  and  that,  at  all 
events,  the  validity  of  that  order  could  not  be  questioned  in  that  way  ; 
but  semble,  that  he  was  not  disqualified  by  interest. 

And  where  the  person  appointed  to  act  as  tithe  valuer  was  required 
before  acting  to  take  and  subscribe  an  oath  in  the  words  following  : — 
"  I,  A.  B.,  do  sicear  faithfully  to  execute  the  powers,  dr.,  so  help  me  God," 
it  was  held  by  the  Court  of  Queen's  Bench  that  a  person  who  had  sub- 
scribed an  oath  in  which  the  words  "  So  help  me  God"  were  admitted, 
had  substantially  complied  with  the  statute  (ib.). 

It  was  decided  by  the  Court  of  Queen's  Bench,  in  Rey.  v.  GoodcMld 


ASSESSMENT    OF    TITHES.  405 

and  Pif.g.  v.  Lamb  {Coleridge  J.  diss.),  that  in  assessing  a  mnmutation 
rent-charge  of  a  benefice  to  the  poor' s-rafe,  dednctions,  are  to  be  allowed 
in  respect  of  the  expenses  of  collection,  including  law  expenses,  and 
losses  by  ultimate  non-payment ;  but  no  allowance  is  to  be  made  for  the 
personal  services  of  the  incumbent,  in  discharging  the  duties  of  his 
cure.  The  principle  of  such  assessment  is,  that  the  rent-charge  is  to  be 
assessed,  like  all  other  property,  according  to  what  it  might  be  reason- 
ably expected  to  let  for  from  year  to  year  ;  but  beyond  allowances  for 
the  expenses  of  collection,  law  expenses,  and  bad  debts,  a  deduction  by 
way  of  tenant's  profits  is  not  necessarily  to  be  made.  The  poor's-rate  is 
to  be  deducted,  and  this  though  the  composition,  before  commutation, 
had  been  calculated  on  the  principle  of  being  paid  free  from  poor's-rate, 
and  the  rent-charge  had  been  fixed  with  an  addition  in  respect  of  this 
circumstance.  Tenants'  property-tax  is  to  be  deducted,  but  not  land- 
lord's property-tax  or  land  tax.  First-fruits  and  tenths  (and  other  eccle- 
siastical dues,  if  any,  of  the  same  character)  are  to  be  deducted  in  the 
proportion  which  the  rent-charge  bears  to  the  whole  amii proventus  of 
the  living.  An  allowance  is  also  to  be  made  of  any  sum  contributed  by 
the  incumbent  towards  a  district  chapel  in  the  parish,  if  not  a  mere 
voluntary  contribution  ;  and  a  reasonable  allowance  is  also  to  be  made 
for  the  curate's  stipend,  where  the  curate  is  not  employed  as  the  mere 
substitute  of  the  incumbent,  but  is  required  by  law,  in  addition  to  the 
incumbent  from  the  population  or  value  of  the  living,  or  where,  if  not 
required  by  law,  the  wants  of  the  parish  make  his  services  necessary  in 
addition  to  those  of  the  incumbent  properly  discharged. 

Thejioiccr  given  by  stat.  1  &  2  Will  IV.  c.  45,  s.  21,  /o  annex  apart 
of  the  tithes  or  oilier  annual  revenues  belonging  to  a  rectory  or  vicarage 
to  a  district  church  within  the  parish,  authorises  the  annexation  of  part 
of  an  annual  payment  in  lieu  of  tithes  {Hughes  v.  Denton)  ;  and 
although  by  19  &  20  Vict.  c.  104,  s.  14,  certain  districts  are  made 
separate  parishes  for  ecclesiastical  purposes,  they  still  remain  districts 
only  for  other  purposes  ;  so  that  a  district  to  which  this  section  is  ap- 
plicable, is  still  capable  of  receiving,  as  such,  an  annexation  of  a  portion 
of  the  annual  revenues  of  the  principal  church,  under  stat.  1  &  2  Will. 
lY.  c.  45,  s.  21  {ib.). 

Eent-charge  on  hops.— Viider  the  Tithe  Commutation  Act,  after  a 
commutation  of  the  tithes  of  a  parish,  an  allotment  being  made  under 
an  inclosure  act  "  of  common  and  waste  land,"  and  part  of  the  land  so 
enclosed  being  turned  into  a  hop-ground,  it  was  held  by  Cockburn  C.J., 
Blackburn  J.,  and  Mellor  J.,  that  as  the  tithe  on  the  land  in  question 
had  been  extinguished,  it  had  been  commuted,  and  that  it  was  not 
material  that  it  had  never  been  tithed,  for  it  was  titheable,  and  the 


406  JURISDICTION    OF    COMMISSIONER. 

commutation  was  in  respect  of  liability  to  tithe,  not  of  actual  payment 
of  tithes,  and  therefore  they  gave  judj^ment  for  the  defendant.  Bnt  per 
Wighiman  J.,  there  was  no  commutation  of  tithes  in  respect  of  this  land, 
there  being,  in  fact,  nothing  to  commute,  tithes  having  never  been  paid 
in  respect  thereof  {Trimmer  v.  Walsh). 

Liahilitij  of  r en f -charge  to  poor-rates. — The  incumbent  of  a  district 
parish,  created  under  the  New  Parishes  Acts,  1843  and  185G,  is  not 
liable  to  poor-rates,  in  respect  of  a  yearly  rent-charge,  payable  out  of 
the  tithe  rent-charge  of  one  of  the  parishes  out  of  which  the  district 
parish  is  created  (Beg.  on  jjrosecufion  of  Tollcshunt  Knights,  resps.  v. 
Hev.  W.  H.  Friend,  appt.). 

A  commutation  tithe  rent-charge  is  liable  to  a  general  rate  and 
lighting-rate  levied  under  Metropolitan  Act  (18  &  19  Vict.  c.  120,  s. 
161).  Semble  that  a  commutation  tithe  rent-charge  is  not  liable  by  law 
to  contribute  to  a  sewers  rate  (Reg.  v.  Goodchild  and  Lamb). 

Grantee  of  rent-charge  liable  for  mcome-tax. — The  grantee  of  a  rent- 
charge  is  the  person  bound  to  pay  the  income-tax  due  upon  such 
rent-charge  (Festing  v.  Taylor). 

Jurisdiction  of  commissioner. — By  a  private  Act  of  Parliament  passed 
in  1762,  for  carrying  into  eflFect  an  agreement  between  the  landowner 
and  rector  for  the  commutation  of  tithes  on  certain  lands  in  the  parish 
of  W.,  it  was  declared  that  certain  rents  therein  specified  should  be 
vested  in  the  rector,  in  lieu  of  and  as  full  compensation  for  all  tithes  of 
corn,  grain,  hay,  wool,  lambs,  and  all  other  tithes  whatsoever,  except  as 
after  mentioned,  arising  from  all  or  any  of  the  lands  in  the  said  parish, 
save  and  except  marriage,  churching,  and  burial-fees,  "  providing  that 
nothing  in  the  act  should  prejudice  the  right  of  the  said  rector  or  his 
successors  to  any  marriage,  churching,  or  burial-fees,  nor  the  right  or 
tithe  and  customary  stocking"  in  certain  specified  lands,  "the  modus  in 
the  groves  and  ancient  closes  adjoining  to  the  town,  and  all  other  petty 
and  personal  tithes  not  herein  mentioned  and  relinquished,  all  which  the 
said  rector  reserves,  and  they  are  hereby  reserved  to  him  and  his  suc- 
cessors in  full  right  and  in  as  ample  manner  as  they  have  always  been 
enjoyed.  The  assistant  tithe  commissioners  having  decided  that  the 
said  lauds  called  "  ancient  closes  "  were  not  exempt  from  tithes  ;  it  was 
held  on  motion  for  a  prohibition,  that  the  tithes  of  the  "  ancient  closes  " 
were  not  commuted  or  extinguished  by  the  private  act  of  1762,  and 
therefore  the  jurisdiction  of  the  commissioners  was  not  taken  away  by 
sec.  90  of  the  Tithe  Commutation  Act,  6  &  7  Will.  IV.  c.  71.  Semble 
that  even  if  the  tithes  of  wool  and  lamb  were  not  included  in  the  modus 
reserved  to  the  rector,  and  were  therefore  extinguished  by  the  act  of 
1762,  such  practical  extinguishment  of  tithes  arising  out  of  the  lands 


EATING    OF    TITHE    RENT-CHARGE.  407 

would  not  satisfy  section  90,  so  as  to  deprive  the  conimmissioners  of 
jurisdiction  {Re  Wmtringham  Tithes  ex  park  Lord  Carrington). 

^' Outgoings''  include  land-tax  and  commutation  rent-charge. — On  tlie 
construction  of  an  agreement  between  landlord  and  tenant  for  the 
lease  of  a  farm  for  a  term  of  years  at  a  yearly  rent  of  £40,  payable 
quarterly,  *'  free  of  all  outgoings."  It  was  held  by  Stuart  Y.C.  that 
the  word  "outgoings"  did  not  include  the  land-tax  and  tithe  commu- 
tation rent-charge.  The  decision  was  reversed  by  Lord  Chancellor 
Campbell,  who  observed :  "  Mr.  Hobhouse,  for  the  plaintiflF,  mainly 
relied  upon  Cranston  v.  Clarke  (Sayer  78),  but  this  authority  was  out- 
Aveighed  by  the  other  authorities  which  had  been  cited,  particularly 
Bradlury  v.  ^YrigM  (2  Doug.  624),  and  Bennett  v.  Womeclc  (7  B.  &  C. 
629,  and  6  L.  J.  (N.  S.)  Q.  B.  175).  The  certificate  must,  therefore, 
be  varied  by  making  the  rent  payable  free  of  land-tax  and  tithe  com- 
mutation rent-charge  {Parish  v.  Sleemcm). 

Occupier  of  titlw  rent-charge  compelled  or  voluntarUg  appointing  curate 
may  deduct  salary  from  rateable  value  of  rent-charge.  —  Where  two 
parishes,  each  separately  supporting  its  own  poor,  and  having  each  its 
own  church,  have  been  immemorially  united  as  one  ecclesiastical  bene- 
fice, and  in  order  to  the  due  performance  of  the  clerical  duties  of  his  two 
parishes  the  incumbent  necessarily  requires  tlie  assistance  of  a  curate — 
in  assessing  his  tithe  commutation  rent-charge  in  one  of  the  parishes  to 
the  poor-rate  the  incumbent  is  entitled  to  a  deduction  in  respect  of  the 
salary  which  he  pays  to  the  curate.  The  Court  thought  that  the  case 
was  not  distinguishable  from  Reg.  v.  Goodchild  (1  El.  B.  &  E.  1,  &  27 
L.  J.  (IST.  S.)  M.  C.  233),  which  decides  that  if  a  rector  being  entitled  to 
a  tithe  rent-charge  is  assessed  to  the  poor-rate  as  occupier  of  the  rent- 
charge,  and  if  he  can  be  compelled  to  appoint  a  curate,  or  if  acting 
under  a  proper  sense  of  religious  duty  he  voluntarily  appoints  a  curate, 
the  salary  of  the  curate  ought  to  be  deducted  in  estimating  the  rateable 
value  of  the  rent-charge;  the  distinction  put  being  such  a  case,  in 
which  "  the  incumbent  is  non-resident,  or,  being  resident,  from  sickness, 
infirmity,  or  any  less  creditable  cause,"  employs  a  curate  to  perform  his 
duty.  That  decision,  therefore,  decides  the  present  case  in  favour  of  the 
appellant.  It  is  conceded  that  the  bishop  could  interfere  and  compel 
the  appointment  of  a  curate ;  and  even  were  it  not  so,  it  cannot  be  dis- 
puted that,  owing  to  the  area  of  the  two  parishes,  it  is  impossible  that 
the  proper  number  of  services  could  be  performed  by  the  incumbent 
without  assistance ;  and  therefore  the  case  comes  within  one  or  other  of 
the  alternatives  in  which,  according  to  Reg.  v.  Goodchild,  the  curate's 
salary  ought  to  be  deducted  {Williams,  appt.  v.  Overseers  of  Llangeinwen 
resps.). 


40  S  LESSEE    OF    TITHE    RENT-CHARGE. 

Perpetual  payment  to  inruml)cnt  of  new  district  not  to  he  deducted  in 
assessififf  tithe  rent-charge  to  poor-rate. — The  rector  of  a  parish,  who 
pursuant  to  the  statutes  in  that  behalf,  has  charged  the  tithe  rent- 
charge  with  the  perpetual  payment  of  an  annual  sum  towards  the 
stipend  of  the  incumbent  for  the  time  being  of  a  new  ecclesiastical  dis- 
trict, formed,  under  the  statutes,  of  part  of  the  parish,  is  not  entitled  to 
have  the  sum  so  charged  deducted  in  assessing  the  tithe  rent-charge  to 
the  poor-rate. 

And  /w  Curiam :  "  It  is  true  that  it  has  been  held  in  the  case  of  Reg. 
V.  Goodchitd  that  an  incumbent  entitled  to  rent-charge,  who  employs  a 
curate  either  because  he  is  compellable  by  the  bishop  to  do  so,  or 
because  the  magnitude  of  the  case  properly  requires  it,  is  entitled  to 
have  the  stipend  of  such  curate  deducted  from  the  assessable  value  of 
the  tithe  rent-charge.  But  we  are  of  opinion  (as  indeed  we  intimated 
in  the  recent  case  of  WlieeJer,  appt.  v.  Overseers  of  Burmington  (31  L.  J 
(N.  S.)  M.  C.  57)  that  the  principle  of  the  decision  in  Reg.  v.  Goodchitd 
ought  to  be  carried  no  further.  We  think  it  ought  not  to  be  applied  to 
a  case  where  the  owner  of  the  tithe  rent-charge  voluntarily  parts  with 
a  portion  by  creating  a  rent-charge  on  it  to  endow  another  minister. 
Certain  lands  in  the  parishes  of  Long  Bevington  and  Foston  in  the 
county  of  Lincoln  were  enclosed  under  a  local  act,  and  the  commis- 
sioners allotted  certain  lands  to  the  rector,  which  were  subject  to  a 
corn-rent  payable  to  the  vicar  "  clear  of  all  parochial  taxes,  rates,  dues, 
and  assessments  whatever : "  it  was  held  by  the  Court  of  Common  Pleas 
that  the  occupiers  of  the  land  charged  with  the  payment  of  the  corn- 
rent,  were  not  entitled  to  have  the  amount  of  such  corn-rent  deducted 
in  estimating  the  net  annual  value  of  their  property,  liable  to  the  poor 
rate  under  24  &  25  Vict.  c.  103,  s.  15.  {HackettY.  the  Churchwardens 
and  Overseers  of  Long  Bevington,  33  L.  J.  (N.  S.)  M.  C.  137.  Laurence, 
appt.  V.  Overseers  of  Totteshnnt  Knights,  reeps.). 

Lessee  of  tithe  rent-charge  not  entitled  to  deduct  stipend  to  curate. — 
The  lay  impropriators  of  the  tithes  of  the  parish  of  B.  granted  a  lease  of 
their  tithe  rent-charge,  at  a  nominal  rent,  to  the  appellant  for  twenty- 
one  years,  if  he  should  so  long  remain  the  vicar  of  the  adjoining  parish 
of  W.,  he  covenanting  to  serve  the  cure  of  B.  either  by  himself  or  a 
curate.  In  order  to  the  proper  discharge  of  the  duties  of  the  two 
parishes,  it  was  necessary  to  employ  a  curate  for  B.,  and  it  was  held  that 
in  assessing  the  ajjpellant  to  the  poor-rate  of  B.,  as  occupier  of  the  tithe 
rent-charge,  he  was  not  entitled  to  any  deduction  in  respect  of  the 
stipend  which  he  paid  the  curate.  And  per  BlacJrburn  J. :  *'  If  the  facts 
were  that  the  parishes  of  Wolford  and  Burmington  were  one  benefice, 
and  that  Mr.  Wheeler  was  compelled  to  employ  a  curate  to  assist  him 


ASSESSMENT    OF    OCCUPIER   OF   TITHE    RENT-CHARGE.      409 

in  the  proper  discbarge  of  the  duties  of  the  two  churches,  then  he  could 
claim  exemption  within  the  principle  laid  down  in  Reg.  v.  Goodchild 
(1  E.  B.  &  E.  1,  and  27  L.  J.  (N.  S.)  M.  C.  233).  But  on  the  facts  as 
they  appear  in  the  case,  the  tithes  or  tithe  rent-charge  of  Burmington 
are  held  by  Mr.  Wheeler,  not  as  having  been  instituted  to  the  vicarage 
of  Wolford,  but  because  he  has  become  lessee  of  them  from  Merton 
College.  He  has  become  lessee,  and  he  pays  rent  in  services  instead  of 
money.  If  he  paid  in  money,  he  could  not  deduct  the  amount.  It  is 
enough  to  say  that  this  is  the  case  of  a  lessee  of  a  tithe  rent-charge,  and 
not  at  all  a  case  to  which  Reg.  v.  Goodchild  applies  ( Wheeler,  appt.  v. 
Overseers  of  Burmington,  resps.). 

Assessment  of  occiqner  of  tithe  rent-charge. — The  Archbishop  of  Can- 
terbury, being  owner  of  the  impropriate  rectory  and  tithe  rent-charge 
of  the  parish  of  H.,  and  of  a  piece  of  land  thereunto  appertaining, 
granted  (under  the  Augmentation  Acts  29  Car.  11.  c.  8,  and  1  e<e;  2  Will. 
TV.  c.  45)  to  the  perpetual  curate  for  the  time  being  of  an  annual  rent 
of  £40,  to  be  charged  upon  and  yearly  issuing  out  of  the  said  rectory, 
tithe  rent-charge  and  land ;  and  he  afterwards  leased  the  same  to  C  for 
21  years,  G.  yielding  and  paying  yearly  to  the  archbishop  £9  IS^.,  and 
also  £6  16s.  for  redeemed  land-tax,  and  to  the  perpetual  curate  for  the 
time  being  of  T.  the  said  sum  of  £40.  It  was  held  that,  in  assessing  Gr. 
to  the  poor-rate  of  H.,  as  occupier  of  the  tithe  rent-charge,  G.  was  not 
entitled  to  any  deduction  in  respect  of  the  yearly  payment  of  £40,  such 
payment  being  so  much  rent  paid  for  his  occupation  of  the  tithe  rent- 
charge,  and  not  a  charge  upon  him  as  occupying  tenant,  nor  so  much 
tithe  rent- charge  withdrawn  from  his  occiipatiou.  And  per  Blaclchurn  J  : 
"  The  j)erson  rated  ought  to  be  rated  according  to  the  value  of  the  rate- 
able property  which  he  occupies,  and  the  rateable  value  is  the  rent  at 
which  the  same  might  be  reasonably  expected  to  be  let  for  fi'om  year  to 
year.  What  does  the  appellant  occupy  ?  He  occupies  the  whole  of  the 
property  comprised  in  the  lease,  viz.,  the  tithe  rent-charge  and  the  half- 
acre  of  land.  That  the  curate  of  Tliannington  is  not  the  occupier  in 
respect  of  the  £40  is  shown  by  Frend  v.  Tolleshunt  Knights  (28  L.  J. 
(N.  S.)  M.  C.  169).  That  seems  to  me  a  sound  decision,  and  it  shows 
that  the  party  charging,  or  his  assignee  or  tenant  must  occupy  the 
whole  hereditament  though  charged"  {Reg.  v.  W,  J.  Groves,  clerk). 


410  DEFINITION    OF    LEASE. 


CHAPTER    XIIT. 

LANDLORD    AND    TENANT. 

A  lessee  even  for  half-a-tjear  is  considered  a  tenufit  for  years,  a  year 
being  the  shortest  term  which  the  law  notices.  In  the  absence  of  any 
evidence  to  the  contrary,  the  tenancy  under  a  written  agreement  for 
the  liire  of  a  farm  at  a  yearly  rental,  from  year  to  year,  must  be  taken 
to  begin  from  the  day  on  which  that  agreement  professes  to  have  been 
executed  ;  and  that  question  is  for  the  judge  and  not  for  the  jury 
{Bishop  V.  Wraith).  ^'Demise,  grant,  and  to  farm-let,'''  are  the  usual 
words  in  a  lease  ;  but  whatever  words  amount  to  a  grant  are  sufiicient 
to  maVe  a  lease  (Co.  Litt.  45  ;  2  Black.  Com.  318).  It  was  decided  in 
Doe  deni.  Morgan  v.  PowelJ,  that  whether  an  instrument  is  to  operate 
as  a  lease  or  an  agreement  depends  upon  the  intention  to  be  collected 
from  it,  and  from  the  natm'e  and  condition  of  the  subject-matter,  with- 
out reference  to  the  extrinsic  circumstances  or  subsequent  acts.  And 
2)er  Tindal  C.J.  :  "  The  mere  use  of  tlie  words  '  I  agree  to  let.'  does  not 
make  the  instrument  an  agreement  only,  provided  the  rest  of  the  words 
show  an  intention  to  create  an  actual  demise,  but  they  throw  a  doubt 
upon  the  intention." 

In  Doe  dem.  Philips  v.  Benjamin,  the  plaintiff  entered  into  an  agree- 
ment, of  December  13th,  1834,  with  the  defendant,  who  was  his  yearly 
tenant,  in  the  middle  of  a  half-year,  whereby  he  agreed  to  let  the  pre- 
mises to  him  for  fourteen  years,  determinable  upon  notice  at  the  end  of 
seven  years,  at  a  certain  rent,  a  lease  to  be  drawn  upon  the  usual  terms, 
upon  which  the  defendant  agreed  to  take  them,  and  it  was  held  that 
this  constituted  a  lease.  And  ^;er  Curiam  :  "  The  words  •'  agree  to  let ' 
have  long  been  held  the  same  as  words  of  actual  letting.  It  is  said  here 
that  the  agreement  for  a  future  lease  is  inconsistent  with  a  present 
demise  ;  and  it  would  have  been  as  well  if  that  distinction  had  been 
upheld  from  the  first  :  but  it  has  been  long  settled  that  that  circum- 
stance alone  will  not  reduce  what  would  otherwise  be  a  present  demise 
to  a  mere  agreement.  As  to  the  provision  that  the  lease  shall  contain 
the  usual  covenants,  Mansfield  C.J.  certamly  held  in  Morgan  v.  Bissell 
that  such  a  description  of  the  intended  lease  was  uncertain  and  incon- 


AGREEMENT    TO    LET.  411 

sistent  with  the  supposition  of  a  present  demise  ;  but  in  later  cases  a 
different  opinion  has  prevailed.  As  to  the  construction,  Staniforth  v. 
Fox  is  a  case  very  near  this  in  words  and  in  principle." 

Upon  an  inquisition  on  a  writ  of  elegit,  proof  of  possession  or  receipt 
of  the  rent  of  the  land  by  the  party  is  prima  facie  evidence  of  the  title, 
and  where  a  jury,  notwithstanding  such  evidence,  found  that  the  party 
had  no  lands,  the  Court  of  Common  Pleas  set  aside  the  finding,  and 
directed  the  sheriff  to  take  a  new  inquisition  {Barnes  v.  Harding).  A 
tenant  hy  elegit  Ms  a  right  to  distrain  without  attornment  {Lloyd  v.  Davies). 
An  attornment  by  a  tenant  of  land  to  a  receiver  appointed  by  Chancery 
to  collect  the  rents,  and  payment  of  rent  to  such  receiver,  create  a 
tenancy  by  estoppel  between  the  tenant  and  receiver,  but  do  not  enure 
to  enable  the  person  who  is  found  ultimately  to  have  the  legal  title  to 
the  land  to  treat  the  tenant  as  his  tenant,  and  to  distrain  for  rent 
{Evans  v.  Matthias).  Where  a  mortgagee  gave  notice  to  the  tenants  of  the 
mortgaged  property  not  to  pay  their  rents  to  the  mortgagor^  lut  to  himself, 
it  was  held  by  Sir  J.  Romilly  M.R.  that  he  was  liable  to  the  mortgagor 
for  any  consequential  loss,  as  it  is  his  duty  either  to  take  possession 
himself  or  to  leave  the  mortgagor  in  possession  {Heale  v.  M^ Murray).  If 
a  lease  is  in  the  hands  of  a  tenant,  and  it  appears  that  no  counterpart 
can  be  found,  the  Court  will  permit  the  landlord  to  inspect  and  take  a 
copy  of  it  {Doe  dem.  v.  Slight). 

The  terms  of  a  lease  may  be  proved  by  oral  admissions  {Smith  v. 
Howard)',  and  if  a  landlord  gives  a  receipt  for  rent  last  due,  it  is  presum- 
able that  all  former  rent  has  been  paid  (Gilb.  Ev.  157). 

He  who  agrees  to  let  agrees  to  give  possession,  and  not  merely  to  give 
the  chance  of  a  law-suit;  and  if  he  fails  to  do  so,  the  lessee  may  recover 
damages  against  him,  and  need  not  bring  ejectment  {Coe  v.  Clay).  On 
an  agreement  for  a  lease  "  with  all  usual  and  reasonable  covenants,"  a 
covenant  not  to  underlease  or  assign  is  implied  where  the  custom  is  not 
generally  against  it  {Follcingham  v.  Croft).  In  the  Exchequer  Chamber, 
on  error  from  the  Court  of  Common  Pleas,  it  was  held  that  the  word 
''demise"  in  a  lease  implies  a  covenant  for  title  and  a  covenant  for  quiet 
enjoyment ;  but  both  branches  of  such  implied  covenant  are  restrained 
by  an  express  covenant  for  quiet  enjoyment  {Line  v.  Stejjhenson).  In 
every  contract  for  the  sale  of  an  existing  lease  there  is  an  implied  under- 
taking by  the  seller  (if  the  contrary  be  not  expressed)  to  make  out  the 
lessor's  title  to  demise  ;  and  without  showing  such  title,  the  seller 
cannot  maintain  an  action  at  law  against  the  buyer  for  refusing  to 
complete  the  purchase  {Souter  v.  Drake).  But,  on  a  contract  for  the  sale 
of  an  agreement  for  a  lease  it  is  not  an  implied  condition  that  the  lessor 
has  power  to  grant  the  lease  {Kintrea  v.  Preston).     Alderson  B.  tlius 


4H  TENANCY  FROM  YEAR  TO  YEAR. 

pointed  out  the  distinction  :  "  In  every  contract  for  the  sale  of  a  lease 
the  agreement  is  to  sell  an  interest  in  the  land  ;  that  is  not  so  in  the 
case  of  the  sale  of  an  agreement.  The  question  is  one  which  depends 
upon  the  words  of  the  contract.  It  has  been  decided  that  the  grant  of 
a  lease  means  the  grant  of  an  absolute  right  of  enjoyment  for  a  certain 
number  of  years  ;  and  there  is  therefore  on  the  sale  of  a  lease  an  implied 
term  that  the  vendor  shall  show  the  lessor's  title.  Here  there  is  merely 
the  purchase  of  an  agreement.  Whatever  benefit  the  agreement  gave 
to  the  plaintiff  the  defendant  is  entitled  to.  It  is  utterly  uncertain 
^vhat  the  terms  of  the  agreement  between  the  plaintiff  and  E.  C.  his 
landlady  are  ;  but  any  right  which  the  defendant  may  have  to  call  for 
proof  of  the  lessor's  title  rests  upon  that  agreement,  and  must  be  the 
right  which  the  plaintiff  had  against  E.  C,  and  which  by  the  contract  is 
transferred  to  the  defendant."  And  per  LitiMak  J.:  "Where  parties 
enter  under  a  mere  agreement  for  a  future  lease  they  are  tenants  at 
will  ;  and  if  rent  is  paid  under  the  agreement  they  become  tenants  from 
year  to  year,  determinable  on  the  execution  of  the  lease  contracted  for, 
that  being  the  primary  contract.  But  if  no  rent  is  paid,  still  before  the 
execution  of  a  lease  the  relation  of  landlord  and  tenant  exists,  the 
parties  having  entered  with  a  view  to  a  lease  and  not  a  purchase  " 
{Hamerton  v.  Stead). 

Although  it  may  be  that  ichcrc  an  actual  demise  is  made  generally  at 
a  yearJij  rent,  and  noth'mg  is  said  as  to  the  duration  of  the  term,  a  tenancy 
from  year  to  year  tvould  be  im2)licd ;  yet  wdiere,  from  the  terms  of  an 
agreement  for  a  lease,  coupled  with  surrounding  circumstances,  it  is 
ambiguous  what  term  is  intended  to  be  conveyed,  such  agreement  is 
void  for  uncertainty.  And  so  it  was  held  by  the  Exchequer  Chamber 
in  Fitzmaurice  v.  Bayley.  By  increasing  the  amount  of  rent  payable  by 
a  tenant  from  year  to  year,  a  new  tenancy  is  not  necessarily  created ;  much 
must  depend  upon  what  was  said  at  the  time  the  additional  sum  was 
agreed  to  be  paid  (JJoe  dem.  Clonic  v.  Geekie).  The  Court  of  Common 
Pleas  considered  that  the  umpire  was  right  in  refusing  to  admit  evi- 
dence to  show  that  by  the  custom  of  the  trade  of  brickmaking,  brick  laud 
is  always  let  for  a  longer  period  than  from  year  to  year  (In  re  Stroud). 

The  argument  in  Tress  v.  Savage  turned  npon  the  effect  of  7  &  8  Vict. 
c.  76.  There  the  plaintiff  and  defendant,  after  stat.  8  &  9  Vict.  c.  106 
came  into  operation,  executed  a  written  instrument  not  under  seal,  on 
December  17th,  1850,  by  which  Tress  agreed  to  let,  and  Savage  to  hire 
land  for  a  term  exceeding  three  years,  at  a  rent  payable  monthly,  from 
December  2.5th  of  that  year.  Savage  entered,  and  it  was  afterwards 
orally  agreed  that  the  rent  should  be  paid  quarterly.  The  Court  of 
Queen's  Bench  held  that  stat.  8  &  9  Vkt.  c.  106,  s.  3,  though  rendering 


AGREEMENT    NOT    UNDER    SEAL.  413 

the  lease  void,  as  not  being  by  deed,  still  made  it  void  only  as  a  lease, 
and  did  not  prevent  it  from  indicating  the  terms  on  which  Savage  held 
as  tenant  from  year  to  year  ;  and  that,  consequently,  Savage's  tenancy 
might  be  determined,  during  the  term,  by  a  half-year's  notice,  but  the 
end  of  the  term  expired  without  notice.  Coleridge  J.  said,  "By  sec.  4 
of  7  &  8  Vict.  c.  76,  no  lease  in  writing  of  any  freehold  land  'shall  be 
valid  as  a  lease,'  '  unless  the  same  shall  be  made  by  deed  ;  but  any 
agreement  in  writing  to  let '  '  any  such  land  shall  be  valid  and  take 
effect  as  an  agreement  to  execute  a  lease  ; '  '  and  the  person  who  shall 
be  in  possession  of  the  land  in  pursuance  of  any  agreement  to  let,  may, 
from  payment  of  rent  or  other  circumstances,  be  construed  to  be  a 
tenant  from  year  to  year.' 

"Under  this  section Do^  clem.  Davenish  v.  Moffat  was  decided.  There 
the  defendant  tooli  possession  of  land  under  the  terms  of  a  iiritten  agree- 
ment not  under  seal,  which,  before  stat.  7  &  8  Vict.  c.  76,  came  into 
operation,  would  have  operated  as  a  demise  for  three  years ;  and  it  was 
held  that  he  became  tenant  from  year  to  year,  subject  to  the  terms  of 
the  agreement ;  and  that  the  consequence  of  this  was,  that  at  the  end  of 
the  three  years  the  tenancy  expired  without  any  notice  to  quit.  That 
statute  is  repealed  by  stat.  8  &  9  Vict.  c.  106  ;  sec.  3  of  which  substi- 
tutes, for  sec.  4  of  the  repealed  act,  an  enactment  somewhat  diflFerently 
expressed,  and  makes  a  lease  required  by  law  to  be  in  writing,  of  tene- 
ments or  hereditaments,  '  void  at  law,  unless  made  by  deed.'  " 

The  right  to  enter  for  condition  hrolcen  is  not  included  in  the  8  &  9  Vict. 
c.  106,  s.  6,  which  enacts  that  a  right  of  entry  may  be  disposed  of  by 
deed  {Himt  v.  Bishop).  And  per  Cressivell  J. :  ''A  lease  in  writing,  not 
Ig  deed,  void  under  stat.  8  &  9  Vict.  c.  106,  does  not  require  a  stamp  " 
{Jilott  V.  Turnage). 

By  sec.  3  of  statute  8  &  9  Vict.  c.  106,  which  repealed  the  statute 
7  &  8  Vict.  c.  76,  it  is  enacted  "  That  a  lease  required  by  law  to  be  in 
writing  of  any  tenements  or  hereditaments  made  after  the  1st  day  of 
October,  1845,  shall  be  void  at  law  unless  made  by  deed."  The  effect  of 
this  statute  is,  that  an  instrument  u'hich  purports  to  let  premises  for  a 
period  of  more  than  three  years,  and  which  therefore  is  void  as  a  lease  in 
not  leing  sealed,  is  still  good  as  an  agreenmit,  and  the  tenant  who  enters 
under  it  becomes  tenant  from  year  to  year  according  to  its  terms,  so  far 
as  those  terms  are  applicable  to  a  tenancy  from  year  to  year  {Heard  v. 
Campli7i). 

The  question  in  Stratton  v.  Pettit  was  whether  the  instrument  set 
forth  in  the  declaration  Avas  a  lease  or  an  agreement.  And  p)er  Jet  vis  C.J. : 
"  The  rule  to  be  collected  from  all  the  cases  is,  that  the  intention  of  the 
parties,  as  declared  ly  the  ivords  of  the  instrument,  must  govern  the  con- 


414  VALIDITY    OF    AN    AGREEMENT. 

sirwUon  {per  Lord  EUeuborovfih  CJ.  in  roole  v.  Emncy).  And  the 
Court  will,  if  possible,  put  such  a  construction  upon  it  as  will  effectuate 
the  intention  of  the  parties  rather  than  defeat  it.  The  question  then, 
is.  what  was  the  intention  of  the  parties  when  this  instrument  was 
made  ?  Doubtless  they  intended  to  make  an  instrument  which  should 
have  some  operation  ;  but  did  they  intend  to  make  a  lease,  or  an  agree- 
ment ?  If  the  former  they  have  not  done  what  they  intended,  because 
the  lease  is  void  by  the  statute.  The  intention  of  the  parties  must  be 
collected  from  the  instrument  itself.  The  rule  is  well  explained  by 
Laurence  J.  in  Morgan  y.  BisscU :  'Where  there  is  an  instrument  by 
which  it  appears  that  one  party  is  to  give  possession  and  the  other  to 
take  it,  that  is  a  lease,  unless  it  can  be  collected  from  the  instrument 
itself  that  it  is  an  agreement  only  for  a  lease  to  be  afterwards  made.' 
But  it  is  unnecessary  to  refer  to  the  cases  which  are  all  collected  by  Sir 
Robert  Comyn  in  his  useful  book  upon  Landlord  and  Tenant.  It  is 
admitted  that  before  the  statute  this  instrument  would  have  been  held 
to  be  a  lease  ;  and  if  the  true  rule  be  that  the  intention  of  the  parties 
as  declared  by  the  words  of  the  instrument  must  govern  the  construction, 
it  is  clear  that  the  parties  intended  this  instrument  to  operate  as  a 
lease.  It  is  void  as  a  lease,  and  the  defendant  is  therefore  entitled  to 
our  judgment"  (ih.). 

In  Parker  v.  TasweU,  by  an  agreement  in  writing,  a  landlord  agreed 
to  let  a  tenant  certain  lands  for  ten  years  at  a  fixed  rent.  The  tenant, 
however,  was  to  perform  certain  acts  as  "leading,"  or  carrying  materials 
for  building  and  draining,  which  were  to  be  done  by  the  landlord  ;  and 
there  were  stipulations  that  new  hedges  were  to  be  made  and  planted 
by  the  landlord,  and  that  "gates,  buildings,  &c.,'' were  to  be  left  in 
repair  ;  also  that  the  landlord  reserved  to  himself  all  customary  rights 
and  reservations,  such  as  liberty  to  cut  and  plant  timber,  search  for  and 
work  "  mines  and  minerals,"  &c.  The  agreement  was  signed  by  both 
parties  ;  and  SImrf  V.C.  held  that,  inasmuch  as  the  subject-matters, 
the  term  and  the  rent,  were  certain,  the  uncertainties  as  to  the  subsi- 
diary part  of  the  lease,  even  in  the  use  of  the  expression  "  &c.,"  were 
not  sufficient  to  prevent  the  tenant  from  having  specific  performance  of 
the  agreement,  and  that  the  3rd  section  of  the  8  &  !)  Vict.  c.  lOG,  which 
enacts  that  every  lease  required  by  law  to  be  in  writing  shall  be  void  at 
law  unless  made  by  deed,  did  not  exclude  the  jurisdiction  of  the  Court 
in  this  case.  It  was  held  by  Lord  CMmsford  Ch.  on  appeal,  that  such 
agreement,  though  void  at  law,  under  8  &  9  Vict.  c.  106,  as  a  lease, 
was  valid  as  an  agreement,  and  specific  performance  of  it  was  decreed, 
and  also  that  the  insertion  of  "&c.,"  on  some  of  the  terms  of  the  agreement 
did  not  produce  such  uncertainty  as  to  render  the  agreement  incapable 


PAROL    AGREEMENT    FOR    A    LEASE.  415 

of  specific  performance,  where  the  property,  the  rent,  and  tlie  other 
material  points  on  the  lease  were  sufficiently  described  and  ascertained. 

A  parol  affreement  for  a  lease,  evidenced  hy  a  memorandum  sfatliiij 
terms  and  rent,  under  which  the  tenant  took  possession,  was  decreed,  on 
appeal  from  Stuart  V.C.  to  the  Lord  Chief  Justices,  to  be  specifically 
performed,  although   it  was   uncertain  whether   the   tenant   had   not 
committed  a  breach  of  some  of  the  proposed  covenants  ;  but  in  case  the 
defendant  should  bring  an  action  for  such  breaches,  the  plaintiff  in 
equity  was  not  to  be  at  liberty  to  plead  that  the  deed  was  not  executed 
until  after  it  purported  to  be  {Pain  v.  Coomls).     It  was  decided  by 
Lord  Lyndhurst  Ch.,  confirming  the  decree  of  Knight-Bruce  V.C,  that 
an  agreement  for  a  lease  may  he  assigned  ;  and  where  a  landlord  enters 
into  an  agreement  to  lease  a  farm  to  B.,  who  assigns  the  agreement  to 
C,  the  landlord  is  entitled  to  have  the  personal  liability  of  B.  for  the 
performance  of  the  covenants  of  the  lease  to  be  granted  to  C,  in  pursu- 
ance of  the  covenant  {Dowell  v.  Deiv).     And  where  an  agreement  was 
entered  into  by  a  landlord  with  a  tenant  in  possession  of  a  farm,  under 
a  lease,  to  renew  tJie  lease  upon  its  expiration,  ivMch  was  executed  hy  the 
landlord  only,  and  not  hy  the  tena?it,  such  agreement  was  not  nudum 
2)actum,  and  the  tenant,  who  continued  some  time  in  possession  of  the 
farm  under  it,  after  the  expiration  of  the  lease,  might  enforce  it  against 
the  landlord  {ih.).    Knight-Bruce  V.C,  in  the  course  of  his  observations 
in  the  same  case  on  evidence  adduced  in  equity  as  to  the  annual  value  of 
a  farm,  and  the  repairs  of  farm  buildings,  and  the  cultivation  of  a  farm 
according  to  covenants  in  a  lease,  and  the  waiver  of  forfeiture  of  a  lease 
by  a  landlord,  said,  "It  has  been  a  very  old  principle  of  law  to  disregard 
unimportant  matters  of  waste;  for  if  according  to  a  liberal  intei-jiretation 
of  strict  covenants,  a  tenant  was  to  be  ejected  for  a  foul  turnip-field,  an 
unhinged  gate,  a  broken  shutter,  or  small  matters  of  that  description, 
which  frequently  occur  on  the  best-managed  farms,  there  would  scarcely 
be  a  lease  in  existence  throughout  the  kingdom.     It  is  necessary  that 
in  these  cases  juries  and  judges  should  make  a  reasonable  allowance, 
and  not  put  too  strict  and  precise  an  interpretation  on  such  covenants," 
According  to  Doe  dem.  Thomson  v.  Amey,  ivhere  a  party  is  let  into 
possession,  and  pays  rent  under  an  agreement  for  a  futiure  lease  for  years, 
tvhich  is  to  contain  a  covenant  against  taking  successive  crops  of  corn,  and 
a  condition  of  re  entry  for  hreach  of  covenants,  it  was  held  that  he  thereby 
became  a  yearly  tenant,  subject   to  the  above  terms  and   condition. 
Patteson  J.  said,  "  In  Mann  v.  Lovejoy,  though  the  facts  differed  from 
those  of  the  present  case,  yet  in  principle  the  ruling  oi  Ahhot  CJ.  is  in 
favour  of  the  plaintiff.     It  is  said  that  a  covenant  respecting  the  rota- 
tion of  crops  cannot  be  engrafted  on  a  yearly  tenancy  ;  but  I  see  no 


416  EXPIRED    LEASE. 

reason  why  it  should  not.  The  tenant  in  possession  nuder  such  cir- 
cumstances is  bound  to  cultivate  the  land  as  if  he  were  going  to  con- 
tinue in  possession  as  long  as  the  lease  itself  would  have  lasted.  It  is 
argued  that  the  tenancy  arises  by  operation  of  law  upon  the  payment  of 
rent,  and  that  the  law  implies  no  particular  mode  of  cropping,  nor  any 
condition  of  re-entry.  But  the  terms  upon  which  the  tenant  holds  are 
in  truth  a  conclusion  of  law  from  the  facts  of  the  case,  and  the  terms  of 
the  articles  of  agreement ;  and  I  see  no  reason  why  a  condition  of 
re-entry  should  not  be  as  applicable  to  this  tenancy  as  the  other  terms 
expressed  in  the  articles"  {ib.). 

In  the  case  of  a  mere  agreement  for  a  lease,  it  is  no  breach  that  posses- 
sion is  not  given  :  and  it  was  so  decided  in  Drurg  v.  Macnamara.  By 
an  agreement  in  writing  the  plaintiff  agreed  to  take  of  the  defendant  a 
farm  at  a  yearly  rent,  the  plaintiff  paying  all  rates,  taxes,  &c.,  "  the 
tenancy  to  commence  from  the  29th  of  September  next,  for  a  term  of 
eight  years,  subject  to  a  lease  "  to  be  drawn  up  by  defendant's  solicitor. 
The  plaintiff  brought  an  action  for  not  giving  possession  before  or  on 
the  29  th  of  September,  and  averred  that  he  had  laid  out  a  large  sum  of 
money  on  implements  to  cultivate  the  farm  ;  but  it  was  held  no  breach 
of  the  agreement  that  the  defendant  would  not  give  him  possession  on 
that  day,  or  at  any  time  subsequently.  The  instrument  in  writing  here 
did  not  operate  as  a  lease,  or  so  as  to  give  an  interest  in  land. 

An  exjiired  lease,  which  was  produced  in  an  action  brought  for  not 
farming  land  in  compliance  with  its  covenants,  was  held  by  the  Court 
of  Queen's  Bench  not  to  be  "  a  schedule,  inventory,  or  catalogue,"  con- 
taining the  conditions  or  regulations  for  managing  a  farm  within  55 
Geo.  III.  c.  184,  Sched.  pt.  1  (Strutt  v.  Robinson).  In  Cattle  v.  Gamble, 
the  agreement  was  for  the  purcliase  of  the  herbage  of  a  close  for  five 
months  at  the  price  of  £45,  £10  to  be  paid  down,  and  a  joint  promis- 
sory note  to  be  given  for  the  residue,  payable  within  five  months  :  and 
on  a  trial  of  assumpsit  for  use  and  occupation  of  the  land  and  eatage  of 
the  grass,  brought  to  recover  the  residue  of  tlie  purchase-money,  it  was 
held  that  the  contract  was  sufficiently  stamped  with  a  £1  stamp,  as  it 
fell  under  the  head  in  the  schedule  in  55  Geo.  III.  c.  15C  of  '■'■  convegance, 
whether  grant,  disi)Osition,  lease,  &c.,  or  of  any  other  kind  or  description 
on  the  sale  of  any  lands  or  tenements  where  the  purchase  or  considera- 
tion shall  not  amount  to  £50." 

By  17  &  18  Vict.  c.  83,  s.  23,  the  ad-valorem  stamp  duty  on  a  lease 
is  to  be  regulated  bg  the  considerations  expressed  on  the  face  of  the  deed 
{Lhich  V.  Bradgll).  In  Blount  v.  Pearman  the  lease  contained  a  demise 
of  two  separate  farms,  with  two  habendums  differing  from  each  other  in 
duration  ;  a  reservation  of  two  distinct  rents,  one  in  respect  of  each 


MEANING    OF    "SUBJECT    MATTER  "    IN    STAMP   ACT.      417 

farm  and  separate  covenants,  some  applying  to  one  farm  and  some  to 
the  other.  The  lessee  entered  on  the  whole  at  the  same  time,  and  it 
was  held  that  one  ad-valorcm  stamp,  calculated  on  the  united  amounts 
of  the  two  rents,  was  sufficient.  So  an  agreement  containing  a  demise  of 
land  at  a  certain  rent,  and  of  other  land  at  the  same  as  ivas  then  paid  for 
it  ly  a  tenant,  but  not  describing  the  amount,  is  well  stamped  by  one 
ad-vatorem  stamp,  calculated  upon  the  whole  amount  of  rent  to  be  paid 
Jbr  all  the  lands,  the  tenant's  rent  being  proved  by  witnesses  {Parry  v. 
Deere). 

Where  A.  entered  into  a  written  agreement  with  B.,  for  the  hire  of  a 
piece  of  land  for  the  purpose  of  making  bricks,  and  C.  afterwards  made 
an  offer  in  writing  to  let  another  piece  of  land  to  A.,  upon  the  terms 
contained  in  the  agreement  between  A.  and  B.,  which  offer  A.,  at  a  sub- 
sequent period,  verbally  accepted  ;  in  an  action  by  C.  for  a  breach  of 
some  of  the  terms  of  this  contract,  it  was  held  by  the  Court  of  Queen's 
Bench  that  the  written  offer  by  G.  was  admissible  in  evidence  ivithout 
being  stamjied  (Brant  v.  Broivn).  The  alteration  of  an  agreement 
stipulating  to  give  up  the  holding  and  occupation  of  a  farm,  by  the 
addition  of  the  words  "  house  and  premises,"  after  that  agreement  has 
been  completed,  is  not  such  an  alteration  as  will  render  the  affixing 
of  a  new  stamp  necessary,  house  and  premises  being  included  within  the 
meaning  of  the  term  "  farm  "  {Doe  dem.  Waters  v.  Houghton). 

The  "  subject  matter  "  of  an  agreement  to  talce  land,  within  the  mean- 
ing of  the  Stump  Act,  is  the  right  of  occupation,  measured  by  the  total 
amount  of  reut  to  be  paid  for  the  whole  period  of  such  occupation.  An 
agreement  in  the  following  form — "  I,  J.  T.,  do  hereby  agree  with  W.  M. 
to  retake  of  him  two  acres  of  land,  &c.,  from  the  10th  of  October,  ISiO, 
at  which  time  my  tenancy  thereof  expires,  until  the  25th  of  March,  1841, 
for  the  sum  of  £10,"  with  a  promise  by  J.  T.  to  allow  W.  M.  to  plant 
fruit  trees,  and  to  deliver  up  possession  at  the  end  of  the  time  ;  and  signed 
by  J.  T.,but  not  by  W.  M.— was  held  by  the  Court  of  Queen's  Bench  in 
Doe  dem.  Marloiu  v.  Wiggins  to  be  neither  a  lease  nor  an  agreement,  in 
which  the  matter  was  of  the  value  of  £20,  and  therefore  to  require  no 
stamp. 

And  jjer  Patteson  J, :  "  If  this  document  is  a  lease  no  doubt  it  re- 
quires a  stamp.  But  it  cannot  be  so,  because  there  is  no  person  de- 
mising, no  lessor.  I  do  not  say  that  it  is  not  binding  on  the  party  who 
executed  ic,  but  simply  that  it  is  no  lease.  Ricliardson  \.  Gifford  does 
not  determine  that.  The  Court  in  that  case  gave  no  opinion  that  the 
instrument  was  a  lease,  and  merely  determined  that  the  covenantor  was 
bound  by  it  as  an  agreement.  Gooclt  v.  Goodman  is  a  very  peculiar  case, 
and  the  Court  there  also  gave  no  opinion  whether  the  instrument  operated 


418  ESTOPPEL    BETWEEN    LANDLORD    AND    TENANT. 

as  a  lease,  or  passed  any  interest,  and  it  eventually  went  off  on  another 
point.  There  are,  then,  no  authorities  to  show  that  an  instrument  exe- 
cuted by  the  tenant  only  can  be  a  demise.  It  is  therefore  an  agreement. 
Aiid  the  remaining  question  is,  whether  it  requires  a  stamp,  as  being  re- 
specting a  subject-matter  above  the  value  of  £20.  I  think  it  does  not; 
the  subject-matter,  I  tliink,  is  measured  by  the  whole  amount  of  rent  to 
be  paid,  not  by  the  total  value  of  the  land  in  respect  of  which  it  is  to  be 
paid  ;  and  here  the  right  of  occupation  is  only  for  half-a-year,  and  the  rent 
£10.  Reliance  was  placed  in  the  argument  on  the  exception  exempting 
leases  at  rack  rent,  under  £5  per  annum ;  but  that,  I  think,  is  to  be  ex- 
plained by  considering  the  subject-matter  as  the  whole  rent  to  be  paid, 
which  for  a  term  of  years  might  well  exceed  £20,  although  under  £5  per 
annum.  I  think,  therefore,  that  the  decision  of  Williams  J.  in  Mwlow 
V.  Thompson  was  right." 
The  following  document — 

^^  August  2nd,  according  to  Mr.  HacMfs  request,  the  land  at  BJaclc- 
forclhy,  under  Mr.  Elstead,  I  will  he  hound  for  till  next  Lady- 
day.  Signed,        ''J.  GLOVER:' 

which  was  tendered  in  evidence  in  an  action  by  Glover  against  Hackett 
for  money  paid  to  Mr.  Elstead,  was  held  on  the  authority  of  Ramshottom 
V.  Mortley  to  be  a  guarantee,  and  to  require  an  agreement  stamp  {Glover 
\.  Hackett).  But  qiacre  whether  under  19  &  20  Vict.  c.  97  (the  Mercan- 
tile Law  Amendment  Act)  the  document  by  itself  was  one  which  would 
satisfy  the  Statute  of  Frauds  (Jh.). 

The  doctrine  of  estoppel  hetween  landlord  and  tenant  is  founded  upon 
the  principle  that  a  lessee  having  accepted  a  lease  may  not  plead  to  the 
action  of  his  lessor  nil  habuit  in  tenementis.  But  the  lessee  may  plead  to 
such  an  action,  that  the  lessor  had  an  interest  at  the  date  of  the  lease, 
but  that  such  interest  had  determined  before  the  alleged  cause  of  action 
arose.  Therefore  if  a  termor  affect  to  grant  a  lease  for  a  term  exceed- 
ing his  own  term  in  duration,  and  to  reserve  an  annual  rent,  that  would 
opei'ate  as  an  assignment  of  his  term,  and  there  would  be  no  estoppel 
between  him  and  the  person  to  whom  he  made  such  assignment ;  and 
accordingly,  it  would  be  doubtful  whether  the  assignor  would  have  any 
remedies  for  recovering  the  rent  {Lcmgford  v.  Sehnes).  The  stat.  4  Geo. 
IV.  c.  28,  does  not  give  power  to  distrain  for  such  a  rent  {ih.). 

By  an  agreement  in  writing  A.  agreed  to  demise  to  B.  certain  prremises, 
which  ivere  then  in  lease  to  C.,  and  B.  undertooh  to  procure  a  surrender  of 
the  existing  lease  from  C,  and  to  accept  the  new  lease.  C.  having  after- 
wards refused  to  surrender,  A.  filed  a  bill  against  B.  for  sj^ecific  perform- 
ance with  a  modification ;  and  it  was  held  on  dimurrer  by  Wood  V.C., 


SEFARATE    OllDERS    OF   EEFEEENCE.  419 

who  distinguished  the  case  from  Nethorpe  v.  Ilolgate,  which  was  cited  in 
support  of  the  bill,  that  the  bill  could  not  be  sustained  {Beeston  v.  Stutely). 
And  where  an  agreement  recited  that  the  defendant  had,  as  he  was  advised, 
legally  put  an  end  to  a  lease  of  a  farm  Inj  virtue  of  a  'power  in  it  to  that 
effect,  in  case  of  the  tencmfs  hankrnptcy,  and  that  the  lease  to  the  plain- 
tiff (who  was  admitted  into  possession  and  paid  £250,  or  half  of  the  bonus 
agreed  on  for  the  lease  so  to  be  granted)  should  commence  on  a  day  cer- 
tain, if  the  defendant  could  then  legally  make  it,  or  as  soon  as  he  was  in 
a  situation  to  do  so  ;  and  the  defendant  after  the  plaintiff  had  occupied 
the  farm  two  years  was  unable  to  grant  the  lease,  owing  to  his  former 
tenant's  commission  of  bankruptcy  being  superseded,  it  was  held  that  the 
granting  of  the  lease  being  the  consideration  for  the  bonus,  the  plaintiff 
could  recover  back  his  £250,  as  money  paid  on  a  consideration  that  had 
failed,  although  he  had  had  such  beneficial  occupation  {Wright  v.  Colls). 

An  action  by  A.  against  B.,  and  a  cross  action  by  B,  against  A.,  were 
referred  by  separate  orders  of  reference  made  under  the  3rd  section  of  the 
Common  Law  Procedure  Act,  1854.  The  latter  action  contained  counts 
for  not  using  a  farm  in  a  tenant-like  manner,  and  for  goods  sold  ;  and 
the  defendant  pleaded  to  the  first  count  a  denial  of  the  tenancy  upon  the 
terms  alleged,  and  performance  of  the  agreement ;  and  to  the  last  count 
— never  indebted,  payment  and  set-oflf.  The  arbitrator  made  his  award 
on  one  piece  of  paper,  awarding  for  the  plaintiff  in  the  first  action,  and 
that  in  the  second  action  there  was  nothing  due  or  payable  from  the  de- 
fendant to  the  plaintiff,  and  he  ordered  that  the  costs  of  the  award  should 
be  paid  by  B. ;  but  the  Court  of  Exchequer  remitted  the  award  to  him  that 
he  might  make  two  awards,  and  find  the  issues  specifically  {Rellaby  v. 
Broum,  Brown  v.  HelJaly).  A  usage  for  arhitrators  appointed  to  determi?ie, 
as  between  outgoing  a7id  incoming  tenants  of  a  farm,  the  value  of  the  away- 
going  crop,  and  the  deductions  for  want  of  repairs  of  the  farm  buildings 
and  fences,  to  make  their  award,  on  inspection  of  their  crops  and  premises, 
without  notice  to  the  parties  and  without  evidence,  may  be  good  ;  but  no 
usage  can  justify  the  arbitrators  in  hearing  one  party  and  his  witnesses 
only,  in  the  absence  of  and  without  notice  to  the  other  party  {Oswald  v. 
Uarl  Grey).  Behren  v.  Bremer,  which  confirmed  Galloway  v.  Keyworth 
settled  that  there  is  no  impropriety  in  arhitrators  employing  an  attorney 
to  prepare  their  award,  and  that  there  is  not  any  necessary  impropriety  in 
their  employing  the  plaintiff's  attorney  for  that  purpose. 

An  authority  to  an  agent,  to  execute  an  indenture  under  seal,  must  also 
be  under  seal.  A  deed  inter  partes  can  only  be  available  between  the 
parties  thereto  ;  therefore  where  in  covenant  upon  an  indenture  of  lease 
it  appeared  that  the  landlord  by  writing,  not  under  seal,  authorised  his 
attorney  to  execute  the  lease  for  and  on  his  (landlord's)  behalf,  and  the 


420  AUTHOIUTY    OF   AGENT. 

jittorney  sealed  and  signed  the  lease  in  his  own  name,  the  landlord  can- 
not maintain  covenant  against  the  tenant  upon  the  indenture,  although 
the  covenants  ^Yere  expressly  stated  to  have  been  made  by  the  tenant  to 
and  with  the  landlord  {Berkeley  v.  Hardy).  If  a  man  describe  himself 
in  the  beginning  of  an  agreement  to  grant  a  lease,  as  making  it  on  behalf 
of  another,  but  in  a  subsequent  part  say  that  he  w'ill  execute  the  lease. 
Best  C.J.  held  that  he  is  personally  liable  {Norton  v.  Herron).  Anayree- 
ment  for  a  lease  made  with  an  ayent,  ivlio  acts  under  a  power  of  attorney, 
and  a  lease  executed  by  such  agent  in  pursuance  of  the  agreement,  eflTec- 
tually  binds  the  principal  {Hamilton  v.  Clanricarde{Earl) ;  and  see  Corn- 
foot  V.  FowJce,  and  Wilson  v.  Fidler.)  According  to  Doe  dem.  Rhodes  v. 
Bohinson,  a  notice  to  quit  yiven  ly  the  ayent  of  an  ayent  is  not  sufficient 
without  evidence  of  an  authority  to  give  notice,  or  of  a  recognition  by 
liie  principal.  Doe  dem.  3Iann  v.  Walters  is  an  authority  that  an  ayent 
to  receive  rents  has  no  implied  authority  to  yive  notice  to  quit,  and  where 
notice  to  quit  is  given  by  an  agent,  the  authority  of  such  agent  must  be 
complete  a  half  year  before  the  expiration  of  the  notice,  or  at  least  before 
the  day  of  the  demise  laid  in  a  declaration  in  ejectment  brought  in 
respect  of  such  notice. 

If  contractiny  parties  ayreeon  the  terms  of  a  lease,  of  ivhich  there  is  suffi- 
cient evidence,  but  contemplate  in  addition  a  more  formal  document,  it  be- 
comes a  question  of  intention  merely  whether  they  intend  it  as  a  memorial 
of  the  terms  already  agreed  on,  or  as  the  instrument  by  which  alone  they 
meant  to  be  bound.  And  where,  as  in  Ridyway  v.  Wharton,  E.,  the  sub- 
lessee of  the  property,  applied  to  W.,  the  owner,  for  a  lease  to  himself, 
when  the  original  lease  expired,  and  W.  referred  him  to  his  agent,  C,  and 
certain  interviews  and  correspondence  between  them  resulted  in  the  speci- 
fication of  certain  terms,  which  were  sent  as  instructions  by  C.  to  W.'s 
solicitor,  to  prepare  a  lease,  and  both  W.  (the  defendant)  and  C.  denied 
that  the  one  had  given,  or  the  other  had  received  authority  to  conclude 
a  binding  agreement,  though  some  evidence  on  the  part  of  the  plaintiff 
went  to  show  the  tei'ms  for  the  intended  lease  had  been  finally  settled, 
so  as  to  constitute  an  agreement,  it  was  held  by  Lord  C'rantcorih  Ch.,  Lord 
Brouyham,  and  Lord  Wensleydale,  &c.,  Lord  St.  Leonards  diss,  (affirming 
the  decree  of  the  Lord  Chancellor  in  the  Court  below,  though  on  different 
grounds),  that  there  was  no  concluded  binding  agreement.  And  see  this 
case  (in  which  Tawny  v,  Crowthcr  was  observed  on)  for  general  observa- 
tions on  the  conduct  of  contracting  parties,  and  the  evidence  necessary  to 
enable  the  Court  safely  to  decree  specific  performance  of  an  agreement. 
KnAper  Lord  St.  Leonards :  "  As  to  the  case  of  Tawney  v.  Crowther,  it  is  not 
at  all  material  whether  Lord  Thurlow  was  right  in  construing  the  words 
to  amount  to  an  acceptance  of  the  agreement.  It  is  an  authurity  for  this 


LETTING    BY   AGENT   WITHOUT   AUTHORITY.  421 

— tliat  if  terms  he  redured  1o  writing,  and  a  man  says  Uiai  lipviUahidc  hj 
those  terms,  and  ivill  sign  the  agreement,  although  he  does  not  sign,  he  is 
hovndhg  that  agreement.  There  arc  besides  several  q.^%q%  {Western  v. 
Russell,  Thomas  v.  Dering,  and  Gihhins  v.  The  Board  of  the  Metropolitan 
Asylum)  in  which  a  single  note  written  ly  one  party  to  a  solicitor  to  draw 
an  agreement,  independently  of  the  agreement,  has  been  held  perfectly 
valid"  {it).). 

In  Collcn  V.  Wright,  the  defendant  signed  the  following  written 
agreement  : 

"Terms  for  letting  a  form  on  Soham  Fen,  containing,  &c.  Terra 
12i  years  from  Lady-day  last  ;  rent  £350,  to  be  paid  quarterly  ;  land- 
lord to  pay  the  tithe  rent-charge  and  drainage  taxes  ;  landlord  to 
put  buildings,  gates,  and  posts  in  repair  ;  and  tenant  afterwards  to 
keep  them  in  repair,  being  allowed  rough  timber  ;  tenant  to  pay  for 
the  muck  and  straw  upon  the  farm  by  valuation.  All  the  other  con- 
ditions to  be  the  same  as  in  the  lease  under  which  J.  H.  B.  now 
holds  the  said  farm.  Landlord  to  allow  tenant  £25  of  the  first  half- 
year's  rent.  We  agree  to  the  above  conditions,  this  21st  day  of  April, 
1853. 

"  Rohert  Wright,  agent  to  AY.  D.  G.,  Esq. 
"  John  Collenr 

It  was  further  agreed  between  Collen  and  Wright  that  an  agreement, 
stating  in  detail  the  terms  referred  to  in  the  above  agreement,  should 
be  prepared  without  delay,  and  be  signed  by  the  parties  ;  and  on  22nd 
April,  1853,  Collen,  on  the  faith  of  the  signature  of  the  said  agreement 
by  Wright,  as  above  set  forth,  took  possession  of  the  farm.  Both 
Collen  and  Wright  believed  that  the  latter  had  authority  from  Gardner, 
the  owner,  to  let  the  farm.  On  1st  June,  1853,  a  valuation  of  the 
straw  and  muck  was  made  in  accordance  with  the  agreement,  and  the 
amount  was  paid  to  Gardner's  credit  at  his  bankers',  and  Collen  ex- 
pended a  considerable  sum  on  the  cultivation  and  improvement  of  the 
farm  before  the  September  of  that  year.  About  the  middle  of  November 
he  received  notice  that  Gardner  refused  to  sign  the  lease,  on  the  ground 
that  Wright  (against  whose  executors  the  action  was  brought)  was  not 
authorised  to  let  the  farm  for  12^  years,  or  on  the  terms  set  forth  in  the 
agreement.  Collen  then  filed  a  bill  against  Gardner  for  specific  per- 
formance, and  after  he  had  put  in  his  answer,  denying  Wright's  autho- 
rity, Collen  gave  notice  to  Wright  of  the  suit  and  ground  of  defence, 
and  that  he  would  proceed  with  such  suit  at  his  expense  unless  he  gave 
him  notice  not  further  to  proceed  ;  and  that  he  would  bring  an  action 
against  him  for  damages,  in  the  event  either  of  the  bill  being  dismissed 


422  FALSE    REPRESENTATIOX    BY    TENANT. 

on  the  ground  of  defence  set  up,  or  of  his  requiring  him  not  further  to 
proceed.  Wi'ight  answered  repudiating  his  liability  to  Collen,  and  the 
bill  was  dismissed  on  the  ground  of  defence  set  up.  On  a  case  stating 
the  above  circumstances,  with  liberty  to  the  Court  to  draw  inferences 
of  fact,  the  Court  of  Queen's  Bench  held  that  Collen  was  entitled  to 
maintain  an  action  against  Wright's  executors,  as  for  a  breach  of 
promise,  that  Wright  had  the  authority,  and  that  he  might  recover  in 
such  action  damages  for  the  expenses  of  the  Chancery  proceedings,  it 
not  appearing  that  he  had  instituted  thtm  incautiously,  and  they  being 
therefore  damages  naturally  resulting  ft-om  the  misrepresentation  made 
by  Wright.  This  ruling  was  confirmed  by  the  Exchequer  Chamber 
{CocJcliirn  C.J.  diss.). 

In  Ley  v.  Peter,  in  which  the  action  was  brought  to  recover  posses- 
sion of  an  undivided  third  of  a  piece  of  land  called  Barn  Meadow,  the 
defendant's  grandfather  had  been  owner  of  two  undivided  thirds  of 
such  meadow,  and  held  the  other  third  under  a  lease,  which  expired  in 
1818.  The  father  of  defendant  and  defendant  succeeded  in  their 
turns  ;  and  at  the  time  the  action  was  brought,  the  defendant  was 
owner  of  the  two-thirds,  and  occupied  the  whole,  no  rent  having  been 
paid  since  1818.  The  only  evidence  relied  upon  for  the  plaintiff  was  a 
letter  of  the  land-agent  who  managed  the  defendant's  property,  written 
within  twenty  years  of  the  action  being  brouglit,  in  which  he  said  the 
defendant  "  would  no  doubt  accept  a  lease  of  Ley's  one-third  at  a  fair 
rack  rent."  It  was  held,  after  a  verdict  for  the  plaintiff  in  ejectment 
for  the  one-third,  by  the  Court  of  Exchequer,  first,  that  this  was  not  an 
aclcnoivhdgment  of  title  within  3  &  4  Will  lY.,  c.  4,  s.  14,  as  not  leing 
sir/ned  hj  the  person  in  possessio)i,  ltd  only  by  an  agont ;  and  secondly 
{Martin  B.  diss.),  that  the  land-agent  had  no  authority  by  virtue  of  his 
employment  as  such  to  write  such  a  letter  ;  and  thirdly,  that  the  letter 
was  no  evidence  of  a  tenancy  at  the  will  of  the  plaintiff. 

Where  a  tenant  from  year  to  year,  having  no  authority  from  his  land- 
lord to  let  in  a  new  tenant,  falsely  represented  to  the  plaintiff  that  he 
had,  and  thereby  induced  him  to  pay  £100  for  allo\nng  him  to  enter 
into  possession,  and  also  to  take  the  stock  at  a  valuation  ;  but  the  land- 
lord refusing  to  accept  him  as  tenant,  he  had  to  leave  after  a  year's 
occupation,  and  it  was  left  doubtful  on  the  evidence,  whether,  on  the 
whole,  the  plaintiff  had  become  a  loser  or  a  gainer  ;  and  the  defendant 
had  paid  the  first  half  of  the  year's  rent  to  the  landlord  ;  the  jury,  in 
an  action  for  the  false  representation,  were  directed  by  Wightman  J. 
that  they  were  at  hberty,  finding  for  the  plaintiff,  to  give  a  sum  less 
than  the  £100,  or  even  nominal  damages  ;  and  in  a  cross  action  by  the 
defendant  against  the  plaintiff  in  that  action  for  half-a-year's  rent,  they 


REFUSAL  OF  ENTRANCE  TO  NEW  TENANTT.      423 

were  directed  by  his  lordsliip  to  find  for  the  phiintiff"  on  a  count  for 
money  paid  {Graclmdl  v.  Davij). 

The  question  as  to  when  a  lessor  can  he  said  to  deni/  an  entrance  on  to 
his  farm  to  the  tiew  tenant  was  discussed  in  Ilaiclres  v.  Ortoti.  The 
plaintiff  in  the  autumn  of  1832  entered  upon  98  acres  of  the  arable 
land,  and  sowed  them  with  wheat,  and  on  April  6th,  1833,  he  went  to 
the  farm,  which  still  continued  in  the  defendant's  occupation,  and 
stated  that  he  was  come  to  take  possession  accordino^  to  the  lease. 
Some  further  conversation  followed,  and  according  to  the  plaintifF,  he  at 
that  time  demanded  possession  of  the  premises  not  yet  given  up  to  him, 
and  the  defendant  refused  it.  The  plaintiff  never  obtained  possession. 
He  ceased  to  occupy  the  98  acres,  and  the  defendant  reaped  the  wheat. 
Lord  Ahinger  C.B.  considered  that  the  plaintifi"  had  not  clearly  shown 
any  actual  demand  and  refusal  of  possession,  and  that  there  ought  to 
be  a  nonsuit.  The  plaintiflF's  counsel  contended  that  there  was  a  con- 
structive eviction,  as  the  plaintiff  must  be  taken  (and  was  in  effect  ad- 
mitted by  the  pleadings)  to  have  entered  on  the  whole  of  the  premises 
when  he  entered  on  the  98  acres,  and  the  defendant  on  April  6th  kept 
him  out  of  the  farm.  His  lordship  then  left  it  to  the  jury  whether  or 
not  the  plaintiff  had  gone  to  the  farm  on  April  6th,  with  a  hand  fide 
intent  to  take  possession,  and  whether  the  defendant  had  seriously  ex- 
pressed and  shown  by  his  conduct  an  intention  that  he  should  not  have 
it.  The  jury  found  for  the  defendant,  and  the  Court  refused  a  new 
trial. 

Doe  dem.  Marrpus  of  Hertford  v.  Hunt  was  the  case  of  a  tenant 
refusing  to  show  his  farm.  He  had  required  that  his  rent  might  be 
'  reduced  from  £520  to  £400  ;  the  landlord  refused,  and  he  gave  a 
notice  to  quit  at  Michaelmas,  1834.  It  was  afterwards  agreed  that  he 
should  continue  to  hold  on  for  a  year  at  a  reduced  rent,  the  notice  con- 
tinuing in  force  until  Michaelmas,  1835.  Before  that  time  arrived  he 
made  an  offer  of  £420,  and  received  an  answer  from  the  plaintiff's 
agent  stating  that  "  The  Marquis  of  Hertford  has  directed  me  to 
inform  you,  that  he  could  only  consent  to  accept  your  ofier  of  £420 
for  the  farm,  for  the  year  from  Michaelmas  next  to  Michaelmas,  1836, 
subject  to  the  existing  covenants,  ^rrovided  I  could  not  find  a  tenant 
for  it  at  the  rent  it  appeared  to  me  to  be  worth  hy  the  \st  of  August;  and 
subject  as  well  to  the  express  understanding  that  the  notice  you  had 
given  to  quit  your  farm  at  Michaelmas  next  should  be  admitted  between 
you  not  to  be  withdrawn,  but  to  be  carried  over  to  Michaelmas,  1836. 
The  Marquis  also  directed  me  to  advertise  your  farm  to  be  let,  in  the 
Ipswich  paper,  and  I  shall  send  the  advertisement  for  insertion  in  the 
next  paper." 


421.  MEANING   OF    "DEMISE." 

The  advertisement  that  the  farm  was  to  be  let  at  next  Michaelmas 
accordingly  appeared.  On  the  9th  of  July,  1835,  the  defendant  signed 
the  following  memorandum  :  "  Mr.  Hunt  has  explained  that  his  offer 
for  the  farm  was  £400  only,  and  subject  to  this  correction  he  assents 
to  the  terras  proposed  in  Mr.  W.'s  (the  agent's)  letter.— e/.  Himtr  A 
]\Ir.  Catlin  made  an  application  for  the  farm,  but  the  defendant  refused 
to  allow  him  to  see  it,  and  he  made  no  offer  ;  and  in  consequence  of  the 
defendant's  refusal  to  leave  at  Michaelmas,  1835,  this  action  of  eject- 
ment was  brought.  It  was  contended  for  the  defendant,  that  under 
tliis  agreement  the  tenancy  continued  till  Michaelmas,  1836,  but  GazeJee 
J.  refused  to  nonsuit  the  plaintiff.  A  rule  to  enter  a  nonsuit  was  dis- 
charged, and  the  Court  held  that  it  was  a  necessarily  implied  condition 
of  the  agrcemeut  that  the  tenant  should  allow  persons  applying  for  the 
farm  to  go  over  it  to  inspect  it,  and  that  the  tenant  having  before  the 
1st  of  August  refused  to  perform  that  condition,  the  contract  was  put 
an  end  to. 

The  u'ord  "  demise  "  does  not  carrij  ivith  it  any  imjjlied  undertaking 
that  the  land  shall  be  reasonahlij  fit  for  the  purpose  for  which  it  is  taken; 
the  law  merely  annexes  to  it  a  condition  that  the  party  demising  has  a 
good  title  to  the  premises,  and  that  the  lessee  shall  not  be  evicted 
during  the  term  {Sutton  v.  Temple).  Here  the  defendant  took  the 
eatage  of  a  field  in  the  parish  of  Skirbeck  from  the  plaintiff.  It  con- 
sisted of  24  acres  of  eddish,  and  the  agreement  was  signed  on  Septem- 
ber 8,  1842,  for  £40,  half  to  be  paid  at  Boston  Mart,  on  the  12th  of 
December,  and  the  rest  on  the  6th  of  April.  The  defendant  stocked 
the  eddish  with  15  beasts,  four  of  which  died  on  October  2nd,  from  the 
poisonous  effects  of  old  refuse  paint,  which  lay  open  in  a  manure  heap 
in  the  field.  The  plaintiff  was  informed  of  this,  but  took  no  steps  to 
remove  the  manure,  and  the  defendant  fenced  it  off,  and  turned  in  more 
beasts,  four  of  whom  died  from  the  poison  above  mentioned  in  a  fort- 
night. The  defendant  declined  any  longer  to  stock  the  eddish,  and 
told  the  plaintiff  she  might  do  what  she  pleased  with  it,  but  she  did  not 
resume  possession  till  after  the  6th  of  April.  There  was  no  evidence  to 
show  that  the  plaintiff  was  aware  of  the  state  of  the  eddish  when  she  let 
it.  Hence  it  was  contended  that  the  defendant  could  not  be  made 
liable,  inasmuch  as  the  eddish  being  wholly  unfit  for  the  purpose  of 
which  it  was  taken,  viz.,  the  food  of  beasts,  the  defendant  could  not  be 
said  to  have  had  any  beneficial  use  or  enjoyment  of  it. 

Lord  Ahiiujer  C.B.  left  it  to  the  jury,  who  found  tliat  the  beasts  were 
poisoned  by  the  paint,  and  a  verdict  under  his  lordship's  direction  was 
entered  for  the  plaintiff  for  £12,  that  being  a  rateable  proportion  of  the 
rent  for  the  time  that  the  defendant  actually  occupied,  leave  being 


RIGHT    OF    ASSIGNEE    OF    REVERSION.  425 

reserved  to  the  defendant  to  move  to  enter  a  verdict  for  him,  and  to  the 
plaintiff  to  move  to  increase  the  damages  to  £26.  Cross  rules  were 
obtained  accordingly.  The  rule  for  a  nonsuit  was  discharged,  and  that 
to  increase  the  damages  made  absolute.  Lord  Ahingor  C.B.  said  :  "I 
take  the  rule  of  law  to  be,  that  if  a  person  contract  for  the  use  and 
occupation  of  land  for  a  specified  time,  and  at  a  specified  rent,  he  is 
bound  by  that  bargain,  even  though  he  took  it  for  a  particular  purpose, 
and  that  purpose  be  not  attained." 

In  Hart  v.  Windsor,  which  virtually  overthrew  Smith  v.  3Imral)Ie, 
ParTce  B.  said  :  "  It  appears  to  us  to  be  clear  on  the  old  authorities, 
that  there  is  ?io  implied  warranty  on  a  tease  of  a  house  or  of  land,  that 
it  is,  or  shall  be,  reasonabhj  fit  for  habitation  or  niJtivation.  The  implied 
contract  relates  only  to  the  estate,  not  to  the  condition  of  the  property." 
So  in  Keats  v.  Earl  of  Cadogan,  it  was  held  that  there  is  no  implied  duty 
in  the  owner  of  a  house,  which  is  in  a  ruinons  and  unsafe  condition,  to 
inform  a  proposed  tenant  that  it  is  unfit  for  habitation,  and  no  action 
will  lie  against  him  for  an  omission  to  do  so,  in  the  absence  of  express 
warranty  or  active  deceit. 

Stat.  32  Hen.  YIII.  c.  34,  applies  to  leases  by  deed  only ;  and  ivhere 
a  lease  is  not  under  seal,  the  assignee  of  the  reversion  cannot  maintain 
assumpsit  against  the  lessee  for  breach  of  his  contract  with  the  assignor  to 
repair  {Standen  v.  Christmas).  And  there  is  no  implied  contract  to  use 
demised  premises  in  a  tenant-like  manner,  where  the  tenant  has  expressly 
contracted  to  repair  (ib.).  Where  a  lease  for  a  term  certain  was  granted 
by  wi'iting,  not  under  seal,  which  contained  an  undertaking  on  behalf 
of  the  lessor  and  his  assigns  for  quiet  enjoyment,  his  assignees  may 
maintain  assumpsit  for  use  and  occupation  ;  for  the  lessor  having 
granted  for  himself  and  his  assigns  the  permission  of  any  person  who 
might  become  assignee  of  the  reversion  during  the  lease  was  virtually 
included,  so  that  the  occupation  became  in  point  of  law  permissive  on 
the  part  of  the  assignee  as  soon  as  his  interest  accrued  (ib.).  And  jw 
Curiam :  "  The  occupation  being  in  point  of  law  by  the  permission  of 
the  plaintiff,  the  action  is  maintainable  in  its  present  form,  by  virtue  of 
the  statute  11  Geo.  II.  c.  19,  s.  14.  In  most  of  the  cases  referred  to  on 
the  argument,  the  tenancy  was  from  year  to  year.  It  is  obvious  that 
the  assignee  of  the  reversion  has  then  the  power  of  determining  the 
tenancy  by  notice  ;  and  if  he  refrains  irom  doing  so  the  occupation 
may  well  be  said  to  be  by  his  permission.  In  Lumleg  v.  Hodgson  the 
tenancy  was  from  year  to  year,  and  a  notice  to  quit  had  actually  been 
given,  but  not  persevered  in.  The  action  was  for  a  year  and  a  half's 
rent ;  the  last  year's  rent  all  accrued  after  the  expiration  of  the  notice 
to  quit  ;  and  the  occupation  during  that  time  was  clearly  by  the  per- 


426  LESSEE    MUST    SEEK    LESSOR    TO    PAY    RENT. 

mission  of  the  plaintiff ;  the  first  lialf-year  not  so  ;  and  the  same 
qnestion  might  have  arisen  as  in  the  present  case,  but  it  was  not  made. 
In  Mortimer  v.  Preedy  the  Conrt  felt  the  same  difficulty  as  arises  here  ; 
but  the  point  was  not  expressly  determined.  The  case  of  Buckivorth  v. 
Simpson  was  also  upon  a  tenancy  from  year  to  year  ;  so  was  the  case  of 
Dolby  V.  Hcs,  which,  however,  turned  upon  the  defendant  being  estopped 
by  his  own  acts  of  recognition.  No  case  appears  yet  to  have  been  deter- 
mined, where  an  absolute  lease  in  writing,  not  under  seal,  for  a  fixed 
term  of  years  hanng  been  granted,  and  the  landlord  having  assigned 
his  reversion,  it  has  been  held  that  the  assignee  can  maintain  an  action 
of  assumpsii  for  use  and  occupation.  We  are,  however,  of  opinion  for 
the  reasons  already  given,  that  he  can  "  (ih.). 

To  an  actio?!  on  a  covenant  in  a  lease  to  pay  the  rent  reserved  (pmrterly, 
it  is  no  answer  that  the  defendant  was  on  the  dmiised  premises  on  tJis 
quarter-day,  ready  to  iiny  the  lessor,  but  that  the  latter  did  not  come  to 
receive  it  {Haldane  v.  Johnson).  And  jier  Martin  B.  :  "The  covenant 
is  a  covenant  to  pay  a  sum  of  money  to  the  lessor  upon  a  particular  day, 
no  place  being  mentioned  for  payment,  either  expressly  or  by  implica- 
tion. In  such  a  case  it  is  clearly  laid  down,  in  both  Rowe  v.  Young,  in 
the  House  of  Lords,  and  the  judgment  of  the  Judges  there,  and  Poole 
y.  Tumhridge,  that  it  is  the  duty  of  the  covenantor  to  seek  out  on  the 
appointed  day  the  person  to  he  paid,  and  tender  the  money ;  and  in  Poole 
V.  Tumhridge,  it  was  stated  by  Parke  B.,  as  the  conclusion  from  the 
authorities,  that  '  Nothing  can  discharge  a  covenant  to  pay  on  a  certain 
day,  but  actual  tender  or  payment  on  that  day,  although  if  the  party 
afterwards  choose  to  receive  the  money,'  it  is  a  payment  to  be  '  pleaded 
in  the  way  of  accord  and  satisfaction.'  And  this  is  in  exact  conformity 
with  the  rule  laid  down  in  Sheppard's  '  Touchstone,'  p.  378,  that  where 
an  obligor  is  to  pay  a  sum  of  money  or  do  a  like  thing  to  the  obligee  on 
a  day  certain,  but  no  place  is  set  down  where  it  shall  be  done,  it 
must  be  done  to  the  person  of  the  obligee,  wheresoever  he  may  be,  if  he 
be  infra  quatuor  maria  "  (/&.). 

Where  A.,  y.e  tenant,  covenanted  with  the  landlord,  B.,  to  keep  certain 
premises  in  repair,  hut  allowed  them  to  hecoms  dilapidated,  and  the  cost 
of  repair  would  amount  to  £40,  and  B.  had  covenanted  with  C.  (the 
ground-landlord)  duly  to  pay  rent,  which  he  had  failed  to  pay,  so  that 
B.'s  reversion  might  have  been  forfeited  and  of  no  value,  the  Court  of 
Exchequer  held,  in  an  action  by  B.  against  A.,  that  the  damages  should 
be  what  it  would  cost  to  put  the  premises  in  repair,  not  what  might  be 
the  value  of  B.'s  reversionary  interest  i.'n  the  premises  {Davies  v.  Under- 
wood). And  ivhere  a  lease  and  under-lease  each  eontained  a  covenant, 
to  reimir  and  keep  in  repair,  diflering  however  in  substance  and  in  terms, 


COVENANT    TO    REPAIR.  427 

the  Court  of  Exchequer  held  that  the  measure  of  damages  in  an  action 
by  the  lessee  against  the  under-lessee  on  his  covenant,  was  the  sum  it 
would  cost  to  put  the  premises  into  repair  ;  and  that  the  plaintiff  was 
not  entitled  to  recover  as  special  damage  in  such  an  action  the  damages 
and  costs  recovered  in  a  former  action,  brought  against  him  by  his 
lessor,  for  breach  of  the  covenant  in  the  lease  {Penley  v.  Watts).  But 
qimre  would  the  plaintiflp  have  been  entitled  to  recover  them  if  the  cove- 
nants had  been  identical  {ib.).     And  see  JSfeaJe  v.  Wyllle. 

A  covenant  to  yield  up  in  repair  at  the  end  of  a  term,  runs  ivith  the 
land,  and  binds  an  assignee,  though  not  named  {Martyn  Adx.  v.  Clue). 
Defendant,  who  was  the  assignee  of  the  lessee,  pleaded,  among  other 
pleas,  as  to  suffering  the  premises  to  be  ruinous  and  out  of  repair,  and 
so  leaving  them,  that  the  lessor  did  not  at  any  time  from  the  assign- 
ment till  the  expiration  of  the  term  provide  on  the  premises  any  rough 
timber  whatever.  It  was  held  by  the  Court  of  Common  Pleas  on  de- 
murrer to  this  plea,  that  it  was  sufficient  on  this  record  to  aver  that  the 
lessor  was  always  ready  and  willing  to  furnish  timber,  without  stating 
that  he  actually  did  furnish  ;  and  that  the  plea  was  also  bad,  for  that 
the  condition  precedent  to  the  defendant's  obligation  to  repair  was 
sufficiently  performed,  if  he  was  ready  and  willing  to  supply  timber 
when  required  (/&.).  Li  a  covenant  by  a  lessee,  not  naming  assigns,  to 
repair  and  yield  up  in  repair  all  buildings  and  erections,  an  assignee  is 
liable  in  respect  of  the  non-repair  of  buildings  erected  during  the  term 
{Minshull  v.  OaJces).  Willes  J.  held  in  WoolcocJc  v.  Dew,  that  by  a 
covenant  in  a  lease  of  a  farm  and  cottages  to  keep,  support,  and  main- 
tain the  premises  in  good  repair,  the  lessee  or  assignee  is  bound  to  Jceejj 
the  cottages  in  situ,  and  to  repair  them  if  ruinous,  or  at  least  to  replace 
them  as  nearly  as  might  be  in  the  position  in  which  they  were  when 
demised,  and  is  held  liable,  having  pulled  them  down,  for  their  value 
as  they  stood,  without  reference  to  the  result  of  their  removal  as 
regarded  the  general  improvement  of  the  farm. 

The  rule  as  to  keeping  premises  in  repair  was  specially  laid  down  in 
Payne  v.  Haine.  The  defendant  on  becoming  tenant  to  the  plaintiff 
of  a  farm  and  outbuildings  agreed  "  to  Iceep)  the  same,  and  at  the  expi- 
ration of  the  tenancy  to  deliver  up  the  same,  in  good  repair,  order,  and 
condition."  At  the  trial  the  plaintiff  proved  bad  repair  of  the  thatch 
on  the  outbuildings,  as  also  of  the  gates,  while  the  defendant  sought  to 
prove  that  the  gates  had  fallen  to  pieces  from  age  alone,  and  the  thatch 
was  better  when  he  left  than  when  he  entered  the  farm.  Piatt  B.  told 
the  jury  to  consider  the  state  of  the  premises  when  the  defendant 
entered,  adding  that  it  was  enough  if  the  defendant  left  them'  in  as  good 
plight  as  he  found  them,  and  that  he  was  not  bound  on  quitting  the 


428  MEAXIXG    OF    ''GOOD    REPAIR." 

farm  to  replace  the  matters  demised  by  leavin;:^  new  instead  of  old,  or 
oak  instead  of  apple-tree  posts.  A  verdict  was  thereupon  found  for  the 
defendant,  and  the  Court  {Plait  B.  assen.)  made  the  rule  absolute  for  a 
new  trial,  on  the  ground  of  misdirection.  Parke  B.  said  :  "  If  at  the 
time  of  the  demise  the  premises  were  old  and  in  bad  repair,  the  lessee 
was  bound  to  put  them  in  good  repair,  as  old  premises  ;  for  he  cannot 
*  keep '  them  in  good  repair  without  putting  them  into  it.  He  might 
have  contracted  to  keep  them  in  the  state  in  which  they  were  at  the 
time  of  the  demise.  This  is  a  contract  to  keep  the  premises  in  good 
repair  as  old  premises  ;  but  that  cannot  justify  the  keeping  them  in 
bad  repair,  because  they  happened  to  be  in  that  state  when  the  defendant 
took  them.  The  cases  all  show  that  the  age  and  class  of  the  premises, 
with  their  general  condition  as  to  repair,  may  be  estimated  in  order  to 
measure  the  extent  of  the  repairs  to  be  done."  Rnlfe  B.  added,  "  The 
term  ^ good  re}Kiir^  is  to  be  construed  with  reference  to  the  subject- 
matter,  and  must  diifer,  as  that  may  be  a  palace  or  a  cottage  ;  but  to 
'  keep  in  good  repair '  presupposes  the  putting  into  it,  and  means  that 
during  the  whole  term  the  premises  shall  be  in  good  repair." 

In  Baijlis  V.  Le  Gros  the  lease  contained  a  covenant  Inj  the  lessee  to 
repair  and  Iceep  in  rejmir  the  premises ;  and  further,  that  it  should  he 
lawful  for  the  lessor  once,  or  oftener  in  every  year  to  enter  the  jjremises 
and  examine  their  condition,  and  if  necessary  give  the  lessee  notice  in 
writing  to  repair,  with  a  proviso  that  if  the  lessee  should  not  perform 
the  covenants,  it  should  be  lawful  for  the  lessor  to  re-enter.  It  was 
held  that  these  were  independent  covenants,  and  that  the  lessor  had  a 
right  to  re-enter,  as  for  a  forfeiture,  upon  finding  the  premises  out  of 
repair,  though  he  had  not  given  notice  to  the  lessee  to  put  them  in 
repair.  The  lessor,  on  examining  the  premises,  found  the  defendant,  who 
was  not  the  original  lessee,  in  possession,  and  entering  into  an  agreement 
with  him  continued  him  as  tenant.  It  was  held  that  this  was  a  sufficient 
re-entry  to  oust  the  original  lessee  from  further  enjoyment. 

It  was  ruled  by  Patteson  C.J.,  in  Leach  v.  Thomcm,  that  a  tenant 
from  ijear  to  year  is  not  bound  to  do  suhstantial  repairs,  hut  only  to  Iceep 
the  premises  ivind  and  watertight.  The  landlord  of  premises  let  from 
year  to  year  is  not  bound  to  keep  them  in  repair  in  the  absence  of  an 
express  contract  for  that  purpose  ;  nor  is  he  liable  to  damage  arising 
to  his  tenant  from  the  want  of  repair  {Gott  v.  Gandy).  Where  a  tenant 
paid  a  sum  of  money  to  his  landlord  for  brcnches  of  covenant  to  repair, 
committed  during  the  occupation  of  his  assignee  and  his  assignee's 
successor,  he  can  recover  damages  against  his  assignee  for  the  money 
paid  for  the  non-repair  during  the  assignee's  occupation,  without  showing 
an  apportionment  {Smith  v.  Peat).    The  measure  of  damages  for  a  Ireach 


DES'iT.UCTION    OF    LEASED    PREMISES    BY    FIEE.  429 

of  contract  to  repcur  daring  the  existence  of  the  term,  is  the  difference 
between  the  price  for  which  the  reversion  would  sell  if  the  covenant 
were  unbroken,  from  that  for  which  it  would  sell  if  the  covenant  were 
broken  {ib.).  And  per  Parke  B.  :  "  The  measure  of  damages  as  laid 
down  in  some  of  the  cases,  and  by  my  brother  Coleridge  in  Doe  t.  Roiu- 
lands,  is  too  low.  The  true  measure  is  to  be  ascertained  by  considering 
what  w^ould  be  the  loss  to  the  reversion,  if  it  were  sold  at  the  time  of 
the  commencement  of  the  action"  {it).).  And  in  Vivian  v.  Champion, 
Lord  Holt  C.J.  says  :  "  If  the  premises  were  out  of  repair  in  the  an- 
cestor's time,  yet  if  the  lessee  suffers  them  to  continue  out  of  repair  in 
the  time  of  the  heir,  that  is  a  damage  to  the  heir,  and  he  shall  have  an 
action  ;  and  in  these  actions  there  ouglit  to  be  very  good  damages  ; 
and  it  has  been  always  practised  so  before  me,  and  everybody  else  that 
I  ever  knew.  We  always  inquire  in  these  cases  what  it  will  cost  to  put 
the  premises  in  repair,  and  give  so  much  damages  ;  and  the  plaintiff 
ought  in  justice  to  apply  the  damages  to  the  repair  of  the  premises." 

A  testator  directed  his  trustees  to  allow  A.  B.  to  occupy  a  mill,  &c., 
so  long  as  he  should  think  proper  so  to  do,  he  nevertheless  keeping  the 
premises  in  good  and  tenantable  repair,  and  paying  a  rent  of  £100. 
A.  B.  accepted  the  gift,  but  the  premises  were  afterwards  totally  de- 
stroyed ly  accidental  fire,  and  it  was  held  that  A.  B.  was  bound  to 
reinstate  them,  or  pay  a  sufficient  sum  for  that  purpose,  and  was  liable 
for  the  rent  in  the  meanwhile,  and  that  he  could  not  escape  from  the 
liability  to  rebuild  by  declining  any  longer  to  retain  them  {Gregg  v. 
Coates  ;  Hodgson  v.  Goatcs). 

It  was  decided  in  Baker  v.  Holtpzaffell  that  the  landlord  of  a  house 
demised  under  a  written  agreement  not  under  seal,  nmy  recover  against  the 
tenant  in  occuiMtion  and  use  and  occupation  for  the  rent  accruing  after  the 
premises  are  burnt  down.  And  so  in  Izon  v.  Gorton,  where  there  was  no 
written  agreement,  but  a  mere  tenancy  from  year  to  year  (which  until 
it  is  determined  by  a  notice  to  quit,  is,  as  to  its  legal  character  and 
consequences  the  same  as  a  term  for  years) ;  for  in  order  to  enable  a 
tenant  to  avoid  his  lease  there  must  be  a  default  on  the  part  of  the 
landlord  {ib.).  In  Holtpzaffell  v.  Baker,  where  the  plaintiff  offered  to 
surrender  his  term,  praying  relief  from  the  previous  action.  Lord  Eldon 
Ch.  held  that  he  was  entitled  to  no  relief,  although  the  agreement  con- 
tained an  engagement  by  the  tenant  to  repair  the  premises,  and  keep 
them  in  repair,  "  reasonable  use  and  wear  and  damage  by  fire  excepted." 
A  te?iant  has  no  equitg  to  compel  his  landlord  to  expend  money  received 
from  an  insurance  office  on  the  demised  piremises  being  burnt  down,  in 
rebuilding  the  premises,  or  to  restrain  the  landlord  from  suing  for  the 
rent  until  the  premises  are  rebuilt  {Leeds  v.  Chectham).     An  attempt 


430    LANDLORD  XOT  BOUND  TO  LAY  OUT  INSURANCE  MONEY. 

was  made  in  Dennis  v,  Lofft,  on  the  authority  of  an  observation  in  Lord 
St.  Leonard's  "  Hand  Book,"  p.  101,  to  overthrow  the  doctrine  estab- 
lished in  this  case  and  Holtpzaff'cU  v.  BaJrcr.  The  defendant  was  sued 
for  the  use  and  occupation  of  a  farm-house,  some  of  the  buildings  of 
"which  had  been  accidentally  destroyed  by  fire.  He  placed  an  equitable 
plea  on  the  record  to  the  effect  that  the  landlord  had  insured  the 
buildiugs  in  question  (which  were  of  a  description  much  to  enhauce  the 
value  of  tlie  premises),  and  having  received  the  sum  insured,  had  not 
expended  the  same  on  rebuilding  the  premises.  This  plea  was  demurred 
to,  and  the  Court  of  Queen's  Bench,  without  calling  the  plaintiff,  gave 
judgment  against  the  defendant,  remarking  that  the  law  of  Scotland  as 
to  this  point  was  different  from  that  of  England,  in  which  it  is  no 
excuse  for  nonpayment  of  rent  that  the  landlord  has  insured  and  re- 
ceived the  money,  if  he  has  entered  into  no  covenant  to  lay  it  out  on 
the  premises. 

Wlicre  a  farm-liouse  was  turnt  hy  accident,  it  was  held  by  the  House 
of  Lords,  reversing  the  judgment  of  the  Court  of  Session,  that  the 
landlord  is  not  bound  to  rebuild  if  there  was  no  written  agreement 
{Bayne  v.  WaJlcer).  If  a  landlord  is  bound  in  law  or  equity  to  repair 
in  certain  cases,  and  the  tenant  in  one  of  those  cases  owing  to  a  sudden 
tempest  is  obliged  to  make  those  repairs  to  prevent  further  mischief, 
and  then  an  action  is  brought  against  him  for  the  rent,  equity  will  not 
inter{)ose,  because  the  tenant  is  entitled  to  charge  the  landlord  with  the 
re[iairs,  and  may  set-off  in  an  action  for  rent  the  money  advanced  by 
him  for  repairs,  as  money  paid  to  the  use  of  the  landlord  {Waters  v. 
Weirjatt). 

The  plaintiff  in  Yates  v.  Dunstcr  (in  which  Beech  v.  WJdte  and  Bennet 
v.  Iretand  were  cited)  being  the  assignee  of  a  lease,  which  contained  a 
covenant  to  repair,  underlet  the  premises  to  the  defendant,  upon  the 
terms  that  he  should  "  maintain  them  in  as  good  a  state  as  they  would 
be  when  repaired  by  him."  Shortly  after  the  defendant  took  possession, 
the  })remises,  which  were  old  and  dilapidated,  were  destroyed  by  fire. 
The  jury  found  that  the  cost  of  rebuilding  them  would  be  £1,635,  but 
that  they  would  be  more  valuable  by  £600  ;  and  the  Court  of  Exchequer 
held  that  the  defendant  was  onty  hound  to  put  the  premises  in  the  same 
state  as  they  icould  have  been  if  lie  had  repaired  them  hfore  the  fire,  and 
consequently  he  was  liable  to  pay  as  damages  £1,035  only. 

In  The  Duke  of  Newcastle  v.  The  Hundred  of  Broxtowe,  it  was  held 
that  in  assessiny  compensation  for  the  demotition  of  a  divelliny-house  under 
statute  7  &  8  Geo.  IV.  c.  31,  the  jury  ought  to  consider  what  sum  will 
be  necessary  to  repair  the  injury  and  replace  the  house  in  the  state  in 
which  it  was  at  the  time  when  the  outrage  was  committed,  and  not 


ACTION    FOR   DILAPIDATIONS.  431 

whether  the  plaintiff  was  hkoly  to  make  it  his  residence,  or  whether  it 
was  suitable  for  such  residence. 

In  Macnolty  v.  Fitzher'bert,  where  an  agreement  had  been  approved 
by  the  Court  for  letting  a  farm,  the  farm-house  and  buildings  of  ivhich 
being  in  a  dilapidated  stats,  were  to  be  put  into  substantial  repair  by  the 
receiver,  Sir  J.  Romillg  M.R.  made  an  order  with  very  great  hesitation, 
on  the  petition  of  the  tenant  for  life,  that  the  £220  which  had  been 
expended  (out  of  £550)  on  repairs  of  a  permanent  character,  should 
be  allowed  out  of  the  corpus  of  certain  stock,  in  Court,  limited  on  the 
same  trusts,  and  of  which  the  petitioner  was  allowed  interest  for  her  life. 

In  Golce  v.  Cholmondley,  a  testator  directed  his  trustees,  out  of  the 
rents  and  profits  of  his  estate,  to  keep  the  manor-house  and  messuages 
in  good  repair,  and,  if  necessary,  to  rebuild  any  farm  buildings  from 
time  to  time.  The  buildings  being  in  a  dilapidated  state  at  the  tes- 
tator's death,  a  question  arose  between  the  tenants  for  life  and  those  in 
remainder  as  to  the  construction  of  the  will  in  this  respect  ;  and  it  was 
lield  by  Kindersley  V.C.  that  the  manor-house  and  messuages  must  be 
repaired  out  of  the  annual  rents  and  profits  ;  that  the  rebuilding  applied 
to  farm-houses,  and  then  only  in  case  of  their  being  incapable  of  repair, 
or  in  case  of  the  expense  of  rebuilding  being  no  greater — regard  being 
had  to  the  nature,  age,  dimension,  and  structure — -than  the  cost  of 
putting  them  into  good  repair. 

An  action  for  dilapidations  when  money  is  paid  into  Court,  and  the 
question  in  dispute  is  only  as  to  the  amount  of  the  damages,  may  be  a 
matter  of  account,  and  the  subject  of  a  compulsory  reference  within  the 
meaning  of  the  Common  Law  Procedure  i\ct,  1854,  17  &  18  Vict.  c.  124 
{In  re  Cummins  v.  Birla'tt). 

A  tenant  under  a  lease  which  contained  a  covenant  to  repair,  and  leave 
in  good  repair,  all  buildings  and  erections  then  standing  or  to  be  erected 
during  the  tei'm,  built  a  farm-house,  partly  on  the  land  demised,  and 
partly  on  the  waste  adjoining  belonging  to  the  lessor.  On  the  decease 
of  the  tenant  a  claim  was  made  by  the  landlord  for  dilapidations,  and 
Sir  J.  Romilly  M.R.  held  that  his  acquiescence  in  the  act  of  the  tenant 
prevented  his  dispossessing  him  of  the  premises  built  on  the  waste,  and 
that  it  must  be  assumed  by  implication  that  the  covenant  to  repair 
extended  to  the  whole  building,  and  that  the  landlord  was  entitled,  in  a 
suit  for  the  administration  of  the  tenant's  estate,  to  establish  a  claim  for 
dilapidations  {In  re  Newhery  White  v.  Walcdy). 

Where  a  rector  p)ut  up  in  the  garden  of  the  rectory,  apart  fi'om  the  house, 
hot-houses,  70  feet  long  and  between  10  and  20  feet  high,  consisting  of 
a  frame  and  glass  work,  resting  on  brick  walls  about  2  feet  high,  and 
embedded  in  mortar  on  these  walls,  he  or  his  executors  in  a  reasonable 


432  NOTICE    TO    JOINT   TENANTS. 

time  after  his  death  are  entitled  to  remove  them  without  incurring  any 
liability  for  either  dilapidations  or  Avaste,  provided  the  garden  is  restored 
to  its  fomier  condition  (Martin  v.  Eoe). 

A  notice  to  quit,  signed  hy  one  of  several  joint  tenants,  purjwrting  to  he 
given  on  behalf  of  them  all,  is  sufficient  to  determine  a  tenancy  from  year 
to  year  as  to  all  (Doe  dem.  Aslin  v.  Summcrsett). 

And  so  a  notice  to  quit  given  hy  a  person  previously  authorized  hy  one 
of  several  lessors,  joint  tenants,  determines  the  tenancy  as  to  all  {Doe 
dem.  Kindersley  v.  Hughes).  A  receiver  appointed  hy  the  Court  of  Chan- 
cery, with  a  general  authority  to  let  the  lands  to  tenants  from  year  to 
year,  has  also  authority  to  determine  such  tenancies  by  a  regular  notice 
to  quit  {Doe  v.  Read).  But  per  ParJce  J.,  a  mere  receiver  of  rents,  as  such, 
has  no  authority  to  determine  a  tenancy  {Doe  dem.  Mann  v.  Walters). 
And  per  Patteson  J.,  an  agent  to  receive  and  let  has  authority  to  deter- 
mine a  tenancy  {Doe  v.  Mizcm)  ;  but  a  notice  to  ([uit  given  hy  an  agent  of 
an  agent  is  not  sufficient  without  evidence  of  an  authority  to  give  notice, 
or  a  recognition  by  the  principal  {Doe  v.  Rohinson).  Lord  Ellenhorough 
C.J.  ruled  that  notice  to  quit  may  he  given  to  a  tenant  hy  parol ;  and 
where  there  are  two  tenants  of  premises  held  in  common,  notice  to  one 
is  sufficient  {Doe  dem.  Macartney,  Lord,  v.  CrieJc).  And,  again,  if  a 
notice  to  quit  is  directed  to  a  tenant  hy  a  wrong  Christian  name,  and  he 
keei)S  it,  it  is  a  waiver  of  the  misdirection,  and  the  lessor  may  recover 
on  it,  if  there  was  no  other  tenant  of  the  name  {Doe  v.  Spiller). 

On  a  parol  demise  of  rent,  to  take  place  from  the  following  "  Lady 
Day,"  evidence  of  the  custom  of  the  counfrg  was  admitted,  to  show  that 
"  Old  Lady  Day  "  was  meant  {Doe  dem.  Hall  v.  Benson).  And  see 
Doe  V.  Hoplcinson,  decided  on  the  authority  of  this  case  ;  and  Furley 
V.  Wood,  where  Lord  Kenyon  C.J.  admitted  proof  of  the  custom  of  the 
country  that  a  general  holding  in  Kent  from  "  Michaelmas  "  meant  Old 
Michaelmas  Day.  In  Doe  dem.  Spicer  v.  Lea,  where  the  letting  was  by 
deed,  the  Court  allowed  of  no  extrinsic  evidence  to  explain  the  time  of 
iiolding  stated  therein  ;  and  ruled  that  since  the  new  style  (Jan.  1, 
1752)  to  hold  "  from  the  Feast  of  St.  Michael "  meant  Xew  Michaelmas, 
and  that,  considering  the  tenant's  year  to  end  at  New  Michaelmas,  the 
notice  to  quit  at  Old  Michaelmas,  though  given  half-a-year  before  New 
Michaelmas,  was  bad  ;  for  the  notice  mu.st  Ijo  to  quit  at  tlie  end  of  the 
tenant's  year,  and  if  it  might  be  given  to  quit  twelve  days  afterwards,  it 
might  as  well  be  at  any  other  time. 

In  the  case  of  Doe  dem.  Slrirktand  v.  Spence,  there  was  an  agreement 
by  a  tenant  of  a  i'anu  "  to  enter  on  the  tillage  land  at  Candlemas  last, 
and  on  the  house  and  all  the  other  premises  at  Lady  Day  following,  and 
that  when  he  left  the  farm  he  should  quit  the  same,  according  to  the 


DIFFERENT    TIMES    OF    QUITTING.  433 

times  of  enfri/  as  aforesakr' ;  and  the  rent  was  reserved  half-yearly  at 
Michaelmas  and  Lady  Day,  It  was  held  that  a  notice  to  quit  delivered 
half-a-year  before  Lady  Day,  but  less  than  half-a-year  before  Candlemas, 
was  good,  the  taking  being  in  substance  from  Lady  Day,  with  a  privi- 
lege for  the  incoming  tenant  to  enter  on  the  arable  land  at  Candlemas 
for  the  sake  of  the  ploughing,  &c.  Lord  Elloilwrougli  C.J.  said  :  "  The 
case  Doe  dem.  Daggett  v.  Snoivdon  has  decided  that  the  notice  to  quit 
shall  refer  to  the  substantial  day  of  entry  of  the  tenant,  though  he  may 
have  before  entered  on  the  arable  land  for  the  benefit  of  ploughing  and 
preparing  it,  and  that  the  incoming  tenant  may  have  the  privilege  of 
entering  upon  it  for  the  same  purpose,  antecedent  to  the  time  of  notice." 

In  Doe  dem.  Davenport  v.  Rhodes,  a  tenant  held  a  farm,  t/ie  lands, 
ivith  file  exception  of  a  sufficient  outlet  of  Voozy  pasture,  from  the  2nd  of 
Februarg,  and  the  house  with  such  pas twe  from  the  1st  of  Hag,  1835, 
then  next,  for  one  year,  and  afterwards  from  year  to  year,  as  long  as 
both  parties  should  please.  On  Aug.  1st,  1842,  a  notice  was  served  on 
the  defendants  to  quit  the  farm  on  the  2nd  of  Feb.  then  next,  or  at 
such  other  time  or  times  as  their  tenancy  should  expire  next  after  the 
expiration  of  half-a-year  from  the  delivery  of  the  notice.  It  was  con- 
tended for  the  defendants  that  this  notice  was  not  sufficient  to  entitle 
the  lessor  of  the  plaintiff  to  recover  the  house,  outluiiklings,  and 
outlet,  as  to  which  the  term  would  not  expire  until  the  1st  of  May 
following.  Williams  J.  reserved  the  point,  and  the  plaintiff'  had  a 
general  verdict.  The  Court  did  not  pronounce  a  definite  opinion  upon 
the  question,  and  the  plaintiff  was  held  entitled  to  a  general  verdict, 
if  he  proved  his  title  to  recover  any  part  of  that  for  which  he  had 
declared. 

In  Doe  dem.  Kindersley  v.  Hughes,  the  actual  period  of  the  commence- 
ment of  the  tenancy  was  not  shown  ;  but  it  was  proved  to  be  the  usage 
of  the  estate  that  the  tenants  should  enter  upon  the  lands  on  the  2nd  of 
February,  and  upon  the  house  and  outbuildings  on  the  1st  of  May.  On 
the  16th  of  February,  1838,  a  notice  to  quit  was  served  upon  the  defen- 
dants by  the  agent  of  the  trustees,  "  to  quit  and  deliver  up  the  farm, 
lands,  and  premises  which  you  hold  under  them  at  the  end  of  your 
jyresent  year's  holding  thereof  "  ;  and  it  was  held  that  this  was  a  good 
notice  to  determine  the  tenancy  in  the  spring  of  1839,  it  not  being 
shown,  on  the  part  of  the  tenant,  that  the  land  was  not  the  principal 
subject  of  the  holding.  The  defendants  contended  that  the  notice  to 
quit  was  insufficient  on  the  face  of  it,  inasmuch  as  it  was  to  quit  at  the 
end  of  the  defendant's  present  year's  holding,  i.e.,  in  May,  1838,  for 
which  it  was  too  late  ;  and  that  it  could  not  operate  to  determine  the 
tenancy  at  the  end  of  a  subsequent  year. 


43i  INSUFFICIENT   NOTICE    TO    QUIT. 

Where  a  tenant  from  year  to  year  gave  his  landlord,  who  accepted  it, 
a  written  notice  to  quit  at  Midsummer,  and  then,  on  discovering  that  his 
tenancy  did  not  expire  till  Christmas,  sent  another  notice  accordingly, 
and  refused  to  quit  the  premises  until  the  latter  date,  the  Court  of 
Exchequer  held,  on  an  ejectment  being  brought,  that  the  tenancy  was 
not  determined  by  notice,  inasmuch  as  it  was  not  good  as  a  notice  to 
quit,  and  could  not  operate  as  a  surrender  by  a  note  in  writing  within 
the  Statute  of  Frauds,  the  first  being  to  take  effect  infuturo  {Doe  dem. 
Murrell  v.  Mil  ward).  The  case  of  Aldenburgh  v.  Peaple  was  much 
shaken  by  the  decision  of  the  Court  of  Exchequer  in  Weddall  v.  Capes  ; 
for  although  the  precise  point  is  not  there  determined,  yet  it  is  clear 
that  the  Court  were  of  opinion  that  the  instrument  could  not  operate 
as  a  surrender  in  futuro.  Bcrsell  v.  Lansherg,  where  it  was  held  by 
the  Court  of  Queen's  Bench  that  a  verbal  acquiescence  by  the  landlord 
on  receiving  from  a  tenant  from  year  to  year  a  verbal  notice  to  quit 
determinmg  within  the  six  months  is  not  sufficient,  and  does  not  operate 
as  a  surrender  of  the  term,  fell  directly  within  the  authority  of  Johnstone 
V.  Huddlestone. 

In  Doe  dem.  Plumer  v.  Mainlvj,  the  premises  were  demised  under  a 
Avritten  agreement  dated  August  4th,  1845,  "  the  tenancy  to  be  from 
year  to  year  from  Michaelmas  next,"  at  the  rent  of  £55,  payable  half- 
yearly,  "except  the  last  1ml f  year,  which  portion  of  rent  shall  be  paid 
on  or  before  the  first  of  August  in  that  year,  and  to  be  deemed  then 
due  for  all  legal  remedies  for  recovering  rent  in  arrear  "  :  tenant  "  to 
allow  the  landlord  or  incoming  tenant  in  the  last  year  to  enter  on  1st 
May,  to  make  fallows  and  carry  out  the  manure  "  ;  for  which  com- 
])eusation  was  to  be  paid,  &c. :  "  tenant  to  have  the  use  of  the  barns 
for  stacking  and  thrashing  the  crops  of  the  last  year  till  the  1st  day  of 
]\Iay  after  the  tenancy."  Defendant  came  into  possession,  and  on  the 
26th  of  March,  1846,  he  was  served  with  a  notice  to  quit  at  Michael- 
mas, 1846.  It  was  contended  on  his  behalf,  that,  taking  all  the  terms 
of  the  agreement  together,  they  necessarily  imported  that  the  tenancy 
was  to  last  beyond  the  first  year  ;  but  under  the  direction  of  WiMe 
C.J.,  a  verdict  was  returned  for  the  plaintiff.  The  Court  of  Queen's 
Bench  refused  a  rule  for  a  new  trial  on  the  ground  of  misdirection. 

If  a  landlord  lease  for  seven  years  hy  parol,  and  agrees  that  the  tenant 
shall  enter  at  Lady  Day  and  quit  at  Candlemas,  though  the  lease  be 
void  by  the  Statute  of  Frauds  as  to  the  duration  of  the  term,  the  tenant 
holds  under  the  terms  of  the  lease  in  other  respects,  and  therefore  the 
landlord  can  only  put  an  end  to  the  tenancy  at  Candlemas  {Due  dem. 
Rigcje  v.  Bell). 

It  was  decided  l^y  the  Court  of  Queen's  Bench  in  Bird  v.  Baker, 


LESSEE  FOE  A  TERM  OF  YEARS.  435 

that  a  lease,  dated  January  19,  1851,  of  certain  premises  to  hold  from 
December  25th,  1849,  for  and  daring  the  full  term  of  fourteen  years 
then  next  ensuing,  containing  a  proviso  that  either  the  lessor  or  Ussee  may 
determine  the  lease  at  the  expiration  of  the  first  seven  years,  by  six  months' 
notice  to  quit,  is  a  lease  determinable  at  the  expiration  of  seven  years 
from  December  25th,  1849,  on  due  notice  being  given. 

Where  a  tenant  entered  under  an  agreement  for  a  seven  years'  lease, 
tvMch  was  never  executed,  it  was  held  by  the  Court  of  Common  Pleas 
that  he  was  not  entitled  to  notice  to  quit  at  the  end  of  seven  years. 
Within  the  seven  years  he  could  not  have  been  turned  out  without 
notice  ;  but  at  the  end  of  the  seven  years  the  contract  itself  gives  him 
sufficient  notice  {Doe  dem.  Tilt  v.  Stratton).  The  point  is,  in  effect, 
decided  in  Doe  dem.  Bloomfield  v.  Smith,  and  Dje  dem.  Older sha  to  v. 
Breach. 

If  a  lease  le  granted  for  seven,  fourteen,  or  twenty-one  years  the 
lessee  has  the  option  at  which  of  the  above  periods  the  lease  shall 
determine  {Dann  v.  Spurrier).  The  Court  of  King's  Bench  fully 
acknowledged  the  authority  of  this  decision  of  the  Court  of  Common 
Pleas  in  Doe  dem.  Webb  v.  Dixon ;  and  held  that,  under  a  lease  for 
fourteen  or  seven  years,  the  lessee  only  has  the  option  of  determin- 
ing it  at  the  end  of  the  first  seven  years,  every  doubtful  grant  being 
construed  in  favour  of  the  grantee. 

Where  a  tenant  for  life  snakes  a  lease  for  years  to  comynence  on  a  certain 
day,  and  dies  (before  the  expiration  of  the  lease)  in  the  middle  of  a  year, 
and  the  remainderman  receives  rent  from  the  lessee  (who  continues  in 
possession,  but  not  under  a  fi'esh  lease)  for  two  years  together  on  the 
days  of  payment  mentioned  in  the  lease,  this  is  evidence  from  which  an 
agreement  may  be  presumed  between  the  remainderman  and  the  lessee, 
that  the  lessee  should  continue  to  hold  from  the  day  and  according 
to  the  terms  of  the  original  demise,  so  that  notice  to  qiiit  ending  on  that 
day  is  proper  {Doe  dem.  Jordan  v.  Ward). 

A  2)erson  who  held  ylebe  lands  as  tenant  to  one  mc^mibent,  and  con- 
tinues in  possession  under  his  successor,  without  disturbance,  must  be 
presumed  to  hold  as  a  tenant  to  the  latter,  and  cannot  be  dispossessed 
without  notice  to  quit  {Doe  dem.  Cedes  v.  SomervUle).  But  Littlcdale  J. 
held,  in  Doe  dem.  Kirby  v.  Carter,  that  the  incumbent  of  a  living  may 
sustain  ejectment  against  parties  in  possession  of  tlie  glehe  lands,  though 
tlie  current  year  of  a  teruincy  from  year  to  year  created  by  his  predecessor 
is  unexpired,  as  such  new  vicar  had  a  right  to  immediate  possession, 
notwithstanding  the  tenancy  recognised  by  his  predecessor.  Here  the 
plaintiff  gave  in  evidence  a  notice  to  quit  from  the  preceding  vicar, 
which  had  expired  previous  to  the  date  of  demise,  and  the  defendant 

r  F  2 


436  TWO    YEAIIS     NOTICE    TO    QUIT. 

cndcfivonrcd  to  show  that  his  tenancy  did  not  expire  at  the  time  to 
Avhich  the  notice  had  relation.  The  letters  of  institution  reciting  the 
cession  of  his  predecessor  were  su^cient  pri/ma  facie  of  the  cession  being 
duly  made,  especially  as  it  was  acted  on,  and  a  rule  for  a  new  trial  on 
the  ground  of  misdirection  was  refused. 

In  TooTcer  v.  Smith  an  mjrmncnt  for  a  lease  coniaincd  a  stipuJation  that 
the  tenancy  should  continue  until  after  two  years'  notice  to  quit  had  leen 
given.  The  tenant  occupied  the  farm,  paid  rent  for  some  years,  but  no 
lease  was  executed,  and  the  Court  of  Exchequer  held  that  it  could  not 
be  implied  that  the  stipulation  as  to  the  two  years'  notice  to  quit  was 
one  of  the  terms  under  which  the  tenant  held.  The  farm  was  to  be 
managed  according  to  the  four  or  five-course  system— «'.p.,  with  respect 
to  the  five-course,  not  less  than  two-fifths  of  the  arable  land  to  be 
always  in  sown  grass  and  a  two-years'  ley,  so  as  to  be  in  proper 
preparation  for  wheat,  &c. ;  and  with  respect  to  the  four-course,  not 
less  than  one-fourth  of  the  arable  land  to  be  always  in  sown  grass,  &c. 
The  one  party  to  give  the  other  two-years'  notice  in  writing  of  his 
intention  to  put  an  end  to  the  tenancy  ;  such  notice  to  be  given  on  or 
before  the  29th  day  of  September,  and  to  expire  on  the  29th  day  of 
September,  which  should  happen  next  before  the  expiration  of  two  full 
years  after  such  notice  should  have  been  given.  The  agreement  con- 
taining these  terms,  and  signed  by  one  Pearson  for  the  plaintiflF,  and 
by  the  defendant,  was  produced.  It  was  not  under  seal,  and  when 
first  produced  was  unstamped,  but  was  subsequently  stamped  as  an 
agreement.  Possession  had  been  taken  by  the  defendant  under  the 
agreement,  who  occupied  the  farm,  and  paid  rent  for  it  for  some  years, 
till  his  tenancy  was  determined  by  a  two-years'  notice,  expiring  Michael- 
mas, 1856.  The  plaintiif  averred  that  the  farm  had  not  been  cultivated 
according  to  the  four  or  five-course  system,  but  that  large  quantities 
of  tlifi  arable  land  had  been  kept  in  wheat  ;  and  the  defendant  pleaded, 
intei'  alia,  that  he  never  held  the  farm  on  the  terms  mentioned  in  the 
declaration.  Martin  B.  ruled  that  the  contract  in  the  declaration  was 
not  proved,  and  nonsuited  the  plaintilF. 

His  Lordship,  on  a  motion  for  a  new  trial,  referred  to  Tress  v.  Savage, 
where  Coleridge  J.  pointed  out  that  the  tenancy  to  be  implied  was  a 
yearly  tenancy,  determinable  by  six  months'  notice  to  quit ;  and  added, 
*'  There  is  nothing  inconsistent  with  a  yearly  tenancy  in  stipulations  for 
the  cultivation  of  lands  upon  any  system  the  parties  may  choose  to  agree 
upon.  It  is  a  fallacy  to  assume  that  the  term  as  to  the  four-course 
Bystem  of  husbandry  cannot  be  implied.  It  is  nothing  more  than  an 
agreement,  that  during  each  year  that  the  tenancy  shall  continue,  a  cer- 
tain cour.se  of  cultivation  shall  be  pursued."     And  jjpr  rollock  C.B.  :  "  A 


EVICTION    OF    TENANT.  437 

tenant  holding  iq^on  the  terms  of  an  agreement  for  a  lease  was  formei'ly 
considered  to  be  merely  a  tenant-at-will,  but  the  Courts  have  since  held 
that  if  rent  is  paid  a  tenancy  from  year  to  year  shall  be  presumed/ 
Leave  was  given  to  amend  the  declaration  within  three  weeks,  by  strik- 
ing out  so  much  of  it  as  related  to  the  two-years'  notice  to  quit,  on  pay- 
ment of  costs^  otherwise  the  rule  to  be  discharged. 

In  a  plaint  in  the  County  Court  for  tlic  recovery  of  prenmes  Inj  a  lamh 
loi-d  against  his  tenant,  the  Court  is  not,  under  stat.  9  &  10  Vict.  c.  95, 
s.  58,  necessarily  deprived  of  its  jurisdiction,  by  the  judge  being  satisfied 
from  the  evidcuce  that  there  is  a  bond  fide  claim  of  title  to  the  premises 
by  a  third  person,  who  has  not  only  given  notice  to  his  tenant  not  to 
})ay  rent,  but  who  has  succeeded  in  obtaining  possession  from  him.  It 
is  the  duty  of  the  jndge,  before  he  declines  to  try  such  cause,  to  ascer- 
tain whether  the  person  so  claiming  title  has  obtained  possession  under 
circumstances  which  would  amount  to  an  action  by  title  paramount ;  for 
if  the  tenant  voluntarily  gave  up  the  premises,  the  cause  could  have  been 
tried  without  the  judge  having  to  determine  any  question  of  title  {Emery 
V.  Barnett). 

To  constitute  an  eviction  of  a  tenant  Inj  his  landlord,  ichich  will  operate 
as  a  suspension  of  rent,  it  is  not  necessary  that  there  should  be  an  actual 
physical  expulsion  from  any  part  of  the  premises  ;  but  any  act  of  a  per- 
manent character  done  by  the  landlord,  or  by  his  procurement,  with  the 
intention  to  deprive  the  tenant  of  the  enjoyment  of  the  premises  as 
demised,  or  any  part  of  them,  will  operate  as  such  eviction,  and  the 
existence  of  the  intention  is  a  question  for  the  jury  ( UiJton  v.  Greenless,  and 
Upton  V.  Tomiend).  Payment  ly  a  tenant  of  rent  to  a  p)erson  other  than 
the  person  who  let  him  into  possession,  under  a  threat  of  expulsion,  does 
not  amount  to  a  constructive  eviction,  so  as  to  affect  the  estoppel  ;  and 
semhle,  that  there  cannot  be  a  constructive  eviction  for  that  purpose 
{Delaney  v.  Fox), 

It  is  no  answer  to  a  declaration  in  covenant  ly  a  landlord  against  a 
tenant  for  not  repairing,  converting  meadow-land  into  tillage,  de2K(sturing 
orchards  ivith  other  than  specified  cattle,  cutting  trees,  and  underletting  part 
of  demised  p)remises  ivithout  his  consent,  that  before  any  of  the  alleged 
breaches,  and  during  the  continuance  of  the  term,  he  was  evicted  from 
an  outhouse,  garden,  and  court-yard,  parcel  of  the  demised  premises,  by 
authority  of  the  landlord  {Newton  v.  Allin).  And  7;er  Curiam:  "The 
tenant  can  never  be  allowed  to  say  that  he  is  no  tenant,  because  he  has 
been  evicted  at  the  very  moment  when  he  is  underletting  the  land  which 
he  has  been  put  in  possession  of  by  the  landlord,  in  direct  contravention 
of  the  covenants  that  he  has  entered  into,  the  breach  of  which  is  admitted 
upon  the  record"  {ih.).     And  where  lauds  have  been  demised   until 


438  occupier's  liability  for  rates. 

^lic-haelmas  and  no  longer,  the  tenant  to  have  ilie  use  of  a  part  of  the 
premises  until  the  following  Lady-day,  the  lessor  may  maintain  eject- 
ment for  the  other  part,  during  the  period  between  Michaelmas  and 
Lady-day  {Doe  dem.  Waters  y.  Houghton). 

Where  a  lessee  covenanted  that  he  "  woidd pay  all  taxes,  charges,  rates, 
tithes,  or  rent-charges  in  lieic  of  tithe,  dues,  and  duties  ivhatsoever,  as  then 
were  or  should  at  any  time  thereafter  during  that  demise  be  taxed, 
cliarged,  assessed,  or  imposed  upon  the  said  demised  premises,"  the 
covenant  is  not  confined  to  rates  payable  by  the  landlord,  but  means 
all  rates  then  imposed  on  the  lessee  in  respect  of  his  occupation,  and 
all  future  rates  which  might  be  imposed  on  the  land  itself  {Hurst  v. 
Hurst). 

It  was  held  by  the  Court  of  Common  Pleas  in  Matheson  v.  Hart  that 
rates  charged  hy  act  of  parliament  upon  land,  hut  which  the  occupiers  are 
to pcuj,  retaining  the  same  out  of  their  rent,  and  not  paying  more  than  the 
rent  which  shall  from  time  to  time  become  due  from  them,  and  leviable 
by  distress  on  the  occupier  neglecting  to  pay  them,  are,  if  left  unpaid 
by  outgoing  tenants  (in  the  absence  of  any  remedy  either  against  the 
owcors  or  against  occupiers  who  may  have  left  the  rates  unpaid,  or  of 
any  provision  for  a  different  course)  leviable  on  the  present  occupier,  to 
the  amount  of  any  rent  hecoming  due  on  any  current  reservation.  And 
if  a  rate  be  seimratelg  assessed  in  different  districts,  and  lands  not  ivithin 
the  jurisdiction  of  the  act  are  included  in  the  assessment  hut  omitted  from 
the  rate  for  which  a  warrant  is  issued,  the  warrant  is  not  thereby  ren- 
dered invalid  {ih.).  The  tenant  under  a  lease,  reserving  rent,  to  be 
paid  without  deduction,  except  for  land-tax  and  sewers'-rate,  cannot 
deduct  the  tax  or  rate  on  the  value  of  the  demised  premises,  but  on  the 
amount  of  the  rent  reserved  ;  and  it  is  immaterial  in  this  respect  whe- 
ther the  value  of  the  demised  premises  has  been  augmented  above  the 
rent  by  erections  or  improvements  prior  to  or  after  the  lease  {Smith  v. 
Hurahle). 

The  land-tax  in  each  parish  or  place  assessed  hg  the  commissioners  is  a 
fixed  quota,  estahlished  hy  statute  38  Geo.  IIL  c.  CO,  and  not  a  propor- 
tion of  the  whole  sum  charged  on  the  division,  to  be  assessed  equally 
throughout  the  same,  under  statute  38  Geo.  IIL  c.  5  {Reg.  v.  The 
Commissioners  of  Land-Tax  for  the  Toicer  Division).  Where  by  a  con- 
tract for  the  sale  of  land,  tJw  land  is  descrihed  as  "  land-tax  redeemed,^' 
the  vendor  is  bound  to  give  reasonable  evidence  that  the  land-tax  has 
been  redeemed,  or  that,  if  purchased,  it  is  in  his  power  to  transfer  or 
release  it ;  and  ordinarily  the  proper  evidence  of  this  would  be  the  cer- 
tificate of  the  commissioners  or  a  copy  of  the  register  {Buclianan  v.  Pop- 
2jleton). 


LAND-TAX.  439 

The  land-tax  Is  a  '^parliamentary  tax'"  authia  the  meaning  of  an  agree- 
ment to  pay  rent  "  and  all  taxes  parliamentary  and  parochiaV  (Manning 
V.  Lunn).  It  was  settled  in  Moody  v.  Dean  and  Chapter  of  Wells,  that 
the  owner  of  lands  charged  wdth  a  fee  farm-rent,  payable  to  a  purchaser 
from  the  Crown,  under  statutes  22  Car.  II.  c.  6,  and  23  Car.  II.  c.  24, 
having  redeemed  the  land-tax  chargeable  on  the  lands,  out  of  which  the 
fee  farm-rent  issues,  is  entitled  under  the  land-tax  acts  to  deduct  As.  in 
the  pound  from  the  rent  so  payable.  Alderson  B.  said  :  "  It  is  clear 
that  according  to  the  trne  construction  of  the  acts  this  deduction  must 
be  allowed.  What  Avas  the  situation  of  the  parties  when  the  38  Geo.  III. 
c.  60  passed  ?  All  the  country  was  originally  rated  equally  at  4.s.  in 
the  pound.  The  variation  in  the  rate  has  arisen  fi'om  change  of  cir- 
cumstances-— -one  part  of  the  country  prospered,  another  has  declined. 
The  tax  has  thus  become  unequal.  There  was  no  real  difference  in  the 
proportion  when  the  tax  was  assessed,  though  there  was  a  difference  in 
the  mode  of  assessment.  Fee  farm-rents  and  payments  to  the  Crown 
were  subject  to  a  fixed  payment  of  4s.  in  the  pound.  The  whole  tax 
was  paid  by  the  party  in  possession  of  the  land.  He  then  deducted  a 
proportion,  from  the  owner,  of  the  rent ;  and  there  seems  to  me  no 
reason  why  he  should  not  still  do  so." 

If  by  the  stipulations  contained  in  a  lease  the  tenant  is  to  pay  the 
land-tax,  which  he  left  unpaid  during  his  tenancy,  and  which  the  suc- 
ceeding tenant  paid,  and  the  landlord  repaid  him,  it  was  held  that  as 
the  tenant's  liability  only  arose  fi'om  the  special  agreement,  the  landlord 
could  not  recover  the  sums  so  paid  in  an  action  for  money  paid  but 
must  declare  on  the  special  agreement  {Spencer  v.  Parry).  And  p)er 
Lord  Demnan  C.J.  :  "  The  special  agreement  in  this  case  creates  the 
liability  of  the  defendant,  which  the  act  of  parliament  did  in  Dawson 
V.  Lmto?i"  (ih.).  A  land-tax  collector  has  no  authority  under  a  warrant 
of  the  commissioners  to  break  open  an  outer  door  unless  a  constable  is 
present ;  and  he  cannot  defend  himself  under  38  Geo.  III.  c.  5,  b.  17 
{Toss  V.  Racine). 

A  lease  demising  a  parcel  of  land,  ivith  liherty  to  take  clay,  &c.,  and 
malce  hricJcs,  contained  three  reservations,  viz.,  an  annual  sum  of  <£17  10s. 
for  surface  rent,  a  royalty  or  brick-rent  of  £100  by  the  year,  and  a  sum 
of  2s.  for  every  thousand  of  bricks  made  in  one  year  over  a  million. 
Each  sum  was  declared  by  the  lease  to  be  free  of  all  dechictions  except  for 
landlord's  property  and  income  tax.  The  tenant  claimed  to  deduct  from 
his  landlord  property  or  income-tax  on  each,  and  the  Court  of  Exche 
quer  held  that  he  was  entitled  to  make  the  deduction,  the  two  first  pay- 
ments being  rent,  and  the  third,  if  not  rent,  still  a  payment  with 
reference  to  which  the  parties  had  agreed  that  the  deduction  should  be 


440  EATING    FOR    PROPERTY-TAX. 

made  (E(hnfl)ids  v.  EashcootJ).  Aud  semhlo  per  Martin  B.,  Watson  B., 
and  Channell  B.,  that  the  hmdloi'd  was  asseBsa])le  to  income-tax  in  re- 
spect of  the  2s.  payable  for  each  thousand  over  a  niilhon  bricks  made 
on  the  demised  premises  in  the  com-se  of  a  year  under  5  &  6  Vict.  c. 
35,  s,  1,  and  that  the  dednction  was  properly  made  under  Schedule  A, 
No.  8  {ib.).  And^;^;-  Channell  B.  :  "  The  case  of  Daniel  v.  Grace  is  an 
autliority  that  the  right  of  distress  attaches  in  respect  of  the  reserva- 
tion of  2s.  per  thousand  on-  the  briclis  made  over  a  milhon"  {ih.). 
His  lordship  thus  explained  the  distinction  between  the  schedules  : 
*'  No  doubt  Schedule  A  imposes  the  tax  in  respect  of  the  property  in 
land  ;  Schedule  B  in  respect  of  its  occuiMtion ;  Schedule  C  in  respect 
of  profits  derived  from  land;  but  Schedule  D  is  more  general  in  its 
terms,  and  of  wider  effect  than  any  of  the  preceding,  and  was,  in  my 
opinion,  intended  to  impose  the  tax  in  respect  of  every  sort  of  property, 
occupation,  or  profit,  in  or  from  land  not  embraced  by  any  of  the  other 
schedules"  {ih.). 

Tlw  pom'  rate  is  entirely  cJuirged  vpon  the  occnpier,  and  is  a  personal 
charge  in  respect  of  the  land.  The  property  tax  is  assessed  on  the  occupier, 
and  he  has  a  right  to  deduct  it  from  his  next  payment  of  rent,  and  if 
he  does  not  do  so,  he  cannot  recover  it  back  from  his  landlord,  either  as 
money  paid,  or  money  had  and  received  to  his  use  {Cumming  v,  Bed- 
lorough).  And  per  Alderson  B.  :  "  Money  had  and  received  could  not 
lie,  because  it  is  not  shown  that  the  rent  was  overpaid  at  all.  It 
either  is  a  volmitary  payment,  or  it  is  no  payment  at  all "  (^&).  And 
pier  MauJe  J. :  "  Without  unduly  straining  the  words  of  the  act,  the 
deduction  may  be  claimed  out  of  the  next  payment,  though  made  under 
legal  process "  {Franldin  v.  Carter).  And  semlle  per  Lord  Tenterden 
C.  J.  :  "  If  a  tencmtpays  taxes  ivhich  he  alleges  ought  to  have  heen  paid 
l)]l  his  landlord,  and  afterwards  pays  rent  for  two  years  subsequently 
without  making  any  deduction,  he  cannot  recover  the  amount  in  an 
action  against  the  landlord "  {Saunderson  v.  Hanson).  And  semile 
that  a  broker,  who,  when  receiving  rent  under  a  distress,  deducts  a 
sum  purporting  to  be  for  land-tax,  is  not  to  be  considered  as  allotv- 
ing  the  land-tax,  so  as  to  affect  the  landlord's  right,  but  as  merely 
from  not  knowing  how  to  act,  consenting  to  receive  the  money  with- 
out the  sum  deducted  {ih.).  The  landlords  are  compelled  by  the 
statutes  5  &  6  Vict.  c.  35,  ss.  103-105  to  allow  the  deduction  under  a 
penalty. 

Denhg  v.  Moore  decided  that  an  occupier  of  lands  having,  during  a 
course  of  twelve  years,  paid  to  the  collector  of  taxes  the  landlord' s  prcrperty- 
iax,  and  the  fill  rent  as  it  hecame  due  to  the  landlord,  could  not  recover 
hack  from  the  latter  any  part  of  iite  prroperty-tax  so  paid,  as  muneg  had 


tenant's  right  to  deduct  property -tax  from  rent.  441 

and  received  to  Ms  urn.     It  was  his  own  voluntary  act,  as  lie  must  have 
known  he  had  a  right  to  deduct  it  from  each  rent. 

Sicahmn  v.  Ambler  settled  that  a  tenant  Ms  a  right  to  deduct  from 
his  rent  the  amount  of  properfi/-tax  assessed  iijmi,  and  paid  hy  Mm  in 
respect  of  his  landlord,  although  the  landlord  is  not  in  fact  liable  to  be 
assessed,  and  has  before  the  payment  claimed  exemption,  and  that  ex- 
emption has  been  subsequently  allowed.  Parke  B.  said  :  "  The  qnes' 
tion  here  was  whether  the  defendant  was  entitled  to  deduct  certain 
property-tax  paid  by  him— not  to  set  it  off.  It  was  in  effect  settled  by 
Denbif  v.  lloore  that  a  claim  of  this  nature  cannot  be  set  oflp,  because  in 
paying  over  the  property-tax  a  tenant  cannot  be  considered  as  having 
done  anything  more  than  paying  part  of  the  rent,  and  he  cannot  set  off 
that.  The  plaintiff  is  in  fact  the  representative  of  the  Eau  Brink  Com- 
missioners, and  we  have  now  to  decide  whether  the  defendants  are 
entitled  to  deduct  certain  payments  they  have  made  on  account  of  the 
property-tax  since  the  commencement  of  their  lease  of  the  tolls,  which 
they  held  at  different  detached  periods  between  1837-50.  We  do  not 
see  any  reason  why  they  should  not  be  entitled  to  deduct  the  money, 
not  to  recover  it  by  way  of  a  cross  action,  but  to  deduct  it  from  the 
unpaid  rent.  They  never  paid  the  rent  in  full.  There  appears  to  us 
to  be  no  reason  why  they  should  not  be  entitled  to  deduct  every  sum 
they  had  paid  on  account  of  their  landlords  down  to  that  time.  It 
was  the  business  of  the  landloi'ds  here  to  get  relieved  from  the  assess- 
ment, which  they  neglected  to  do  in  the  first  instance,  but  which  they 
finally  effected  ;  but  the  tenants  in  the  meantime  being  assessed  and 
compelled  to  pay,  have  a  right  to  make  every  deduction." 

By  a  case  reserved  from  the  Quarter  Sessions,  on  an  appeal  against 
a  rate  for  the  parish  of  H.,  W.  was  found  to  be  the  occupier  of  a  farm 
situate  partly  in  H.  for  1&5  acres  and  partly  in  C.  for  the  residue,  and 
it  was  held  by  the  Court  of  Queen's  Bench  that  he  was  lic(Me  to  be  rated 
in  H.,  although  the  boundaries  of  such  land  could  not  be  ascertained. 
And  2Jer  Curia^n :  "  It  does  not  seem  necessary  that  the  parish  officers 
should  be  able  to  point  out  which  is  the  land  rated"  {Regina  v.  Woods). 
The  occupier  of  a  farm,  of  which  a  certain  number  of  acres  are  in  parish 
A,,  and  the  residue  in  parish  B.,  is  properly  rated  to  the  poor  rate  of 
parish  A.,  as  the  occui^ier  of  the  number  of  acres  in  that  parish,  although 
the  specific  acres  in  either  parish  are  not  Mown  (ib.).  And  per  Lord 
Campbell  C.  J.  :  "  It  is  not  necessary  for  the  parish  officers  to  set  out 
the  particular  boundaries  of  the  laud,  in  respect  of  which  they  rate  an 
occupier  "  {ib.). 

Emblements  can  only  be  claimed  in  respect  of  crops  which  grow  by  the 
industry  and  manurance  of  man,  and  which  ordinarily  repay  the  labour 


44.2  EMBLEMENTS. 

by  which  they  arc  produced  within  the  year  in  wliieh  the  labonr  is 
bestowed,  though  in  extraci'dinary  seasons  they  may  be  delayed  beyond 
that  period  ;  and  a  tenant  entitled  to  emblements  can  have  only  one 
crop  of  the  thing  sown,  i.e.,  the  crop  growing  at  the  time  of  the  deter- 
mination of  his  tenancy,  although  such  crop  may  not  compensate  him 
for  industry  and  mannrance  bestowed  {Graves  v.  Weld).  Emblements 
extend  not  only  to  corn  sown,  but  to  roots,  hemp,  flax,  or  any  other 
annual  profit,  but  not  to  young  fi'uit-trees,  or  young  oaks,  ashes,  elms, 
&c.,  because  they  yield  no  2}rescnt  annual  lyrofit.  Hops  which  grow 
from  ancient  roots  were  held,  in  Lailiam  v.  At  wood,  to  be  "  like  emble- 
ments, because  they  are  such  things  as  grow  by  the  manurance  and 
industry  of  the  owner,  by  the  making  of  hills  and  the  setting  of  poles." 
That  labour  and  expense,  without  which  they  would  not  grow  at  all, 
seems  to  have  been  deemed  equivalent  to  the  sowing  and  planting  of 
other  vegetables.  Cruise's  Dlijest,  v.  1,  p.  710,  3rd  ed.,  observes  that 
this  determination  was  probably  on  account  of  the  great  expense  of 
cultivating  the  ancient  roots.  On  this  Lord  Denman  C.  J.  remarked, 
in  Graves  \.  Weld,  "Latham  v.  Ativood  decides  that  hops,  so  far  as 
relates  to  their  annual  product  only,  are  only  emblements  ;  but  it  by 
no  means  proves  that  the  person  who  planted  the  young  hops  w^ould 
have  been  entitled  to  the  first  crop  whenever  produced." 

If  the  lessee  of  a  tenant  for  life  sows  the  land,  and  dies  hfore  harvest, 
his  executors  shall  have  the  emblements  or  profits  of  tJis  crop.  But  now 
by  14  &  15  Vict.  c.  25,  s.  1,  as  regards  tenants  at  rack-rent  holding 
farms  or  lands  under  landlords  entitled  for  life  or  any  other  uncertain 
interest,  and  the  lease  or  tenancy  determines  by  the  death  or  cesser  of 
the  estate  of  the  landlord,  the  tenant  shall,  instead  of  claims  to  emble- 
ments, continue  to  hold  until  the  expiration  of  the  then  current  year  of 
his  tenancy  ;  the  succeeding  landlord  t3  be  entitled  to  recover  a  fair 
projJorLion  of  the  rent  fur  this  period,  and  all  the  benefits,  terms,  and 
restrictions,  &c.,  to  apply  between  the  latter  and  the  preceding  land- 
lord ;  and  no  notice  to  quit  is  necessary  to  determine  such  holding  or 
occupation.  And  see  Stradhroke  {Lord)  v.  Mulcalnj,  for  a  decision  on 
this  section  of  the  statute. 

It  is  stated  in  Sheppard's  Touchstone  (Preston),  p.  472,  that  "as 
leticeen  an  executor  and  devisee,  the  emblements  belong  to  the  devisee, 
unless  they  are  expresshj  bequeathed."  And  so  in  Cooj^er  v.  Woolfitt, 
where  a  testator  devised  to  W.  certain  lands  called  the  "  Clay-pits," 
and  bequeathed  to  C.  and  W.  all  his  moneys,  &c.,  personal  estates  and 
effects  whatsoever  and  wheresover,  not  therein  specifically  bequeathed, 
but  did  not  make  a  specific  bequest  of  crops  growing  on  the  land,  it 
was  held  that  the  di  visee  was  entitled  to  the  emblements  growing  upon 


HERTOTS.  443 

it  at  the  the  time  of  the  testator's  decease.  "  Cox  v.  Godsalre  and  West  y. 
Moore  prove  that  emhlements  are  part  of  the  stock  and  will  pass  under  the 
description  of '  the  stock  on  a  farm'  " ;  per  Lord  Gifford  M.  R.  {BJcilie  v. 
Gills).  Aiid  in  Rudge  v,  Winnell,  Lord  Langdale  M.  R.  also  ruled  that 
devise  of  real  estate  in  the  occupation  of  the  testator  in  trust  for  A., 
with  a  bequest  of  "  all  his  live  and  dead  stock,  &c.,  and  all  his  personal 
estate  whatsoever  and  wheresoever  "  to  B.  passes  the  emblements  on  the 
real  estate  to  B. 

At  the  death  of  a  tenant  of  the  manor,  it  was  the  custom  to  appraise 
his  eflFects,  and  the  best  chattel  was  declared  due  to  the  lord,  and  styled 
a  heriot.  Heriots,  like  quit-rents  and  ground-rents,  are  not  rateable  to 
the  poor  {Rex  v.  Vandenvall).  They  may  be  proved  by  parol  to  be  due 
on  the  death  of  a  tenant,  though  not  expressed  in  the  lease  ( White  v. 
Sayer.)  As  a  custom  may  be  valid  for  a  heriot  on  the  death  of  every 
free  tenant  holding  for  a  less  estate  than  fee-simple,  it  follows  that  it 
may  be  valid  in  respect  of  a  tenement  of  free  lands,  held  in  fee-simple 
of  a  manor,  as  the  nature  of  that  estate  is  not  inconsistent  with  such  a 
custom  ;  and  therefore  to  prove  such  a  custom,  presentments  of  the 
deaths  of  other  tenants  of  other  free  tenements  held  in  fee  of  the 
manor,  and  the  seizure  of  heriots  thereupon,  are  admissible  {Damerell  v. 
Protheroe).  And  qmcre  whether  the  ancient  lease  having  reserved  as  a 
heriot  the  best  beast  of  the  lessee  (being  one  of  the  lives),  Ms  executors, 
administrators,  assigns,  or  such  person  as  should  be  in  possession  of  the 
jjremises,  and  entitled  to  the  same  hy  virtue  of  the  lease,  a  lease  reserving 
only  the  best  beast  of  the  lessee  (being  one  of  the  lives)  be  good ;  but  a 
lease  is  not  bad  under  the  power,  which  reserves  the  best  beast  of  the 
person  or  persons  ivho  for  the  time  heing  shall  he  tenant  or  tenants  in 
possession  of  the  premises  {Doe  dem.  Douglas  v.  Lock). 

Where,  from  an  entry  on  the  rolls  of  a  manor,  it  appeared  that  it  was 
presented,  in  1778,  to  be  the  custom  "that  every  copyhold  tenant 
that  holdeth  copyhold  lands  upon  death  or  alienation  ought  to  pay  a 
heriot,"  the  custom  had  been  in  accordance  with  the  entry,  but  there 
was  no  instance  shown  of  an  alienation  of  joint  tenants,  or  of  a  claim 
of  a  heriot  from  each  of  several  joint  tenants  on  alienation,  it  was  held 
that  iviihout  proof  of  a  special  custom  (of  which  there  was  none)  one  lieriot 
only  was  due  on  a  joint  alienation  of  several  joint  tenants  {Padwick  v. 
Tyndale). 

But  Holloway  v.  Berkeley  decided  that  when  a  copyhold  tenement 
holden  hy  heriot  custom  becomes  the  property  of  several  as  tenants  in  com- 
mon,  tlie  lord  is  entitled  to  a  heriot  from  each  of  them  ,-  but  if  the  several 
]X)rtions  are  re-united,  in  one  person,  one  heriot  only  is  payable.  So  in 
Garland  v.  Jekyll,  it  was  held  that  a  copyhold  property  which  when  in 


444  SEIZUEE    OF    HEPvIOTS. 

the  liands  of  a  single  owner  pays  bnt  one  hcriot,  but  pays  several  if 
divided  umoug  several  owners,  shall  again  pay  but  one  heriot  if  it  again 
becomes  united  in  the  person  of  a  single  owner. 

It  was  held,  in  Ahington  v.  Lipscomb,  that  trover  did  not  lis,  ivhere  the 
landlord  had  marked  and  demanded  seven  heriots  instead  of  five.  In 
March,  1838,  the  defendant's  father  died,  seised  of  certain  customary 
freeholds,  on  which  heriots  were  payable  to  the  plaintiff  as  lord  of  the 
manor  of  Penshurst  Halemote,  on  the  death  of  the  tenant.  The  custo- 
mary heriot  was  the  best  living  beast  or  a  stated  money  payment. 
The  tenements  were  seven  ;  they  had  originally  been  only  five,  but 
two  had  been  divided,  and  the  several  parts  had  passed  into  different 
hands,  and  the  whole  had  become  re-united  in  the  possession  of  the 
defendant's  father.  Seven  heriots  were  accordingly  claimed,  one  for 
each  tenement  by  the  bailiff  of  the  manor  ;  but  it  was  admitted  in  the 
argument  that  according  to  the  rule  in  Garlands.  Jehjll  only  five  were 
due.  The  bailiff'  claimed  to  mark  seven  beasts,  a  day  or  two  after  the 
death  of  the  defendant's  father,  and  with  the  consent  of  the  defendant 
marked  fotir  horses  in  the  field,  one  in  the  stables,  and  t-<vo  cows  in  the 
yard.  This  was  in  March  ;  and  when  he  went  to  claim  them  in  De- 
cember, the  defendant  said  he  should  refer  it  to  his  attorney  and  not 
deliver  them  up.  It  was  urged  for  the  defendant  that  the  refusal  did 
not  under  the  circumstances  show  a  conversion  ;  and  there  was  no 
refusal  of  five,  but  only  a  refusal  of  seven,  and  that  in  fact  the  only  con- 
version was  a  refusal  to  give  up  the  seven  unlawfully  claimed.  The 
defence  in  point  of  fact  was  an  assignment  made  by  the  father  shortly 
before  his  death,  which  the  ])laintiff  contended  was  void  by  stat.  13 
Eli^.  c.  5,  s.  2.  The  jury  found  that  there  had  been  such  an  assign- 
ment with  a  view  to  evade  payment  of  the  heriot,  and  returned  a  verdict 
of  £105  for  the  plaintiff,  leave  being  given  to  move  to  reduce  the 
damages  if  the  plaintiff  was  entitled  to  recover,  but  not  for  so  many  as 
seven  heriots,  or  to  enter  a  nonsuit  if  the  Court  should  be  of  opinion 
that  the  above  statute  did  not  apply,  or  that  the  evidence  did  not  show 
a  conversion.  The  Court  held  that  that  there  was  no  conversion,  and 
a  rule  for  entering  a  nonsuit  was  made  absolute,  on  the  grounds  put  by 
Lord  Denman  C.  J.,  that  "  the  demand  had  reference  to  a  seizure  actually 
made  of  seven  beasts,  when  the  plaintiff  had  only  a  right  to  seize  five. 
Supposing  it  then  to  be  clear  that  the  demand  and  refusal  amounted 
to  a  conversion  of  five,  still  it  is  left  uncertain  which  five  he  lawfully 
seized.  If  he  is  entitled  to  the  best  beast  as  an  heriot,  he  must  form  a 
judgment  and  exercise  an  option  as  to  which  is  best.  This  is  clear 
from  Woodland  v.  Mantel!,  Fcter  v.  Ktioll,  and  Odiham  v.  Smith."  And 
see  Fri^e  v.  Woodhouse, 


ACTION    FOR    USE   AND    OCCUPATION.  445 

In  the  case  of  The  Manor  of  BasingstoTce  v.  Lord  Bolton  there  was 
a  bill  by  the  lord  of  a  manor  against  the  tenant,  alleging  immemorial 
payments,  as  rent,  or  in  the  natnre  of  rent,  on  the  death  of  each  tenant 
by  his  successors,  in  respect  of  thirty-eight  different  estates.  The  pay- 
ments were  in  lieu  of  heriots  and  reliefs.  It  appeared  by  the  evidence 
that  the  heriots  were  more  probably  heriot  custom  than  heriot  service, 
and  that  the  relief  was  by  custom,  and  not  by  common  right  or  by 
reservation.  Some  of  them  had  been  j^aid  by  the  executors  of  the 
deceased  ;  it  was  not  shown  that  the  tenant  was  in  possession  of  all 
the  lands  alleged  to  be  liable  ;  and  only  the  aggregate  amount  of  rent 
was  known,  not  the  proportion  due  to  each  estate  ;  and  Kindersley 
V.-C.  held  that  under  these  circumstances  the  lord  had  no  equity 
against  the  successors  of  the  deceased  tenant,  although  it  appeared  that 
in  consequence  of  the  description  and  identity  of  the  lands  being  lost 
he  could  not  enforce  any  claim  at  law.  Commissioners  of  enclosure 
have  no  powers,  in  exchanging  freehold  lands  subject  to  heriots  and 
reliefs,  to  make  the  lands  allotted  so  subject  (ih.). 

The  ad  mi  for  vse  and  occupation  existed  before  statute  11  Geo.  II., 
c.  19,  but  until  the  passing  of  that  act  the  plaintiff  was  nonsuited  if  a 
demise  was  proved.  Except  in  that  particular  the  statute  did  not  make 
the  action  maintainable  in  cases  where  it  could  not  have  been  main- 
tained before  {Churchivard  v.  Ford).  According  to  the  words  of  section 
14  of  the  statute  it  may  be  maintained  *'  where  the  agreement  is  not  by 
deed."  Some  agreement  seems  to  be  implied  as  the  foundation  ;  though 
it  is  well  established  that  it  need  not  amount  to  a  formal  demise,  or 
even  be  express.  And  jjer  Patteson  J .  :  "Corporations  aggregate  may 
maintain  actions  on  executed  parol  contracts.  In  The  Bean  and  Chapter 
of  Rochester  v.  Pim'ce,  Lord  Ellenhorough  C.J.,  first  at  Nisi  Prius,  and 
the  Court  of  Queen's  Bench  afterwards,  held  that  they  might  sue  in 
debt  for  use  and  occupation  of  their  lands  ;  and  the  Court  of  Common 
Pleas,  in  The  Mayor  of  Stafford  v.  Till,  held  the  same  as  to  assumpsit. 
This  establishes  that  where  a  benefit  has  been  enjoyed,  such  as  the 
occupation  of  their  land  by  their  permission,  tlie  law  will  imply  a 
promise  to  make  them  compensation,  which  promise  they  are  capable 
of  accepting,  and  upon  which  they  may  maintain  an  action  "  {Beverley 
V.  The  Lincoln  Gas  Light  and  Coke  Company). 

An  action  under  the  statute  will  not  lie  ivhere  there  has  not  heen  an 
actual  entry  ly  the  lessee  {Lowe  v.  Boss).  "  Before  the  statute  an  action 
for  use  and  occupation  might  be  maintained,  unless  an  actual  demise 
were  shown  ;  proof  of  which  was  held  (though  not  uniformly,)  to  be  fatal 
to  the  action,  either  on  the  ground  of  its  showing  a  real  contract,  or 
because  the  demise  having  passed  an  interest,  the  defendant  could  not 


446  PAROL    DEMISE. 

be  said  to  occupy  by  the  plaiutiff's  pcrmissiori.  In  some  instances  an 
exception  was  allowed,  where  an  express  promise  could  be  proved  or 
intended.  The  alteration  introduced  by  the  statute  was,  that  proof  of 
a  demise  unless  by  deed  was  no  longer  fatal  to  the  action  ;  but  the 
terms  of  the  demise  might  be  used  as  evidence  of  the  quantum  of 
damages  (6  A.  &,  E.  839  n.)."  Bebtiov  use  and  occupation  lies  at  common 
law,  where  there  is  an  express  demise  at  a  certain  rent,  not  by  deed 
{fJibaon  V.  Kirk).  Afier  referring  to  the  above  note,  in  which  all  the 
principal  cases  are  collected,  Lord  Denman  C.J.  added  :  "  The  Court  in 
Jjeverley  v.  The  Lincoln  Gas-light  and  Coal  Company  observed  that  an 
action  for  use  and  occupation  is  established  by  11  Geo.  II.,  c.  10,  which 
expression  must  not  be  taken  as  meaning  that  it  was  introduced  by  the 
act,  but  only  that  it  was  established,  even  in  cases  where  there  was  an 
express  demise  at  a  certain  rent,  though  not  under  seal.  Yet  no  instance 
of  indebitatus  assumpsit  for  use  and  occupation  will  be  found  before  that 
act,  nor  any  founded  upon  a  quantum  meruit ;  they  are  all  for  some  fixed 
sum.  So  debt  for  rent  was  at  all  times  maiutainable,  whether  the  demise 
was  by  deed,  or  by  writing  not  under  seal,  or  by  word  of  mouth  ;  both 
which  latter  are,  of  course,  included  in  the  expression  'j;ar<9^  demise,'  so 
frequently  met  with  in  our  books  (ib.)." 

Although  an  action  for  tise  and  occyjmtion  requires  some  agreement 
exirress  or  implied,  to  pay  for  the  occupation,  yet  there  may  be  a  liahUity 
for  use  and  occupation  where  no  action  for  rent  could  be  maintained ; 
and  therefore  if  a  party  enter  under  an  agreement  for  a  demise  at  a 
certain  rent- — the  rent  not  to  commence  until  the  repairs  are  completed 
by  the  landlord,  the  agreement  being  silent  as  to  the  terms  of  the 
present  occupation — the  entry  and  occupation  before  the  repairs  are 
executed  may  be  evidence  to  go  to  the  jury  of  an  implied  agreement  to 
pay  in  the  meanwhile  what  the  premises  were  worth.  And  even  if  the 
tenant  leave  before  the  repairs  are  executed,  the  question  will  be 
whether  there  was  such  an  implied  agreement  ;  and  if  there  were,  he 
will  be  liable  for  a  reasonable  compensation  for  his  occupation  {Smith 
V.  Eldridge).  And  see  Johnson  v.  31ay ;  Freemason  v.  Booman ;  Ilason 
V.  Welbank ;  and  Jones  v.  Clark.  And  as  to  tJie  distinction  between  an 
action  for  rent  and  an  action  for  use  and  occupation,  see  Towne  v. 
UEynrick,  where  the  Court  of  Common  Pleas  held  iu  an  action  for  the 
"  use  "  of  a  house,  that  an  actual  or  constructive  occupation  must  be 
proved,  and  that  the  fact  of  the  defendant  giving  directions  on  the 
premises  to  workmen  whom  the  landlord  sent  in  to  do  repairs,  was  no 
evidence  of  an  entry  to  take  possession,  which  is  necessary  to  charge  a 
j)arty  in  this  form  of  action. 

Use  and  occupation  will  not  lie  if  a  title  is  in  dispute.     Where  a  lease 


OWNERSHIP    AND    TENANCY    EVIDENCE    OF    CONTRACT.       447 

for  a  term  certain  was  granted  by  writing  not  under  seal,  which  con- 
tained an  undertaking  on  behalf  of  the  lessor  and  his  assigns  for  quiet 
enjoyment,  it  was  held  that  his  assignee  might  maintain  assumpsit  for 
use  and  occupation  ;  for  the  lessor  having  granted  for  himself  and  his 
assigns,  the  permission  of  any  person  who  might  become  assignee  of 
the  reversion  during  the  lease  was  virtually  included,  so  that  the  occu- 
pation became  in  point  of  law  permissive  on  the  part  of  the  assio-nee  as 
soon  as  his  interest  accrued  (Sfanden  v.  Christmas).  An  action  for 
use  and  occupation  is  one  of  contract,  and  is  founded  on  the  relation  of 
landlord  and  tenant ;  it  therefore  requires  evidence  of  an  occupation  hy 
the  permission  of,  and  under  a  contract  tvith,  the  jjlaintijf;  and  though 
the  title  on  the  part  of  the  plaintiff  and  occupation  by  the  defendant 
may,  in  the  absence  of  any  other  evidence,  be  a  prima  facie  case  from 
which  such  a  contract  may  be  inferred,  yet  where  the  letting  has  been 
by  another  party,  the  plaintiff  will  not  be  allowed  to  recover ;  and 
so  where  he  fails  to  prove  title  or  actual  contract  with  himself  {C%icrc?i- 
ward  v.  Ford).  And  ivhere  the  letting  has  been  hy  another  party ,  mere 
notice  by  plaintiff  (even  though  he  has  the  title)  to  pay  the  rent  to  him 
will  not  convert  the  occupation  into  an  occupation  by  his  permission 
and  under  a  contract  with  him  ;  for  such  notice,  unless  assented  to  by 
the  tenant,  does  not  create  a  new  contract,  and  can  only  enable  the 
party  to  bring  ejectment  to  recover  possession  of  the  premises  (/&.). 

And  per  PollocTc  C.  B.  :  "  There  are  cases — Hidl  v.  Vaughan ; 
Howard  v.  Shaw ;  and  Winterbofham  v.  Ingliam  —  which  show  that 
ownership  in  the  plaintiff  and  tenancy  in  the  defendant  are  prima 
facie  evidence  of  such  an  implied  contract  as  will  sustain  the  action. 
If  indeed  you  show  positively  that  there  was  no  contract,  it  will  be  a 
different  question ;  but  if  nothing  else  appears  than  the  plaintifi"'s 
ownership  and  the  defendant's  tenancy,  there  is  a  prima  facie  evidence 
of  an  implied  contract  sufiicient  to  sustain  the  action.  It  was  so  laid 
down  in  Hellyer  y.  Sillcox."  And  jyer  Bramicell  B. :  '^  In  every  case 
a  contract  must  be  shoivn,  in  order  to  enable  the  plaintiff  to  recover 
{Gibson  X.  Kirk).  Now  here,  instead  of  this  being  shown,  the  contrary 
is  shown  ;  for  it  is  shown  that  the  defendant  did  not  occupy  by  per- 
mission of  the  plaintiff,  under  any  contract  with  the  plaintiff,  but  by 
the  permission  of  Mrs.  Foss,  under  a  contract  with  her.  It  would  not 
only  be  contrary  to  all  the  principles  of  law  and  reason,  but  would  lead 
to  gross  injustice,  if  a  tenant  should  be  held  liable  to  one  party  as 
landlord  on  a  contract  made  with  another.  It  is  not  found  as  a  fact 
that  Mrs.  Foss  let  the  premises  as  agent  of  the  plaintiff.  In  Hellyer  v. 
Sitlco.T  the  Court  of  Queen's  Bench  thought  that  the  occupation  was 
by  permission  of  the  plaintiff.     In  Standen  v.  Christmas  there  had  not 


448  AGREEMENT    VOID    BY    FEAUD. 

only  been  a  notice  to  pay  rent  to  the  plaintiff,  but  the  defendant  had 
afterwards  paid  rent  to  him  ;  and  the  Court  were  in  en'or  in  saying  that 
to  give  an  action  for  use  and  occupation,  the  relation  of  landlord  and 
tenant  need  not  subsist  between  the  parties.  Tlie  ivord  "■  landlord " 
v)i2)Jies  not  tJie  mere  lordship  or  owrm'sMp  of  the  soil,  iut  tJie  relationship 
to  a  tenant. 

Use  and  occupation  arc  not  maintainahlc  where  the,  express  agreement 
is  void  hij  reason  of  fraud.  But  the  plaintiff  having  paid  the  rent  to 
the  superior  landlord,  Wight  man  J.  directed  a  verdict  for  the  plaintiff 
on  the  count  for  money  paid.  And  per  Wightman  J.:  "The  ft-aud 
destroying  the  express  agreement  between  the  parties,  there  can  be  no 
implied  contract ;  and  use  and  occupation  are  not  maintainable  with- 
out a  contract "  {Davg  v.  CraclnicU)  ;  and  it  is  some  evidence  to  go  to 
tliejury  in  support  of  a  count  for  use  and  occupation  that  a  fixed  pay- 
ment has  been  made  for  many  years  in  respect  of  the  land  in  question 
by  the  defendant  to  the  plaintiff,  the  defendant  abstaining  from  all  ex- 
planation of  the  origin  or  grounds  of  that  payment,  which  it  seemed 
he  was  able  to  give  {Hardon  v.  HesTcett). 

Where  the  circumstances  icarrant  an  inference  in  fact,  that  it  ivas  agreed 
by  both 2)laintiff  and  defendant  at  the  time  of  the  execution  of  the  instru- 
ment, that  it  should  not  operate  as  a  lease  until  the  payment  of  tJie  balance 
of  an  agreed  sum  for  fixtures,  though  no  express  words  of  delivery  as  an 
escrow  were  used,  it  did  not  operate  as  a  deed  till  then  ;  and  therefore 
the  defendant  was  held  to  be  tenant  from  year  to  year  under  the  terms 
in  the  instrument,  and  not  tenant  under  a  deed,  and  an  action  for  use 
and  occupation  lies  against  him  or  the  assignee  of  his  interest  {Gudgen 
V.  Besset). 

If  A.  agrees  to  M  lands  to  B.,  tcho  permits  C.  to  occupg  them,  A.  may 
recover  the  rent  in  an  action  against  B.  for  use  and  occupation  {Bull  v. 
Sibbs). 

Receiving  the  rents  and  profits  from  an  vnder-tenant,  is  proof  of  use  and 
occupation  by  the  person  receiving  them  {Neal  v.  Stciml)  ;  and  a  lessee, 
whose  underlessoe  holds  over  against  his  ivill  after  the  expiration  of  the 
term,  is  lialjle  in  this  action  for  the  period  of  the  holding  over,  but  not 
for  a  whole  year's  rent  {Ibhs  v.  RirJiardson).  Where  there  is  a  parol 
(Umisc  to  two  parties  joinllg,  and  one  enters  in  respect  of  both,  the  other, 
who  is  not  proved  to  have  entered  at  all,  is  equally  liable  to  an  action 
for  use  and  occupation  {Glen  v.  Dungeg). 

Wlu'.re  a  part g  is  let  into  possession  (f  land  under  a  contract  to  purchase, 
tvhich  afterwards  goes  off,  he  is  liable  to  an  action  for  use  and  occupation. 
at  the  suit  of  tlie  vendor,  for  the  period  during  which  he  continues  in 
possession  after  the  contract  went  off  {Howard  v.  Shaw).     If  he  had 


USE    AND    OCCUPATION.  449 

entered  under  an  agreement /<??•  a  lease,  he  voidd  have  Leen  a  tenant-at- 
will  until  it  was  granted..  And  j>^t  Alderson  B.  :  "  While  the  defendant 
was  in  possession  under  the  contract  for  sale  he  was  a  tenant-at-will, 
under  a  distinct  stipulation  that  he  should  be  rent-free  ;  therefore  for 
that  time  no  action  for  use  and  occupation  can  be  brought  against  him  ; 
but  when  that  contract  is  at  an  end  he  is  a  tenant-at-will  simply;  there- 
fore from  that  time  he  is  to  pay  for  the  occupation  (/&.)•  If  a  vendor 
remains  in  possession  toithoul  any  agreement  after  the  conveyance  is 
executed,  such  occupation  does  not  of  itself  entitle  the  vendee  to  sue 
him  in  use  and  occupation,  as  there  is  no  evidence  of  a  holding  by 
permission  of  the  plaintiif ;  but  he  is  a  wrong-doer,  and  may  be  turned 
out  by  ejectment,  and  is  liable  in  trespass  for  mesne  profits  {Tew  v. 
Jones). 

In  Orij)j)s  V.  Blank,  a  person  having  a  title  to  land  sued  the  de- 
fendant, who  had  received  possession  from  a  third  person,  and  it  was 
held  that  tite  conditiojial  promise  of  the  defendant  about  two  years  before 
the  trial,  tvhen  the  plaintiff  became  owner  of  the  land,  and  ashed  him  either  to 
give  up  possession  of  it  or  pay  for  it — "  I  do  not  consider  the  land  as 
yours  ;  but  prove  your  right,  and  I  will  pay  for  it " — would  not  sup- 
port assumpsit  for  use  and  occupation.  At  the  trial  the  learned  judge 
was  of  opinion  that  the  action  would  not  lie  in  the  absence  of  proof  of 
an  unqualified  attornment,  and  directed  a  nonsuit,  which  the  Court 
upheld.  Bayley  J.  said  :  "  The  general  rule  certainly  is,  that  if  A. 
receives  possession  of  land  from  B.,  he  cannot  dispute  the  title  of  the  latter 
in  an  action  for  use  and  occupation ;  but  where  he  receives  possession 
from  another  person,  he  may  dispute  the  title  of  the  party  suing  as 
landlord.  Here  the  defendant  did  not  receive  possession  from  the 
plaintiff,  and  therefore  the  evidence  produced  could  not  support  use 
and  occupation." 

According  to  Rabbeth  v.  Squire,  the  words  " iise  and  occapation^^  in 
a  will  do  not  exclude  under-letting.  There  a  testator  desired  that  his 
two  sons  might  have  ^^  the  use  and  occupation"  of  certain  lands,  they 
paying  a  stated  rent,  and  that  in  default  of  payment,  or  if  they  con- 
verted the  arable  land  into  tillage,  they  should  no  longer  have  "  posses- 
sion "  thereof  ;  and  it  was  held  by  Sir  J.  RomiJly  M.R.  that  personal 
use  and  occupation  was  not  enjoined,  and  that  they  might  imderlet  the 
property. 

Although  a  demise  be  for  a  time  certain,  a  landlord  must  make  a  demand 
of  possession,  and  give  notice  in  writing,  in  order  to  recover  double  value 
under  statute  4  Geo.  II.  c.  28,  s.  1.  An  action  for  double  value  lies  in 
the  County  Courts  established  under  statute  9  &  10  Vict.  c.  95  ;  and 
per  Coleridge  J. :  *'  There  is  no  doubt  that  debt  for  use  and  occupation 


450  ACTION    FOR    DOUBLE    VALUE. 

und  for  double  value  are  distinct  causes  of  action  within  that  statute ' 
{Wickham  \.  Lee).  Doulle  rent  is  given  by  statute  11  Geo.  II.  c.  19, 
s.  18,  which  was  enacted  to  meet  the  difficulty  which  landlords  had  with 
tenants  who  had  power  to  determine  their  own  leases,  and  refused  to 
give  lip  possession  pursuant  to  their  notice,  when  the  landlord  had 
agreed  with  another  tenant  for  the  same  [Johnstone  v.  Huddlestone). 
A  tenant  who  after  having  given  notice  to  quit  hotds  over  for  a  year,  paying 
doulte  rent,  according  to  stat.  11  Geo.  II.  c.  19,  s.  18,  may  quit  at  the  end 
of  such  year  icifhouf  fresh  notice  (Booth  v.  Macfarlane).  Patteson  J.  held 
that  if  a  landlord  allows  his  tenant  to  hold  over  above  a  year  without 
taking  any  step  to  recover  the  premises,  he  is  not  entitled  to  the  benefit 
of  1  Geo.  IV.  c.  87,  s.  1,  which  "enables  landlords  more  speedily  to 
recover  possession  of  lands  and  tenements  unlawfully  held  over  by 
tenants  "  {Doe  dem.  Thomas  v.  Field). 

It  is  only  the  lessor  or  the  person  ivho  stands  in  the  situation  of  land- 
lord, and  not  any  one  icho  derives  a  title  from  the  lessor,  who  can,  under 
4  Geo.  II,  c.  28,  s.  1,  sue  a  tenant  for  double  value  tvhen  there  has  been 
a  holding  over  after  determination  of  the  tenancy ;  and  therefore  where 
A.  B.,  who  had  let  certain  premises  to  the  defendant,  under  a  letting 
which  expired  on  the  25th  March,  1858,  and  had  required  the  de- 
fendant, by  notice  in  writing,  to  deliver  up  possession  on  that  day, 
afterwards,  but  before  the  end  of  such  tenancy  demised  the  premises 
to  the  plaintiff  from  such  25th  of  March,  1858,  and  the  defendant  held 
over  without  paying  rent  to  or  otherwise  recognising  the  plaintiff  as 
landlord,  it  was  held  that  the  plaintiff  was  not  the  proper  person  to 
sue  the  defendant  for  double  value  under  such  statute  {Blatchford^. 
Cole). 

Where  there  is  a  demise  to  two  co-tenants  for  a  term,  and  one  holds  over 
after  the  expiration  of  the  term  ivithout  the  other's  assent,  the  other  is  not 
liable  for  rent  becoming  due  during  such  holding  over  (Drapery.  Crofts). 
But  in  Christy  v.  Tancred — one  co-tenant,  who  assented  to  the  other's 
holding  over  after  the  expii-ation  of  the  term,  was  held  equally  liable 
with  him  in  use  and  occupation,  so  long  as  the  latter  continued  actually 
to  occupy,  but  no  longer. 

A  tenant  Jiolding  over  cfter  the  expiration  of  a  lease  for  years  may  be 
taken  to  hold  upon  any  of  the  terms  of  such  former  lease  as  are  consistent 
with  a  yearly  tenancy,  and  whether  he  does  so  hold  or  not  is  a  question 
for  the  jury  on  the  facts  proved  ;  and  a  covenant  in  a  lease  for  years 
ending  at  Michaelmas  that  the  tenant  shall  and  may  retain  and  sow  40 
acres  of  wheat  on  the  213  acres  of  arable  land  demised,  at  the  seed-time 
next  after  the  end  of  the  term,  and  have  the  on-stand  thereof  till  the 
harvest  then  next  following,  with  the  use  of  the  premises  for  thrashing, 


ACTION  FOR  HOLDING  OVER.  451 

&c.,  till  a  day  named,  is  a  term  which  may  be  made  incident  to  a  tenancy 
from  year  to  year  {Hyatt  v.  Griffiths). 

It  was  decided  in  Thomas  v.  Packer  that  a  p'oviso  in  a  tease  for  re- 
entry on  nonjxujmcnt  of  rent,  is  a  condition  which  attaches  to  a  yearly 
tenancy  created  by  the  tenant  holding  over  and  paying  rent  after  the 
expiration  of  the  lease.  In  Dighy  v.  Atkinson  it  was  held  that  a  covenant 
to  insure  was  applicable  to  a  new  yearly  holding.  And  in  Doe  clem. 
Thomson  v.  Amey,  it  was  held  that  where  a  party  is  let  into  possession, 
and  pays  rent  under  an  agreement  for  a  future  lease,  which  is  to  contain 
a  covenant  against  taking  successive  crops  of  corn,  and  a  condition  of 
re-entry  for  breach  of  covenant,  he  thereby  becomes  a  yearly  tenant  sub- 
ject to  that  condition.  And  a  right  of  re-entry  for  hreach  of  covenant  in 
a  lease  is  waived  hy  the  lessor  bringing  an  action  for  rent  accrued  due 
subsequent  to  the  breach  {Bendy  v.  Nichott). 

The  Court  of  Common  Pleas  have  held  in  Bramtey  (appel.)  v.  Ches- 
terton (resp.)  that  if  a  landtord,  after  giving  a  yearty  tenant  notice  to 
quit  at  the  end  of  his  year,  afterwards  agrees  to  tet  the  premises  to  A. 
from  the  end  of  the  year,  and  informs  the  tenant  he  has  done  so,  who 
nevertheless  holds  on  the  premises  for  another  quarter,  and  is  ejected, 
the  landlord  is  not  prevented  by  the  receipt  of  rent  from  the  tenant 
for  such  extra  quarter  from  bringing  an  action  against  him  for  the 
damages  occasioned  by  his  holding  over,  and  may  recover  in  that 
action  as  damages  the  amount  of  the  ordinary  damages  which  he  has 
had  to  pay  in  an  action  brought  against  him  by  A.  for  not  giving 
him  possession  at  the  time  agreed  on,  and  also  the  costs  of  such 
action. 

Where  A.  demised  to  B.  certain  lands  and  premises  for  one  year 
certain,  and  then  from  year  to  year,  so  long  as  the  parties  should  think 
proper,  with  power  to  determine  it  on  giving  notice  to  quit,  and  the 
lease  contained  various  terms  and  conditions  as  to  the  management 
of  the  land  and  repairing  the  buildings,  and  on  the  lessee's  death  his 
executors  entered  into  the  occupation  of  the  premises,  and  continued 
to  occupy  and  paid  rent,  the  latter  were  held  to  be  chargeable  in  their 
personal  character  upon  the  terms  contained  in  the  original  demise, 
their  continuing  to  occupy,  and  the  landlord's  abstaining  from  giving 
notice  to  qnit,  raising  an  implied  promise  on  their  parts  to  abide  by  the 
terms  of  the  original  contract  {Buckirorth  v.  Simjjson).  And^;er  Parke 
B.  :  "7/"  the  tenant  assigns,  and  the  landlord  do  not  give  notice  to 
quit,  the  assignee  must  be  taken  to  hold  on  the  same  terms.  That 
contract  the  law  will  imply ;  otherwise  the  consequence  would  be  that 
np  action  could  be  brought  on  the  original  demise  when  there  is  an' 
occupation  from  year  to  year,  and  the  tenant  assigns,  for  there  is  no 

G  G  2 


452  ACTIONS   BY    TENANTS    IN    COMMON. 

contract  wliatevcr  unless  tlic  original  contract  is  transferred  by  opera- 
tion oflaw"  ( //;.)• 

Tenants-in-common  may  join  in  suing  for  use  and  occiipaf ion  a,  tenant 
holding  under  them  ;  and  payment  of  rent  to  an  agent  "  on  behalf 
of  the  family  "  is  evidence  of  such  holding  (Last  v.  Dinn).  An  action 
for  rent  hy  tenants-in-common  is  in  its  mdure  a  joint  action,  and  conse- 
quently the  survivors  may  sue  for  the  tvlwte,  though  the  reservation  be 
to  the  lessors  according  to  their  respective  interests  (TFa//«fe  v.  J/ftc- 
laren).  And  it  was  decided  by  the  Court  of  Exchequer  Chamber,  in 
Henderson  v.  Eason,  that  if  one  of  two  tenants-in-common  soJety  occupy 
land,  farm  it  at  his  own  cost,  and  take  the  produce  for  his  own  benefit, 
his  co-tenant  cannot  maintain  an  action  of  account  against  the  former 
uuder  4  Anne,  c.  16,  s.  27,  as  his  bailiflf,  by  reason  of  the  former  having 
received  more  than  comes  to  his  just  share  and  proportion  ;  the  statute 
applies  to  cases  where  rent  or  payment  in  money  or  in  kind,  due  in 
respect  of  the  premises,  is  received  from  a  third  party  by  one  co-tenant, 
who  retains  for  his  own  use  the  whole  or  more  than  his  proportional 
share. 

Where  it  appeared  in  evidence  that  A.  and  B.  had  taken  some  jKisturage 
joititly,  and  that  each  had  turned  his  cattle  upon  it  (how  many  was 
not  shown),  and  that  A.  paid  the  whole  rent,  it  was  held  by  Patteson 
J.,  in  making  a  rule  absolute  for  a  new  trial,  in  an  action  against 
B.  for  half  the  sum  so  paid  by  A.,  that  the  jury  were  not  warranted  in 
finding  that  the  share  of  each  was  a  moiety  (Siuirpe  v.  Oumminys).  "  If 
they  took  the  catage  together,"  said  his  Lordship,  "  I  think  it  must  be 
taken  that  there  was  a  partnershiji,  and  this  case  does  not  come  within 
the  rule  in  Venning  v.  Lechie,  inasmuch  as  it  was  not  a  payment  before, 
but  in  consequence  of  the  partnership.  Suppose  they  had  taken  a  farm 
together,  can  there  be  any  doubt  that  there  would  have  been  a  partner- 
ship then,  and  that  the  plaintiff  could  not  have  recovered  a  payment 
like  this  ?  " 

TliC  reservation  of  a  rent  in  corn  means  the  legal  quarter  of  eight 
gallons  to  the  bushel.  Cwi-n  purchased  in  open  market  may  by  the 
law  of  Scotland  be  recovered  from  the  buyer  to  satisfy  rent  in  arrear 
of  the  current  year,  the  corn  being  part  of  the  produce  of  that  year  of 
the  land  rented  ;  and  this  decision  was  affirmed  by  the  House  of  Lords 
{TJuntop  V.  JJalhoiii<ie). 

Where  in  a  lease  of  land  for  21  years  from  the  25th  of  March, 
1848,  it  was  covenanted  that  the  lessee  should  pay  a  stipulated  sum 
for  the  first  year,  with  a  proviso  that  the  rent  for  each  subsequent  year 
of  the  term  shoiddle  reduced  or  increased  according  to  "  the  aver acje  price 
of  ic Ileal  in  any  one  year  of  the  said  term,"  such  average  "  to  be  taken 


LIABILITY    OF   REVERSIONER.  453 

and  ascertained  from  the  then  current  year's  averages  which  were  taken 
in  the  month  of  January  in  every  year  under  and  by  virtue  of  the 
Tithe  Commutation  Act,  G  &  7  Will.  IV.  c.  71,  s.  56,"  which  is  the 
result  of  the  sales  "  during  seven  years  ending  on  the  Thursday  next 
before  Christmas-day  then  next  preceding  " — it  was  held  that  the  rent 
must  be  computed  according  to  such  septennial  average  so  published 
in  each  year,  and  not,  as  the  defendant  contended,  according  to  the 
average  price  in  any  one  year  of  the  term  {Kendall  v.  Barker). 

A  nuisance  of  a  permanent  character  having  been  created  on  land  in 
the  occupation  of  a  tenant  from  year  to  year,  the  reversioner  is  liable 
for  damage  caused  by  it,  if  it  be  shown  that  since  the  creation  of  the 
nuisance,  and  before  the  damage,  he  might  have  determined  the  tenancy 
and  did  not,  such  continuing  of  the  tenancy  being  equivalent  to  a  re- 
letting ;  and  it  is  no  defence  that  he  had  no  notice  or  knowledge  of  the 
existence  of  the  nuisance.  {Gaiuhj  v.  Tuhher,  33  L.  J.  (N.  S.)  Q,  B., 
p.  151. 

In  the  Duke  of  3Iarllwrovgh  v.  Oslorn,  33  L.  J.  (N.  S.)  Q.  B.,p.  148, 
it  was  held  that  a  clause  in  the  lease  "  the  tenant  to  perform  each  year 
for  the  Duke  of  Marlborough,  at  the  rate  of  one  day's  team-work,  with 
two  horses  for  every  £50  of  rent  when  required  (except  at  hay  and  corn 
harvest)  without  being  paid  for  the  same,"  extends  to  other  than 
agricultural  work,  such  as  hauling  coals  ;  but  it  does  not  oblige  the 
tenant  to  find  a  cart,  plough,  or  other  vehicle  or  machine  necessary  for 
the  performance  of  the  work. 

In  the  case  of  Crouch  v.  Tregonning,  7  L.  R.  Ex.  88,  plaintiflp  took  a 
farm  under  lease  for  seven,  fourteen,  or  twenty-one  years  from  1858.  The 
lease  contained  a  covenant  not  to  assign  or  under-let  without  the  written 
consent  of  the  landlord.  The  plaintiff,  however,  sold  all  his  interest  in 
the  farm  to  the  defendant  by  a  memorandum  of  agreement,  dated  March 
10th,  1869,  and  the  defendant  entered  into  occupation  in  the  following 
May.  This  agreement  was  not  under  seal  ;  nothing  said  in  it  about 
payment  of  rent,  and  the  landlord's  license  was  not  obtained.  The  de- 
fendant paid  the  rent  to  the  landlord's  agent  in  plaintill:"'s  name,  and 
the  receipts  were  also  made  out  in  his  name.  In  March,  1870,  the 
defendant  gave  the  landlord  notice  to  quit  at  Michaelmas,  1870,  and  he 
left  the  farm  at  that  time.  The  farm  remained  empty  from  Michaelmas, 
1870,  to  March,  1871,  and  the  plaintiff  having  paid  this  half-year's  rent 
to  the  landlord  sought  to  recover  the  amount  from  the  defendant. 

It  was  held,  however,  that  he  was  not  entitled  to  recover,  there  not 
having  been  any  promise  to  indemnity  the  plaintiff  against  rent  accruing 
after  the  defendant's  occupation  had  ceased,  nor  any  such  relation  of 
landlord  and  tenant  existing  between  the  parties  as  would  entitle  the 


454  COVENANT    TO    EErAIR. 

plaintiff  to  the  repayment  by  the  defendant  eitlier  as  rent  or  compensa- 
tion for  use  and  occupation  of  the  sum  paid  to  the  hmdlord  by  the 
plaintiff". 

In  the  case  of  Feiv  v,  Perlcins,  2  L.  E.  Ex.  92,  an  indenture  of  lease, 
vrith  a  clause  for  re-entry,  contained  a  general  covenant  on  the  part  of 
the  lessee  to  the  premises  demised  in  repair,  and  a  further  covenant 
that  he  would,  within  three  months  after  notice  from  the  landlord,  do 
all  repairs  specified  in  the  notice.  The  demised  premises  being  out  of 
repair,  the  landlord  gave  the  lessee  notice  to  repair  in  accordance  with 
the  covenants  of  the  lease.  Before  the  expiration  of  three  months 
ejectment  was  brought,  and  it  was  held  that  the  notice  was  not  a  waiver 
of  the  forfeiture  incurred  by  the  breach  of  the  general  covenant  to 
repair,  and  that  the  action  was  maintainable. 

In  the  case  of  Hooper-  v.  ClarTc,  2  L.  R.  Q.  B.  200,  one  Campbell  de- 
mised the  exclusive  right  and  license  to  take  and  kill  game  on  certain 
land,  with  the  use  of  a  cottage,  to  the  defendant  for  a  term,  and  de- 
fendant covenanted  to  leave  the  land  as  well  stocked  with  game  at  the 
end  of  the  term  as  it  was  at  the  time  of  the  demise.  Campbell  assigned 
his  reversion  in  the  land  and  hereditaments  to  the  plaintiff,  who  brought 
an  action  at  the  end  of  the  term  against  the  defendant  for  a  breach  of 
covenant,  and  it  was  held  that  the  plaintiff,  as  assignee  of  the  reversion, 
could  sue  upon  the  covenant  on  the  demise,  was  not  a  mere  license,  but 
the  grant  of  an  incorporeal  hereditament. 

The  case  o^  Mum  v.  Fahian,  though  referring  to  a  house,  may,  never- 
theless, be  considered  important  to  occupiers  of  land  :  a  landlord  ver- 
bally agreed  with  his  tenant  to  grant  him  a  lease  for  twenty-one  years 
at  an  increased  rent,  but  died  before  the  lease  was  executed.  Before 
his  death,  however,  the  tenant  had  paid  a  quarter's  rent  at  the  increased 
rate  :  held,  that  this  payment  of  rent  constituted  a  sufficient  part  per- 
formance to  take  the  case  out  of  the  Statute  of  Frauds,  and  specific 
performance  was  decreed.     3Imn  v.  Fahian,  1  L.  R.  Ch.  35. 

The  leading  case  on  fixtures  is  Ehces  v.  3Ia.iv.  About  fifteen  years 
before  the  expiration  of  his  lease  the  defendant  erected  upon  his  farm, 
at  his  own  expense,  a  substantial  heasf -house,  a  carpenter'' s  shop,  a 
fuel-house,  a  curt-hovse,  a  pvmp-honse,  and  fold-yard.  The  buildings 
were  of  brick  and  mortar,  and  tiled,  and  the  foundations  of  them 
nearly  one  foot  and  a  half  deep  in  the  ground.  The  carpenter's  shop 
was  closed  in,  and  the  other  buildings  were  o])cn  to  the  front,  and  sup- 
ported by  brick  pillars.  The  fold-yard  wall  was  of  brick  and  mortar, 
and  its  foundation  was  in  the  ground.  1'lie  defendant,  previous  to  the 
exi)iration  of  his  lease,  pulled  down  the  erections,  dug  up  the  founda- 
tions, and  carried  away  the  materials,  kaviug  the  premises  in  the  same 


LEADING   CASE    ON    FIXTURES.  455 

state  as  when  he  entered  upon  them.  These  erections  were  necessary 
and  convenient  for  the  occvpaiion  of  the  farm,  "which  could  not  -well  be 
managed  without  them.  A  verdict  was  found  for  the  jDlaintiif  for  £60, 
and  the  question  submitted  to  the  Court  of  King's  Bench  was  whether 
the  defendant  had  a  right  to  take  away  these  erections.  The  defendant 
relied  on  the  cases  of  Dean  v.  AllaJley,  where  the  tenant  was  held 
entitled  to  remove  Dutch  barns  ;  Lord  DucUey  v.  Lord  Ward ;  Penton 
Y.RoMrt;  Lawton  v.  Laivton ;  Ciiltiny  v.  Tuffnal  (where  the  barn's 
weight  sank  it  into  the  ground,  though  the  foundations  were  not  dug) ; 
and  Gould  J.'s  opinion  in  Fitzherherf  v.  Shaw,  as  to  what  would  have 
been  the  right  of  the  tenant  as  to  the  taking  away  a  shed  luilt  on  hrick- 
worlc,  and  some  posts  and  rails  which  he  had  erected,  if  he  had  done  so 
during  the  term.  The  Court  of  King's  Bench  confirmed  the  finding  of 
the  jury,  and  decided  that  the  defendant  had  no  right  to  remove  these 
erections.  Lord  Eltenhorovyh  C.J.  said  :  "  The  general  rule  in  the 
first-mentioned  case  on  the  subject,  as  between  heir  and  executor  (Year 
Book,  17  Edw.  II.  p.  518,  and  Co.  Litt.  53,  Cooke  v.  Humphrey,  &c.)  is 
that  where  a  lessee  having  annexed  anything  to  the  freehold  during  his 
term,  afterwards  takes  it  away,  it  is  waste.  This  rule  at  a  very  early 
period  had  several  exceptions  attempted  to  be,  and  at  last  effectually, 
engrafted  upon  it,  in  favour  of  trade,  and  those  vessels  and  utensils 
which  are  immediately  subservient  to  the  purposes  of  trade.  But  no 
adjudged  case  has  yet  gone  the  length  of  estabhshing  that  buildings 
subservient  to  the  purposes  of  agriculture,  as  distinguished  from  those 
of  trade,  have  been  removable  by  an  executor  of  the  tenant  for  life,  nor 
by  the  tenant  himself  who  built  them  during  his  term." 

In  Culliny  v.  Tujfncd,  decided  by  Lord  Ch.  J.  Trehy  at  Nisi  Prius, 
the  ham  ivas  only  battens  and  blocks  of  timber,  lying  upon  the  ground,  but 
not  fixed  in  or  to  the  ground,  and  the  tenant  therefore,  without  even  any 
custom  of  the  country,  had  a  right  to  remove  them. 

In  Wansbroitgh  v.  Maton  the  plaintiffs  held  some  land  as  tenants 
to  the  defendant,  for  a  term  of  years  determinable  on  lives.  On  the 
expiration  of  the  last  life  the  plaintiffs  quitted  possession,  and  the 
defendant  demised  the  land  to  a  new  tenant,  who  entered.  When  the 
plaintiffs  quitted  they  left  on  the  land  a  stavel  barn  which  they  had 
erected,  and  for  which  the  action  was  brought.  It  consisted  of  wood 
resting  on,  but  not  fastened  by  mortar  or  otherwise,  to  the  caps  or 
blocks  of  stone  (called  stavels  or  staddles)  fixed  into  the  ground  or  let 
into  brickwork,  the  brickwork  being  built  on  and  let  into  the  ground 
in  those  parts  where  tlie  ground  was  lowest,  for  the  purpose  of  making 
an  even  foundation  for  the  barn  to  rest  upon.  The  wooden  barn  could 
be  taken  away  without  injury  to  the  rest.     It  is  usual,  in  the  part  of  the 


456  REMOVAL  OF  WATER  FENDER. 

country  (Salisbury)  where  the  barn  stood,  for  the  tenants  who  have 
built  such  barns  to  remove  them  on  quitting,  or  to  have  them  valued 
to  the  incoming  tenant.  The  plaintiflFs,  after  the  new  tenants  had 
entered,  demanded  the  barn  of  the  defendant  off  the  premises.  The 
defendant  said  they  should  not  have  it  till  they  had  agreed  with  him 
as  to  another  matter  in  dispute  ;  and  they  afterwards  sent  men  to  bring 
it  away  ;  but  the  defendant  being  then  on  the  premises,  ordered  the 
men  to  quit  the  ground,  and  locked  the  gates  after  them.  The  defen- 
dant's counsel  applied  for  a  nonsuit,  on  the  grounds,  first,  that  the 
barn  was  a  fixture  for  which  trover  would  not  lie,  and  secondly,  that 
no  conversion  was  proved.  Liberty  was  given  to  move  to  enter  a 
nonsuit  on  both  points,  but  the  Court  of  Queen's  Bench  refused  a 
rule  to  show  cause  on  the  point  of  the  conversion,  but  granted  it  on  the 
other. 

In  discharging  it  they  observed,  if  they  were  to  decide  it  was  a  fixture 
they  should  be  overruling  the  decision  in  Rex  v.  Oilcy,  where  it  was 
decided  that  the  ivooden  ivindmill  resting  by  its  own  weight  on  a  brick 
foundation  was  not  annexed  to  the  freehold.  That,  too,  was  a  strong 
case,  for  the  mill  and  ground  had  been  demised  together  by  the  same 
person  to  the  pauper,  yet  it  was  held  that  the  mill  did  not  constitute  a 
part  of  the  tenement  so  as  to  make  up  the  annual  value  of  XlO. 

In  Wood  V.  Hewett,  the  question  for  the  Court  of  Queen's  Bench  was, 
whether  tlte  water  fender  or  hatch  resting  on  masonry  and  brickwork  fixed 
into  the  bank  of  the  mill  stream,  on  the  soil  of  the  defendant  (who  was 
tenant  from  year  to  year  of  the  close  adjoining  the  mill  stream)  became 
his  property  as  a  necessary  consequence  of  its  position.  It  had  been 
placed  there  43  years  before,  at  the  time  of  a  former  occupier  of  tlie 
close,  under  whom  the  defendant  claimed.  About  nine  years  before 
this  action,  repairs  had  been  done  to  the  masonry,  with  assistance  from 
the  plaintiff ;  and  soon  afterwards  the  plaintiff  removed  the  fender  and 
put  in  a  new  one,  but  without  the  consent  of  the  tenant  for  life,  who, 
when  he  knew  what  had  been  done,  threatened  to  bring  an  action.  Tlie 
Court  held,  on  the  authority  of  Rex  v.  Oticy  and  Mant  v.  C'ottins,  that 
where  such  chattel  has  been  annexed  by  its  owner  to  another's  freehold, 
but  may  be  severed  without  injury  to  the  freehold,  it  is  not  neces- 
sarily to  be  inferred  from  the  annexation  that  such  chattel  becomes 
the  property  of  the  freeholder.  Whether  in  a  particular  case  it  has 
become  so  or  not,  may  be  a  question  on  the  evidence  ;  and  a  jury  may 
infer,  from  user  or  other  circumstances,  an  agreement  that  when  the 
chattel  was  annexed  the  original  owner  should  have  liberty  to  take  it 
away  again. 

Wiltshear  v.  Cottrell  was  an  action  for  an  injury  to  the  reversionary 


AGRICULTURAL    FIXTURES.  d<57 

estate  of  the  plaintiff  in  premises  occupied  by  a  tenant  of  the  name  of 
May,  by  removing  some  sfaddles,  a  thrash iiKj-maclii tic,  and  a  granary. 
Plaintiff  had  purchased  the  premises  in  question  I'rom  the  devisees  in 
trust  of  one  Thomas  Cottrell  deceased,  the  father  of  the  defendant,  and 
tliey  had  been  conveyed  to  the  plaintiff  by  a  deed,  to  which  the  de- 
fendant was  a  party,  as  one  of  the  devisees.  Immediately  after  the 
conveyance  the  plaintiff  demised  the  premises  to  May,  and  after  such 
demise  the  erections  in  question  had  been  removed  from  them.  The 
deed  which  the  defendant  had  executed  conveyed  the  land  and  q\\  fixtures 
to  the  plaintiff  in  fee,  and  it  appeared  that  the  erections  had  been  put 
on  the  land  by  the  defendant's  father,  who  had  subsequently  become 
owner  in  fee,  and  under  whose  will  the  title  had  come  to  the  defendant. 
The  staddles  were  erections  for  the  support  of  a  rick  :  they  were  stone 
}jillars  mortared  into  a  foundation  of  brick  and  mortar,  which  was  let 
into  the  earth  :  stone  caps  were  mortared  on  to  them  at  the  top  ;  and 
on  these  the  ricks  rested.  The  thrashing-machine  was  placed  inside 
one  of  the  barns  (the  machinery  for  the  horse  being  on  the  outside),  and 
there  fixed  by  screws  and  bolts  to  four  posts  which  were  let  into  the 
earth.  The  granary  consisted  of  a  wooden  shed  tiled  over,  and  rested 
by  its  mere  weight  upon  a  wooden  frame  supported  by  staddles  similar 
to  the  first-named.  Evidence  had  been  given  at  the  trial  to  show  that 
by  the  custom  of  the  country  an  out-going  tenant  had  the  right  to  re- 
move such  things  at  the  expiration  of  his  tenancy,  and  it  was  further 
contended  that  he  was  entitled  to  do  so  by  the  general  law  of  the  land. 
This  the  plaintiff  denied,  and  contended  that  even  if  it  were  so,  the  lan- 
guage of  the  conveyance  took  away  the  right. 

A  verdict  was  taken  for  the  plaintiff  for  c£30,  the  parties  agreeing 
that  the  staddles  and  thrashing-machine  should  be  estimated  at  <£10, 
and  the  granary  at  £20,  and  leave  was  reserved  to  enter  a  verdict  for 
the  defendant,  or  reduce  the  amount  of  damages.  The  Court  of 
Queen's  Bench  held  that  the  defendant  being  a  party  to  the  convey- 
ance, could  not  set  up  any  right  to  remove  any  of  the  articles  as  fixtures 
removable  by  an  agricultural  tenant  at  the  expiration  of  his  term.  The 
land  and  everything  attached  to  the  land  passed  by  the  deed,  and  there 
was  no  tenant-right  to  remove  them.  The  real  question  therefore  was, 
whether  all  or  any  of  the  articles  passed  by  the  conveyance  under  the 
words  "and  all  fixtures" ;  and  it  was  held  that  the  staddles  and  the 
thrashing-machine  clearly  did,  and  that  as  they  were  really  attached  to 
and  part  of  the  land,  their  removal  was  clearly  an  injury  to  the  rever- 
sionary estate,  as  a  removal  of  so  much  of  the  land,  so  as  to  make  the 
first  count  applicable.  The  question  as  to  the  granary  was  a  different 
one,  as  it  was  proved  that  that  was  not  attached  except  by  its  weight 


458  LARGER   MEANING    OF    FIXTURES. 

to  the  stiiddlcs,  and  that  by  sufficient  power  it  might  have  been  lifted 
from  tlie  staddles  without  disturbing;  them.  Hence  it  was  decided  that 
the  granary  was  a  mere  chattel,  and  would  not  be  a  fixture  in  the  ordi- 
nary sense  of  the  word,  though  it  might  pass  by  that  word,  if  from  the 
rest  of  the  conveyance  an  intention  appeared  of  comprehending  farm 
machinery  in  general ;  but  that  even  then  the  plaintiff  could  not  recover 
against  the  defendant  for  carrying  it  away,  either  as  for  an  injury  to 
the  reversion  in  land,  the  chattel  not  being  part  of  such  reversion,  or, 
according  to  Gordon  v.  Harper,  in  trover  (the  second  count),  as  the  pos- 
session of  the  chattels  for  the  term  was  in  May,  the  tenant  at  the 
time  of  removal.  The  Court,  however,  intimated  that,  considering 
this  article  was  put  up  so  long  ago  by  a  party  who  became  owner  of 
the  freehold,  it  seemed  to  have  been  always  demised  with  the  freehold, 
;uul  remembering  the  larger  meaning  of  which  Baron  Parlce  had  shown 
the  word  "fixtures"  to  be  capable,  they  might  have  held  that  it 
passed  as  a  chattel,  if  either  count  could  have  been  BU}>ported  on  that 
supposition. 

TJie  "■larger  mean'mcf  was  given  to  fixtures  by  Porlce  B.  in  Sheen  v. 
Reekie,  where  he  says,  "It  does  not  necessarily  follow  that  the  word 
*  fixtures '  must  import  things  affixed  to  the  freehold,  nor  has  the  word 
necessarily  acquired  that  legal  sense.  It  is  a  very  modern  word,  and 
is  generally  understood  to  comprehend  any  article  which  a  tenant  has 
the  power  of  removing,  as  appears  fi-om  the  case  of  Colegrave  v.  Dios 
Santos;  but  even  this  is  not  its  necessary  meaning;  it  only  means 
something  fixed  to  another  ;  and  every  article  in  this  declaration  (stores, 
shelves,  closets,  cupboards,  &c.)  may  be  a  purely  movable  chattel,  and 
the  fit  subject  for  an  action  of  trover.  For  instance,  they  might  be 
affixed  to  a  bam,  or  other  structure  so  supported,  as  that  it  might  itself 
be  the  subject  of  this  form  of  action."  Coleridge  J.,  in  delivering  the 
judgment  of  the  Court  in  Wilts/tear  v.  Cottrcll,  thus  summed  up  the 
authorities  on  which  a  granary  of  this  description  was  considered  a  mere 
chattel,  and  neither  as  a  part  of  the  land,  or  so  affixed  to  the  freehold  as 
that  its  severance  would  give  a  cause  of  action  for  injury  to  the  rever- 
sionary estate  in  the  land,  the  subject  of  the  first  count :  "  In  Gutting 
V.  Tiiffnal,  a  lam  ncrted  on  pattens  and  btoclrs  of  wood,  but  not  itself 
fixed  in  or  to  the  ground,  was  held  to  be  removable.  The  custom  of  the 
country  was  relied  on  in  that  case,  as  making  such  erections  removable 
by  an  outgoing  tenant;  but  Lord  Ettentiorough,  in  the  great  case  of 
L'twes  V.  31au\  in  referring  to  Gnlting  v.  Tuffnat,  treats  tlie  barn  as 
liaving  been  clearly  removable  without  any  custom,  because  it  was  not 
a  fixture  at  all,  as  not  being  fixed  in  or  to  the  ground.  In  Wanshrough 
V.  Maton  it  was  decided  that  a  barn  resting  by  its  mere  weight  on  a 


REMOVAL    OF   TIMBER    CATTLE-HOUSE.  459 

brick  foundation  was  not  a  fixture,  but  a  mere  chattel,  for  which  trover 
might  be  brought.  Mr.  Justice  Paftcson  referred  to  that  case  in  Rex 
V.  Otlei/,  where  it  was  held  that  a  ivindmill  resting  lij  mere  tveigJd  on 
a  foundation  of  hrick  was  not  a  part  of  the  freehold  so  as  to  contribute 
to  the  value  of  the  tenement ;  and  in  Rex  v.  Londonthorpe  it  was  held 
that  a  windmill  not  attached  to  the  ground,  but  constructed  on  cross 
traces  laid  upon  brick  pillars,  but  not  attached  or  fixed  thereto,  was  a 
mere  chattel." 

If  a  landlord  supjilies  timher  to  erect  a  luilding,  and  the  tenant  so  uses 
the  timber  together  with  some  ivhich  he  has  himself  supplied,  he  cannot 
remove  the  building  on  quitting  the  occupation  of  the  land  {Smith  \. 
Render.)  The  defendant  had  been  tenant  to  the  owner  of  the  field, 
and  obtained  permission  from  his  landlord  to  cut  down  some  timber 
that  was  on  the  field,  for  the  purpose  of  erecting  a  cattle-house.  The 
building  consisted  of  six  posts,  driven  four  feet  into  the  ground,  and  a 
number  of  smaller  posts  driven  to  the  depth  of  eighteen  inches  or  two 
feet  ;  and  this  erection  was  completed  except  the  tiling,  and  was  in  a 
condition  to  have  the  timber  of  the  roof  put  on,  and  so  stood  in  the 
field.  In  this  state  of  things  the  landlord  sold  the  reversion  to  another 
person,  and  the  tenant  not  wishing  to  remain  a  tenant  to  the  new  owner 
of  the  property,  gave  him  a  notice  to  quit,  and  before  that  notice  had 
expired  pulled  down  the  building  he  had  erected,  and  carried  away  the 
timber,  and  insisted  that  the  materials  belonged  to  him.  It  was  con- 
tended on  his  behalf  before  the  Court  of  Exchequer  that  the  building 
did  not  become  a  fixture  until  it  was  completed,  and  that  tlie  tenant 
had  a  right  to  remove  any  materials  which  had  been  inserted  in  the 
foundation  ;  and  it  was  insisted  that  he  had  passed  no  conclusive  por- 
tion of  the  building  materials  to  the  owner  of  the  land,  or  to  the 
landlord,  or  annexed  them  to  the  land,  till  the  thing  was  completed. 

But  per  Curiam  (which  confirmed  the  ruling  of  Martin  B.)  :  "  We 
think  that  if  a  person  takes  from  his  landlord  timber  for  the  purpose  of 
erecting  a  house,  and  does  use  that  timber  in  it,  although  he  may  add 
something  to  it,  yet  nevertheless,  in  point  of  fact,  the  true  question 
as  between  the  tenant  and  the  reversioner  to  the  fixture  does  not 
arise,  whatever  might  be  the  case  in  the  event  of  a  man  partially 
erecting  a  building  from  materials  entirely  his  own.  In  this  case  it  is 
obvious  that  the  original  owner  of  the  land  never  meant  this  timber  to 
be  applied  otherwise  than  to  this  house  ;  and  if  he  sold  it  and  the  house 
to  the  successor,  the  defendant  had  no  right  whatever  to  pull  down  the 
building  and  remove  that  timber." 

The  Court  of  Common  Pleas  decided  in  Leader  v.  Ilomewood,  that 
the  right  of  a  tenant  to  sever  tenants'  fixtures  from  the  freehold,  cannot 


4C0         TROVER  BY  TENANT  FOR  FIXTURES. 

le  exercised  after  the  landlord  has  rc-enlcred,  and  all  tenancy  of  any  hind 
has  bcenjmt  an  end  to  ;  aud  it  makes  no  difference  that  the  tenant  has 
not  eyineed  un  intention  to  abandon  his  right  to  such  fixtures.  And 
2^er  Curiam  :  "  The  law  as  to  the  limit  of  time  within  which  a  tenant  is 
allowed  to  sever  from  the  freehold  the  fixtures  which  are  usually  called 
'  tenant's  fixtures,'  is  by  no  means  clearly  settled.  According  to  the 
older  authorities,  the  rule  was  that  he  must  sever  them  during  the  term. 
But  in  Pcnton  v.  Rohart  it  appears  to  haye  been  considered  that  the 
severance  might  be  made  even  after  the  expiration  of  the  tenant's  in- 
terest, if  he  has  not  quitted  possession.  However,  in  Weeton  v.  Wood- 
code,  the  rule  was  laid  down  that  the  tenant's  right  continues  only 
during  his  original  term,  and  such  further  period  of  possession  by  him, 
as  he  holds  the  premises  under  a  right  still  to  consider  himself  a 
tenant.  It  is  perhaps  not  easy  to  understand  fully  the  exact  meaning 
of  this  rule,  and  whether  or  not  it  justifies  a  tenant  who  has  remained  in 
possession  after  the  end  of  his  term,  and  so  become  a  tenant  on  suffer- 
ance, in  severing  the  fixtures  during  the  time  he  continues  in  possession 
as  such  tenant." 

Fatteson  J.  held  in  Leach  y.  Tliomas,  that  an  outgoing  tenant  has  no 
right  to  remove  some  small  pillars  of  bricJc  and  mortar  built  on  a  dairy 
floor  to  hold  pans,  although  such  pillars  are  not  let  into  the  ground. 
"  Thcyhad,"  his  lordship  said,  "  become,  I  think,  part  of  the  freehold, 
and  could  not  be  legally  removed,  and  it  is  not  necessary  for  that 
purpose  that  they  should  have  been  let  into  the  ground." 

In  Keal  v.  Vincy,  by  a  written  agreement  between  the  plaintiffs  and 
the  defendant,  the  defendant  was  to  accept  of  the  assignment  of  the 
lease  of  a  farm  from  the  plaintiffs,  and  to  take  the  fixtures  in  the  farm- 
house and  growing  crops  at  a  valuation.  He  was  afterwards  let  into 
possession  of  the  fixtures,  and  the  crops  which  were  valued  to  him,  but 
the  lease  was  never  assigned.  Lord  Mlenborough  C.J.  held  that  indebi- 
tatus assumpsit  would  not  lie  for  the  price  of  the  fixtures  and  crops,  and 
that  the  plaintiff's  only  remedy  was  by  a  special  action  on  the  agreement. 
His  lordship  considered  the  agreement  an  entire  one,  and  that  fixtures 
are  not  chattels  until  severance  from  the  realty.  Boydell  v.  31'Michael 
decided  that  a  tenant  has  during  the  term  a  sufficient  interest  in  the 
fixtures  to  enable  him  to  maintain  trover  against  a  third  party  who 
wrongfully  removes  them,  although  at  tlie  end  of  the  term  he  may  be 
Ixnind  to  leave  them  for  the  use  of  the  landlord.  And  according  to 
Jlilchman  v.  Walton,  the  mortgagee  of  the  tenant  may  declare  in  case 
a.s  reversioner  against  the  assignee  of  the  tenant,  for  the  removal  of 
fixtni-es  from  the  premises,  whereby  they  were  dilapidated  and  injured  ; 
and  he  is  also  entitled,  during  the  term,  to  recover  in  trover  against 


REMOVING    BUILDINGS    DURING    STAY    OF    EXECUTION.     461 

such  assignee  the  vahic  of  all  the  fixtures,  whether  landlord's  or  tenant's 
which  were  affixed  to  the  premises  before  the  execution  of  the  mortgaoe 
although  there  was  a  covenant  in  the  original  lease  to  the  mortgao-or, 
to  yield  up  to  the  lessor,  at  the  termination  of  the  term,  "  all  fixtures 
and  things  to  the  premises,  helonging  to  or  to  heJong.'" 

But  it  was  decided  in  MacTcintosh  v.  Trotter,  on  the  authority  of 
Minslmtl  v.  Lloijd,  that  a  lessee  even  during  his  term  cannot  maintain 
trover  for  fixtures  attached  to  ths  freehold,  and  not  yet  removed  lij  the 
jmrchascr.  And  j'^er  Parke  B.  :  "  The  principle  of  law,  as  settled  in 
Minshall  v.  Lloyd  is  that  whatsoever  is  planted  in  the  soil  belongs  to 
the  soil — quicquid  plantatiir  solo,  solo  cedit — that  the  tenant  has  the 
right  to  remove  fixtures  of  this  nature  during  his  term,  or  during  what 
may,  for  this  purpose,  be  coasidered  as  an  excrescence  of  the  term  ;  but 
Ihey  are  not  goods  and  chattels  at  all,  but  parcel  of  the  freehold,  and  as 
such  not  recoverable  in  trover."  And  even  during  the  continuance  of 
the  term  a  landlord  may  bring  trover  for  machinery  annexed  to  the 
mill,  and  which  was  unlawfully  severed  from  it  {Farrant  v.  Thomjjson). 
Trover  also  lies  hy  the  tenant  for  fixtures  ivhich  the  landlord  has  severed 
from  the  freehold  and  distrained  for  rent  {Dalton  v.  Whittem).  And  per 
Parke  B. :  "  By  a  conveyance,  whether  to  a  purchaser  or  to  a  mortgagee, 
fixtures  annexed  to  a  freehold  will  pass,  unless  there  be  some  words  in 
the  deed  to  exclude  them.  Colegrave  v.  Dios  Santos  is  an  authority  to 
that  effect  in  the  case  of  a  purchaser,  and  Longstaff  v.  Meacjoe  in  the 
case  of  a  mortgagee"  {Hitchmcm  v.  Walton). 

The  purchaser  of  lands,  chc,  having  brought  cm  ejectment  against  the 
tenant  from  year  to  year,  the  par  ties  enter  iny  into  an  agreement  that  judg- 
ment shall  he  signed  for  the  plaintiff,  ivith  a  stay  of  execution  till  a  given 
period,  the  tenant  cannot  in  the  interval  remove  luildings,  &c.,  from  the 
premises  ivhich  he  himself  had  erected  during  his  term,  and  before  the 
action  was  brought  {Fitzherbcrt  v.  Shau-).  This  case  was  considered  to 
be  completely  in  point  in  Heap  v.  Barton,  where  Penton  v.  Robart  was 
remarked  on  by  Jcrvis  C.J.,  who  said,  "  There  is  a  view  of  this  case 
which  gets  rid  of  the  discrepancy  between  Penton  v.  Eobart  and  some  of 
the  other  cases.  The  tenants  here  disclaimed  ;  they  became  trespassers. 
The  Courts,"  added  his  lordship,  "  seem  to  have  taken  three  separate 
views  of  the  rule— first,  that  fixtures  go  at  the  expiration  of  the  term  to 
the  landlord,  unless  the  tenant  has  during  the  term  exercised  his  ricrht 
to  remove  them  ;  secondly,  as  in  Penton  v.  Robart,  that  the  tenant  may 
remove  the  fixtures  notwithstanding  the  term  has  expired,  if  he  remains 
in  possession  of  the  premises  ;  and  thirdly,  that  his  right  to  remove 
fixtures  after  his  term  has  expired,  is  subject  to  this  further  qualifica- 
tion, viz.,  that  the  tenant  continues  to  hold  the  premises  under  a  rioht 


462  LAW    OF    FIXTURES. 

still  to  consider  himself  as  tenant."  The  Court  gave  no  opinion  as  to 
any  of  these  positions,  but  remarked  in  reference  to  the  statement  in 
Amos  and  Ferrard  on  Fixtures,  p.  88  (and  cited  by  Lord  Tenterdm  C.J. 
in  Lyde  v.  RnsseU)  to  the  eflPcct  that  a  tenant  must  use  his  privilege  in 
removing  fixtures  during  the  continuance  of  Ms  term,  for  if  he  forbear  to 
do  so  within  this  period,  the  law  presumes  that  he  voluntarily  relin- 
quishes his  claim  in  favour  of  his  landlord  : — "  Is  there  any  authority 
for  what  is  said  there  about  the  voluntary  relinquishment  ?  May  not 
the  rule  be  this — that  the  fixtures  are  the  landlord's,  subject  to  the 
tenant's  right  to  remove  them  during  the  term  ?  Suppose  the  land- 
lord to  be  a  tenant  for  life,  could  the  tenant,  on  his  death,  remove  the 
fixtures  ?  " 

"Where  by  an  agreement  dated  August  21,  the  defendant  agreed  to 
take  certain  premises  at  a  certain  rate,  "  to  commence  on  the  29th  of 
September,"  the  landlord  to  take  the  Jixtures  at  the  end  of  the  tenancy, 
provided  they  are  in  the  same  condition  then  as  they  now  are ;  and  the 
defendant  agreed  "  to  leave  the  premises  in  the  same  state  as  they  now 
are  ; "  the  Court  of  Common  Pleas  held  that  "  now  "  might  be  taken  as 
referring  to  the  commencement  of  the  tenancy  ;  and  that  a  breach 
"  that  the  defendant  did  not  leave  the  premises  in  the  same  state  as  at 
the  commencement  of  the  tenancy"  was  properly  assigned  {White  v. 
Nicholson). 

The  law  of  fixtures  is  noiv  jnit  on  a  regular  footing  %  14  &  15  Vict. 
c.  25.  By  section  3  of  that  Act  it  is  enacted,  "  That  if  any  tenant  of  a 
farm  or  lands  shall,  after  the  passing  of  this  Act  (24th  of  July,  1851), 
icith  the  consent  in  nriting  of  the  landlord  for  the  time  being,  at  his  oivn 
cost  and  exjiense,  erect  any  farm  buildings,  either  detached  or  otherwise, 
or  put  up  any  other  building,  engine,  or  machinery,  either  for  agricul- 
tural purposes  or  for  the  purposes  of  trade  and  agriculture  (which  shall 
not  have  been  erected  or  put  up  in  pursuance  of  some  obligation  in  that 
behalf),  then  all  such  buildings,  engines,  and  machinery  shctll  be  the 
jn-opcrty  of  t}ie  tenant,  and  shall  be  removable  by  him,  notwithstanding 
the  same  may  consist  of  separate  buildings,  or  that  the  same,  or  any 
part  thereof,  may  be  built  in  or  permanently  fixed  to  the  soil,  so  as  the 
tenant  making  any  such  removal  do  not  in  anywise  injure  the  land  or 
buildings  belonging  to  the  landlord,  or  otherwise  put  the  same  in  like 
plight  or  condition,  or  as  good  as  the  same  were  in  before  the  erection 
of  anything  so  removed  :  Provided,  nevertheless,  that  no  tenant  shall, 
under  the  provision  last  aforesaid,  be  entitled  to  remove  any  such 
matter  or  tiling  as  aforesaid,  without  first  giving  to  the  landlord  or  his 
agent  one  month's  previous  notice  in  writing  of  his  intention  so  to  do  ; 
and  thereupon  it  shall  be  lawful  for  the  landlord,  or  his  agent  on  his 


MEANING    OF   PREMISES.  463 

authorit}',  to  elect  to  purchase  the  matters  and  things  so  proposed  to  be 
removed,  or  any  of  them,  and  the  right  to  remove  the  same  shall  thereby 
cease,  and  the  same  shall  belong  to  tiie  landlord,  and  the  value  thereof 
shall  be  ascertained  and  determined  by  two  referees,  one  to  be  chosen 
by  each  party,  or  by  an  umpire  to  be  named  by  such  referees,  and  shall 
be  paid  or  allowed  in  account  by  the  landlord  wlio  shall  have  so  elected 
to  purchase  the  same. 

Contract  for  quiet  enjoijmmt. — Tt  was  held  by  the  Court  of  Queen's. 
Bench  in  Hall  v.  Cilij  of  London  Brewery  Company  (limited)  confirming 
Bandy  v.  Cartwriyht  (8  Ex.  913,  22  L.  J.  (N.  S.)  Ex.  285),  that  there 
is  a  contract  for  quiet  enjoyment  implied  in  a  demise  of  tenement,  but 
not  for  good  title.  A  similar  promise  is  not  implied  in  an  agreement  to 
give  a  lease  containing  such  covenant,  and  further  act  must  be  done 
before  the  promise  arises  {Brashier  v.  Jackson). 

Implied  ayreement  for  quiet  enjoyment. — On  a  parol  tenancy  from  year 
to  year,  it  was  held  by  the  Queen's  Bench  that  there  is  no  implied 
agreement  for  quiet  enjoyment  beyond  the  duration  of  the  lessor's 
interest,  and  if  he  is  himself  a  termor,  and  the  tenant  was  aware  of  this, 
the  latter,  in  case  of  eviction  on  the  expiration  of  his  landlord's  term, 
can  maintain  no  action  against  him  for  such  eviction  {Penfold  v. 
Abbott) . 

Meaniny  of  "premises." — Where  a  testator  by  his  will  empowered  his 
trustees  to  permit  the  person  entitled  for  life  or  any  greater  estate  in 
the  S.  property  to  occupy  the  mansion,  gardens,  and  "  premises  "  rent 
free,  and  the  home-farm  had  no  farm-house,  and  the  farm-buildings  and 
farms  were  occupied  by  the  testator  at  the  time  of  his  death,  it  was  held 
by  the  Lords  Justices  that  the  "premises"  meant  premises  in  imme- 
diate connection  with  the  house,  and  did  not  include  the .  home-farm 
{Leihbridye  v.  Lethbridye). 

Tenancy  at  will. — When  a  tenant  at  will  is  warned  to  quit,  and 
afterwards  has  leave  given  him  to  remain  on  part  of  the  property,  this 
permission  commences  a  new  tenancy  fi-om  the  date  of  which  the  Statute 
of  Limitation  runs  {Loch  v,  Mattlieivs). 

Demise  of  three  years  certain. — A  demise  by  deed  for  the  term  of  three 
years,  "  determinable  on  a  six  months'  previous  notice  to  quit  by  either 
lessor  or  lessee,  otherwise  to  continue  from  year  to  year  until  the  teim 
shall  cease  by  notice  to  quit  at  the  usual  times,"  is  a  demise  for  three 
years  certain,  and  the  tenancy  cannot  be  determined  sooner  than  by  a 
six  months'  notice,  ending  with  the  third  year  {Jones  v.  Nixon). 

Action  upon  ayreement  for  lease. — An  agreement  not  under  seal  be- 
tween two  persons,  by  which  one  agrees  to  let,  and  the  other  to  take, 
certain  premises  for  the  term  of  seven  years,  and  by  which  it  is  agreed 


1.64-  EVIDENCE    OF    ORAL    AGPvEEMEXT. 

that  a  2:00(1  and  siiflicient  lease  of  tlie  premises  shall  be  prepared,  may 
be  good  as  an  agreement  ;  so  tliat  an  action  may  lie  upon  it  for  not 
accepting  the  lease  when  prepared,  although  it  would  be  void  as  a  lease 
in  consequence  of  8  &  9  VicL  c.  lOG,  s.  3.  And  per  Blackburn  J., 
the  Act  of  Parliament  does  not  say  that  the  agreement,  by  which  the 
]iarties  agreed  that  a  lease  should  be  granted,  should  be  void.  I  do  not 
know  that  there  is  anything  illegal  in  such  an  agreement,  so  that  it 
should  be  void.  The  words  of  the  statute  merely  mean  that  it  shall 
create  no  estate  and  pass  no  interest"  (Bond  v.  Rosling). 

Document  void  as  a  lease  requires  af/reement  stamp. — Where  a  docu- 
ment void  as  a  lease  is  tendered  in  evidence  to  show  the  terms  of  a 
collateral  agreement,  it  requires  a  stamp  as  an  agreement :  per  Bi/Ies  J. 
{Golden  v.  Taylor). 

An  entry  at  Old  MicMelmas  cannot  be  imjjlied. — In  Hoyg  v.  Norris 
and  Berrington  it  became  necessary  to  prove  a  notice  to  quit,  and  one 
was  put  in  served  on  both  defendants  on  5th  of  April  to  quit  at 
Michaelmas.  To  make  this  a  sufficient  six  months'  notice,  evidence 
was  tendered  of  the  custom  of  the  country  to  quit  at  Old  Michaelmas 
Day  (Oct.  11),  and  not  at  New  Michaelmas  (Sept.  29) ;  but  per  Erie 
C.J.  :  "  That  evidence  is  inadmissible  ;  the  custom  of  the  country  cannot 
be  set  up  against  the  legal  presumption,  that  Michaelmas  means  any 
other  day  than  September  29.  It  must  be  shown  by  dhect  evidence 
that  this  is  an  Old  ]\Iichaelmas  tenancy. 

Effect  of  contract  to  repair. — There  is  no  implied  contract  to  use 
premises  in  a  tenant-like  manner  where  tenant  has  expressly  contracted 
to  repair  (Standen  v.  Christmas). 

Tenant  in  residence  not  bound  to  accept  agreement  for  lease  ivJien  Jiouse 
is  found  seriously  defective. — A  tenant  under  an  agreement  to  take  a 
lease  of  a  house  is  not  bound  to  accept  it  (although  he  has  entered  into 
residence)  if  the  house  ui)on  a  competent  survey  is  found  defective  and 
finished  in  such  a  manner,  that  it  is  likely  to  subject  the  tenant  under 
(he  covenant  to  repair  to  an  unusually  large  annual  outlay  to  maintain 
it :  per  RomilUj  M.R.  {Tildesley  v.  Glarkson). 

Evidence  of  oral  agreement  that  written  agreement  shall  become  void  in 
a  certain  event. — The  declaration  stated  that  the  defendant  agreed  to 
transfer  a  farm  held  by  him  under  Lord  Sydney  to  the  plaintiff,  on  the 
terms  and  conditions  under  which  the  same  was  held  by  Lord  Sydney, 
and  to  sell  the  stock  at  a  certain  price,  and  alleged  a  breach  of  that 
agreement.  The  defendant  pleaded  non  assumpsit,  and  a  contemporane- 
ous oral  agreement,  that  in  the  event  of  Lord  Sydney  not  consenting  to 
the  transfer,  the  above  agreement  was  to  be  null  and  void,  and  that 
Lord  Sydney  had  refused  his  consent.     Tlie  principal  agreement  was  in 


ORAL    AGREEMENT.  465 

writing,  and  the  plaintiff  paid  to  the  defendant  £100,  a  part  of  the 
consideration  money,  and  sold  with  the  defendant's  consent  a  small 
portion  of  the  stock  ;  bat  when  Lord  Sydney  refused  his  consent,  the 
defendant  tendered  back  the  £100,  which  the  plaintiff  refused  to  accept. 
It  was  held  by  the  Court  of  Common  Pleas  that  the  evidence  of  the  con- 
temporaneous oral  agreement  was  rightly  received  ;  for  that  under  the 
circumstances  the  inference  of  fact  was  that  the  oral  arrangement  was 
intended  to  suspend  the  written  agreement,  and  not  as  a  defeasance  of 
it ;  and  that  it  was  not  necessary  for  the  plaintiff  to  produce  or  cause 
to  be  produced  at  the  trial  the  lease  from  Lord  Sydney  to  the  defendant, 
referred  to  in  the  declaration.  And  per  Curiam :  "  In  Pym  v.  Cam2J'beU 
(6  El.  and  Bl.  370,  25  L.  J.  (N.  S.),  Q.  B.  277),  and  Davis  v.  Jones  (17 
C.B.  625  ;  25  L.  J.  (N.  S.),C.  P.  91),  it  was  decided  that  an  oral  agree- 
ment to  the  same  effect  as  that  relied  upon  by  the  defendant  might  be 
admitted  without  infringing  the  rule  that  a  contemporaneous  oral  agree- 
ment is  not  admissible  to  vary  or  contradict  a  written  agreement.  It  is 
in  analogy  with  the  delivery  of  a  deed  as  an  escrow  ;  it  neither  varies 
nor  contradicts  the  writing,  but  suspends  the  commencement  of  the 
obligation.  The  evidence  shows  that  the  defendant  introduced  the  oral 
agreement  for  his  benefit,  and  has  treated  the  written  agreement  as 
suspended,  having  always  retained  possession  of  his  farm.  Also,  the 
subject  matter  of  the  two  agreements  is  strong  to  show  that  the  oral 
suspended  the  written  agreement  from  the  beginning,  and  was  not  in 
defeasance  of  it,  for  the  written  agreement  was  to  assign,  but  the  possi- 
bility of  assigning  was  supposed  to  depend  on  Lord  Sydney's  consent, 
and  the  oral  agreement  that  the  written  agreement  should  be  void  if  he 
did  not  consent,  is  in  its  nature  a  condition  precedent.  The  defendant 
in  effect  says,  if  I  have  the  power  to  act,  I  will  agree  ;  but  if  I  have  no 
power  to  act,  I  will  make  no  agreement  at  all  (Wallis  v,  LiiteJl). 

Valuation  agreement. — S,  being  possessed  of  a  leasehold  farm,  entered 
into  an  agreement  with  T,,  whereby  after  reciting  that  T.  had  lent 
him  a  certain  sum  of  money  and  agreed  to  make  him  further  advances, 
it  was  agreed  that  the  said  sum,  and  such  sums  as  should  be  further 
advanced,  should  be  repaid  on  the  day  mentioned,  but  if  S,  should  not 
then  repay  the  same,  S.  agreed  to  assign  the  farm  to  T.  for  the  residue 
of  the  term  without  any  fiu'ther  consideration,  together  with  the  furni- 
ture and  stock  at  a  valuation,  and  T.  agreed  to  pay  the  amount  of  such 
valuation,  deducting  therefrom  the  money  advanced.  The  valuation 
was  afterwards  made,  and  the  plaintiff  entered  into  possession,  but  the 
defendant  refused  to  receive  the  balance  of  the  money,  alleging  that  the 
agreement  was  for  a  mortgage  and  not  for  a  sale,  and  T.  filed  a  bill  for 
specific  performances.     The  Master  of  the  Kolls  considered  that  the 

H   H 


IdG  LIABILITY    OF    AGENT. 

aiiTccment  wns  for  a  mortgng-o  of  the  said  farm,  and  made  a  foreclosure 
decree,  and  directed  an  account  accordingly  ;  but  the  Lord  Chancellor 
held,  on  appeal,  that  the  relation  of  seller  and  purchaser  was  con- 
stituted by  the  agreement,  and  that  the  plaintiff  was  entitled  to  specific 
perforniaucc  {Tapphij  v.  Shcaiher). 

Costs  abiding  emit  of  reference.— \YhcYe  an  action  for  alleged  breaches 
of  covenant  in  a  farming  lease,  in  which  the  plaintiff  claimed  £100 
damages,  was,  after  pleas  but  before  issue  joined,  by  a  Judge's  order 
and  by  consent,  referred  to  arbitration,  "  the  costs  of  the  reference  to 
abide  the  event,"  and  the  arbitrators  found  in  favour  of  the  defen- 
dant on  all  the  alleged  breaches,  with  the  exception  of  one,  on  which 
they  awarded  IGs.  damages  to  the  plaintiff,  it  was  held  by  the  Court 
of  Exchequer  that  the  event  of  the  reference  was  in  favour  of  the 
defendant,  and  that  the  plaintiff  was  not  entitled  to  his  costs  {Kelceij 
V.  Siiipptcs). 

Liahilit//  of  agent  for  nonfulfllment  of  agreement.— The  defendant, 
hond  fide  believing  he  had  authority,  verbally  agreed  on  behalf  of  the 
owners  to  let  the  plaintiff  a  house  for  seven  years  ;  and  the  plaintiff 
was  let  into  possession  by  the  defendant,  and  began  repairing  the  pre- 
mises.   The  owners  had  not  given  the  defendant  authority,  and  they 
informed  the  plaintiff  of  this,  and  brought  ejectment  against  him  ;  the 
plaintiff  consulted  the  defendant,  who  persisted  that  he  had  authority, 
and  advised  the  plaintiff  to  defend  the  action,  and  a  verdict  passed 
against  him.     The  plaintiff  having  brought  an  action  against  the  de- 
fendant for  his  breach  of  warranty  of  authority,  it  was  held  that  the 
plaintiff'  could  not  recover  the  costs  of  defending  the  ejectment,  as 
they  were  not  the  consequence  of  the  defendant's  breach  of  warranty, 
inasmuch  as  if  the  defendant  had  had  authority,  the  plaintiff  could  not 
have  succeeded  in  the  ejectment  by  reason   of  the  agreement  being 
verbal  only,  and  consequently  creating  no  more  than  a  tenancy  at  will. 
And  per  CocMurn  C.J.  :    "  The   plaintiff's    remedy,  if  any,  was  by 
going  to  a  Court  of  Equity,  and  compelling  the  landlords  to  execute 
the  necessary  documents  to  complete  his  title,  and  if  he  had  been  de- 
feated in  that  application  in  consequence  of  the  defendant's  authority 
being  negatived,  the  defendant  might  have  been  justly  charged  with 
the  costs,  as  the  consequences  naturally  following  from  the  breach  of 
warranty."     And  ^;er  Cromjjton  J.  :  "  This  action  is  brought  on  the 
pi-inciple  established  by  Cotlen  v.  Wright  (7  E.  &  B.  301,  and  2G  L.  J. 
(N.  S.),  Q.  B.  U7,  and  in  Error  8  E.  &  B.  647,  and  27  L.  J.  (N.  S.), 
(I  B.  2 IT)),  in  this  Court  and  in  the  Exchequer  Chamber,  that  an  agent 
-^vho  holds  himself  out  as  authorised  to  contract  for  another,  warrants 
his  authority  and  is  liable  for  the  damages  flowing  from  the  breach  of 


RATIFICATION    OF    AGENTS    ACT    BY    EMPLOYER.        467 

snch  warranty,  and  the  qnestion  is  whether  my  Brother  Blacklmrn 
was  right  in  holding  that  the  damages  in  the  shape  of  the  costs  of  the 
ejectment,  did  not  naturally  flow  from  the  l)reach  of  the  defendant's 
warranty.  I  think  that  he  was  right  ;  the  ejectment  would  have  been 
wrongly  defended  whether  the  defendant  had  authority  or  not."  And 
semble  per  Blacklurn  J.  :  "  The  mere  fact  of  the  tenant  having  laid 
out  money  on  the  premises,  with  the  sanction  of  the  landlord,  does 
not  create  at  law  any  tenancy  other  than  a  tenancy  at  will "  {Poiv  v. 
Davis). 

Agent  cannot  let  on  unusual  terms  witJwut  cognisance  of  otvner. — A 
farm  bailiff  or  agent  who  used  to  let  farms  upon  the  ordinary  terms, 
and  received  the  rents,  &c.,  was  held  by  BlacMvrn  J.,  to  have  no 
authority  in  law  to  let  upon  unusual  terms  unknown  to  the  owner  ; 
and  the  question  was  left  to  the  jury  as  one  of  ftict,  whether  he  had 
express  authority  or  had  been  held  out  by  the  defendant  as  having  had 
it  {Turner  v.  Hutchinson). 

Ratification  of  agent's  bargain  hy  cmiAoyer. — An  agent  to  receive 
rents  and  manage  property,  having  without  actual  authority  agreed 
that  his  employer  should  take  the  stock,  &c.,  of  an  outgoing  tenant  at 
a  valuation,  and  the  valuation  included  eatage  of  fields,  in  which  the 
employer's  cattle  were  afterwards  placed  by  his  servants,  and  ivith  his 
Tcnotvledge,  such  conduct  of  the  employer  was  held  by  Bgles  J.,  to  be 
a  ratification  of  the  whole  valuation  {Roclmel  v.  Eden,  Bart.) 

Wrong  information  to  tenant  hj  receiver  as  to  length  of  term. — The 
receiver  of  an  estate  in  which  the  plaintiff  had  an  equitable  interest 
under  a  settlement,  vesting  it  in  trustees,  let  defendant  into  possession 
under  an  agreement  with  himself  in  writing  in  which  he  described  him- 
self as  agreeing  on  behalf  of  the  estate  to  let  for  a  term  of  years, 
whereas  the  plaintiff'  would  only  sanction  a  yearly  letting.  A  corres- 
pondence ensued  bet^veen  him  and  the  defendant,  in  which  the  latter 
intimated  that  as  he  could  not  get  a  lease,  he  should  leave  as  soon  as 
he  could,  and  he  did  leave  before  he  had  been  six  months  in  possession. 
He  was  held  not  liable  to  the  plaintiff"  in  trespass  or  use  and  occupa- 
tion, and  semhle  not  at  all  {Sloper  v.  Saunders). 

Rejyreseniation  hy  agent  that  he  laid  autlioriiy  to  contract. — In  an 
action  against  an  agent  on  the  implied  "warranty,  that  he  had  authority 
to  contract  with  the  plaintiff,  the  plaintiff  is  entitled  to  recover,  as 
special  damage,  the  costs  of  an  unsuccessful  action  against  the  alleged 
principal  on  the  contract  {Randell\.  Trimen,  25  L.  J.  (N.  S.),  C.  P.  307 j, 
or  of  an  unsuccessful  suit  for  specific  performance,  (6(9 Z/e;^  v.  Wright), 
and  the  liability  to  pay  such  costs  is,  if  properly  charged  in  the  declara- 
tion, sufficient  to  sustain  the  claim  for  special  damage  {Randall  v. 

II  II  2 


46S  EIGHTS    OF    ASSIGNEE    OF    MORTGAGOR. 

Eaper,  27  L.  J.  (N.  S.),  Q.  ?..  200).  Tn  namh'Jl  v.  yy/^^f/?,  the  defend- 
aut  was  clearly  liable  for  his  misivpi-pseutation  as  to  his  being  autho- 
rised to  order  stone  in  the  name  of  the  clergyman  who  was  the  head 
of  the  TTerneth  Church  Committee,  even  though  he  were  honestly 
mistaken.  In  Smoitf  v.  Ihunj  (10  M.  &  W.  1),  there  was  no  repre- 
sentation at  all  and  no  assumption  of  authority  by  the  defendant,  and 
the  iilaintift  was  misled  by  a  circumstance  equally  without  the  know- 
ledge and  beyond  the  control  of  both  parties.  The  plaintiff,  like  the 
defendant,  did  not  know  that  the  defendant's  husband  was  dead  in 
foreign  parts,  and  the  defendant  was  therefore  not  liable  for  goods 
supplied  to  her  after  his  death,  but  before  information  of  his  death 
had  been  received. 

Guarantee  of  solvoicy  of  tenant  ly  house-agent. — Where  a  house-agent 
is  employed  to  let  a  house,  and  charges  5  per  cent,  commission  on 
letting  it,  it  is  a  question  for  the  jury  whether  he  undertakes  to  use 
reasonable  care  to  ascertain  that  the  person  to  whom  he  lets  it  is  in 
solvent  circumstances  {Heys  v.  Tindatl). 

Assignee  of  morigagor  letting  tenant  into  possession. — The  assignee 
of  a  mortgagor,  who  has  let  a  tenant  into  possession  after  the  mort- 
gage, can  sue  such  tenant  for  use  and  occupation,  notwithstanding 
notice  from  the  mortgagee  to  pay  rent.  A  mortgagor  in  possession 
agreed  to  grant  a  lease  to  the  defendant  with  the  privity  of  the  mort- 
gagees, who,  however,  were  no  party  to  the  agreement  ;  the  defendant 
was  let  into  possession  under  the  agreement,  and  paid  rent  to  the 
mortgagor.  The  mortgagor  then  assigned  to  the  plaintiflF,  who  sued 
the  defendant,  after  notice  to  him  from  the  mortgagees  to  pay  them  the 
rent,  for  use  and  occupation,  and  it  was  held  that  the  action  was  main- 
tainable ;  and^^cr  Martin  B.  :  "  The  doctrine  that  a  tenant  shall  not  be 
allowed  to  deny  the  title  of  his  landlord  is  sound,  and  ought  to  be  sup- 
])orted.  It  compels  persons  to  perform  their  contracts  until  something 
has  taken  place,  which  in  justice  ought  to  put  an  end  to  them.  The 
dictum  in  Goivldsworth  v.  Knight  (11  M.  &  W.  337),  supposed  to  be 
contrary  to  that  doctrine,  was  merely  the  expression  of  an  opinion  and 
not  duly  considered."  And  ^;er  Bramwell  B. :  "  The  sole  question  is 
whether  the  mere  notice  was  sufficient  to  terminate  the  estoppel  arising 
by  tenancy  ?  We  think  it  was  not.  That  the  assignee  of  a  reversion 
on  a  parol  tenancy  can  sue  for  the  rent  has  been  held  in  Standen  v. 
Christmas  (10  Q.  B.  135,  16  L.  J.  Q.  B.  205),"  {Hickman  v.  Machin). 

Fixtures. — M.  being  owner  of  certain  land  and  premises,  mortgaged 
them  in  fee,  but  still  continued  in  possession  of  the  mortgaged  premises 
on  which,  subsequently  to  such  mortgage,  he  put  up  and  used  for  the 
purposes  of  his  trade  a  steam  engine  and  boiler,  also  a  hay-cutter  and 


landlord's  claim  under  fi.  fa.  469 

corn-crusher,  and  grinding-stones.  All  these  articles  except  the  grinding- 
stones  were  screwed,  or  otherwise  firmly  fixed  to  the  several  buildings 
to  which  they  were  attached,  but  still  in  such  a  manner  as  to  be  remov- 
able without  damage  to  buildings  or  themselves,  and  the  upper  millstone 
lay  in  tlie  usual  way  on  the  lower.  The  steam-engine  and  boiler  were 
used  for  supplying  with  water  certain  baths  on  the  premises  ;  the  hay- 
cutter  was  attached  to  a  building  adjoining  the  stable  to  improve  its 
usefulness  as  a  stable,  and  the  malt-mill  and  grinding-mill  were  to  add 
to  value  of  premises.  In  an  action  by  the  assignees  in  bankruptcy  of 
M.  it  was  held  by  the  Court  of  Common  Pleas,  Willes  J.  dub.,  that  the 
articles  were  fixtures,  and  that  although  they  were  trade  fixtures  as  well 
as  annexed  to  the  freehold  after  the  mortgage,  they  enured  to  the  benefit 
of  the  mortgagee,  and  did  not  pass  to  the  assignees  of  the  mortgagor 
{Walmslcy  v.  Milne). 

Annexation  of  chattel  to  another's  freehold. — The  mere  annexation  of  a 
chattel  by  its  owner  to  the  freehold  of  another,  does  not  necessarily 
make  it  the  property  of  the  freeholder  ;  but  in  each  case  it  may  be  a 
question  whether  the  owner  of  the  chattel  has  lost  his  property  in  it 
(  Wood  V.  Hewitt,  which  governed  Lancaster  v.  Eve). 

Landlord's  claim  for  rent  under  a  fi.  fa. — The  sheriff  on  a  levy  under 
a  fi.  fa.  is  liable  to  the  landlord's  claim  for  rent  under  8  Anne,  c.  14, 
while  the  goods  remain  in  his  hands,  even  after  sale,  and  the  claim  may 
be  made  by  a  mortgagee  to  whom  the  mortgagor  has  attorned  as  tenant 
for  rent  payable  in  advance  although  no  interest  has  become  due.  And 
per  Ghanncl  B. :  "  As  long  as  the  goods  are  in  the  sheriff's  hands,  the 
landlord's  claim  attaches  ;  and  even  if  he  has  sold  and  received  the 
money,  the  claim  attaches  to  the  proceeds  in  his  hands  "  (Yates  v. 
Routledge). 

Presumfptive  proof  that  payments  ivere  made  as  rent-charge  for  common 
land. — In  an  action  by  overseers,  for  use  and  occupation,  and  for  rent 
of  parish  lands,  evidence  that  the  defendant  and  his  a,ncestors  had  for 
upwards  of  a  century,  up  to  the  last  ten  years,  paid  rent  for  the  land  as 
"common  lands"  (he  refusing  to  produce  the  deeds  under  which  he 
professed  to  hold),  is  evidence  sufficient  to  go  to  the  jury,  in  the  absence 
of  any  evidence  that  the  payments  were  made  by  way  of  chief  rent  or 
rent-charge  {Harding  v.  Hesketh). 

Right  of  presumptive  heir  to  rents  up  to  hirth  of  posthumous  son. — The 
right  of  a  presumptive  heir  to  the  rents  which  accrue  due  between  the 
death  of  an  ancestor  and  the  birth  of  a  posthumous  heir,  extends  to  all 
rents  which  have  accrued  due  in  the  interval,  and  whether  actually 
received  or  not,  and  whether  in  respect  of  fee  simple  or  entailed  estates 
{Richards  v.  Richards). 


470  LIABILITY    FOR   DOUBLE    VALUE. 

Tcnanis  in  ancient  demesne  liable  to  pay  county  rates. — Tenants  of 
land  in  ancient  demesne  are  not  by  reason  of  their  tenure  exempted  from 
liability  to  pay  county  rates  {Reg.  v.  Inhahihints  of  Aylesford). 

Ecceipt  of  rent  from  third  party  evidence  of  surrender  hy  operation  of 
taw. — It  was  held  by  Blaclchuni  J.,  in  Laivrance  \.  Faux,  that  receipts 
for  rent  received  by  a  landlord  from  a  third  party  were  held  evidence  of 
a  surrender  by  operation  of  law,  putting  an  end  to  the  liability  of  the 
former  tenant. 

The  holding  over  to  entitle  to  double  value  must  be  contumacious. — B.,  a 
tenant  to  S.,  after  the  death  of  S.  accepted  a  fresh  term  from  his  devisee. 
Ke  afterwards  found  that  the  heir-at-law  of  S.  disputed  the  will,  and 
from  the  circumstances  of  the  case,  he  reasonably  and  bond  fide  believed 
that  the  devisee  had  no  title,  and  that  the  land  belonged  to  the  heu'-at- 
law.  B.  thereupon  refused  to  pay  rent  to  the  devisee,  who  gave  him 
notice  to  quit.  As  B.  did  not  quit  at  the  expiration  of  his  term,  the 
devisee,  who  had  made  out  her  title  to  be  good,  brought  an  action 
against  B.,  under  statute  4  Geo.  II.  c.  28,  s.  1,  for  double  value.  It  was 
held  by  the  Court  of  I^xchequer  that  to  enable  a  landlord  to  recover 
double  value  under  4  Geo.  II.  c.  21,  the  holding  over  must  be  contuma- 
cious. A  holding  over  under  a  mistaken  belief  that  a  third  person  who 
claimed  the  reversion  is  entitled,  is  not  sufficient  to  support  the  action, 
even  although  the  tenant  was  let  into  possession  by  the  landlord,  and 
the  third  person  does  not  claim  through,  but  adversely  to  him.  This 
was  decided  on  the  judicial  construction  given  to  the  statute  in  Wright 
V.  Smith  (6  Esp.  203),  and  Suulsbg  v.  J\^ei'ing  (9  East.  310).  This  de- 
cision was  affirmed  in  the  Exchequer  Chamber,  which  considered  that 
the  action  was  not  maintainable,  and  that  to  come  within  the  statute 
the  holding  over  must  be  with  the  consciousness  on  the  part  of  the 
tenant  that  he  has  no  right  to  retain  possession  {Sivinfen  v.  Bacon). 

Ejectment  by  mortgagor. — A  mortgagor  before  mortgage  let  a  farm  to 
P.  as  tenant  from  year  to  year.  After  the  mortgage,  P.  let  the  defend- 
ant into  possession  in  his  stead,  and  informed  the  mortgagor  of  the 
fact,  and  the  mortgagor  subsequently  received  rent  from  the  hands  of 
the  defendant.  It  was  held  that  the  tenant's  term  was  still  in  P.,  there 
being  no  effectual  surrender,  and  consequently  that  the  mortgagee 
could  not  maintain  ejectment  against  the  defendant  without  a  notice  to 
quit.  And  per  Martin  B.  :  "  There  can  be  no  assignment  of  a  term 
except  by  deed,  and  there  cannot  be  a  surrender  by  operation  of  law 
without  the  assent  of  all  parties  "  {Trent  v.  Hunt). 

Action  by  one  tenant  in  common  against  another. — Where  one  tenant 
in  common  brings  an  action  against  his  co-teuant,  and  the  declaration 
takes  no  notice  of  the  plaintiff's  limited  interest,  but  alleges  an  e.xpul- 


ENFORCING    SPECIFIC    PERFORMANCE    OF    AGREEMENT.       471 

sion  or  total  destruction,  the  defendant  may  pay  money  into  court  in 
respect  of  the  damage  to  the  plaintiff's  share  ;  and  as  to  the  residue, 
plead  liherum  tenementuni,  or  traverse  the  plaintift"s  property  (Gresswell 
V.  Hedges). 

Taking  farm  and  iKiging  tenant-right  to  false  devisee. — A  defendant 
who  had  taken  a  farm  without  any  agreement,  but  by  arrangement 
for  a  yearly  tenancy,  he  paying  the  usual  tenant-right,  which  included 
a  valuation  for  dung  for  which  £Q2  was  paid  to  the  person  in  posses- 
sion and  claiming  as  devisee  under  a  will,  was  held  by  Williams  J. 
liable  in  trover  when  the  will  was  set  aside  to  the  plaintiff,  who  took 
out  letters  of  administration,  as  the  personalty  vested  in  him  by  relation 
(Learson  v.  Eoiinson). 

Enforcing  sjMci/ic  2)e7farmance  of  farming  agreement. — An  agreement 
for  a  farming  lease  was  entered  into  in  October,  1855,  for  twelve  years. 
In  February,  1859,  the  landlord  gave  notice  to  quit,  on  the  ground  of 
the  lands  not  being  farmed  according  to  the  agreement.  In  November, 
1859,  the  tenant  paid  the  balance  of  rent  up  to  the  previous  Michael- 
mas, the  receipt  expressing  that  it  was  without  prejudice  to  any  ques- 
tion. In  December,  1859,  an  action  of  ejectment  was  commenced,  and 
thereupon  the  tenant  filed  a  bill  for  specific  performance  of  the  agree- 
ment, and  to  restrain  the  action  ;  the  evidence  as  to  the  tenant's 
farming  was  conflicting.  A  decree  was  made  by  one  of  the  Vice- 
Chancellors  for  specific  performance  of  the  agreement ;  the  lease  to  bo 
dated  in  October,  1855,  and  the  tenant  to  admit  in  any  action  for 
breach  of  covenant  that  the  lease  was  executed  at  that  date,  and  an  in- 
junction to  restrain  the  action  was  granted,  and  on  appeal  this  decree 
was  confirmed.  And  per  Lord  Chancellor  Camjjbell,  affirming  Stuart 
V.-C.'s  decree  :  "  The  cases  of  Gregorg  v.  Wilson  (9  Hare,  683,  &  22 
L.  J.  (N.  S.)  Ch.  159)  and  Lewis  y.  Bo?id  (18  Beav.  85)  are  well  decided  ; 
and  I  mean  entirely  to  be  bound  by  the  doctrines  there  laid  down.  If 
there  has  been  a  breach  of  the  agreement,  and  if  there  has  been  what 
would  have  amounted  to  a  breach  of  the  covenants  which  ought  to  have 
been  introduced  into  the  lease  had  the  lease  been  granted,  which 
would  have  worked  a  forfeiture,  and  that  is  clearly  made  out,  then 
there  is  an  answer  to  the  bill,  and  specific  performance  should  not  be 
decreed.  But  if  that  is  not  made  out,  then  I  think  the  proper  course 
to  be  adopted  is  that  which  was  adopted  in  the  two  cases  that  have 
been  referred  to,  of  Pain  v.  Coombs  (1  De  Gex  &  Jo.  34)  and  Lillic  v. 
Legh  (3  De  Gex  &  Jo.  204),  which  is  to  decree  specific  performances, 
and  to  direct  that  the  lease  should  bear  date  at  the  date  of  the 
agreement,  giving  the  landlord  the  opportunity,  if  he  thinks  lit,  of 
bringing  an  ejectment  for  the  forfeiture,  and  so  to  recover  possession 


47.^  LEASE    BY    RECTOR. 

of  the  premises."  His  lordship  added  :  "  There  is  considerable  differ- 
ence of  opinion  as  to  the  four-course  system  and  what  constitutes  a 
breach  of  it,  particularly  with  regard  to  fallow  ;  what  would  be  a  breach 
of  the  covenant  that  they  should  lay  fallow  one  year  ;  whether  a 
green  crop  is  allowed,  and  what  green  crop  is  allowed  "  {Ranhin  v. 
Lay). 

The  Stat.  5  Viet.  sess.  2,  c.  27,  for  better  enabling  incumbents  of 
ecclesiastical  benefices  to  demise  the  lands  belonging  to  their  benefices 
upon  farming  leases,  docs  not  abridge  any  right  of  leasing  formerly 
enjoyed  by  the  incumbent,  and  so  it  was  held  in  full  Court  of  Appeal 
{Green  v.  Jenkins). 

Letting  ly  inamhent. — An  agreement  to  let  a  farm  less  a  stated 
number  of  acres  will  be  supported  in  equity,  though  the  lands  to  be 
excepted  were  not  specified.  A  rector  agreed  to  let  a  farm,  except  37 
acres,  with  liberty  to  plant  not  more  than  10  acres  of  ground.  The 
tenant  took  possession;  but  before  the  lease  was  executed,  disputes 
arose  respecting  the  lands  to  be  taken  by  the  rector ;  and  on  a  bill 
filed  against  the  tenant  for  a  specific  performance  of  the  agreement,  it 
was  held  by  Sir  J.  RomiUy  M.R.  that  the  rector  had  a  right  to  select 
the  lands  to  be  reserved,  as  the  lease  had  not  been  executed  ;  but  that 
had  it  been  executed,  the  rector  could  not  have  taken  any  lands  with- 
out the  concurrence  of  the  tenant.  It  was  held  also  that  the  right  of 
selection  must  be  exercised  so  as  not  to  prevent  the  useful  occupa- 
tion of  the  rest  of  the  farm  ;  and  with  these  declarations,  a  decree 
was  made  for  a  specific  performance  of  the  agreement  {Jenkins  v. 
Green). 

If  a  farmer  contracts  with  a  rector  for  a  lease  of  glebe  lands  the 
Court  will  not  assume  that  both  parties  had  an  enabling  statute 
present  in  their  minds,  and  modify  the  express  terms  of  the  agreement 
to  make  it  conform  to  the  provisions  of  the  statute.  Where  an  agree- 
ment had  been  made  by  a  rector  to  grant  a  lease  of  glebe  lands  at  a 
rent  to  be  paid  half-yearly,  the  Court  will  not  vary  the  agreement  in 
accordance  with  the  provisions  of  5  Vict.  sess.  2,  c.  27,  and  direct  the 
rent  to  be  paid  quarterly.  A  decree  was  made  for  the  specific  per- 
formance of  a  lease  of  glebe  lands.  The  decree  was  duly  enrolled  ;  it 
was  however,  subsequently  found  that  the  agreement  and  the  statute 
enabling  incumbents  to  grant  leases  of  their  glebe  land  did  not  con- 
form. It  was  held  by  Sir  J.  Romilli/  M.R.,  notwithstanding  the  pre- 
vious proceedings,  that  the  bill  must  be  di>-missed,  but  without  costs 
{ih.  Ch,  280).  And  glebe  lands  which  have  been  usually  let  on  lease 
by  incumbents  are  not  within  the  5  Vid.  sess.  2,  c.  27  (ih.  Ch.  822).  If 
an  incumbent  contract  to  let  lands  belonging  to  the  benefice  for  a  term 


LESSEE    BOUND    TO    DELIVER    UP    LEASE.  473 

of  years,  his  resignation  of  the  living  during  the  term  is  a  breach  of  his 
contract  {Price  v.  Williams). 

"  Lessee  of  a  farm  bound  to  deliver  lease  to  tenant  who  took  it  off 
their  hands."  On  a  contract  by  a  letter  of  the  defendant,  assented  to 
by  the  plaintiffs,  to  take  a  farm  off  their  hands  provided  he  was  ac- 
cepted by  their  landlord  on  the  covenants  to  the  lease,  it  was  held  by 
Blackhurn  J.  that  they  were  bound  to  procure  and  deliver  to  him  the 
lease  ;  and  it  having  been  deposited  as  security  for  a  loan,  and  they 
not  having  procured  it,  the  plaintifts  were  non-suited  {Burton  &  An- 
other v.  Bcmlcs.) 


47  i  00^'TKACTS   AND   SALES. 


CHAPTER    XIV. 

CONTRACTS    AND    SALES. 

If  imrties  enter  into  an  agreement,  they  are  not  the  less  hound  Inj  it 
became  they  send  it  to  a  soticitor  to  reduce  it  into  form ;  but  the  presump- 
tion is,  if  they  send  it  without  having  previously  arranged  to  that 
etfect,  that  they  do  not  mean  to  bind  themselves  until  it  is  reduced  into 
form  {Ridgicay  v.  Wharton).  AVhen  an  offer  in  ivriting  is  made  by  the 
owner  to  sell  an  estate  on  specified  terms,  and  this  is  unconditionally 
accepted,  there  is  a  binding  contract  which  neither  party  can  vary  ;  but 
the  owner  is  entitled,  at  any  time  before  his  offer  has  been  definitely 
accepted,  to  add  any  new  terms  to  his  proposal,  and  if  those  are  refused 
the  treaty  is  at  an  end.  And  so  it  was  decided  by  the  House  of  Lords, 
in  Honeyman  v.  Marryat,  confirming  the  decision  of  the  Master  of  the 
Rolls.  Thus  where  a  person  proposing  to  sell  an  estate  receives  an 
offer,  and  his  estate-agent  answers,  "  He  has  authorized  us  to  accept 
the  offer,  subject  to  the  terms  of  a  contract  being  arranged  between  his 
solicitor  and  yourself,"  the  answer  does  not  constitute  a  complete  con- 
tract ;  and  the  vendor  is  at  liberty  to  add  other  terms,  and  on  their 
non-acceptance  to  break  off"  the  treaty  (ib.). 

A  vendor  has  duties  inseparable  from  that  character  which  he  is  bound 
to  perform,  and  cannot  avoid  by  restrictive  conditions  of  sale ;  and  hence 
he  is  not  justified  in  rescinding  a  contract  under  a  restrictive  condition  of 
sale  reserving  that  power,  when  he  has  not  answered  the  purchaser's 
requisitions,  or  made  an  attempt  to  answer  tlie  objections  to  the  title. 
rer  Sir  J.  Romitly  M.R.  {Greaves  v.  Witson). 

Where  there  is  a  contract  with  respect  to  a  particular  thing,  and  that 
thing  cannot  be  delivered  owing  to  it  perishing  without  any  deftiult  in 
the  seller,  the  delivery  is  excused.  In  the  case  of  Howell  and  Coupland, 
9  L.  R.  Q.  B.  4G2,  the  defendant  in  the  month  of  March  entered  into  an 
a"-reement  to  deliver  to  the  plaintiff  in  September  or  October  200  tons 
of  Regent  potatoes.  The  defendant  planted  in  fact  sixty-eight  acres  of 
land  witli  potatoes,  and  this  in  an  average  year  would  have  been  amply 
Bullicient  to  produce  200  tons  of  potatoes  ;  but  a  blight  attacked  the 
crop,  and  the  defendant  was  only  able  to  deliver  eighty  tons.     The 


RECEIPT    OF   PURCHASE-MONEY    BY    VENDOR.  475 

plaintiff  thereupon  bronght  an  action  for  the  non-delivery  of  the  120 
tons,  but  the  Court  held  that  he  was  not  entitled  to  recover  because 
performance  of  the  contract  became  impossible  from  the  perishing  of 
the  thing  without  default  in  the  contractor.  See  Taylor  v.  Caldwell, 
32  L.  J.  Q.  B.  1G6. 

It  was  decided  in  Vimy  v.  Chaplm  by  the  Lord  Chancellor  and  Lord 
Justices,  confirming  the  opinion  of  Kindersley  V.-C,  that  there  is  no 
(jeneral  ride  that,  in  every  case  of  a  imrchase,  the  ]^urchaser  can  insist 
uipon  the  vendor  personally  receiving  the  purchase-money ;  but  the  vendor 
is  not  entitled  to  refuse  upon  the  reasonable  request  of  the  purchaser, 
where  the  special  circumstances  would  suggest  such  a  step  ;  and  in 
every  case  where  the  vendor  does  not  attend  personally  to  receive  the 
money,  the  purchaser  can  require  the  written  authority  of  the  vendor 
for  the  receipt  of  the  money  by  an  agent.  The  vendor's  solicitor  is  not 
entitled  to  receive  the  jmrchase-money  l)y  virtue  of  Jus  office,  and  neither  he 
nor  any  other  person  merely  because  he  has  possession  of  the  deed  of 
conveyance  with  receipt  endorsed,  executed  by  the  vendor  (ih.).  Where 
a  purchaser  requires  the  vendor  to  execute  the  conveyance  in  the  pre- 
sence of  the  purchaser  or  his  solicitor,  the  onus  of  justifying  the  refusal 
is  on  the  vendor  {ih.). 

The  purchaser  can?iot  recover  eo'penses  incurred  previously  to  entering 
into  the  cotitract;  nor  the  expense  of  a  survey  of  the  estate  made  before 
he  knows  the  title  ;  nor  the  expense  of  a  conveyance  drawn  in  anticipa- 
tion ;  nor  the  extra  costs  of  a  suit  for  specific  performance  brought  by 
the  vendor  ;  nor  losses  on  the  resale  of  stock  prepared  for  the  farm 
{Hodges  v.  Litchfield) ;  and  where  a  lessee  ivith power  to  alter  and  improve 
had  an  option  to  purchase,  and  after  laying  out  money  in  improvements 
elected  to  purchase,  and  the  title  proved  bad,  he  was  held  entitled  only 
to  damages  for  the  breach  of  contract,  but  not  for  the  expense  of  im- 
provements ( Worthington  v.  Warrington). 

Where  mi  agent  employed  for  an  agreed  commission  to  sell  land  at  a 
given  price  succeeds  in  finding  a  purchaser  at  such  stipulated  price,  but  tlie 
principal,  from  whatever  cause,  declines  to  sell,  and  rescinds  the  agent's 
authority,  the  latter  is  entitled  to  sue  for  a  reasonable  remuneration  for 
his  work  and  labour,  and  is  not  bound  to  resort  to  a  special  action  for 
the  wrongful  withdrawal  of  the  authority  {Priclett  v.  Badger).  In  such 
a  case,  a  contract  to  pay  what  is  reasonable  is  implied  by  the  law  ;  and 
it  is  not  a  question  for  the  jury.  And  scmhle  per  Willcs  J,,  that  under 
such  circumstances  the  proper  measure  of  damages  would  be  the  entire 
amount  of  the  commission  agreed  for  {ib.). 

A  contract  for  tim  purchase  of  land  by  a  company  under  8  &  9  Vict. 
c.  18,  is  complete  when  notice  to  take  the  land  has  been  served,  and  the 


476  CONTEACT    VOID   THROUGH    FRAUD. 

value  lias  been  fixed  by  an  arbitrator  appointed  by  the  owner  and  the 
company  ;  and  such  a  contract  will  be  enforced  in  equity,  notwithstand- 
ing tlic  special  provisions  contained  in  the  act  relating  to  compulsory 
purchases  {Iliycnfs  Canal  Company  v.  Ware).  And  if  an  owner  of  land 
compelled  lo  sell  delays  the  completion  of  the  purchase,  interest  will  stop 
upon  an  appropriation  of  the  purchase-money,  with  notice  that  it  is  un- 
employed (ib.).  It  is  not  the  course  of  the  Court,  when  it  entertains 
jurisdiction  in  specific  performance,  to  permit  an  action  at  law  to  pro- 
ceed for  the  same  subject-matter  (The  Dulce  of  Beaufort  v.  Glynn). 
And  jjer  Lord  St.  Leonards,  it  is  no  objection  to  the  specific  per- 
formance of  an  agreement  that  collateral  circumstances  necessarily 
arising  out  of  the  agreement  are  not  mentioned  in  it  {Ridyway  v. 
Wharton). 

A  contract  may  he  avoided  by  a  false  and  fraudulent  representation, 
though  not  relating  directly  to  the  nature  or  character  of  its  subject- 
matter,  if  it  is  so  closely  connected  with  the  contract,  as  that  the  party 
sued  upon  it  would  not,  but  for  the  representation,  have  entered  into 
it,  and  was  induced  to  enter  into  it  to  the  knowledge  of  the  other  party 
by  such  representation.  And  hence  in  an  action  for  not  giving  up  pos- 
session of  a  farm,  under  an  agreement  to  assign  it  to  the  plaintiff,  a 
plea  that  the  plaintiff  held  it  on  lease  containing  a  covenant  not  to  part 
with,  assign,  or  underlet  without  the  landlord's  consent  (the  covenant 
being  accompanied  with  a  proviso  for  re-entry  in  case  of  breach),  and 
that  the  plaintiff  falsely  and  fraudulently  represented  to  the  defendant 
that  the  plaintiff  had  provided  a  respectable  tenant,  whom  the  landlord 
would  accept,  and  thereby  induced  the  defendant  to  enter  into  the 
agreement— was  held  on  demurrer  by  the  Court  of  Common  Pleas  to  be 
good  {Canham  v.  Barry). 

Kindersley  Y.-C.  held  that  ichere  coal  mines  are  vorked  under  an 
agreement  which  provides  that  when  the  workings  shall  have  finally 
ceased,  the  pits  shall  be  filled  in,  and  the  ground  restored  to  cultiva- 
tion, the  cessation  of  the  works  and  the  filling  up  of  the  pits,  and  the 
restoration  of  the  land,  does  not  prevent  a  re-working  of  the  mines 
under  the  agreement  (Eamsden  v.  Hirst).  An  objection  to  the  title  on 
the  ground  of  such  right  to  re-work  is  valid,  and  a  purchaser  is  entitled 
to  compensation,  to  be  estimated  by  taking  all  the  circumstances  into 
consideration  (ib.). 

An  owner  in  fee  sold  and  conveyed  two  closes,  A  and  B,  by  instruments 
executed  on  the  same  day  to  different  purchasers.  A  was  separated  from 
the  highway  by  B,  over  which,  previous  to  the  sale,  the  tenant  of  A 
used  a  way,  which  was  the  shortest  from  A  to  the  highway.  Another 
more  circuitous  way  existed,  which  had  been,  long  before  the  sale, 


AUCTIONEER    AGENT    FOR    BUYER    AND    SELLER.         477 

specially  granted  to  the  occupiers  of  two  closes  lying  beyond  A,  and 
except  by  one  of  these  ways  the  occupier  of  A  could  not  reach  the  high- 
way. The  Court  of  Exchequer  held  that  if  the  conveyance  of  A  was 
executed  first,  there  was  a  way  (the  shortest)  by  implied  grant ;  and  if 
last,  by  implied  reservation  {Pinnington  v.  Galland). 

Where,  as  in  lleivs  v.  Cair,  the  plaintiff  put  up  for  sale  by  public 
auction  a  quantity  of  timber,  several  lots  of  which  were  unsold,  and  a 
few  days  afterwards  the  defendant  called  upon  the  auctioneer,  and 
selected  from  the  catalogue  two  of  the  unsold  lots,  which  he  agreed  to 
purchase,  and  the  latter  then  wrote,  in  the  defendant's  presence,  his 
name  in  the  catalogue  opposite  these  lots,  it  was  held  by  the  Court  of 
Exchequer  that  tfie  auctioneer  was  not  the  agent  of  the  defendant  so  as  to 
Vmd  him  by  signing  his  name,  and  that  there  was  no  sufficient  note  or 
memorandum  of  the  bargain  to  satisfy  the  17th  section.  Bramwell  B. 
said  :  "■  The  observations  of  the  Court,  in  Graham  v.  Musson,  must 
not  be  misunderstood.  There  the  Court  said  that  if  the  traveller 
had  signed  the  defendant's  name,  and  had  not  expressed  any  dissent, 
that  would  have  been  a  recognition  of  agency.  Here  the  auctioneer 
signed  the  defendant's  name,  not  purporting  to  act  for  him,  but  as 
the  person  who  sold  the  goods.  It  is  now  established  that  an 
auctioneer  at  the  time  of  the  sale  is  agent  for  loth  huyer  and  seller ;  lut 
as  soon  as  the  sale  is  over,  the  reason  for  the  rule  fails,  and  he  is  certainly 
not  the  agent  of  the  buyer,  unless  he  has  some  authority  to  act  on  his 
part." 

The  mere  entry  by  an  auctioneer's  clerk  of  the  price  at  which  a  lot  is 
knocked  do^^Ti  is  not  sufficient  to  satisfy  the  19th  section  of  the  Statute 
of  Frauds.     Pierce  v.  Corf,  9  L.  E.  Q.  B.  210. 

In  Ockenden  v.  Henly,  one  of  the  conditions  of  a  sale  by  auction  was, 
^'  If  the  purchaser  shall  fail  to  comply  with  the  conditions,  the  deposit  shall 
le  actually  forfeited  to  the  vendor,  who  shall  be  at  liberty  to  re-sell,  and 
any  deficiency  upon  re-sale,  together  with  the  expenses,  shall  be  made 
good  by  the  defaulter,  and  on  non-payment  shall  be  recoverable  as 
liquidated  damages,  but  any  increase  of  price  at  the  second  sale  shall 
belong  to  the  vendor."  Default  having  been  made  by  a  purchaser  at 
the  auction,  and  the  property  re-sold  at  a  reduced  price,  it  was  held,  by 
the  Court  of  Queen's  Bench,  that  the  vendor  could  recover  from  the 
defaulter,  in  addition  to  the  deposit,  only  so  much  of  the  difference 
between  the  two  prices,  and  of  the  expenses  of  re-sale,  as  the  deposit 
did  not  cover. 

And  j;er  Lord  Camphell  C.J.  :  "  We  think  the  difference  between  the 
balance  of  the  purchase-money  on  the  first  sale,  and  the  amount  of  the 
purchase-money  obtained  on  the  second  sale,  or  in  other  words  the 


478       LARGEST    PURCHASER    ENTITLED    TO    TITLE-DEEDS. 

deposit,  aUliong-h  forfeited  so  far  as  to  prevent  the  purchaser  from  ever 
recovering  it  back,  as  without  a  forfeiture  he  might  have  done  {Palmer 
V.  Temple),  still  is  to  be  brouglit  by  the  seller  into  account,  if  he  seeks 
to  recover  as  for  a  deficiency  on  the  re-sale."  His  lordship  added  that 
he  had  consulted  Lord  St.  Leonards  on  the  point,  and  that  he  quite 
coincided  with  the  Court  on  the  point. 

As  between  vendor  and  purchaser,  a  Me  dependent  on  a  question  of 
fact,  tvhich  it  is  impossible  to  consider  as  reasonally  certain,  is  not  a  good 
or  sufficient  title  ;  and  therefore  it  was  held  by  the  Court  of  Common 
Pleas,  that  an  intended  purchaser,  who  by  the  conditions  of  sale  is  to 
have  a  good  title  made  out,  may,  upon  such  an  insufficient  title  being 
offered  to  him,  recover  laclc  his  deposit  money  and  expenses,  in  an  action 
against  the  intended  vendor  {Simmons  v.  Heseliine). 

It  was  held  by  the  Privy  Council  in  Dimech  v.  Corlett  that  one  party 
to  a  contract  cannot,  icitlwut  the  privity  or  consent  of  tlw  other  party,  sub- 
stitute a  third  person  in  his  place,  on  simply  guaranteeiny  the  solvency  of 
such  third  j^erson ;  and  the  only  exceptions  are  in  the  cases  of  negotiable 
and  transferable  instruments.  And  where  a  contract  concludes  with  a 
penalty,  the  intention  of  the  parties  is  the  sole  guide  as  to  its  effect, 
and  this  intention  is  determined  not  merely  by  the  term  "penalty" 
or  "  liquidated  damages,"  but  the  Court  will  look  at  the  whole  docu- 
ment {ib.). 

Where  certain  proiocrty  -was  assigned  to  B.,  an  auctioneer,  upon  trust 
for  sale,  and  to  apply  the  moneys  arising  therefrom  in  payment  of  the 
expenses  of  the  deed  of  assignment,  and  of  effecting  such  sale,  "  in- 
cluding the  usual  auctioneer's  commission,"  and  upon  further  trust  ; 
it  was  held  by  the  Lord  Chief  Justice  that  B.  was  entitled,  in  taking 
the  accounts  between  himself  and  the  assignor,  to  be  allowed  the  usual 
charges  for  commission  made  by  him  as  auctioneer  {Douglass  v.  Arch- 
butl).  On  a  sale  by  auction  of  land  in  lots,  the  piurchaser  of  the  lot  laryest 
in  value,  in  tlie  absence  of  any  conditions  respecting  them,  is  entitled  to  the 
custody  of  the  tille-deeds  relating  to  all  the  property  ;  but  if  there  be  a 
condition  that  the  purchaser  of  the  "  largest  lot "  shall  have  them,  that 
must  mean  largest  in  superficial  area  {Griffiths  v.  Hatchard).  Where 
f;everal  lots  (growing  crops)  are  knocked  down  to  a  bidder  at  an 
auction,  and  his  name  marked  against  them  in  the  catalogue,  a  distinct 
contract  arises  for  each  lot  ;  and  a  memorandum  signed  afterwards  by 
the  bidder,  stating  that  he  agrees  to  become  the  purchaser  of  the 
several  lots  set  against  his  name,  does  not  require  a  stamp,  though 
the  aggregate  exceed  £20  in  value,  no  single  lot  being  of  that  price 
{Roots  V.  Lord  Dormer). 

If  land  generally  reputed  to  be  water-meadow  is  sold  by  the  assiynees 


SALE    OF    WATER-MEADOW.  479 

of  a  hanlcrvpt  hij  IJie  dcacriplion  of  uncommonly  rich  Avator-mcadow 
whereas  in  fact  it  is  very  imperfectly  watered,  this  is  not  sucli  a  mis- 
representation as  will  avoid  the  sale  {Scott  v,  Hanson).  And  where  an 
estate  consisting  of  fen  land,  and  so  described  in  the  jiarticulars  of  sale, 
was  charged  by  a  local  bnt  public  act  of  parliament  with  drainage  and 
embanking  taxes,  of  which  the  purchaser  had  no  express  notice,  it  was 
held  that  he  was  not  entitled  to  compensation  for  those  taxes  {Earraiul 
V.  Archer).  A  point  of  this  kind  arose  in  Hanks  v.  Palling,  where  the 
defendant  purchased  at  a  public  auction  a  lot  comprehending  a  freehold 
messuage  and  a  fee  farm  rent  of  21s.  Bg  the  concisions  of  the  sale,  no 
evidence  was  to  le  required  of  the  receipt  or  payment,  or  existence  of  the 
fee  farm  rent  other  than  that  declared  by  a  certain  conveyance,  "  nor 
should  any  objection  be  taken  to  the  title  in  consequence  of  the  non- 
payment or  non-receipt,"  thereof.  It  was  discovered  that,  in  fact,  the 
rent  had  not  been  paid  or  received  for  20  years  before  the  sale  ;  and  the 
purchaser  therefore  contended  that  it  was  extinguished  under  3  &  4 
Will.  IV.  c.  27,  s.  34,  and  had  ceased  to  exist  at  the  time  of  the  sale  ; 
but  it  was  held  by  the  Court  of  Queen's  Bench  that  he  was  not  entitled 
to  repudiate  the  contract  on  this  ground,  but  must  be  considered  to 
have  purchased  under  the  conditions  of  the  sale,  the  chance  of  the  rent 
being  obtainable.  The  Court  did  not  feel  called  upon  to  give  an 
opinion  upon  the  point  whether,  after  the  expiration  of  the  20  years, 
there  was  an  absolute  bar.  The  purchaser  made  an  objection  which 
was  excluded  by  the  conditions  of  sale,  and  an  agreement  to  purchase  a 
rent  under  the  circumstances,  taking  the  risk  of  it  not  having  been  paid, 
was  perfectly  valid. 

A  sale  ly  seeded  tenders  is  in  effect  the  same  as  a  sale  by  auction — 
per  Lord  Cranworth  Ch.  {Barlow  v.  Oslorne).  It  was  established,  in 
SMlton  V.  Livius,  that  tlie  printed  p)articiilaTs  under  which  a  sale  ly 
auction  proceeds  cannot  le  varied  ly  parol  evidence  of  the  verdal  statement 
of  the  auctioneer  at  the  time  of  the  sale,  either  as  to  the  parcels  or  quality 
of  the  subject-matter  of  the  sale  ;  and  it  makes  no  diflTerence  that  the 
question  arises  on  a  sub-sale  of  the  same  subject-matter  by  the  pur- 
chaser. Here  the  lot  6  in  question  was  described  as  "ten  acres  of 
spring  wheat  on  farther  hill  "  ;  and  at  the  bottom  of  the  handbill  was 
this  memorandum — "  The  keep  of  all  the  fields,  until  Old  Michaelmas 
Day,  will  be  sold  with  the  crops,  except  St.  George's  Field  (lot  15)." 
The  plaintiff  bought  lot  G  for  £7  15s.  per  acre,  and  the  auctioneer 
made  an  entry  in  his  sale-book  at  the  bottom  of  the  description  of  lot  G. 
The  description  and  minute  then  stood  as  folloAvs  :  "Lot  6.  Ten  acres 
of  spring  wheat  on  further  hill,  Mr.  Shelton,  £7  15s."  Shortly  after- 
wards, a  little  conversation  ensued  between  the  plaintiff  and  the  defen- 


ISO  PAROL    EVIDENCE    WHEN    NOT    RECEIVABLE. 

dant,  and  the  latter  requested  tlie  auctioneer  to  ]uit  liim  down  as  the 
purchaser  of  lot  (3,  and  he  accordingly  inserted  ("Mr.  L.")  after  the 
words  "Mr.  Shelton  "  in  the  minute.  The  wheat  proved  not  to  be 
spring  wheat,  but  red  Lammas  wheat,  which,  though  sown  in  the 
spring,  is  more  liable  to  blight  and  mildew.  The  defendant  had  offered 
to  sell  the  crop  to  a  third  person,  and  had  paid  the  plaintiff  a  £'d  5s. 
deposit ;  but  as  the  crop  became  damaged  with  mildew,  he  refused  to 
complete  the  bargain.  In  an  action  for  the  price,  parol  evidence  was 
offered  to  prove  that  the  auctioneer  had  explained,  in  defendant's 
presence,  at  the  time  of  the  sale,  that  the  wheat  in  question  was  not 
spring  wheat,  and  that  the  keep  of  the  field  with  respect  to  this  lot  was 
not  to  be  sold.  To  this  it  was  objected  for  the  defendant,  that  as  a 
written  instrument  was  signed  by  the  auctioneer,  the  accredited  agent 
of  both  parties,  at  the  time  of  the  sale,  with  the  purchaser's  name,  its 
terms  could  not  be  varied  by  parol,  and  it  could  alone  be  looked  at  to 
ascertain  what  was  the  contract  between  the  parties.  The  Court  of 
Exchequer  could  not  see  anything  in  the  distinction  which  was  taken 
between  the  case  of  Shelton  as  buyer  and  Livius  as  buyer,  and  confirmed 
the  nonsuit. 

The  general  rule  is  that  parol  evidence  is  not  receivalle  wMch  goes  to 
vary  and  liniit  the  ivritten  contract  hetween  the  parties.  Thus  where  the 
printed  conditions  of  sale  of  timber  growing  in  a  close  did  not  state 
anything  of  the  quantity,  parol  evidence  that  the  auctioneer  at  the 
time  of  sale  warranted  a  certain  quantity  is  not  admissible  as  varying 
the  wi-itten  contract  (Powell  v.  Edmunds).  The  case  of  Gh-eaves  v. 
Ashlin  is  also  decisive  that  parol  evidence  is  not  admissible  ivith  respect  to 
terms  ivhich  appear  on  the  face  of  the  contract.  In  Jeffrey  v.  Walton  the 
memorandum  was  clearly  imperfect,  and  some  evidence  was  necessarily 
required  to  show  the  other  parts  of  the  agreement. 

In  Bmith  v.  Jeffryes,  the  Court  of  Exchequer  considered  that  the 
plaintiff,  who  sued  in  assumpsit  for  the  non-delivery  of  sixty  tons  of 
"  Ware  'potatoes"  at  £5  per  ton,  according  to  a  written  agreement,  had 
no  right  to  show  that  he  had  in  fact  contracted  for  the  sale  of  a  par- 
ticular Jcind  of  Ware  potatoes,  viz.,  "  Regent's  Wares,"  while  those 
offered  by  the  defendant  were  of  an  inferior  kind,  or  "  Kidney  Wares." 
There  were  three  qualities  of  potatoes  in  that  part  of  Kent  where  the 
contract  was  made— Wares,  Middlings,  and  Chats — of  which  the  Wares 
were  the  largest  and  best.  The  plaintiff  had  a  verdict,  but  the  Court 
granted  a  new  trial  for  improper  reception  of  evidence.  Again,  on 
a  v:arranty  of  prime  singed  bacon,  evidence  was  held  not  admissible 
of  a  practice  in  the  bacon  trade  to  receive  bacon  to  a  certain  degree 
tainted  as  prime  singed  bacon  {Yates  v.  Fym).     And  so  parol  evidence 


PAROL  EVIDENCE  ADMISSIBLE  TO  EXPLAIN  TRADE  TERMS.    481 

is  inadmissible  to  explain  that  on  a  contract  to  sell  wool  "  to  be  paid  for 
by  cash  in  one  month,  less  5  per  cent,  disconnt,"  the  vendor  has  a  lien  on 
it  for  payment  by  usage  of  the  trade  {Sparkdiy.  BcnecliC,Godis  v.  Rose). 

Parol  evidence  is,  however,  admissible  to  explain  trade  terms.  And 
pr  Parlce  B.,  in  Hidchinson  v.  BoivTcer,  where  parol  evidence  was  ad- 
mitted for  the  pui'pose  of  showing  that  there  were  hvo  descriptions  of 
harleij  in  the  same  mar/ret,  ono  "fine"  (which  was  the  heavier  of  the 
two)  and  one  "  good."  "  The  law  I  take  to  be  this  :  that  it  is  tlie  duty 
of  the  Court  to  construe  all  written  instruments  :  if  there  are  peculiar 
expressions  used  in  it  which  have  in  particular  places  or  trades  a  known 
meaning  attached  to  them,  it  is  for  the  jury  to  say  what  the  meaning 
of  these  expressions  was,  but  for  the  Court  to  decide  what  the  meaning 
of  the  contract  was.  It  was  right,  therefore,  to  leave  it  to  the  jury  to 
say  whether  there  was  a  peculiar  meaning  attached  to  the  word  '  fine  ' 
in  the  corn-market  ;  and  the  jury  having  found  wdiat  it  was,  the 
question  whether  there  was  a  complete  acceptance  by  the  written 
documents  is  a  question  for  the  judge."  And  an  agreement  to  sell  oats 
at  so  much  per  lushel  must  be  taken  to  mean  the  legal  standard  bushel, 
and  will  not  be  supported  by  evidence  to  sell  by  some  other  bushel 
{HocMn  V.  Cooke). 

In  Studdy  v.  Satmders  parol  evidence  was  admitted  to  show  that 
cider  in  Devonshire  (which  diminishes  in  quantity  in  the  course  of 
manufacture  at  the  average  of  six  or  eight  gallons  per  hogshead)  means 
apple-juice  as  soon  as  it  is  squeezed  from  the  apples,  without  undergoing 
further  preparation.  And  so  again,  in  Spicer  v.  Cooper,  to  explain  the 
rvording  of  a  hop-contract,  where  one  of  the  items  in  the  written  con- 
tract signed  by  the  defendant,  was  to  the  eflPect  that  the  defendant 
had  sold  the  plaintiff  "18  pockets  of  Kent  hops  at  lOOs."  The  de- 
claration stated  that  he  had  sold  the  pockets  at  £5  per  cwt.,  but  failed 
to  deliver  them  according  to  promise,  and  Non  assumpsit  was  pleaded. 
It  appeared  that  a  pocket  of  hops  contained  more  than  one  cwt.,  and 
that  the  defendant  had  proposed  to  deliver  the  hops  at  lOO.s.  for  such 
pocket  ;  but  it  was  held  that  the  plaintiff  was  justified  in  showing 
by  parol  evidence,  that  by  the  usage  of  the  hop  trade  a  contract  so 
worded  was  understood  to  mean  £5  per  cwt.  Plaintiff  had  a  verdict, 
and  a  rule  for  a  nonsuit  was  refused.  Lord  Demnan  C.  J.  said,  "  In 
this  case  the  contract  was  either  simply  'at  i 00s.,' in  which  case  evi- 
dence was  admissible. to  explain  in  what  sense  such  words  are  used  in 
the  trade,  or  it  is  a  perfect  contract  at  '  100s.  per  pocket,'  in  which 
case  evidence  is  admissible  as  to  the  sense  in  which  the  trade  understand 
the  word  '  pocket '  so  used.  Therefore  in  either  view  of  the  case  there 
should  be  'no  rule.'" 


182  :VIEANING    OF    A    THOUSAND    EABBITS. 

And  where  tlie  defeudant.,  as  in  Sinilli  v.  WiIso?i,  demised  a  rabbit 
warren  to  the  phiintitrs,  and  covenanted  that  they  shonld  leave  10,000 
rabbits  on  the  luarren  at  the  expiration  of  the  term,  and  receive  payment 
for  those  and  any  more  than  that  nnmber  at  thc'ratc  of  £60 jfei-  thou- 
sand, the  question  arose  as  to  whether  by  the  Suffolk  custom  the  word 
"thousand"  meant  1200  as  applied  to  rabbits.  Two  indifferent  per- 
sons estimated  the  rabbits  at  1600  dozen,  and  hence  the  defendant 
paid. into  Court  a  sufficient  sum  to  pay  for  16,000  rabbits,  and  con- 
tended that  thousand  meant  one  hundred  dozen,  while  the  plaintiffs 
contended  that  he  ought  to  pay  for  19,200.  Under  the  direction  of 
Garroiv  B.  the  jury  found  for  the  defendant,  and  the  Court  of  King's 
Bench  refused  a  new  triah  Lord  Tenferden  C.  J.  said,  "There  is  no 
act  of  parliament  which  says  1000  rabbits  shall  denote  ten  hundred, 
each  hundred  consisting  of  five  score  ;  and  that  being  so,  we  must 
suppose  the  term  tlmisand  to  have  been  used  by  the  parties  in  the  sense 
in  ^\■hich  it  is  usually  understood  in  the  place  where  the  contract  was 
made,  when  applied  to  the  subject  of  rabbits  ;  and  parol  evidence  was 
admissible  to  show  what  that  sense  was." 

Mere  words  of  description  in  a  deed  of  conveyance  not  operatincj  by  way 
of  estojypel,  may  be  contradicted  by  parol ;  thus  the  lessee  of  land  de- 
scribed as  "  meadow,"  may  prove  it  to  have  been  arable  in  an  action 
by  the  lessor  for  ploughing  it  up  {Shrpwith  v.  Green)  ;  or  he  may^show 
that  land  described  as  containing  500  acres  does  not  in  fact  contain  so 
many  {S.  C.  as  reported  Bac.  Ab.  Pleas  I.,  11)  ;  or  contains  many  more 
{Jaclc  V.  Mclntyre).  Pasiura  bosci  may  be  explained,  by  usage  and 
later  admittances,  to  mean  the  soil  and  wood  itself  {Doe  v.  Beviss). 

A  deed  takes  effect  from  the  delivery,  and  not  from  the  date ;  therefore 
parol  evidence  was  allowed  to  show  that  a  lease  dated  on  Lady  Day 
1783,  and  purporting  to  commence  on  Lady  Day  last  past,  was  in  fact 
executed  after  the  date,  and  that  the  term  therefore  commenced  on 
Lady  Day  1783,  and  not  1782  {Steele  v.  Mart).  But  where  it  was 
agreed  in  wTiting  that  A.,  for  certain  considerations,  should  have  the 
produce  of  Boreham  meadoiv,  it  was  held  that  he  could  not  prove  that 
it  was  at  the  same  time  agreed  by  parol  that  he  should  have  both  Mil- 
croft  and  Boreham  meadow  {Meres  v.  Ansell).  And  see  Hojje  v. 
Atkins. 

According  to  Lorymer  v.  Smith,  a  refused  to  show  in  bulk  justifies  a 
imrchaser  in  rescindiny  a  sale,  even  cfter  boucjht  ami  sold  notes  have  been 
exchanyed.  The  contract  here  made  was  for  1400  and  700  bushels  of 
wheat,  at  9s.  (jd.,  on  Sept.  11th,  "bankers'  bill  if  required";  and  on 
Sept.  19th,  according  to  the  usage  of  the  place,  the  plaintiff  went  to 
the  defendant's  warehouse  to  inspect  it  in  bulk,  in  order  to  see  if  it 


REFUSAL    OF    SELLER    TO    SHOW    BULK.  483 

corresponded  with  the  sample.  Tlie  700-bnshel  parcel  was  shown  him, 
but  the  other  of  1400  was  not  there.  PlaintiflF  ofl'ered  to  send  a  load 
to  him  for  his  inspection,  or  to  send  for  a  bushel  at  that  time  ;  but  de- 
clined to  show  tlie  whole,  as  he  did  not  choose  to  let  defendant  into  his 
connections.  Under  these  circumstances,  the  latter  refused  to  have  the 
wheat,  althoug4i  he  received  a  message  a  few  days  after,  that  the  whole 
1400  bushels  were  in  his  loft,  ready  for  inspection  and  delivery,  on  a 
bankers'  bill  being  given  for  the  price.  It  was  held  by  the  Court  of 
Queen's  Bench  that,  under  these  circumstances,  the  contract  was  re- 
scinded, and.  that  the  seller,  having  refused  to  show  the  wheat  when 
required,  could  not  afterwards  insist  upon  the  performance  by  the 
buyer. 

A  variation  made  in  a  contract  without  the.  surety's  consent  discharges 
him,  although  his  risJc  was  not  thereby  increased.  And  so  it  was  held  by 
the  Court  of  Queen's  Bench,  in  Witcher  v.  James  Hcdl.  The  agreement 
here  was  to  the  effect  that  one  Joseph  Hall  was  to  have  thirty  cows  for 
the  dairy  year,  at  £7  10s.  a  cow  per  annum  to  be  paid  quarterly  in 
advance,  beginning  from  4th  of  February,  1824.  On  that  day  only  ten 
cows  had  calved,  but  the  plaintiff  in  March  added  two  ;  and  what  with 
deaths,  slips,  and  takings  away  with  the  consent  of  Joseph  Hall,  the 
latter  had,  on  the  average,  only  twenty-eight  cows.  All  these  deviations 
were  made  without  the  knowledge  of  the  defendant,  who  had  agreed  to 
pay  the  rent  in  consideration  that  plaintiff  performed  his  agreement. 
Plaintiff  got  a  verdict  for  the  rent  of  as  many  cows  as  Joseph  Hall 
actually  had,  but  a  rule  for  a  nonsuit  was  made  absolute.  The  Court 
{Litttedcde  diss.)  held  that  the  rent  was  an  entire,  and  not  a  divisible 
contract  ;  and  that  the  defendant  was  a  mere  surety,  and  plaintiff  in  an 
action  against  him  must  prove  a  literal  performance  of  the  contract. 

Where  the  defendant  agreed  by  a  wrdten  contract  to  purchase  of  the 
plaintiffs  300  hogs  of  bacon,  to  be  delivered  at  fixed  times  and  in  speci- 
fied quantities,  and  after  a  part  of  the  bacon  had  been  delivered  requested 
the  plaintiffs  as  the  sale  was  dull  not  to  press  the  delivery  of  the  residue, 
to  which  they  assented — this  request  was  held  by  the  Court  of  Queen's 
Bench,  in  Guff  v.  Penn,  to  be  only  ajmrol  dispensation  of  the  perform- 
ance of  the  original  contract,  in  respect  to  the  times  of  delivery,  and 
therefore  not  affected  by  the  Statute  of  Frauds,  and  the  defendant  was 
held  liable  for  not  accepting  the  residue  within  a  reasonable  time  after- 
wards. 

The  ordinary  rule  of  buying  by  sam})Je  was  thus  laid  down  by  Cress- 
well  J.  in  Goolc  V.  Riddelien :  "  Under  ordinary  circumstances  a  person 
who  buys  goods  by  sample  may  return  them  if  they  do  not  answer  the 
sample,  but  he  must  do  this  within  a  reasonable  time  ;  and  if  after 


184.  PtULE    OF    BUYING    BY    SAMPLE, 

objot'tinc  to  the  o-oods  lio  still  rotain,R  them,  lie  is  boniirl  to  pay  for 
tlicm,  making  such  a  deduction  as  he  may  be  entitled  to  by  reason  of 
tlieir  reduced  value."  The  case  of  a  sale  of  s}wci/ic  fjooch,  irilh  a  ivar- 
ranty  tlutt  fhcij  icere  equal  to  the  sample,  ^vas  considered  in  Cormack  v. 
GiJIis  (where  the  plaintilf  was  a  seedsman,  and  the  defendant  a  gardener), 
and  much  more  recently  in  Dau'son  v.  CuUis.  In  the  latter  case  a  plea 
that  the  defendants  made  the  promise  in  resjtect  of  31  pockets  of  hops 
bargained  and  sold  by  the  plaintiff  to  the  defendants  ;  and  that  at  the 
time  of  the  promise  the  plaintiff  produced  and  showed  defendants  a 
sample,  and  promised  to  deliver  hops  equal  thereto,  &c.,  but  that  the 
liojis  were  not  equal  to  the  sample,  and  that  therefore  they  refused  to 
accept  them,  was  held  bad  on  special  demurrer,  as  amounting  to  no7i 
assumpsit.  Jervis  C.J.  said,  "  This  plea  is  no  answer  to  the  action.  I 
am  inclined  to  think,  according  to  the  principle  of  Street  v.  Btay,  that 
on  the  sale  of  a  specific  article  (as  alleged  ,in  this  plea)  the  buyer  has 
no  right  to  repudiate  the  article  if  it  does  not  correspond  with  the 
sample,  but  that  his  proper  remedy  is  to  bring  a  cross  action  on  the 
warranty,  or  to  set  up  the  breach  in  reduction  of  damages.  But  it  is 
unnecessary  here  to  express  any  opinion  upon  that  point,  because  if 
proof  of  the  warranty  on  the  part  of  the  plaintiff"  be  a  necessary  condition 
of  his  recovering,  there  is  no  promise  on  the  part  of  the  defendant  to 
pay,  unless  the  specific  article  corresponds  with  the  sample,  and  that  is 
a  defence  under  non  assumpsit.  The  case  of  Parsons  v.  Sexton  is  ex- 
pressly in  point,  except  that  there  was  no  delivery  of  the  steam-engine." 

And  2^c^'  Md^l^  J. :  "  It  seems  to  me  that  the  princi])le  of  Street  v. 
Blay  ought  to  be  extended,  and  that  the  just  and  convenient  thing  is, 
that  the  vendee  should  have  an  action  for  the  breach  of  the  warranty, 
or  that  he  should  give  it  in  evidence  in  reduction  of  damages,  as  in 
Allen  V.  Cameron  and  several  other  cases"  {ih.).  But  where,  as  in 
Sieveking  v.  Button,  the  defendant  pleaded  to  a  count  upon  a  contract 
by  him  to  receive  a  certain  quantity  of  wool  of  merchantable  quality 
from  the  plaintiffs  at  a  certain  price,  that  at  the  time  of  malcing  the  con- 
tract the  plaintiffs  proclvced  a  sample,  and  po'omised  him  that  the  hulk  icas 
equal  in  quantity  and  description  thereto,  hut  that  the  wool  ivhen  tendered 
was  found  to  he  of  an  inferior  quality,  wherefore  he  refused  to  accept  it — 
the  Court  of  Common  Pleas  held  that  the  plea  was  not  bad  on  special 
demurrer,  as  amounting  to  non  assumpsit,  inasmuch  as  the  contract 
therein  set  up  was  not  necessarily  incompatible  with  the  contract 
declared  on.  And  per  Mavle  J. :  "  If  issue  were  taken  on  the  tender, 
the  plaintiffs  would  fail,  unless  they  proved  a  tender  of  wool  of  the 
quality  and  description  ordered  "  {ih^. 

A  custom  of  the  Liverpiool  'corn  market,  that  wlien  corn  is  sold  hy 


SALE    OF    CALCUTTA    LINSEED.  485 

sample,  if  the  buyer  does  not  on  the  day  it  is  sold  examine  the  hulk  a?id 
reject  it,  he  cannot  afterwards  reject  it,  or  refuse  to  pay  the  ivhote  price,  was 
held  by  Rolfe  B.  to  be  a  reasonable  one  {Sanders  v.  Jameson).  And 
semlle  that  an  article  sold  by  sample  cannot  in  any  case  be  rejected  as 
not  corresponding  with  the  sample,  except  within  a  reasonable  time  {il.). 
The  delivery  of  a  sa7nple,  if  considered  to  he  part  of  a  thing  sold,  was  ruled 
by  the  Court  of  King's  Bench,  on  the  authority  of  Randeau  v.  Wtjcdt, 
to  be  a  sufficient  acceptance ;  but  otherwise  where  it  is  a  sample  merely, 
and  forms  no  part  of  the  bulk  (Coojjer  v.  Elston).  And  so  it  was  held 
by  Gihhs  C.J.  in  the  case  of  a  sample  of  trefoil  {Talver  v.  West). 

In  the  case  of  Grimoldby  v.  Wells,  plaintiff  sold  by  sample  to  defend- 
ant four  quarters  of  tares,  which  were  placed  in  defendant's  barn  by  his 
servant.  When  the  defendant  saw  them,  he  said  they  were  not  as  good 
as  sample,  and  wrote  to  the  plaintiff"  to  that  efi"ect,  and  that  he  would  not 
have  them.  It  Avas  found,  as  a  fact,  that  the  tares  were  not  as  good  as 
sample.  Held  that  the  defendant  had  a  right  to  reject  them,  and  was- 
not  bound  to  send  them  back,  or  place  them  in  neutral  custody  {Couston 
V.  Chapman,  L.  R.  2  H.  L.  Sc.  250  ;  cited  Lucy  v.  Moujtet,  29  L.  J. 
Ex.  110). 

Wider  v.  Schilizzi  is  an  authority  that  upon  a  sale  (not  hy  sample,  and 
tvithout  warranty)  of  merchandise,  ivhich  the  huyer  has  no  opportunity  of 
inspecting,  it  is  an  implied  condition  that  the  article  shall  fairly  and  reason- 
ably answer  the  description  in  the  contract.  Here  the  plaintiff  agreed  to 
buy  of  the  defendant  a  cargo  of  "  Calcutta  linseed  tale  cpiale,''  but  on  its 
arrival  he  objected  to  its  quality,  complaining  that  it  had  such  a  large 
admixture  of  other  seeds  as  not  to  be  "  Calcutta  linseed."  It  was  jiroved 
that  no  seed  conies  to  market  without  some  admixture,  the  average 
generally  being  two  or  tliree  per  cent.,  but  according  to  the  plaintiff's 
witnesses  the  linseed  in  question  had  fifteen  per  cent,  of  tares,  rape,  and 
mustard,  and  was  not  linseed  at  all  within  the  meaning  of  the  contract. 
The  defendant's  witnesses  said  it  was  inferior,  but  still  answered  the 
description  in  the  contract,  and  that  the  plaintiff  had  sold  it  as  and  for 
"  linseed  "  to  crushers,  who  had  sold  it  made  up  as  "  linseed-cake." 
Jervis  C.J.  put  it  to  the  jury  to  say  whether  the  article  delivered  reason- 
ably answered  the  description  of  Calcutta  linseed,  that  is,  linseed  with  a 
reasonable  amount  of  adulteration  only.  A  verdict  was  found  for  the 
plaintiff,  and  the  Court  of  Common  Pleas  refused  to  disturb  it.  WiXles 
J.  said,  "  The  jury  have  in  substance  found  that  the  linseed  in  question 
was  so  mixed  with  seeds  of  a  different  and  inferior  description,  as  to 
have  lost  its  distinctive  character,  and  prevent  its  passing  in  the  market 
by  the  commercial  name  of  '  Calcutta  linseed.'  The  purchaser  had  a 
right  to  expect  not  a  perfect  article,  but  an  article  which  would  be  sale- 


4-S6  WARRANTY    OF    SEED.  . 

able  ill  the  inarkot  as  '  Calcutta  linseed.'  If  he  got  an  article  so  adul- 
terated as  not  reasonably  to  ansAver  that  description,  he  did  not  get 
what  he  bargained  for.  As  if  a  man  buys  an  article  as  gold,  which 
everyone  knows  requires  a  certain  amount  of  alloy,  he  cannot  be  said  to 
get  gold  if  he  gets  an  article  so  depreciated  in  quality  as  to  consist  of 
gold  only  to  the  extent  of  one  carat." 

In  Toulniin  v.  Hedldj,  which  was  a  case  of  the  same  class,  Cressivcll  J. 
ruled  that  icliere  a  party  huijs  a  specific  cargo  of  guano,  expected  hy  a  par- 
iicidar  ship,  and  warranted  to  le  of  a  particidar  quality,  he  has  a  right 
on  the  arrival  of  the  ship  to  inspect  such  cargo  before  it  is  delivered  to 
him,  in  order  to  ascertain  whether  the  warranty  has  been  complied 
witli,  and  if  it  has  not,  he  may  reject  the  cargo  altogether  ;  but  if  the 
cargo  be  once  delivered  to  him,  he  has  no  right  to  return  it  on  the 
ground  that  it  does  not  correspond  with  the  warranty. 

The  defendant  in  Hooper  v.  Treffry  asked  the  plaintiffs  to  find  him  a 
"customer  for  his  dark ;  and  one  was  found  ivho  agreed  to  purchase  it,  if 
equal  to  the  sample.  It  was  shipped,  and  the  defendant  sent  the  plaintiffs 
the  invoice,  and  requested  them  to  accept  a  bill  of  exchange  for  the  price, 
which  they  did  on  the  offer  of  a  del,  credere  commission.  The  bark  not 
being  equal  to  the  sample,  the  customer  refused  to  accept  it,  and  the 
plaintiffs  were  called  on  to  pay  the  bill  when  due.  It  was  urged  for  the 
defendant  that  there  was  no  privity  between  him  and  the  plaintiffs,  but 
the  Court  of  Exchequer  held  that  they  were  entitled  to  recover  the 
amount  of  the  bill  in  an  action  for  money  paid  to  the  defendant's  use. 
And  see  Johnstone  v.  TJsliorne  and  Heisch  v.  Carrington. 

The  first  of  the  leading  cases  upon  seed  not  ansivering  its  warranty 
was  that  of  Poidfon  v.  Lattimore,  where  the  action  was  brought  to 
recover  the  value  of  eight  quarters  of  sainfoin  seed,  sold  by  the  plaintiff 
to  the  defendant  at  £3  per  quarter,  and  warranted  good  new  growing 
seed.  It  was  proved  that  soon  after  it  was  bought  it  was  examined  and 
tasted  by  a  man  of  good  skill,  who  said  it  was  bad  growing  seed.  This 
opinion  was  not  communicated  to  the  plaintiff,  but  part  of  the  seed  was 
sown  and  the  rest  sold  to  two  witnesses,  who  proved  it  was  worthless, 
and  said  they  would  not  pay  for  it.  The  plaintiff  contended  that  as  the 
defendant  had  adopted  the  contract  in  part  by  selling  and  sowing  the 
seed,  he  was  bound  to  adopt  it  altogether,  and  could  not  insist  on  the 
breach  of  warranty  as  a  defence  to  tlie  action.  The  jury  found  for 
the  defendant,  on  the  ground  that  the  seed  did  not  correspond  with  the 
warranty,  which  was  the  only  question  at  the  trial.  The  Court  of 
King's  Bench  discharged  a  rule  to  enter  a  verdict  for  tlie  plaintiff  for 
the  value  of  the  seed,  and  held  that  as  the  i)laintiff  gave  an  express 
warranty  that  it  was  good  growing  seed,  the  defendant  might  without 


STATUTE    OF    LIMITATIONS.  487 

returning-  it  show  that  it  did  not  correspond  with  the  warranty,  and 
that  the  buyer  was  not  bound  to  trust  the  assertions  of  third  parties, 
and  return  the  seed  on  the  assumption  that  it  was  bad  seed,  but  was  at 
liberty  to  test  its  capabilities  by  sowing.  In  such  cases  of  warranty  the 
vendee  is  entitled,  although  he  do  not  return  the  seeds  to  tlie  vendor,  or 
give  notice  of  their  defective  quality,  to  bring  an  action  for  breach  of 
the  warranty,  or  if  an  action  be  brought  against  him  by  the  vendor  for 
the  price,  to  prove  the  breach  of  the  warranty  either  in  diminution  of 
damages,  or  in  answer  to  the  action,  if  the  goods  be  of  no  value. 

And  per  Littledah  J.  :  "  The  not  giving  notice  raises  a  strong  pre- 
sumption  that  the  article  at  tlm  time  of  the  sale  corresponded  with  the 
warrantg.  But  if  that  be  clearly  established,  the  seller  will  be  liable 
to  an  action  brought  for  breach  of  his  contract,  notwithstanding  any 
length  of  time  which  may  have  elapsed  since  the  sale." 

The  application  of  the  Statute  of  Limitations  to  such  cases  was  com- 
sidered  in  Battleg  v.   FaulJmer,  where   the  plaintiffs   bought   certain 
wheat  from  the  defendants  early  in  1810,  as  spring  wheat,  and  sold  it 
to  one  Shepard,  who  sowed  it,  and  discovering  in  the  autumn  that  it 
was  wholly  unproductive,  gave  the  plaintiffs  notice  that  he  held  them 
responsible  for  the  loss  of  the  crop.    This  the  plaintiffs  communicated 
to  the  defendants,  as  well  as  the  fact  that  in  June,  1811,  he  was  about 
to  assess  damages  against  them  in  the  Court  of  Session.     Nothing 
more  passed  between  the  parties  till  1818,  when  the  suit  in  Scotland 
was  completed,  and  the  plaintiffs  paid  Shepard  his  damages  and  costs, 
and  commenced  the  present  action  of  assumpsit,  alleging  as  special 
damage  the  damages  so  recovered.     Abiott  C.J.,  on  finding  that  there 
was  no  promise  to  take  the  case  out  of  the  Statute  of  Limitations,  non- 
suited the  plaintiff.      The  Court  of  Queen's   Bench  confirmed  this 
raling,  on  the  ground  that  though  such  special  damage  had  occurred 
within  six  years  before  the  commencement  of  the  action,  yet  that  the 
breach  of  contract,  which  in  assumpsit  was  the  gist  of  the  action,  having 
occurred  and  become  known  to  the  plaintiff  more  than  six  years  before  that 
period,  he  was  guilty  of  negligence,  and  the  statute  might  well  be  pleaded. 
The  gist  of  the  action  in  Allen  v.  Lake  was  that  the  seed  proved  to  be 
of  a  different  kind  to  what  it  u-as  sold  for.     One  of  the  plaintiffs,  in 
company   with   Eeed,   the   defendant's    agent,   saw   six   acres   of  the 
defendant's  turnips  in  bloom,  and  agreed  to  buy  the  seed  produced  by 
them.     On  August  ?.rd  the  produce,  fourteen  quarters,  was  delivered  to 
the  plaintiff,  and  the  following  sold-note— 
"  Mr.  T.  C.  Heed, 
Aug.  5,  f  Sold  to  Messrs.  Beck  &  Co.,  for  Mr.  C.  Lake,    14  qrs. 
1850.    t      Skirvinfs  Swede  at  lis.  per  bushel,'' 


188  WARRANTY    OF    SKIRVING's    SWEDES, 

and  an  invoice  was  sent  shortly  afterwards.  In  a  few  days  another 
parcel  of  turnip  seed  was  sold  by  Reed  to  the  plaintiffs,  Reed  stating 
it  to  be  of  the  "  same  stock  "  as  the  former,  and  calling  it  Skirvincj's 
Swedes.  No  bought  or  sold  note  was  given  on  this  occasion,  and  the 
invoice  described  the  seed  as  24^  quarters  of  turnips.  In  May,  1851, 
samples  of  both  parcels  were  sown  ;  the  crop  partly  failed,  and  of  those 
plants  which  made  their  appearance,  the  greater  part  were  not  of  the 
description  of  turnip  called  Slcirvimfs,  but  of  a  spurious  and  inferior 
kind.  The  defendant  contended  that  the  sold  note  did  not  amount  to 
a  warranty,  but  merely  contained  a  representation  that  the  first  parcel 
of  seed  was  SkirvhKjs  Swedes,  and  also  that  there  was  no  evidence  for 
the  jury  that  the  second  parcel  had  been  warranted  to  be  Sldrving's 
S/redrs,  the  invoice  describing  the  seed  merely  as  24j  quarters  of 
turnips.  Lord  CampMl  C.J.  overruled  both  objections,  and  the  jury 
found  for  the  plaintiff  for  the  value  of  the  seed,  with  leave  reserved  to 
move  to  reduce  the  damages  by  the  value  of  the  second  parcel,  if  the 
Court  thought  there  was  no  evidence  for  the  jury  of  that  parcel  having 
been  sold  under  the  warranty  of  its  being  Skirving's  Swedes,  and  the 
Court  of  Queen's  Bench  refused  to  disturb  the  verdict.  Lord  Campbell 
C.J.  said  :  "  As  regards  the  first  parcel,  I  adhere  to  the  opinion  which 
I  expressed  at  the.  trial,  that  the  statement  in  the  sold  note  amounted 
to  a  warranty  that  the  seed  was  Slcirving's  Swedes.  I  also  agree  with 
the  rest  of  the  Court,  in  thinking,  with  respect  to  the  second  parcel, 
that  there  was  evidence  for  the  jury  of  the  defendant  having  warranted 
them  also  to  be  SMrving's  Swedes.  It  is  clear  that  the  invoices  did 
not  form  the  contract.  There  was  a  previous  verbal  contract  for  the 
sale  of  the  second  parcel ;  and  the  defendant's  agent  having  stated  that 
the  second  parcel  was  of  the  same  stock  as  the  first,  that  statement 
became  part  of  the  contract." 

In  Page  (Exor.)  v.  Paveg  the  plaintiff  sued  defendant  on  a  breach 
of  warranty  on  tlie  sale  of  old  com  udieal,  and  the  declaration  contained 
a  special  count,  which  stated  a  warranty  that  the  wheat  would  grow, 
and  a  breach  that  it  would  not  grow,  and  that  the  plaintiff  was  deprived 
of  great  gains  from  the  corn  and  straw.  The  declaration  also  contained 
counts  for  money  had  and  received,  and  on  an  account  stated,  and  the 
particulars  of  demand  were  for  the  price  of  the  wheat,  but  expressly 
limited  to  the  ■indebitatus  counts.  It  was  objected  for  the  defendant 
that  the  particulars  tied  down  the  plaintiff  to  £6  19.v.  Gd.,  the  price  of 
the  seed ;  but  Patteson  J,  considered  that  the  particulars  only  applied  to 
the  common  counts,  to  which  they  were  expressly  limited,  and  that  this 
did  not  prevent  the  plaintiff  from  giving  evidence  of  what  the  value  of 
the  crops  might  have  been,  with  a  view  to  his  damages  on  the  first  count. 


WARRANTY  OF  SOUND  MEAT.  489 

The  question  as  to  tahen  an  action  on  an  implied  ivarrantij  of  the  sonnd- 
ness  of  meat  will  lie,  was  settled  by  the  Court  of  Exchequer  in  Burnlij 
V.  Bollett.  The  plaintiflp  and  defendant  were  both  farmers,  and  the 
latter  bought  the  carcase  of  a  pig  at  a  butcher's  in  the  public  shambles 
in  Lincoln  market,  but  having  other  business,  left  it  till  it  was  more 
convenient  to  take  it  awa}^  Before  he  returned,  the  plaintiff  came  to 
the  same  stall  and  offered  to  buy  the  pig  ;  he  was  told  it  was  the  de- 
fendant's,  and  a  bargain  was  struck  for  £G  18s.  Qd.  N'ext  day  the  meat 
was  found  to  be  quite  rotten,  and  measly  (the  season  had  been  remark- 
ably unfavourable  for  meat),  and  the  action  was  brought  on  an  implied 
warranty  of  soundness.  The  defence  was  caveat  emptor;  hut  Pattcson 
J.  inclined  to  think  that  the  law  implied  such  a  warranty  as  that  men- 
tioned in  the  declaration,  "  that  the  said  carcase  was  in  a  sound  and 
wholesome  condition,  and  fit  for  human  consumption."  A  verdict  for 
the  amount  was  found  for  the  plaintiff,  subject  to  a  motion  to  enter  a 
nonsuit,  and  the  Court  made  the  rule  absolute. 

The  jury  negatived  all  fraud  in  the  defendant,  who  was  not  a  butcher 
or  a  dealer  in  meat.  He  had  not  exposed  it  publicly  for  sale,  but  had 
simply  bought  it  for  his  own  use,  and  left  it  till  it  should  be  delivered  ; 
but  when  he  sold  it  to  the  plaintiff  there  was  a  reasonable  presumption 
for  the  consideration  of  the  jury  that  he  knew  it  was  to  be  used  for 
human  food.  The  sole  point  for  consideration  was,  whether  an  ordi- 
nary individual,  not  clothed  with  any  character  of  general  dealer  in  pro- 
visions, who  hondfide  sells  meat  for  human  consumption,  must  be  taken 
to  sell  them  with  an  implied  warranty  of  soundness.  This  was  not  the 
case  of  a  butcher  or  taverner  or  farmer  killing  or  exposing  to  sale  meat 
in  open  market,  who  may  be  reasonably  taken  as  impliedly  warranting 
the  meat  to  be  sound.  It  was  put  for  the  plaintiff,  that  by  reason  of 
food  being  the  subject  of  sale,  this  was  an  exception  to  the  general 
rule,  so  as  to  make  the  seller  responsible  on  account  of  the  common 
good,  though  no  care  could  have  discovered  the  latent  defect ;  but  the 
defendant  was  not  dealing  in  the  way  of  a  common  trade,  and  was  not 
punishable  in  the  least  for  what  he  did.  He  merely  transferred  his 
bargain  to  the  plaintiff.  Lord  JIale's  note  in  Fitzherbert's  "Natura 
Brevium,"  p.  94,  says  that  "  There  is  diversity  between  selling  corrupt 
wines  as  merchandize ;  for  there  an  action  on  the  case  does  not  lie  with- 
out warranty  ;  otherwise  if  it  be  for  a  taverner  or  victualler,  if  it  preju- 
dice  anyr  And  the  Court  of  Exchequer  held  that  the  defendant  fell 
within  the  reason  of  the  former  part  of  Lord  Hales  distinction  ;  and 
that  there  being  no  evidence  of  a  warranty  or  of  any  fraud,  he  was  not 
liable.  And  where  the  plaintiff,  a  butclier,  sold  the  defendant  meat, 
and  the  latter  after  taking  it  home  subsequently  called  at  the  shop,  and 


490  ALTERNATIVE    CONTEACT. 

said  before  several  customers,  "  /  intended  to  have  dealt  with  you,  hut  I 
shall  not  do  so,  for  you  changed  the  land)  which  I  houghl  of  you  for  a 
coarse  piece  of  mutton,''  it  was  held  by  the  Court  of  Exchequer  in  Crisp 
V.  Gill  that  an  action  for  slander  did  not  lie,  as  the  communication  so 
made  was  a  privileged  one. 

Coutao-ious  Diseases  Animals  Act,  32  &33  Vict.  c.  70,  s.  75  :  in  order 
to  convict  a  person  for  being  in  possession  of  a  diseased  animal  under 
this  Act,  it  must  be  proved  that  he  was  aware  of  the  fact  that  the  animal 
was  diseased.     Nichols  v.  Hall,  8  L.  R.  C.  P.  322. 

Alternative  contracts  must  he  stated  according  to  the  fact ;  and  where  a 
contract  was  made  for  the  purchase  of  100  bags  of  wheat,  40  or  50  of 
which  were  to  be  delivered  on  one  market  day,  and  the  remainder  on  the 
next  market  day,  it  was  held  that  the  plaintiff  could  not  declare  as  npon 
an  absolute  contract  for  the  delivery  of  40  bags  on  the  first  day,  though 
40  bags  were  then  in  fact  delivered,  but  the  contract  must  be  stated  in 
the  alternative  according  to  the  original  terms  {Penny  v.  Porter).  And 
if  a  contract  to  deliver  soil  be  declared  upon  as  a  contract  to  deliver  soil 
or  breeze,  the  variance  will  be  fatal  if  it  appears  that  soil  and  breeze  are 
diifereut  things  {Coolc  v.  Mcmstone). 

An  agreement  contamed  in  a  contract  for  the  jncrchase  of  a  cargo  of 
wheat,  to  refer  to  arhitratioji  any  difference  that  might  arise  between  the 
parties  as  to  the  contract,  is  enforceable  by  action  ;  and  a  dispute  as  to 
the  amount  of  compensation  to  be  paid  to  the  plaintiif  in  respect  of  defi- 
ciency of  cargo,  is  a  "difference"  within  the  meaning  of  such  agreement 
{Livinyton  v.  Ralli). 

A  contract  to  deliver  goods  to  purchaser  '■'■from  time  to  time  as  re- 
quired,'' does  not  lapse  at  the  expiration  of  a  reasonable  time  from  the 
date  of  the  contract ;  and  the  vendor  must,  to  determine  it,  request 
the  purchaser  to  require  the  goods,  and  if  the  latter  does  not  do  so 
within  a  reasonable  time  fi-om  such  request,  the  contract  lapses  {Jones 
V.  Gihhons). 

Where  no  entire  sum  has  heen  agreed  upon,  it  is  generally  presumed 
that  it  was  the  intentwn  of  the  contracU^ig  parties  that  the  remunera- 
timi  should  keep  pace  ivith  the  consider'ation,  and  be  recoverable  Mies 
quotics  by  an  action  on  a  quantum  meruit.  And  this  doctrine  seems 
to  be  countenanced  by  Withers  v.  Reynolds,  which  was  an  action  of 
assumj)sit  for  not  delivering  straw  according  to  the  following  agree- 
ment : 

"John  Reynolds  undertakes  to  supply  Josejih  Withers  with  wheat-straw 
delivered  at  his  pi'emises  till  the  24th  June,  1830,  at  the  sum  of 
335.  per  load  of  3G  trusses,  to  be  delivered  at  the  rate  of  three  loads 


DELIVERY    FROM    TIME    TO    TIME.  491 

in  a  fortnight ;  and  the  said  J.  W.  agrees  to  pay  the  said  J.  R.  33s. 
per  load,  for  each  load  so  delivered  from  this  day,  till  the  24th  June, 
1830,  according  to  the  terms  of  this  agreement." 

When  the  straw  had  been  supplied  for  some  time,  the  defendant  asked 
for  payment,  and  received  11  gs.  payment  for  all  the  straw,  except  the 
last  load,  as  the  plaintiff  said  he  should  always  keep  one  load  in  hand. 
The  defendant  said  he  should  send  no  more  straw  unless  it  was  paid  for 
on  delivery,  and  no  more  was  accordingly  sent ;  and  it  was  submitted  on 
his  behalf  at  the  trial  that  there  must  be  a  nonsuit,  as  the  plaintiff  on 
his  own  showing  had  not  performed  his  own  part  of  the  contract,  which 
was  in  effect  to  pay  for  each  load  on  delivery.  It  was  held  by  the  Court 
of  Queen's  Bench  that  according  to  the  true  effect  of  the  agreement  each 
load  was  to  be  paid  for  on  delivery,  and  that  on  the  plaintiff's  refusal  to 
pay  for  them,  the  defendant  was  not  bound  to  send  any  more,  and  the 
Court  directed  a  nonsuit. 

Pafteson  J.  said,  "  If  the  plaintiff  had  merely  failed  to  pay  for  any 
particular  load,  that  of  itself  might  not  have  been  an  excuse  to  the  de- 
fendant for  delivering  no  more  straw  ;  but  the  plaintiff  here  expressly 
refuses  to  pay  for  the  loads  as  delivered ;  the  defendant,  therefore,  is 
not  liable  for  ceasing  to  perform  his  part  of  the  contract."  Taiinion  J. 
expressly  founded  his  decision  upon  the  special  wording  of  the  contract 
*'  for  each  load,  &c.,"  which  he  considered  to  import  that  each  load  shall 
be  paid  for  on  delivery.  On  this  Mr.  Smith  remarks  in  his  "  Leading 
Cases,"  vol.  IL,  p.  19,  that  if  this  case  were  decided  on  any  other  ground, 
it  vrould  be  contrary  to  the  opinion  expressed  by  Parke  J.  in  Oxendale 
V.  Wetherall,  viz.,  that  "  Where  there  is  an  entire  co7itract  to  deliver alarge 
quantitij  of  goods,  consisting  of  distinct  parcels,  within  a  special  time,  and 
the  seller  delivers  part,  he  cannot  hefore  the  expiration  of  that  time  iring 
cm  action  to  recover  the  price  of  that  part  delivered,  because  the  purchaser 
may,  if  the  vendor  fail  to  complete  his  contract,  return  the  part  delivered. 
But  if  he  retain  the  part  delivered  after  the  seller  has  failed  in  perform- 
ing his  contract,  the  latter  may  recover  the  value  of  goods  which  he  has 
so  delivered."  Here  the  plaintiff  had  delivered  to  the  defendant  130 
bushels  of  wheat,  and  the  question  on  the  evidence  was,  whether  the 
contract  was  for  250  bushels,  or  so  much  as  the  plaintiff  could  spare. 
The  jury  found  that  it  was  an  entire  contract,  and  Bayley  J.  ruled  that 
notwithstanding  the  non-performance  of  part  of  the  contract  by  the 
vendor,  if  the  purchaser  retains  the  part  which  has  been  delivered  after 
the  time  for  completing  the  delivery  has  expired,  he  is  liable  for  the  price 
of  that  part.  The  Court  of  Queen's  Bench  refused  a  rule  for  a  nonsuit, 
and  Lord  Tenter  den  C.J.  observed  that,  "  If  the  rule  contended  for  were 


492  XO    SrECIFIED    TIME    FOR    DELIVERY. 

to  prevail,  it  would  follow  that  if  there  had  been  a  contract  for  250 
bushels,  and  249  had  been  dcl'vered  to  and  retained  by  the  defendant, 
the  vendor  could  never  recover  for  the  249,  because  he  had  not  delivered 
the  whole." 

Wierea  ivriiten  contract  for  the  sate  of  goods  specified  no  time  for  detirer- 
ing  them,  Lord  Etlenboroagh  C.J.  held  in  Greaves  v.  Ashlin  (which  was 
an  action  for  non-delivery)  that  it  was  not  competent  for  the  defendant 
to  give  parol  evidence  that  it  was  a  condition  of  sale  that  the  goods 
should  be  taken  away  immediately,  or  that  by  the  usage  of  trade  where 
goods  are  sold  to  be  delivered  at  a  distant  day  the  time  is  always  men- 
tioned in  the  written  contract,  and  that  although  the  purchaser  (who 
had  here  received  a  delivery  order)  neglected  after  notice  to  carry  them 
away,  the  seller  had  not  on  that  account  a  right  to  re-sell  them,  and  the 
plaintiff  had  a  verdict  for  the  dift'erence  per  quarter  between  oats  at 
45.S.  6d.,  tlie  price  at  which  he  bought  the  odts,  and  51s.  or  that  for 
which  they  were  re-sold.     And  so  it  was  held  by  the  Court  of  Common 
Pleas  in  Peterson  v.  Agre,  that  the  measure  of  damages  in  the  case  of  a 
breach  of  contract  to  deliver  goods  at  a  sjmified  time,  is  the  difference 
between  the  contract  price  and  the  market  price  at  the  time  of  the 
breach  of  contract,  or  the  price  for  which  the  vendee  had  sold  ;  but  that 
the  latter  cannot  recover  as  special  damage  the  loss  of  anticipated  profit 
to  be  made  by  his  vendees.     This  was  an  action  of  assumpsit  for  the 
breach  of  a  contract  of  delivery  of  "  from  80  to  120  tons  of  best  oblong 
fresh-made  Flensburg  linseed-cakes,  at  £6  10s.  cost  and  freight  to  a  safe 
port  on  the  East  coast  of  Great  Britain,  or  £6  13s.  to  a  safe  port  in  the 
Channel."     In  consequence  of  an  undue  delay  in  the  shipment,  which 
was  to  have  taken  place  at  "the  first  open  water  after  the  end  of 
January,"  at  Flensburg,  the  plaintiff  declined  to  receive  the  cakes,  and 
brought  this  action  to  recover  £27  lOs.,  the  difference  between  the  price 
at  which  he  had  bought  and  that  at  which  he  had  sold  the  110  tons,  and 
also  £137  lO.s.  claimed  from  him  as  damages  by  his  vendee,  but  only 
recovered  the  former. 

Again  in  Phitjiofts  v.  Evans,  where  a  certain  mitler  (defendant)  con- 
tracted for  the  purchase  of  wheat  "  to  be  delivered  at  B as  soon  as 

vessels  could  be  jjrocured  for  the  carriage  thereof;  "  cmd  sulsequently  {the 
market  having  fatten)  gave  the  seller  notice  that  he  iroidd  not  accept  it  if  it 
were  delivered,  the  wheat  being  then  in  transitu,  it  was  held  by  the  Court 
of  Exchequer,  on  the  authority  of  Leicjh  v.  Paterson,  in  an  action  for  not 
accepting  the  wheat,  that  the  proper  measure  of  damages  was  the  differ- 
ence Ijetween  the  contract  price  and  tlie  market  price  on  the  day  when 
the  wheat  was  tendered  to  him  for  acceptance  at  Birmingliam  and 
refused,  and  not  on  the  day  wlieu  the  notice  was  received  by  the  seller. 


DEFINITION    OF    DIRECTLY.  493 

In  Leigh  v.  Palerson  the  defendant  contracted  to  deliver  tallow  to  the 
plaintiif  " in  ^(//  next  December"  at  62s.  per  cwt.  The  defendants  in 
October  tried  to  compromise  and  be  off  their  bargain  (as  they  had  sold 
the  tallow  for  71s.),  but  the  plaintiff  insisted  on  holding  them  to  it,  and 
the  Court  considered  that  tallow  having  risen  in  price,  the  plaintiff  was 
entitled  to  recover  damages  according  to  the  market  price  (81s.)  on  the 
last  day  on  which  the  contract  would  have  been  performed,  namely,  the 
31st  of  December,  as  he  had  not  acquiesced  in  its  being  rescinded  when 
the  defendants  refused  to  perform  it, — and  not  according  to  the  (71s.) 
October  price.  And  in  Startu])  v.  Cortazzi,  which  was  a  case  of  delivery 
of  Odessa  linseed  (100  chetwerts  =  73  quarters),  payment  of  the  differ- 
ence between  the  contract  price  (3Gs.  per  quarter)  and  the  value  of  the 
linseed  (48s.)  at  the  time  when  the  cargo  ought  to  have  been  delivered 
in  due  course,  was  that  to  which  the  plaintiffs  were  entitled.  The  de- 
fendant had  paid  47s.  into  Court,  being  the  price  at  the  time  of  the 
notice  of  non-completion.  It  had  risen  to  56s.,  at  the  time  of  the  trial, 
and  the  plaintiff  contended  that  the  damages  should  be  calculated  ac- 
cording to  that  price  ;  but  2)er  Lord  Abinger  C.B.  this  was  not  a  case 
resembling  contracts  for  the  replacing  of  stock,  where  the  damages  are 
estimated  at  the  price  of  the  funds. 

A  contract  to  be  performed  "  direct! g"  means  to  be  performed  not 
"  within  a  reasonable  time,"  but  "  sjjeedilg,'''  or  at  least  "  as  earlg  as 
practicable."  Thus,  in  Duncan  v.  Tujjhani,  on  February  18  the  plaintiff 
wrote  to  the  defendant,  oflFering  to  supply  him  with  linseed  cake  at 
£10  15s.  per  ton,  and  on  the  19th  the  defendant  replied,  "I  can  take 
5  tons  at  £10  10s.,  but  it  must  be  put  on  board  directlg."  On  the  22nd 
the  plaintiff' again  wrote  :  "  I  shall  ship  you  5  tons  best  cakes  to-viorroiv ; " 
and  it  was  held  by  the  Court  of  Common  Pleas  that  the  correspondence 
did  not  prove  a  contract  on  the  part  of  the  defendant  to  accept  cake 
"  to  be  delivered  within  a  reasonable  time,"  and  a  new  trial  was  ordered, 
after  a  verdict  for  the  plaintiff.  Gresswell  J.  said  :  "  It  is  true,  as  it 
appears  from  Tliompson  v.  Gil)son,  that '  directly '  does  not  mean  instanier, 
and  it  may  be  subject  to  a  similar  limitation  here  ;  but  the  expression 
*  within  a  reasonable  time,'  certainly  is  larger  than  is  warranted  by  the 
terms  of  the  contract."  And^j^r  Curiam,  a  contract  is  complete  upon  the 
p)0sting  by  one  partg  of  a  letter  addressed  to  the  other  accepting  the  terms 
offered  by  the  latter,  notwithstanding  such  letter  never  reaches  its  destina- 
tion. A  contract  by  a  manufacturer  to  furnish  certain  specified  goods 
"  as  soon  as  possible,"  means  within  a  reasonable  time,  regard  being  had 
to  the  manufacturer's  ability  to  produce  them,  and  the  orders  he  may 
already  have  in  hand  {Atttvood  v.  Emery). 

Where  by  a  written  contract  the  plaintiffs  agreed  with  the  defendant 


494  MEANING    OF    MARKET   VALUE. 

to  make  liiiii  a  canvas  tent  covering,  the  canvas  to  l)e  equal  to  pattern, 
and  of  the  marM  value  of  llrf.  per  yard,  and  the  making  to  be  charged 
at  5^/.  per  yard,  and  it  wns  agreed  that  if  the  market  rahio  of  the  canvas 
should  be  less  than  that,  the  amount  {i.e.,  the  difference)  should  be 
deducted,  the  Court  of  Common  Pleas  held  that  the  "  market  value  " 
must  be  taken  to  mean  the  price  of  the  commodity  in  the  market  as 
between  the  manufacturer  and  an  ordinary  purchaser  ;  and  that  those 
words  were  not  to  receive  a  different  interpretation  because  a  person 
requiring  a  large  quantity  might  have  purchased  the  canvas  at  a  lower 
rate  {Orchard  v.  Simpson). 

What  com! Hides  a  delivery  of  harh  came  before  the  King's  Bench  for 
decision  in  Simmons  v.  Swift.  Here  the  owner  of  a  stack  of  bark  entered 
into  a  contract  to  sell  it  at  a  certain  price  2)er  ton,  and  the  purchaser 
agreed  to  take  and  pay  for  it  on  a  certain  day  specified,  and  a  part  was 
afterwards  weighed  and  delivered  to  him.  It  was  held  that  the  property 
in  the  residue  did  not  vest  in  the  purchaser  until  it  had  been  weighed, 
that  being  necessary  to  ascertain  the  amount  to  be  paid,  and  that  even 
if  it  had  vested,  the  seller  could  not  before  such  weighing  maintain  an 
action  for  goods  sold  and  delivered. 

But  where,  as  in  Tarling  v.  Baxter,  the  defendant  agreed  to  sell 
flainiiff  a  stack  of  hay  for  £145  on  the  4th  of  February,  to  le  paid  for  in 
one  month,  and  to  stand  for  three  on  the  defendants  piremises,  pUintiff 
stipulatiny  that  it  should  not  be  cut  till  it  teas  paid  for,  and  the  plaintiff 
accepted  a  bill  for  the  amount  on  the  8th  of  January,  and  on  the  20th 
of  that  month  the  stack  was  accidentally  burnt,  the  Court  held  that  the 
plaintiff  could  not  recover  back  the  price,  as  there  was  a  contract  for  an 
immediate  sale,  by  which  the  property  in  the  hay  vested  immediately  in 
the  plaintiff.  Litiledale  J.  said  :  "  Here  was  an  absolute  agreement  on 
the  4th  of  January  for  the  sale  and  purchase  of  the  hay,  to  be  paid  for 
in  a  month.  According  to  the  seller's  contract-note,  the  buyer  might 
have  cut  and  removed  the  hay  immediately.  By  the  buyer's  conti-act  it 
was  stipulated  that  he  should  not  cut  the  hay  until  it  was  paid  for.  But 
the  property  in  the  hay  had  already  passed  to  him  by  the  first  contract 
of  sale,  and  all  that  he  did  afterwards  was  to  waive  his  right  to  the 
immediate  possession.  Then  the  property  having  passed  to  the  buyer, 
the  loss  must  fall  upon  him." 

The  sale  of  a  specific  chattel  on  credit,  though  that  credit  may  he  limited 
to  a  definite  period,  transfers  the  property  in  the  goods  to  the  vendee,  giving 
the  vendor  a  right  of  action  for  the  price,  and  a  lien  on  the  goods,  if  they 
remain  in  his  possession,  till  that  p)rice  he  p)aid.  But  default  of  payment 
does  not  rescind  the  contract ;  and  such  was  the  doctrine  cited  by 
Holroyd  J.  from  Com.  Dig.  Agreement  b  3  in  Tarliiig  v.  Baxter,  which 


SALE    OF    SPECIFIC    CHATTEL    OX    CREDIT.  405 

governed  the  decision  of  tlie  same  Court  in  Marlinddh  v.  Smith.  Here 
the  defendant  on  April  23rd  sold  six  oat  stacks  for  £HU,  standing  on  his 
own  ground,  to  the  plaintiff,  with  liherty  to  leave  them  there  till  the 
middle  of  August,  and  to  defer  payment  for  twelve  weeks  from  the  date 
of  the  agreement.  In  the  beginning  of  July  the  defendant  told  the 
plaintiff  that  if  he  did  not  pay  on  the  IGth  of  the  month  he  would 
consider  the  contract  at  an  end.  Plaintiff  did  not  pay  on  that  day,  but 
asked  for  time,  which  the  defendant  refused  to  give  ;  adding,  that  now 
the  plaintiff  should  not  liave  the  stacks,  as  he  had  failed  to  come  to 
time.  Two  or  three  days  after,  the  money  was  tendered,  but  not 
accepted  ;  and  on  the  14th  of  August  the  plaintiff  served  a  written 
notice  on  the  defendant,  repeating  his  tender,  and  stating  his  intention 
to  remove  the  stacks  at  ten  o'clock  next  morning,  and  requesting  ad- 
mittance to  the  field  for  that  purpose.  He  again  made  an  actual  tender, 
and  required  the  defendant  not  to  sell  the  stacks,  which  he  did.  Trover 
was  accordingly  brought,  and  Alder  son  B.  directed  a  verdict  for  the 
plaintiff,  giving  leave  to  move  to  enter  a  verdict  for  the  defendant  on 
the  second  issue,  that  the  plaintiff  was  not  possessed  of  the  goods  and 
chattels  of  his  own  property,  modo  et  forma,  &c.  The  Court  refused  the 
rule,  and  decided  that  the  vendor  had  no  right  to  treat  the  sale  as  at  an 
end,  and  re-invest  the  property  in  himself  by  reason  of  the  defendant's 
failure  to  pay  the  price  at  the  appointed  time,  and  that  the  vendor's 
right  to  detain  the  thing  sold  against  the  purchaser  must  be  considered 
as  a  right  of  lien  till  the  price  is  paid,  not  a  right  to  rescind  the 
bargain  ;  and  here  the  lien  was  gone  by  tender  of  the  price. 

According  to  Smiili  v.  NcaU  (which  confirmed  the  judgment  of  Kin- 
dersley  V.C.  in  Warner  v.  WilUngton),  a  tvritten  proposal,  coniahihig  Uie 
terms  of  a  proposed  contract,  signed  by  tJie  defendant,  and  assented  to  hj 
the  plaintiff  hy  word  of  mouth,  is  a  sufficient  agreement  luitMn  the  Ath 
section  of  the  Statute  of  Frauds.  But  an  agreement  whereby  all  that 
is  to  be  done  by  the  plaintiff,  constituting  one  entire  consideration  for 
the  defendant's  promise,  is  capable  of  being  performed  within  a  year, 
and  no  part  of  what  the  plaintiff  is  to  do  constituting  such  consideration 
is  intended  to  be  postponed  until  after  the  exj^iration  of  the  year,  is  not 
within  the  4th  section  of  the  statute,  notwithstanding  the  perform- 
ance on  the  part  of  the  defendant  is  or  may  be  extended  beyond  that 
period  (/&.).  And  see  Donellan  v.  Read ;  and  the  judgment  of  Lord 
Wenslegdale  in  Cherry  v.  Heming. 

And  per  Parlce  J.  :  "  In  the  older  cases  the  Court  did  not  advert  to 
the  words  of  the  statute ;  but  the  later  cases  {Howe  v.  Palmer ;  Hanson 
V.  Armitage ;  Carter  v.  Tonssaint ;  Tempest  v.  FUzgercdd)  have  estab- 
lished that  unless  there  has  lecn  such  a  dealing  on  the  pari  of  the  pur- 


4-96  DELIVEEY    TO    SATISFY    STATUTE    OF    FRAUDS. 

cliaser  as  io  (hprivp  him  of  an}/  rif/J/f  to  olijrri  lo  ilic  qvaniity  m-  qvalily  of 
the  iiooih,  or  lo  (Irpriro  the  .sfj/py  of  J/ is  riijld  of  ?/>;?,  tliere  cannot  be  any 
part  acceptauce  to  satisfy  tliu  4tli  suction  of  the  statute,"  {Smith  v.  Sur- 
nuiti). 

A  some-what  nice  qacstion  as  to  what  teas  a  delivery  to  satisfy  the 
nth  scrtiun  of  the  Statute  of  Frauds  arose  in  Gorman  v.  Boddy.  The 
defendant  gave  the  plaintiff  a  written  order  for  ten  firkins  of  butter, 
which  he  directed  to  be  sent  to  him  by  a  certain  conveyance.  Instead 
of  ten  fiirkins  twelve  were  sent,  and  the  defendant  refused  to  receive 
them.  The  carrier  said  that  his  general  practice  was  never  to  deliver 
part  only  of  a  parcel  of  goods.  The  tvv-elve  firkins  were  never  in  de- 
fendant's shop ;  but  while  they  stood  in  the  street  he  drew  a  sample 
fi-om  a  firkin,  and  said  that  it  was  inferior.  The  carrier  then  put  the 
goods  into  his  cart,  and  sent  them  back  by  railway  ;  and  an  action  was 
brought  for  goods  sold  and  -delivered.  In  summing  up,  CressiveJl  J. 
said  :  "  At  that  time  the  possession  of  the  goods  was  in  the  carrier,  and 
he  might  perhaps  maintain  trespass  against  the  defendant  for  doing  as 
he  did.  But  that  will  not  help  you.  How  can  you  make  out  that 
these  goods  were  delivered  to  the  defendant  ?  They  were  sold  ;  but  I 
do  not  think  that  you  have  proved  a  delivery.  The  defendant  never  got 
the  butter,  there  was  therefore  no  actual  delivery  to  him  ;  nor  was  there 
any  delivery  to  the  carrier,  as  the  defendant's  agent.  I  do  not  see  that 
the  carrier  was  his  agent  to  receive  more  than  ten  firkins.  The  delivery 
of  the  ten  firkins,  therefore,  to  the  carrier,  with  two  others,  as  one 
iKircct,  was  a  delivery  in  respect  of  which  the  carrier  was  not  the  defend- 
ant's agent ;  and  it  thus  appears  that  there  w^as  no  delivery  of  the  goods 
to  the  defendant  at  all,  and  consequently  there  could  be  no  acceptance 
thereof  by  liim,  so  as  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds."  The  plaintiff  was  nonsuited.  Respecting  the  delivery  to  a 
carrier,  it  was  observed  by  Parl^e  B.  in  Johnson  v.  Dodgson,  that  "  such 
delivery  may  be  a  delivery  to  the  defendant ;  but  the  acceptance  of  the 
carrier  is  not  an  acce})tance  by  him.  Tlie  old  cases  in  which  it  had  been 
said  that  a  receipt  by  a  carrier  was  an  acceptance  to  satisfy  the  statute, 
were  overruled  by  Hoii:e  v.  Palmer ;  wA  Hanson  v.  Armitage."  And 
per  Lord  Alinger  C.B. :  "  If,  to  take  the  strongest  case,  the  purchaser 
sent  his  own  servant  for  the  goods,  and  when  they  were  brought  sent 
them  back  as  not  answering  the  contract,  he  could  not  be  said  to  accept 
Uiem  "  (ih.). 

Chaplin  v.  Ptogers  is  a  leading  case  as  to  what  constitvtes  a  delivery. 
The  parties  were  in  the  plaintiff's  farm-yard,  and  the  defendant,  after 
objecting  to  the  quality  of  a  stack  of  hay  (particularly  the  inside  part) 
in  the  yard,  agreed  to  take  it  at  2s.  Q>d.  per  cwt.     Soon  after,  he  sent  a 


WHAT    CONSTITUTES    A    DELIVERY    OF    GOODS.  497 

farmer  to  look  at  it,  and  his  opinion  was  unfavourable.     In  the  course 
of  t^YO  months  a  farmer  called  Loft  agreed  with  the  defendant  to  pur- 
chase some  of  the  hay  still  standing  untouched  in  the  plaintiff's  yard  ; 
and  the  defendant  told  Loft  to  go  there,  and  ask  what  condition  it  was 
in,  saying  he  had  only  agreed  for  it  if  it  were  good.     The  plaintiff 
having  informed  Loft  it  was  in  a  good  state,  the  latter  agreed  to  give 
the  defendant  3s.  dd.  per  cwt.  for  it,  the  defendant  having  told  him 
that  he  had  agreed  to  give  the  plaintiff  Ss.  6d.  for  it.     Loft  brought 
away  36  cwt.,  but  without  the  knowledge,  and  against  the  direction,  of 
the  defendant.     The  evidence  as  to  the  quality  of  the  hay,  when  the 
stack  was  afterwards  cut,  was  contradictory.     It  was  objected  for  the 
defendant  that  the  contract  of  sale  was  fr-audulunt   and  void  by  the 
vStatute  of  Frauds,  being  for  the  sale  of  a  commodity  no  part  of  which 
was  delivered,  and  of  which  there  was  no  acceptance  by  the  defendant ; 
but  Iloiltam  B.  left  it  to  the  jury  to  decide  whether  the  sale  had  been 
fraudulent,  and  whether,  under  the  circumstances,  there  had  been  an 
acceptance  by  the  defendant ;  and  they  found  for  the  plaintiff  on  both 
points,  and  gave  him  £50  damages,  being  the  value  of  the  hay  at  the 
price  agreed  for.     A  rule  for  a  new  trial,  on  the  grounds  that  the 
learned  judge  had  left  that  as  a  question  of  fact  to  the  jury  which  he 
himself  ought  to  have  decided  as  an  objection  in  point  of  law  arising 
on  the  Statute  of  Frauds,  and  that  the  evidence  did  not  warrant  the 
verdict,  was  discharged.     Lord  Ken//07i'C.J.  said  :  "I  do  not  mean  to 
disturb  the  settled  construction  of  the  statute,  that  in  order  to  take  a 
contract  for  the  sale  of  goods  of  this  value  out  of  it  there  must  be  either 
a  part  delivery  of  the  thing  or  a  part  payment  of  the  consideration,  or 
the  agreement  must  be  reduced  to  writing  in  the  manner  therein  speci- 
fied.    But  I  am  not  satisfied  in  this  case  that  the  jury  have  not  done 
rightly  in  finding  the  fact  of  a  delivery.     Where  goods  are  ponderous, 
and  incapable,  as  here,  of  being  handed  over  from  one  to  another,  there 
needed  not  be  an  actual  delivery  ;  but  it  may  be  done  by  that  which  is 
tantamount,  such  as  the  delivery  of  the  key  of  a  warehouse  in  which 
the  goods  are  lodged,  or  by  delivery  of  other  indicia  of  property.     Now 
here  the  defendant  dealt  with  this  commodity  afterwards  as  if  it  were 
in   his  actual  possession,  for  he  sold   part  of  it  to  another  person. 
Therefore,  as  upon  the  whole  justice  has  been  done,  the  verdict  ought 
to  stand." 

This  case  was  relied  on  for  the  plaintiff  in  Maberley  v.  Bhcppard 
where  the  defendant  employed  plaintiff  to  construct  a  waggon,  and 
while  the  vehicle  was  in  the  plaintiff's  yard,  unfinished,  bought  iron- 
work and  a  tilt  of  a  man,  who  assisted  plaiutiff's  workmen  to  fix  it. 
It  was  contended  that  the  defendant  must  be  thus  taken  to  have  exer- 


498        EVIDENCE  OF  ACTUAL  ACCEPTANCE. 

cised  acts  of  ownership  over  the  Tvag^yon,  and  that  the  exercise  of  such 
acts  was  tantamount  to  a  delivery  ;  but  these  things  having  been 
done  before  the  waggon  was  finished,  and  there  being  no  proof  of 
actual  deliveiy,  the  Court  of  Common  Pleas  held  that  the  plaintiff  was 
rightly  nonsuited  in  an  action  for  goods  sold  and  delivered.  They 
thought  that  "  the  act  proved  at  the  trial  was  by  no  means  so  strong 
and  unequivocal  as  that  which  took  place  in  Chaplin  v.  Rogers,  where 
the  purchaser  sold  part  of  the  hay  to  a  stranger,  who  actually  took  it 
away." 

In  Ho7cc  V.  Palmer  the  Court  of  Queen's  Bench  took  a  similar  view 
of  Chaplin  v.  Roejers,  when  it  was  relied  on  as  an  authority  for  the 
jilaintiff.  There  the  grower  of  some  tares  in  Essex  sent  his  nephew 
with  a  sample  to  Romford  market,  where  the  defendant  agreed  to  buy 
12  bushels  at  £1  per  bushel,  and  to  send  to  plaintiffs  farm  to  take 
them  away.  He  declined  taking  the  sample,  saying  he  had  seen  the 
tares  on  the  plaintiff's  premises,  and  that  he  had  no  immediate  use  for 
them,  and  therefore  requested  that  they  might  remain  there  until  he 
wanted  to  sow  them,  which  was  agreed  to.  Accordingly,  on  the 
nephew's  return,  the  tares  were  measured  and  set  apart  in  the  granary, 
with  instructions  that  the  defendant  was  to  have  them  when  he  called. 
The  Court  did  not  consider  that  this  was  an  acceptance  by  the  de- 
fendant, so  as  to  take  the  case  out  of  the  17th  section  of  the  Statute  of 
Frauds.  Baijley  J.  said :  "  The  tw'O  cases  cited  are  distinguishable 
from  tliis.  In  Chaplain  v.  Rogers  the  jury  thought  that  ihere  ivas 
sufficient  evidence  to  draiv  the  conclusion  of  an  actual  acce2)tance,  inas- 
much as  the  vendee  had  dealt  ivith  the  hay  as  his  own ;  and  in  Elmore 
V.  Stone  the  buyer  directed  expense  to  be  incurred,  and  the  directing 
of  that  expense  was  considered  evidence  of  an  acceptance  on  his  part. 
That  case  goes  as  far  as  any  case  ought  to  go,  and  I  think  we  ought 
not  to  go  one  step  beyond  it.  There  is  this  distinction  between  that 
case  and  this,  that  there  an  expense  was  incurred  on  account  and  by 
direction  of  the  buyer,  here  there  is  none  ;  but  I  must  say,  however, 
that  I  doubt  the  authority  of  that  decision."  Although  the  defendant 
in  Hoive  v.  Palmer  professed  to  have  already  seen  and  approved  of  the 
tares  in  bulk  when  he  made  the  bargain,  the  circumstances  from  which 
the  acceptance  was  inferred  in  Aldridge  v.  Johnson  were  of  a  much 
stronger  character. 

This  was  a  special  case  stated  in  detinue  for  the  recovery  of  a  quantity 
of  barley,  with  a  count  in  trover.  There  was  an  agreement  between 
the  plaintiff  and  one  Knight  for  the  exchange  of  200  quarters,  part  of 
a  quantity  of  barley  in  bulk  on  Knight's  premises,  for  a  number  of 
bullocks,  plaintiff  to  send  his  sacks  to  be  filled  from  the  bulk,  and  on 


REFUSAL  TO  DELIVER  TO  BANKRUPT  VENDEE.    499 

delivery  of  the  barley  to  pay  Knight  £23,  the  difTerence  between  the 
price  of  the  bullocks  and  the  corn.  Plaintiff  sent  the  bullocks  to 
Knight,  who  sold  them,  and  also  sent  200  half-quarter  sacks  to  be 
filled,  ordering  them  to  be  sent  home  by  the  railway.  Knight  //7fe^/ 
155  of  tlic  sacks  from  such  hulk,  lid  never  delivered  them  at  the  railimfj 
station  ;  and  subsequently  lecoming  a  bankrupt,  tlie  corn  ivhkU  had  been 
filled  was  ^mt  back  again  to  the  bulk  whence  it  had  beentalieii.  It  was 
held  by  the  Court  of  Queen's  Bench,  that  the  sacks  having  been  sent 
and  filled  by  Knight,  the  property  in  that  part  passed  to  the  plaintiff, 
although  they  had  never  left  Knight's  premises,  as  plaintiflF  having 
examined  the  grain,  and  approved  of  it,  the  contract  was  complete 
when  the  separation  was  made  by  Knight. 

Lord  Campbell  C.J.  observed  that  the  argument  as  to  the  property 
in  the  whole  200  quarters  having  passed  to  the  plaintiflP,  though  it  was 
part  of  a  larger  bulk,  derived  from  the  bargain  between  the  parties 
and  the  fact  of  the  bullocks  being  sent  to  Knight,  was  untenable  ;  be- 
cause it  is  well  settled  that  where  there  is  a  purchase  of  a  part  of  a  larger 
quantity  of  goods  in  bulk,  the  property  does  not  pass  to  the  vendee 
until  separation.  "  No  part  of  the  property  in  bulk,"  said  his  Lordship, 
"  ever  passed  to  the  plaintiff ;  because  until  there  was  a  separation  the 
whole  bulk  belonged  to  the  bankrupt,  and  what  part  vested  in  the 
purchaser  could  not  be  ascertained.  Nothing  can  be  clearer  than  that 
when  a  part  of  goods  in  bulk  is  purchased,  until  separation  and  appro- 
priation by  tlie  vendor,  and  assent  given  by  the  purchaser,  there  is  no 
transfer  of  the  property;  therefore  as  to  the  155  sacks,  I  think  there 
must  be  judgment  for  the  plaintiff ;  and  as  to  the  remainder,  our  judg- 
ment must  be  for  the  defendant.  Looking  at  the  bargain,  and  what 
was  done  under  it,  when  the  barley  was  put  into  the  sacks  the  property 
in  it  was  appropriated  and  vested  in  the  plaintiff,  because  there  ivas  a 
prior  assent  by  the  plaintiff.  He  examined  the  goods,  a^iproved  of  them, 
and  sent  his  sad!  s  to  be  filled;  and  if  any  subsequent  assent  were  neces- 
sary, I  think  that  ivoiild  be  supplied  by  the  orders  given  to  send  the  goods 
by  railway.  Nothing  remained  to  be  done  by  the  vendor  ;  he  had  ap- 
propriated a  part  with  the  consent  of  the  vendee,  just  as  much  as  if  the 
vendee  had  sent  boxes,  and  when  they  were  filled,  the  keys  had  been 
forwarded  to  the  vendee  ;  in  such  a  case  it  could  not  be  disputed  that 
the  property  would  vest  in  the  purchaser.  Then  as  to  the  alleged  con- 
version, I  see  no  diificulty ;  for  the  goods  being  in  the  plaintiff,  he  has 
done  nothing  to  divert  it,  nor  anything  which  can  be  complained  of. 
It  was  a  wrongful  act  of  the  bankrupt's  to  take  the  corn  out  of  the 
sacks,  and  then  to  bring  the  property  into  his  hands  again.  By  doing 
this  he  has  converted  the  plaintiff's  property,  and  therefore  the  defendants, 

K   K  2 


500  DELIVERY    OF    SAMPLES. 

as  his  assignees,  are  liable,  they  having  claimed  it  as  the  property  of  the 
bankrupt." 

Where  goods  are  sold  by  sample,  the  handing  over  the  samples  to 
the  buyer  does  not,  in  the  absence  of.  evidence  of  a  usage  or  custom 
to  the  contrary,  amount  to  a  delivery  and  acceptance  of  part  of  the 
things  sold,  so  as  to  take  the  case  out  of  the  17th  section  of  the  Statute 
of  Frauds  ;  lut  it  is  otherwise  wliere  the  huijer  draws  samples  from  the 
bulk  after  he  has  jmrchased  the  goods.     The  latter  was  the  case  in 
Gardner  v.  Grout,  which  was   an  action   for  a  breach   of  contract  to 
deliver  24^  tons  of  sacks  and  bags,  which   the  defendant  had  agreed 
to  sell  to  the  plaintiff  at  £11  per  ton.     A  verbal  contract  was  proved 
in  the  terms  alleged  in  the  declaration,  but  there  was  no  contract  in 
writing  or  any  part  acceptance.     The  plaintiff  relied,  in  order  to  take 
the  case  out   of  the   Statute  of  Frauds,    on   a  part  delivery  and  ac- 
ceptance, which  was  supported  by  the  following  evidence  :  Four  days 
after   the  sale  the  plaintiff  went  to   the  defendant's  warehouse,  and 
asked  for  samples   of  the  sacks  and   bags,  which  were  given  to  him 
by  the  defendant's  foreman,  and  which  he  promised  to  pay  for  when 
the  bulk  (which  was  all  there  at  the  time)  was  taken  away.     The 
samples  so  given  to  the  plaintiff  were,  by  the  defendant's  order,  weighed 
and  entered  ;  and  the  jury  found  that  they  were  delivered  and  accepted 
as  part  of  the  bulk,  and  gave  the  plaintiff  a  verdict  for  £40,  which  the 
Oouit  of  Common  Pleas  refused  to  disturb.     Hodgson  v.  Le  Brett  and 
Anderson  v.  Scott  are  anthorities  to  show  that  if  a  person  selects  and 
puts  a  mark  on  a  particular  article,  intending  to  take  possession  of  it  as 
his  own  property,  that  is    evidence  for  the   jury  of    an   acceptance. 
Ealdey  v.  Parker  only  decides  that,  under  the  circumstances,  there  was 
no  acceptance  and  receipt.     It  is  an  authority  to  show  that  the  selecting 
])articular   articles  does  not  amount   to   a  receipt  within  the  statute, 
bat  is  merely  an  agreement  that  the  property  in   the  specific  articles 
shall  pass.     At  common  law,  the  property  would  pass  by  the  contract 
of  bargain  and  sale  ;    but  in  order  to  satisfy  the  statute,  there  must 
be  either  a  part  payment  or  an  acceptance  and  receipt  of  goods.     In 
Hanson  v.  Armitage  there  was  no  acceptance  by  the  buyer  of  the  goods. 
In  the  case  of  Smith  v.  Hughes,  6  L.  E.  Q.  B.  597,  the  plaintiff  showed 
the  deiendant  a  sample  of  oats  ;  the  defendant  took  the  sample  away 
with  him,  and  afterwards  wrote  to  the  plaintiff  to  the  effect  that  he 
would   take   the   oats.      According  to  the  defendant's  version  of  the 
story,  the  plaintiff  had  said  they   were  "old"  oats;    this,  however, 
the  plaintiff  denied.     The  oats,  in  fact,  were  new,  and  the  defendant 
refused  to  take   them.     Held  that  the  defendant  was  bound  by  his 
contract. 


ACTUAL    ACCEPTANCE    AND    RECEirT.  •  501 

The  whole  tenor  of  the  decision  of  the  Court  of  Queen's  Bench,  iti 
Morton  v.  Tihhett  (which  was  contrary  to  some  previous  dicta,  though 
not  to  any  actual  decision),  was  to  the  effect  that  the  acceptance  and 
actual  receipt  of  goods,  ivlikh  make  a  trritien  memorandum  unnecessarij 
under  the  11th  section  of  the  Statute  of  Frauds,  are  not  such  an  accept- 
ance and  receipt  as  will  preclude  the  purchaser  from  questimiing  the, 
cpuantitjj  or  quality  of  the  goods,  or  in  any  way  disputing  the  fact  of  the 
performance  of  the  contract  hy  the  vendor ;  and  that  the  effect  of  such 
statutory  acceptance  and  receipt  is  merely  to  dispense  with  the  necessity 
of  a  written  memorandum  of  the  contract.  The  action  was  to  reco\-er 
the  price  of  50  quarters  of  wheat,  which  the  plaintiff  sold  to  the  de- 
fendant by  a  sample,  and  which  the  latter  took  away  with  him.  On 
the  20th  of  August  (next  day)  the  wheat  was  given  to  a  general  carrier 
and  lighterman,  Edgeley,  who  was  sent  by  the  defendant,  to  take  it 
by  water  from  March  to  Wisbeach ;  and  on  that  day  the  defendant 
sold  the  wheat  at  a  profit,  by  his  sample,  to  one  Hampson,  at  Wis- 
beach market.  The  wheat  reached  Wisbeach  on  the  28th,  and  was 
tendered  by  Edgeley  to  Hampson  on  the  29th  ;  but  he  refused  to  take 
it,  on  the  ground  that  it  did  not  correspond  with  the  sample  ;  and 
notice  of  this  refusal  was  given  to  the  defendant,  who  had  never  seen 
or  examined  the  wheat  by  proxy  ;  and  on  the  30th  of  August  he  wrote 
to  the  plaintiff,  repudiating  his  contract,  on  the  same  grounds.  The 
defendant  objected  that,  as  there  was  no  memorandum  in  writing  of 
the  bargain,  there  was  no  evidence  of  acceptance  and  receipt  to  satisfy 
the  17th  section  of  the  Statute  of  Frauds.  PollocTc  C.B.  overruled  this 
objection  ;  and  a  verdict  was  found  for  the  plaintiff,  with  leave  to  move 
to  enter  a  nonsuit,  if  the  .Court  should  thmk  either  that  there  was  no 
evidence  of  acceptance  or  receipt,  or  no  such  evidence  as  justified  the 
verdict. 

The  Court  held  that  there  was  evidence  to  warrant  a  jury  in  finding 
acceptance  and  actual  receipt  by  the  defendant  within  the  meaning  of 
stat.  29  Car.  II.  c.  3,  s,  17.  Lord  Gamplell  C.J.  said,  in  the  course 
of  his  very  elaborate  judgment,  "  As  the  Act  of  Parliament  expressly 
makes  the  acceptance  and  actual  receipt  of  any  part  of  the  goods  sold 
sufficient,  it  must  be  open  to  the  buyer  to  object,  at  all  events,  to  the 
quantity  and  quality  of  the  residue  ;  and  even  where  there  is  a  sale  by 
sample,  that  the  residue  offered  does  not  correspond  with  the  sample. 
We  are,  therefore,  of  opinion  that  whether  or  not  a  delivery  of  the  goods 
sold  to  a  carrier  or  any  agent  of  the  buyer  is  sufficient,  still  there  may 
he  an  acceptance  or  receipt  ivithin  the  meaniny  of  the  act  without  the 
Ivyer  having  examined  the  goods  or  done  anything  to  preclude  him  from 
contending  that  they  do  not  correspond  ivith  the  contract.     The  accept- 


oO-^  VENDEE    MAY    DISPUTE    QUALITY    OF   GOODS. 

imoo  lo  let  in  parol  eyidence  of  the  contract  appears  to  us  to  be  a  dif- 
ftreut  acceptance  from  that  which  afibrds  conclusive  evidence  of  the 
contract  having  been  fulfilled.  We  are,  therefore,  of  opinion  in  this 
case  that,  although  the  defendant  had  done  nothing  which  would  have 
precluded  him  from  oljjccting  tnat  the  wheat  delivered  to  Edgeley  was 
not  according  to  the  contract,  there  was  evidence  to  justify  the  jury  in 
finding  that  the  defendant  accepted  and  received  it." 

A  rule  nisi  on  the  authority  of  Morton  v.  Tibhetts  was  discharged 
in  Hunt  v.  Hcclit,  which  decided  that  there  can  ie  no  accejitance  and 
actual  receipt  of  goods  ivithin  the  11  th  section,  unless  the  vendee  has 
an  opiMrtuniiij  of  judging  tvhetJier  the  goods  sent  correspond  ivith  the 
order ;  and  hence  tlud  although  there  mag  he  a  receipt  there  need  not 
nccessarihj  he  an  acceptance.  The  defendant  in  this  action  for  goods 
sold  and  delivered  went  to  the  plaintiff's  warehouse  to  buy  bones,  and 
inspected  a  heap  of  ox  and  cow  bones,  and  others  of  an  inferior  kind. 
He  objected  to  the  latter,  and  verbally  agreed  to  buy  a  quantity  of  the 
other  bones  to  be  separated  from  the  rest,  and  to  contain  not  more 
than  15  per  cent,  of  cow  bones,  giving  directions  as  to  where  they  were 
to  be  sent,  and  the  mode  of  making  the  sacks.  The  plaintiff  sent  50 
bags  (leg  bones  marked  "  os  a,"  and  the  bullocks  "  os  b"),  and 
according  to  a  request  contained  in  a  letter  of  February  7,  filled  up  the 
shipping  note,  and  delivered  them  at  the  wharf  on  9 th  of  February. 
On  the  following  day  the  defendant  examined  the  bones,  and  refused 
to  accept  them,  as  not  being  what  he  had  bargained  for.  Martin  B. 
thought  there  was  no  evidence  of  acceptance  .and  receipt  to  satisfy  the 
17th  section  of  the  Statute  of  Frauds,  and  nonsuited  the  plaintiff,  re- 
serving leave  for  him  to  move  to  enter  a  verdict  for  that  amount. 
Alderson  B.  said,  in  discharging  the  rule,  "  If  a  person  agi-ees  to  buy  a 
quantity  of  goods,  to  be  taken  from  the  bulk,  he  does  not  purchase  the 
particular  part  bargained  for,  until  it  is  separated  from  the  rest,  and  he 
cannot  be  said  to  accept  that  which  he  knows  nothing  of,  otherwise  it 
would  make  him  the  acceptor  of  whatever  the  vendor  chose  to  send 
him,  whereas  he  has  a  right  to  see  whether  in  his  judgment  the  goods 
sent  correspond  with  the  order.  The  statute  requires  an  acceptance 
and  actual  receipt  of  the  goods  ;  here  there  has  been  a  delivery,  but  no 
acceptance." 

Martin  B.  thus  remarked  on  Morton  v.  Tihhetfs  :  "  There  are  various 
authorities  to  show  that  for  the  puri)osc  of  an  acceptance  within  the 
statute  the  vendee  must  have  had  the  opportunity  of  exercising  his 
judgment  with  respect  to  the  article  sent.  Morton  v.  Tihhetts  has  been 
cited  as  an  authority  to  the  contrary ;  but  in  reality  that  case  decides  no 
more  than  tJiis — tlud  where  the  purcliaser  of  goods  taJces  upon  himself  to 


WHAT    CONSTITUTES    ACCEPTANCE    OF    SEED.  503 

exercise  a  dominion  over  them,  and  deals  luiih  them  in  a  manner  incon- 
sistent  tvith  the  right  of  property  teing  in  the  vendor,  that  is  evidence  to 
justify  the  jury  in  finding  that  the  vendee  has  accepted  the  goods,  and  actu- 
ally received  the  same.  Hanson  v.  Armitage  and  Norman  v.  Phillips  are 
express  authorities  that  a  wharfinger  or  a  carrier  is  not  the  agent  of  a 
vendee,  so  as  to  hind  him  hg  acceptance  of  the  goods.  In  Meredith  v. 
Megh,  Lord  Campbell  C.J.  expressly  overruled  Hart  v.  Sattlcy,  where 
Chamlre  J.  ruled  that  if  goods  are  ordered  verbally,  the  delivery  to  a 
carrier  who  has  been  used  to  deliver  goods  between  the  parties  is 
sufficient  to  bind  the  contract,  according  to  the  17th  section  of  the 
Statute  of  Frauds.  Of  3Iorton  v.  Tihhetts  his  Lordship  also  remarked 
in  that  judgment,  "  The  vendee  there  resold  the  wheat  at  a  profit,  and 
altered  its  destination  in  the  carrier's  hands  {by  sending  it  to  another 
wharf),  and  that  was  held  to  be  evidence  of  an  acceptance  and  receipt." 

In  Coombes  v.  Bristol  and  Exeter  Railway  Company,  the  plaintiff 
agreed  with  one  Avery  by  a  verbal  contract  for  the  purchase  of  goods 
exceeding  £10  in  value,  to  be  scat  to  the,  plaintiff  by  the  Bristol  and 
Exeter  Raihvay.  The  goods  were  sent  by  such  railway  by  Avery, 
addressed  to  the  plaintiff,  and  were  lost  during  their  conveyance.  It 
was  held  by  the  Court  of  Exchequer  that  the  plaintiff  could  not  sue  the 
railway  company,  because  the  contract  being  verbal  there  had  been 
nothing  to  ratify  the  17th  section  of  the  Statute  of  Frauds,  the  delivery 
to  the  railway  company  being  no  delivery  to  the  purchaser  ;  that  the 
property  had  therefore  not  passed,  and  Avery,  not  the  plaintiff,  was  the 
party  to  sue.  Martin  B.  said,  "  I  adhere  to  what  I  am  reported  to 
have  said  in  Hunt  v.  Hecht,  that  there  is  no  acceptance  unless  the  pur- 
chaser has  exercised  his  option,  or  has  done  something  that  has  deprived 
him  of  his  option.  There  was  nothing  to  prevent  the  vendee  rejecting 
the  goods  if  they  had  been  delivered  to  him  on  the  ground  that  there 
had  been  no  contract  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds." 

A  curious  point  as  to  tvhnf  constitutes  an  acceptance  of  seed  arose  in 
ParJcer  v.  iVallis.  The  plaintiff,  a  farmer,  made  in  June  a  verbal  con- 
tract with  the  defendants,  at  Bury  market,  for  the  sale  of  turnip-seed 
exceeding  £10.  It  was  harvested  and  thrashed  in  July,  and  on  the 
24th  of  that  month  20  sacks  of  it  were  sent  to  the  defendants.  Plaintiff 
and  one  of  the  defendants  again  met  at  Bury  market,  and  the  latter 
said  he  had  just  had  a  message  that  the  seed  was  out  of  condition, 
which  the  plaintiff  denied.  Soon  afterwards  the  defendants  wrote  to 
plaintiff,  rejecting  the  seed,  and  in  one  of  the  letters  informed  him  that 
*'  the  20  sacks  which  you  authorised  us  to  receive  for  you  and  lay  out 
thin,  in  consequence  of  its  being  hot  and  mouldy,"  would  be  returned. 


504  WHEAT    STOPrED    IN    TrvAXSlTU. 

On  the  trial  the  above  Aicts  beiiio;  provoel  by  the  plaint  i AT,  who  gave 
eviJencc  that  he  did  not  request  them  to  s[)read  it  out  thin,  and  that 
the  seed  was  not  hot  and  mouldy.  Wigldman  J.  directed  a  nonsuit, 
with  leave  to  enter  a  verdict,  if  there  w^as  any  evidence  of  an  acceptance 
of  any  part  of  the  turnip-seed  to  satisfy  the  Statute  of  Frauds.  It  was 
held  by  Lord  Camphcll  O.J.  and  Ei-Ie  and  Crompion  J  J.  ;  Wiijldman  J. 
tliss.,  that  there  being  evidence  to  go  to  the  jury  that  the  seed  was 
spread  out  thin,  neither  because  it  was  out  of  condition,  nor  by  plaintiff's 
authority,  there  was  evidence  that  it  was  spread  out  thin  as  an  act  of 
acceptance,  and  that  therefore  the  nonsuit  was  wrong.  Still  as  the 
evidence  was  slight  the  Court  merely  directed  a  new  trial,  and  did  not 
feel  justified  in  entering  a  verdict  for  the  plaintiff.  But  per  ErU  J.  : 
"  If  the  seed  was  liot  and  mouldy,  it  would  be  a  very  proper  thing  to 
spread  it  out  thin  and  air  it,  so  as  to  prevent  it  from  perishing,  I 
should  be  very  unwilling  to  say  that  if  perishable  property  is  delivered 
out  of  condition,  the  vendee  who  rejects  it  must  sutler  it  to  perish  or 
take  to  it  as  owner." 

In  Kicliohon  v.  Bower,  lulieat  pvrcliascd  hy  smnple  was  consigned 
fi-om  Peterborough  to  Messrs.  Pavitt,  millers,  at  a  railway  station  in 
London.  When  it  arrived  on  j\Iay  4  they  received  notice  that  it  had 
been  warehoused  at  the  company's  warehouse,  and  entered  in  the  com- 
pany's books  in  their  names.  The  company,  as  usual,  allowed  the 
consignees  to  use  the  warehouse  14  days,  without  charge.  On  Saturday, 
May  9,  Messrs.  Pavitt's  carman  brought  a  bulk  sample  to  them  from  the 
station,  which  they  examined  and  found  it  equal  to  the  sample,  but  said, 
"  JJoti't  cart  the  ivheat  to  tJie  mill  at  present.^^  That  afternoon  Messrs. 
Pavitt  found  themselves  in  difficulties,  and  on  the  Monday  morning 
stopped  payment.  On  that  day  they  gave  the  vendor  an  order  for  the 
wheat,  which  he  took  to  the  railway  station.  On  a  feigned  issue  to  try 
whether  the  wheat  was  the  property  of  the  assignees  of  Messrs.  Pavitt  or 
the  vendor,  it  was  held  by  the  Court  of  Queen's  Bench  that,  allowing 
the  transitus  was  ended,  there  was  no  binding  contract  here  without  an 
acceptance,  and  there  was  no  valid  acceptance  of  the  wheat  by  Messrs. 
Pavitt  within  sect.  17  of  stat.  29  Car.  II.  c.  3.  And  scriihle  per  Lord 
CampMI  C.J.,  there  was  no  valid  stoppage  in  transitu,  for  the  transitus 
was  ended.  x\nd  per  Hill  J.,  the  question  whether  there  has  been  an 
acceptance  of  part  or  not,  under  the  17th  section  of  the  statute,  is  a 
question  as  to  the  intention  of  the  buyer  to  be  manifested  by  outward 
act :  a  jiart  accei)tance  is  not  sufficient  always.  And  per  Erie  J.,  unless 
the  defendant  could  have  sued  the  bankrupt  in  an  action  for  goods  sold 
and  delivered  there  was  not  an  acceptance. 

In  order-  to  aatixfij  the  17  Ih  sectivn  of  the  Statute  of  Frauds,  on  a  sale 


EXTENSION   OF    STATUTE    OF    FRAUDS.  505 

of  goods  for  £10  or  more,  there,  mud  be  either  a  writing  or  a  part 'payment, 
or  a  delivery  and  acceptance  of  the  goods  so  sold.  A  contract  for  the  sale 
of  goods  at  that  price  is  within  the  17th  section,  notwithstanding  it 
includes  other  matter  to  which  that  section  does  not  apply  {Harman  v. 
Reeve) ;  and  the  bare  acceptance  by  the  vendee  as  owner  is  sufficient  to 
satisfy  that  section,  although  the  vendee  immediately  after  accepting 
them  states  that  he  does  so  on  terms  diflerent  from  those  on  which  the 
vendor  delivered  them  {Tomkinson  \.  Staigld).  Andj^er  Curiam:  "In 
an  action  for  the  price,  the  fact  of  the  contract  of  sale  having  been 
established  by  the  acceptance,  parol  evidence  of  its  terms  is  admis- 
sible" {ib.).  And  so,  where  by  an  agreement  in  writing  signed  by  the 
party  to  be  charged,  something  not  expressed  on  the  face  of  it  is  agreed 
to  be  done,  and  what  is  to  be  done  is  included  in  another  writing,  parol 
evidence  may  be  admitted  to  show  what  the  other  witing  is,  so  that  the 
two  documents  together  may  constitute  a  binding  agreement  within  the 
statute  {Ridgway  v.  Wharton). 

The  Statute  of  Frauds  was  extended  by  9  Geo.  IV.  c.  14,  which  was 
framed  to  meet  the  difficulty  which  arose  in  Rondeau  v.  Wyatt,  and  the 
cases  which  were  decided  on  its  authority.  Section  7  of  the  latter 
statute  enacted  that  "The  provisions  of  the  Statute  of  Frauds  shall 
extend  to  all  contracts  for  the  sale  of  goods  to  the  value  of  £10  or 
upwards,  notwithstanding  the  goods  may  be  Intended  to  be  delivered 
at  some  future  time,  or  may  not  at  the  time  of  such  contract  be  actually 
made,  procured,  or  provided,  or  fit  or  ready  for  delivery,  or  some  act 
may  be  requisite  for  the  making  or  completing  thereof,  or  rendering 
the  same  fit  for  delivery."  And  /vr  Curimn :  "  The  effect  of  such  a 
section  is  to  substitute  for  the  words  'for  the  price  of  £10 '  in  the  17th 
section  of  the  Statute  of  Frauds,  the  words  'of  the  value  of  £10'" 
(Harman  v.  Reeve).  The  effect  of  the  netv  statute  was  thus  I'emarked 
on  by  Martin  B.  in  Gurr  v.  Scudds :  "  Reference  has  been  made  to 
various  decisions  under  the  Statute  of  Frauds,  and  certainly  great 
efforts  were  formerly  made  to  take  cases  out  of  the  17th  section  of 
that  Act.  These  cases  remained  the  law,  until  it  was  amended  by  the 
9  Geo.  IV.  c.  14,  s.  7.  According  to  the  present  law,  however,  if  the 
result  of  the  agreement  be  that  the  seller  transfers  the  article  c(s  goods 
to  the  buyer,  it  is  utterly  immaterial  whether  the  goods  were  existing 
at  the  time  of  the  agreement  or  not,  and  the  case  falls  within  the 
exemption  in  the  Stamp  Act." 

When  a  note  or  memorandum  in  writing  is  sufficient  to  satisfy  the 
Statute  of  Frauds  was  much  considered  in  Richards  v.  Porter.  The 
plaintiffs  sent  to  the  defendant  (January  25th)  an  invoice  (in  which  the 
parties  were  duly  described  as  seller  and  purchaser)  of  five  pockets  of 


506       MEMORANDUM    SUFFICIENT    TO    SATISFY    STATUTE. 

Lops,  and  delivered  tlicm  to  a  carrier  to  be  conveyed  to  Derby.  The 
defendant  on  Febrnary  27tli  wrote  to  the  plaintiif— "  The  hops  I 
bought  of  you  on  the  23rd  of  January  are  not  yet  arrived.  I  received 
the  invoice  :  the  last  were  longer  on  the  road  than  they  ought  to  have 
been  ;  however,  if  they  do  not  arrive  in  a  few  days  I  must  get  some 
elsewhere."  It  was  held  by  the  Court  of  Queen's  Bench  that  the 
invoice  and  this  letter,  even  taken  together,  did  not  constitute  a  note 
in  writing  of  the  contract  to  satisfy  the  17th  section  of  the  Statute  of 
Frauds. 

In  the  case  of  Johnson  v.  Dodijson,  the  traveller  of  the  plaintiff's, 
hop-merchants  in  London,  agreed  with  the  defendant  at  Leeds  for  the 
sale  to  him,  by  sample,  of  a  quantity  of  hops.  The  defendant  wrote  in 
his  own  book,  which  he  kept,  the  following  memorandum  : — 

"Leeds,  19th  October,  1836,  sold  John  Dodgson  27  pockets  Playsted, 
1836,  Sussex  at  103s.,  the  bulk  to  answer  the  sample  ;  four 
pockets  Selme,  Beckley's  at  95s.  ;  samples  and  invoice  to  be  sent 
per  Rockingham  coach  ;  payment  in  bankers'  at  two  months." 

This  was  signed  by  the  traveller  on  behalf  of  the  plaintiffs,  and  on 
the  same  day  the  defendant  wrote  the  latter,  requesting  them  to  deliver 
the  hops  to  a  third  party.  The  bulk  samples  and  invoice  were  sent  to 
the  defendant  by  coach,  pursuant  to  the  contract ;  but  he  returned  them 
as  not  answering  to  the  samples  by  which  he  bought,  but  the  jury  fomid 
that  they  did.  It  was  contended  for  the  defendant  that  there  was  no 
suflRcient  memorandum  of  the  contract  in  writing  to  satisfy  the  Statute 
of  Frauds,  the  entry  in  the  defendant's  book  not  being  signed  by  him, 
and  his  subsequent  letter  not  referring  in  sufficiently  express  terras  to 
the  entry  as  that  it  might  be  connected  with  it ;  but  the  Court  of 
Exchequer  decided  that  the  memorandum  was  sufficient.  Parke  B.  said, 
"  The  defendant's  name  was  contained  in  it,  in  his  own  handwriting, 
and  it  was  signed  by  the  plaintiff ;  the  point  is  in  effect  decided  by 
Saunchrson  v.  Jachson  and  ticlmeider  v.  Norris.  There  the  bills  of 
parcels  were  held  to  be  a  suflicient  memorandum  in  writing,  it  being 
proved  that  they  were  recognized  by  being  handed  over  to  the  other 
party.  Here  the  entry  was  written  by  the  defendant  himself,  and 
required  by  him  to  be  signed  by  the  plaintift"'s  agent.  That  is  amply 
sufficient  to  show  that  he  meant  it  to  be  a  memorandum  of  contract 
between  the  parties.  If  the  question  turned  on  the  recognition  by  the 
suVjsequcnt  letter,  I  own  I  should  have  had  considerable  doubt  whether 
it  referred  sufficiently  to  the  contract :  it  refers  to  the  subject-matter, 
but  not  to  the  specific  contract.     But  it  is  unnecessary  to  give  any 


CONTRACT    TO    GROW   TURNIP    SEED.  507 

opinion  upon  that,  because  on    the  former  point  I   think  tliere  is  a 
sufficient  note  in  writing." 

Ao-ain,  in  Waffs  v.  Friend,  a  verlal  agreement  between  the  plaintiff  and 
defendant,  iliat  the  former  shoidd  furnish  the  latter  with  a  quantify  of 
tirrnip-seed,  which  the  defendant  was  to  sow  on  his  own  land,  and  sell  ayid 
deliver  the  whole  of  the  seed  produced  to  the  plaintiff  at  £1  Is.  the  Win- 
chester bushel,  was  held  by  the  Court  of  Queen's  Bench  to  be  within 
the  l7th  section.  It  was  substantially  a  contract  for  goods  and  chattels, 
as  the  thing  agreed  to  be  delivered  would  at  the  time  of  delivery 
be  a  personal  chattel.  The  case  therefore  came  within  the  above  sec- 
tion, and  the  contract  being  verbal  only,  and  for  goods  of  more  than 
£10  value,  was  not  binding.  And  ^x^r  Curiam:  "It  would  indepen- 
dently of  that  have  been  void  by  5  Geo.  IV.  c.  74,  which  renders  invalid 
contracts  of  sale  made  by  the  Winchester  bushel."  The  seed  produced 
was  240  bushels,  and  worth  at  that  time  not  less  than  £1  10s.  a  bushel. 
Upon  this  case  the  learned  editors  remark  :  "  It  would  seem  that  the 
case  would  not  have  been  within  the  l7th  section  if  the  value  of  the 
seed  produced  at  the  rate  agreed  for  had  been  less  than  £10  ;  and 
therefore  whether  it  would  be  within  it  or  not,  was  uncertain  at  the 
time  when  the  agreement  was  made.  Now  it  has  been  held  that  cases 
depending  upon  contiugencies  which  may  or  may  not  happen  within 
the  year,  are  not  within  the  fourth  section  of  the  statute,  even  although 
the  event  does  not  in  fact  happen  within  the  year.  It  seems,  therefore, 
that  the  17th  section  is  in  this  respect  to  receive  a  different  construction 
from  the  4th"  {id).). 

Where,  as  in  Sari  v.  Bourdillon,  the  defendant  ivent  into  the  plaintiff's 
shop,  and  agreed  to  purchase  certain  goods  in  the  aggregate  exceeding  the 
value  of  £10,  and  the  several  articles  with  their  respective  prices  were 
entered  in  the  plaintiff's  "order-book,"  07t  ths  flgleaf  at  the  leginning 
of  which  ivere  wrifteii  the  names  of  the  plaintiffs ;  and  the  defendant 
wrote  his  name  and  address  at  the  foot  of  the  entry,  for  the  purpose  of 
verifying  the  bargain — this  was  held  by  the  Court  of  Common  Pleas 
to  be  a  sufficient  signature  of  the  contract  by  loth  j^arfies  to  satisfy  the 
17th  section  of  the  statute.  Cresswell  J.  said,  "The  memorandum 
stated  all  that  was  to  be  done  by  the  person  charged,  viz.,  the  defen- 
dant ;  and  according  to  Egcrton  v.  Matthews  that  is  sufficient  to  satisfy 
the  17th  section,  though  not  to  make  a  valid  agreement  in  cases  within 
the  4th.  Moreover,  the  difficulty  which  may  arise  as  to  the  sufficiency 
of  the  precise  candlestick  supplied  to  fulfil  the  contract,  is  not  greater 
than  that  of  identity,  which  even  in  an  agreement  under  the  4th  section 
may  be  left  to  parol  evidence.  Thus  in  Spicer  v.  Cooper  it  was  held 
that  ^  Sold  14:  pockets  Kent  hops  at  100s.'  might  be  explained  to  mean 


508    WHAT  ACKNOWLEDGMENT  TAKES  DEBT  OUT  OE  STATUTE. 

100s.  percwt.  ;  and  it  was  not  even  argued  that  the  apparent  ambiguity 
as  to  the  price  caused  by  the  omission  of  any  statement  of  the  quantity 
for  which  the  100.^.  was  to  be  paid,  rendered  the  note  or  memorandum 
insufficient  to  satisfy  the  17th  section." 

A  contract  for  tJie  sale  of  shares  in  a  mining  company,  conducted,  upon 
th-e  cosf-hooJc  principle,  was  held  by  the  Court  of  Exchequer  {Parlce  B. 
diss.)  not  to  be  one  for  the  sale  of  land,  or  any  interest  in  it  within 
section  4  of  the  Statute  of  Frauds  ;  but  per  Curiam,  it  is  not  a  contract 
for  the  sale  of  goods,  wares,  or  merchandizes  within  section  17  of  the 
same  statute  {Watson  v.  Spratlcij). 

The  question  as  to  what  acliuowtcdgment  ivill  take  a  debt  out  of  the 
Statute  of  Limitations  has  been  the  subject  of  a  very  recent  Exchequer 
Chamber  decision  in  Rackham  v.  Marriott.  In  this  case  the  debtor,  in 
answer  to  an  application  for  payment  of  a  debt,  wrote  as  follows  :  "  I 
do  not  wish  to  avail  myself  of  the  Statute  of  Limitations  to  refuse  the 
payment  of  the  debt.  I  have  not  the  means  of  payment,  and  must 
crave  a  continuance  of  your  indulgence.  My  situation  as  a  clerk  does 
not  afford  me  the  means  of  laying  by  a  shilling,  but  in  time  I  may  reap 
the  benefit  of  my  services  in  augmentation  of  salary  that  may  enable 
me  to  propose  some  satisfactory  arrangement.  I  am  much  obliged  to 
you  for  your  forbearance."  The  Exchequer  Chnmber,  confirming  the 
judgment  of  the  Court  of  Exchequer,  decided  that  the  letter  contained 
no  sufiicient  acknowledgment  or  jDromise  to  take  the  case  out  of  the 
statute.  CocJcburn  C.J.  said  :  "  Here  the  defendant  merely  expresses  a 
hope  that  circumstances  will  enable  him,  not  to  pay,  but  to  propose  a 
satisfactory  arrangement,  and  he  says  that  he  will  not  avail  himself  of 
the  statute.  That  does  not  amount  to  a  promise  to  pay,  but  is  rather 
holding  out  an  inducement  to  the  plaintiff  to  let  him  alone,  and  trust  to 
his  sense  of  honour.  There  is  here  an  acknowledgment  of  a  debt,  but 
not  an  acknowledgment  coupled  with  a  promise  to  pay  either  on  demand 
or  at  a  future  period  which  has  elapsed,  or  on  a  condition  which  has 
been  fulfilled.  An  acknowledgment  without  a  promise  is  not  sufficient 
to  take  a  case  out  of  the  Statute  of  Limitations.  Looking  to  the 
current  of  authorities,  and  more  especially  to  the  last  case,  Smith  v. 
Thome,  and  being  of  opinion  that  the  principle  is  applicable  to  the 
present  case,  we  think  that  the  acknowledgment  must  amount  to  a 
promise  to  pay  either  on  request  or  at  a  future  period,  or  on  a  condition. 
Here  there  is  a  mere  expression  of  hope  to  make  some  satisfiictory 
arrangement,  not  an  acknowledgment  coupled  with  a  promise  to  pay." 

In  Sidu'dl  V.  Mason  the  letter  was  as  follows  :  "  I  have  received  your 
bill.  It  does  not  specify  sufficiently  to  which  cottages  the  work  is 
done ;    for  instance  (specifying  some  of  the  items),    I  do  not  know 


MEASURE    OF    DAMAGES    FOR    BREACH    OF   CONTRACT.     509 

where  all  this  is  done,  and  I  shall  feel  obliged  if  you  will  more  particu- 
larly explain.  It  is  my  wish  to  settle  your  account  immediately,  but 
being  at  a  distance  I  wish  everything  very  explicit  and  correct.  I  have 
asked  H.  to  mark  the  agreements  and  send  them  to  me,  and  I  will 
return  them  by  the  first  post,  with  instructions  to  pay  if  correct."  The 
Court  of  Exchequer  held  that  this  was  a  sufficient  acknowledgment  to 
take  the  case  out  of  the  Statute  of  Limitations  ;  and  Pollock  C.B. 
observed,  with  respect  to  the  Exchequer  Chamber  decision  in  Raclcham 
V.  3Iarriott,  that  there  was  considerable  doubt  in  the  minds  of  several 
members  of  the  Court,  whether  the  acknowledgment  was  not  sufficient, 
and  that  he  considered  it  an  extreme  case.  A\\(\.pcr  Martin  B.  :  "  Rack- 
ham  V.  Marriott  and  Hart  v.  Prendcrgast  are  cases  where  the  acknow 
ledgment  was  coupled  with  a  hope,  and  not  a  promise  to  pay.  It  was 
said  that  the  amount  of  the  debt  must  be  ascertained  ;  but  the  contrary 
doctrine  is  established  in  Waller  v.  Lacij,  and  other  cases." 

In  the  case  of  Alder  v.  KeighUy  the  Court  of  Exchequer  laid  it  down 
as  a  clear  rule,  "  that  Ike  amounl  ivhich  would  have  heen  received,  if  the 
contract  Jiad  heen  kept,  is  the  measure  of  damages  if  the  contract  is  Iroken:' 
The  rule  was  cited  by  the  same  Court  in  their  judgment  in  Hadley  v. 
Baxcndale,  in  which  they  held  that  where  two  parties  had  made  a  con- 
tract, which  one  of  them  has  broken,  the  damages  which  the  other 
party  ought  to  receive  in  respect  of  such  breach  of  contract  should  be 
such  as  may  fairly  and  reasonably  be  considered  either  arising  naturally 
(/.  e.,  according  to  the  usual  course  of  things,  from  such  breach  of  con- 
tract itself),  or  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. 

The  Court  of  Common  Pleas  decided  in  Portman  v.  Middlcton  that 
the  correct  rule  of  the  recovery  of  damages  is  laid  down  in  Hadleg  v. 
Baxendale,  and  therefore  a  party  cannot  recover  as  damages  for  a  hreach 
of  contract,  comjjensation  which  he  has  had  to  pccy  for  a  breach  of  contract 
by  himself,  consequent  upon  the  nonfutfilment  of  the  defendcmVs  contract, 
unless  such  compensation  can  reasonahly  be  supposed  to  be  in  the  contem- 
plation of  the  parties  at  the  time  they  made  the  contract.  There  the 
plaintiff  contracted  with  one  Sheaf  to  supply  him  with  a  fire-box  for  a 
thrashing  machine  by  a  certain  day,  and  then  entered  into  a  contract 
with  the  defendant,  by  which  he  was  to  deliver  one  to  him  on  a  certain 
day  in  order  that  he  might  perform  his  contract  with  Sheaf.  The 
defendant  delivered  an  insufficient  fire-box,  and  Sheaf  brought  an  action 
against  the  plaintiff,  which  was  settled  by  him  for  £25  odd.  The 
plaintiff  also  gave  £8  for  a  proper  fire-box.  In  an  action  by  the 
plaintiff  against  the  defendant  for  breach  of  the  agreement,  the  jury 


510         CONTRACT    TO    DELIVER    THRASHING    MACHINE. 

gave  the  plaintiff  a  verdict,  and  as  damages  they  gave  £12  for  the  price 
of  the  fire-box  paid  by  the  pLaintiff  to  the  defendant,  £8  for  the  price  of 
a  fire-box  bought  by  the  plaintiff  instead  of  the  insufficient  one  sup- 
plied by  the  defendant,  and  £20  for  the  damages  and  costs  which  the 
plaintiff  had  been  obliged  to  pay  to  Sheaf.  Upon  a  rule  to  reduce  the 
damages,  it  was  held  that  as  the  damages  and  costs  paid  by  the  plaintiff 
to  Sheaf  could  not  have  been  in  contemplation  of  the  parties  at  the  time 
of  the  contract,  they  could  not  be  recovered  from  the  defendant.  And 
pel'  Curiam:  "The  action  being  brought  to  recover  the  sum  of  £12, 
it  would  be  a  monstrous  conclusion  to  arrive  at,  that  the  breach  of  the 
contract  for  not  furnishing  the  fire-box  for  £12  did  give  rise  to  the 
additional  damage  of  £20." 

In  Smeed  v.  Foord,  which  was  cm  action  m  a  contract  to  setl  and 
deliver  a  thrashing  macMne,  the  plaintiff'  had  inquired  of  the  defendant, 
who  was  also  a  farmer  and  an  agent  for  the  sale  of  thrashing  machines, 
when  he  could  have  a  thrashing  machine  of  a  certain  power  delivered. 
A  correspondence  took  place,  in  which  the  defendant  said  he  could  let 
the  plaintiff  have  one  in  a  month,  and  afterwards  in  three  weeks,  and 
plaintiff"  then  wrote — "  I  will  take  a  seven-horse  engine,  with  the  latest 
improvements,  if  you  can  let  me  have  it  in  three  weeks  ; "  to  which  the 
defendant  replied  that  he  would  let  plaintiff  have  the  machine  at  the 
time  named.  It  was  further  intimated  to  defendant,  that  if  the 
machine  was  not  delivered  by  the  14th  of  August,  plaintiff  would  be 
under  the  necessity  of  hiring  one.  The  defendant  did  not  deliver  the 
machine  as  promised,  and  the  plaintiff,  expecting  from  day  to  day  from 
defendant's  promises  that  it  would  be  delivered,  abstained  from  hiring 
one,  when  heavy  rain  coming  his  corn  was  damaged  to  a  very  consider- 
able extent,  and  the  jury  had  given  him  damages  for  deterioration  in  the 
value  of  corn  and  straw,  for  expenses  of  carting  and  stacking,  for  ex- 
penses of  kiln-drying,  and  for  loss  in  consequence  of  the  fall  in  the 
market  price. 

A  rule  nisi  having  been  obtained  to  enter  a  nonsuit  or  to  reduce  the 
damages,  the  verdict  was  ordered  to  stand  for  £300.  And  per  Lord 
Campbell  C.J. :  "  Here  was  an  express  contract  to  deliver  the  machine 
on  the  14th  of  August ;  it  was  not  delivered  on  that  day,  and  not 
until  long  after,  and  the  question  is  whether,  under  the  circumstances, 
the  plaintiff  is  entitled  to  recover  for  the  damage  he  has  admittedly 
sustained.  We  must  refer  to  the  case  of  Iladley  v.  Ba.rendate,  where 
the  rule  on  this  subject  is  correctly  laid  down  ;  and  that  rule  is,  that 
the  plaintiff'  under  such  circumstances  as  these  is  entitled  to  recover 
either  such  damages  as  may  fairly  and  reasonably  be  considered  as 
arising  naturally,  and  in  tlie  usual  course  of  things,  from  sucli  breach 


DELIVERING    GOODS    OF    INFERIOR    QUALITY.  511 

of  contract,  or  such  as  may  reasonably  be  supposed  to  have  been  in 
the  contemplation  of  both  the  parties  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach  of  it.  That  is  the  principle 
laid  down  by  Pothier,  the  Code  Napoleon,  and  Chancellor  Kent,  and 
that  is  the  abstract  rule  laid  down  in  Hadleij  v.  Baxcndale.  I  do  not 
say  how  far  it  is  supported  by  the  facts  of  that  case,  but  that  rule  is 
laid  down,  and  it  is  well  laid  down.  Then  are  these  losses  naturally 
arising  out  of  the  breach  of  the  contract,  or  such  as  might  have  been 
foreseen  by  the  parties  1  The  facts  of  this  case  clearly  show  that  they 
are.  The  damage  dofie  to  the  wheat  and  the  cost  of  Idln-drying  were  the 
natural  consequence  of  the  defendant's  breach  of  contract,  and  the 
proper  measure  of  damages  ;  but  the  market  price  is  variable,  and  it  was 
just  as  possible  that  it  might  have  been  higher  as  that  it  fell.  I  think, 
therefore,  on  that  head  of  damages  the  plaintiff  is  not  entitled  to 
recover." 

In  the  case  of  Fletcher  v.  TayUur  the  law  as  to  the  measure  of  damages 
was  thus  laid  down  by  WiUes  J. :  "  It  certainly  is  very  desirable  that 
these  matters  should  be  based  upon  certain  and  intelligible  principles, 
and  that  the  measure  of  damages  for  the  breach  of  a  contract  for 
the  delivery  of  a  chattel  should  be  governed  by  a  similar  rule  to  that 
which  prevails  in  the  case  of  a  breach  of  contract  for  the  payment  of 
money.  No  matter  what  the  amount  of  inconvenience  sustained  by  the 
plaintiff  in  the  case  of  nonpayment  of  money,  the  measure  of  damages 
is  the  interest  of  the  money  only  ;  and  it  might  be  a  convenient  rule  if, 
as  suggested  by  my  lord,  the  measure  of  damages  in  such  a  case  as  this 
was  held  by  analogy  to  be  the  average  profit  made  by  the  use  of  such  a 
chattel." 

In  an  action  for  the  breach  of  a  contract  by  delivering  goods  of  a 
quality  inferior  to  that  contracted  for,  the  proper  measure  of  damages 
is  the  difference  between  the  value  of  goods  of  the  quality  contracted 
for  at  the  time  of  the  delivery,  and  the  value  of  the  goods  then  actually 
delivered,  or  their  value  as  ascertained  by  a  re-sale  within  a  reasonable 
time  ;  and  the  facts  of  the  goods  having  been  previously  paid  for 
cannot  be  taken  into  consideration  in  estimating  the  damages  {Loder 
V.  Kckule). 

The  purchaser  of  goods  sold  upon  credit  cannot  maintain  trover  for  them 
icithout  paying  the  price ;  for  though  he  acquires  the  right  of  property  by 
the  purchase,  he  can  only  acquire  the  right  of  possession  by  the  payment, 
and  in  order  to  maintain  trover  he  must  have  both  {Bloxam  v.  Morley). 
So  where  the  plaintiff  had  agreed  to  buy  sheep  of  the  defendant,  at  Lewes 
fair,  and  to  take  them  away  at  a  certain  hour,  but  no  earnest  money 
was  paid,  and  no  sheep  delivered,  and  the  sheep,  in  consequence  of  his 


512  WHEN    TllOVER   WILL    LIE. 

not  kcepiug  his  appointment,  were  sold  to  another  person,  the  operation 
of  the  Statute  of  Frauds  prevented  the  plaintiff  from  bringing  trover  [Alex- 
ander V.  Comhc).  "What  was  sufficient  evidence  of  a  conversion  io  support 
trover  was  much  discussed  on  a  bill  of  exceptions  in  Giles  v.  7\fff  Vale 
Eailway  Company,  which  was  to  recover  quicks  and  plants  from  a  rail- 
way company.  The  plaintiff  was  a  contractor  ])lantirig  hedges  for  de- 
fendants at  one  of  their  stations,  and  was  the  owner  of  live  thorn  plants, 
which  had  been  by  leave  of  one  Fisher  (called  in  the  bill  of  exceptions 
the  general  superintendent  of  the  company)  placed  in  a  piece  of  ground 
belonging  to  the  defendants,  and  close  to  the  station.  Plaintiff  de- 
manded these  thorns  fi-om  the  station-master,  and  was  refen-ed  to 
Fisher ;  and  Fisher,  professing  to  act  for  the  defendants,  refused  to  let 
the  plaintiff  remove  them.  Seven  out  of  nine  judges  construed  the  bill 
of  exceptions  as  meaning  that  the  thorns  had  been  carried  as  merchandise 
on  the  line,  and  left  in  the  ground  of  the  defendant  with  their  roots  co- 
vered, as  a  mode  of  warehousing  them,  for  a  reasonable  time,  in  such  a 
manner  that  they  might  remain  alive;  but  they  all  held  that  Fisher 
had  authority  to  refuse,  and  therefore  confirmed  Wigliiman  J.'s  ruling 
at  the  trial,  that  there  was  sufficient  evidence  of  a  conversion  by  the 
defendants. 

There  is  a  difference  between  property  awarded  to  he  transferred  by  tlte 
owner  to  another,  atid  property  tvhich  is  actually  transferred  by  the  coti- 
tract  of  the  owner  through  the  medium  of  his  ayrnt ;  and  in  the  former 
case,  while  the  award  is  still  unratified,  trover  cannot  be  brought. 
Such  was  the  case  in  Hunter  v.  Rice,  where,  under  a  submission  to  an 
arbitrator  of  all  matters  in  difference  between  landlord  and  tenant,  the 
arbitrator  awarded,  inter  alia,  that  a  stack  of  hay  should  be  delivered 
up  by  him  to  the  landlord  ])y  a  certain  day,  upon  the  tenant  being  paid 
or  allowed  a  certain  sum  in  satisfaction.  The  question  here  was, 
whether  the  property  in  the  hay  was  transferred  from  one  Sharpe,  who 
was  tenant  to  Hunter,  of  certain  land  on  which  the  hay  was  stacked, 
bv  force  of  an  award,  without  the  assent  or  delivery  of  Sharpe,  to  the 
i)laintilf.  Hunter  brought  an  ejectment  for  waste,  and  the  whole 
matter  was  referred  to  an  arbitrator,  and  the  submission  was  made  a 
rule  of  Court.  On  a  balance  being  struck,  pursuant  to  the  award,  it 
seemed  that  Hunter  owed  Sharpe  £18,  which  sura  was  tendered  and 
refused.  Sharpe  also  refused  to  quit  or  to  execute  the  award,  but  was 
evicted,  and  then  placed  in  custody  under  an  attachment  for  nonper- 
formance of  the  award.  Sharpc's  wife  sold  the  hay  off  the  premises, 
and  the  defendant  was  employed  to  carry  it  away.  It  was  objected 
that  trover  did  not  lie,  there  being  no  property  in  the  plaintiff'  nor 
conversion  by  the  defendant ;  but  the  plaintiff  v.as  permitted  to  take  a 


ORDER   FOR   DELIVERY    ON    THIRD   PERSON.  513 

verdict.  The  Court  made  a  rule  for  a  nonsuit  absolute.  Lord  EUen- 
horough  C.J.  said  :  "In  the  present  case  there  is  no  other  remedy  for 
the  plaintiff  but  to  proceed  against  Sharpe  upon  the  award.  If  indeed 
Sharpe  had  accepted  the  money  tendered,  that  would  have  been  a  ratifi- 
cation of  the  award,  and  an  assent  on  his  part  to  the  transfer  of  the 
property  ;  but  without  that  I  cannot  conceive  that  the  property  was 
transferred  by  the  mere  force  of  the  award." 

An  order  for  delivery  made  hy  the  seller  to  the  huycr  of  a  rick  of  hay 
on  a  third  person,  who  has  consented  to  let  it  remain  on  his  land,  is  a 
sufficient  delivery  as  Mween  such  seller  and  buyer,  tlis  latter  having 
nndertahn  to  carry  it  away  himself;  and  according  to  Salter  v.  Wool- 
lams  such  third  person  is  clearly  liable  in  trover  if  he  refuses  permis- 
sion to  remove  the  hay,  as  on  the  sale  the  property  in  the  hay  passed  to 
the  vendee,  and  if  any  accident  occurred  the  loss  would  have  fallen 
upon  him. 

In  the  above  case  Messrs.  J.  and  R.  Aldridge  distrained  for  rent  on  some 
growing  grass,  which  was  subsequently  made  into  two  ricks  of  hay  on 
the  premises,  under  11  Geo.  II.  c.  19,  s.  8,  and  the  defendants  as  auc- 
tioneers advertised  the  ricks  for  sale  by  auction  in  two  lots  ;  the  hay,  by 
the  written  consent  of  H.  Jackson,  the  distrainee,  to  remain  from  the 
day  of  the  sale,  July  24th,  till  the  28th  of  September.  This  memoran- 
dum of  consent  was  indorsed  on  the  conditions  of  sale,  and  read  by  the 
auctioneer  at  the  commencement  of  the  sale  ;  and  the  plaintiff  bought 
one  of  the  ricks  for  £30,  and  paid  the  money.  He  went  next  week  to 
the  premises  to  remove  it,  but  was  not  allowed  to  do  so.  He  accord- 
ingly brought  an  action  of  assumpsit  against  the  auctioneers.  A  ver- 
dict was  found  for  the  plaintiff,  both  on  non-assumpsit,  and  "that 
the  defendant  did  deliver  to  the  plaintiff  possession  of  the  last-men- 
tioned rick  of  hay "  issues  ;  but  the  Court  of  Common  Pleas  made 
the  rule  absolute  for  a  non-suit,  as  the  contract,  on  the  part  of  the  de- 
fendants with  the  plaintiff,  was  merely  that  they  would  give  him  a  ful 
legal  authority  to  remove,  which  they  had  fulfilled  by  procuring  and  in- 
corporating into  their  articles  of  sale  the  written  agreement  from  Jack- 
son, who  had  attorned  to  the  sale." 

The  measure  of  damages  in  trover  where  an  offer  to  return  the  chattels 
has  been  tnade  after  writ  issued,  is  the  value  of  the  chattels  at  the  time  of 
the  conversion,  and  not  the  difference  in  their  value  between  the  time  of 
the  conversion  and  the  offer  to  return  (Homer  v.  Mellars). 

In  Randall  v.  Roper,  which  was  an  action  brought  by  a  'purchaser  on  a 
breach  of  icarranty  on  a  sale  of  goods,  evidence  given  by  sub-purchasers  icho 
had  bought  portions  of  the  goods  tvith  a  similar  warranty,  that  they  had 
made  claims  against  the  purchaser  for  breach  of  warranty,  is  admissible. 


514  WAERANTY    OF    SEED    BAKLEY. 

as  (lie  natural  and  jirobaMc  rcpnlt  of  tlic  breach  of  the  original  contract, 
and  notwithstanding  that  none  of  the  claims  have  been  satisfied.  This 
action  was  for  a  breach  of  warranty  on  the  sale  of  30  quarters  of  Che- 
valier seed  barley.  The  plaintiff,  the  purchaser,  had  sold  portions  of 
the  barley,  with  the  same  warranty  that  he  had  received  from  several 
Bub-purchasers,  who  had  sown  the  barley,  and  suljsequently  made  claims 
to  the  plaintiff  for  the  damage  they  had  severally  sustained  by  the  bad- 
ness of  the  barley.  At  the  trial  before  the  under-sheriff  of  Esses,  the 
sub-purchasers  gave  evidence  of  the  loss  which  they  had  sustained,  and 
the  plaintiff  obtained  a  verdict  for  £261  7s.  Cd.,  while  the  damage 
proved,  independently  of  these  witnesses,  was  £15.  A  rule  to  reduce 
the  damages  to  £15,  on  the  ground  that  the  contingent  damages  were 
not  the  natural  and  probable  result  of  tlie  breach  of  the  original  con- 
tract, and  that  the  })laiutilf  had  sustained  no  actual  loss  on  his  re-sales, 
because  the  proof  only  amounted  to  claims  against  him  (the  test  of  cer- 
tainty in  damages  being  whether  they  are  liquidated  or  unliquidated,  as 
in  this  case,  and  not  estimable  by  a  jury),  was  refused  by  the  Com-t  of 
Queen's  Bench. 

Erie  J.  said  :  "  The  question  is,  what  amount  of  damages  the  plain- 
tiffs are  entitled  to  recover  ?  The  defendant  sold  the  barley  as  Chevalier 
seed  barley,  and  from  such  a  contract  the  natural  and  ordinaiy  conse- 
quence would  be  that  it  would  be  sold  as  the  same,  and  on  being  sown, 
an  inferior  crop  would  come  up.  The  natural  amount  of  damages 
would  be  the  difference  between  the  value  of  the  inferior  crop  and  of 
that  which  would  have  come  up  if  Chevalier  seed  barley  had  been  sown, 
which  would  have  been  within  the  decision  in  Haclley  v.  Baxendcdc. 
Then  it  is  said  that  the  sub-purchasers  have  merely  claimed  the  money 
from  the  plaintiffs,  but  have  not  brought  any  action,  and  that  non 
constat,  the  claim  may  ever  be  enforced.  But  where  a  legal  liability  to 
pay  is  incurred  by  a  man,  and  a  claim  is  made  in  respect  of  it,  he  can 
recover  the  amount  he  is  so  liable  to  pay  from  the  person  by  whose 
l)reach  of  contract  he  has  incurred  the  liability  ;  and  for  this  purpose 
there  is  no  difference  between  a  liquidated  sum  and  a  sum  which  is 
unliquidated,  but  which  he  is  liable  to  pay." 

The  question  in  BoUingliam  v.  Hmd  was,  U'liellicr  in  an  action  for 
(joods  sold  and  delivered,  it  is  competent  to  the  defendant  to  show  that  the 
plaintiff  has  entered  into  contracts  of  a  particular  form,  for  the  purpose  of 
convincing  the  jury  that  his  contract  with  the  plaintiff  was  in  the  same 
form.  In  this  case  "  rival  guano  "  had  been  supplied  to  the  defendant, 
a  fanner.  The  defence  was  that  the  guano  in  question  was  sold  on  the 
condition  that  if  it  was  not  equal  in  quality  to  Peruvian  guano  the 
defendant  was  not  to  pay  for  it.     The  price  of  the  "  rival  guano  "  was 


JOINT   OCCUPATION    OF    A.    FARM.  515 

£7  per  ton,  while  that  of  tlie  Peruvian  was  £\4,  and  the  iinprobahiHty 
of  such  a  contract  being  made  by  tlie  plaintiff  was  commented  upon  by 
his  counsel.  The  plaintiff  was  called,  and  in  cross-examination  was 
asked,  "  Did  you  not  sell  portions  of  the  '  rival  guano  '  to  other  parties 
on  the  same  terms  ? "  meaning  the  special  agreement  as  to  quality, 
above  referred  to.  Williams  J.,  however,  thought  that  such  a  question 
might  be  put  for  the  purj^ose  only  of  testing  the  credit  or  memory  of 
the  witness,  and  that  it  could  not  be  offered  as  independent  evidence  for 
the  defence,  that  similar  contracts  to  that  insisted  on  had  been  made 
with  other  parties.  It  was  proposed  to  put  similar  questions  to  the 
defendant,  but  the  learned  judge  also  refused  his  permission.  A  verdict 
having  been  found  for  the  plaintiff,  the  Court  of  Common  Pleas  refused 
a  rule  for  a  new  trial,  on  the  ground  of  improper  rejection  of  evidence, 
and  considered  the  case  of  Reg.  v.  Egorton  quite  distinguishable.  And 
per  ByJcs  J.  :  "  It  may  be  that  the  plaintiff  might  have  been  asked 
whether  he  had  ever  made  such  contracts  before,  by  way  of  testing  his 
memory  or  credit.  But  as  evidence  offered  by  the  defendant,  it  was 
totally  inadmissible,  and  to  hold  otherwise  would  be  contrary  to  every 
principle  and  to  universal  practice  "  {ih.). 

A  joint  interest  and  occiqxitioji  of  a  farm  ty  two  persons  is  not  a  part- 
nership, so  as  to  convey  to  each  an  implied  authority  to  lind  the  oilier,  hj 
the  acceptance  of  hills  of  exchange,  for  payments  in  respect  of  the  farm 
{Grecnslade  v.  Doicer).  And  where,  as  in  Wisli  v.  Small,  the  plaintiff 
purchased  two  bullocks,  and  put  them  to  feed  on  the  lands  of  one  Woof, 
on  an  agreement  that  the  profit  above  £20  to  be  made  by  the  re-sale 
after  they  had  been  fatted  should  be  divided  equally  between  the 
plaintiff  and  Woof  ;  and  it  was  objected  in  an  action  for  the  price,  that 
Woof  should  have  been  joined  in  the  action  ;  Thompson  B.  thought  that 
he  and  Wish  were  merely  partners  in  the  profits,  and  that  this  was  a 
mode  of  paying  Woof  for  the  pasture,  and  the  Court  of  Queen's  Bench 
refused  a  rule  for  a  nonsuit. 

Under  stat.  17  &  18  Vict.  c.  36,  s.  1,  a  lill  of  sale  is  void  against 
creditors  unless  a  description  of  the  residence  and  occufpaiion  of  the  person 
granting  it  he  filed  along  tvith  the  hill  of  sale.  It  is  not  sufficient  that 
the  bill  of  sale  which  is  filed  itself  contains  a  description  of  his  residence 
and  occupation  {Helton  v.  English).  The  same  statute  requires  that  the 
description  of  tlie  residence  and  occupation  of  the  attesting  witness  to  a  bill 
of  sale  shall  be  given,  though  the  bill  of  sale  be  not  made  by  a  person 
in  execution  {Tuton  v.  Se^ioria).  The  defect  of  registration  under  the 
Bills  of  Sales  Act  does  not  avoid  a  bill  of  sale  as  between  the  parties. 
Where  a  bill  of  sale  assigned  certain  horses  as  a  security,  and  also  such 
other  horses  as  might  be  substituted  for  them  in  the  business  of  the 


516  ASSIGNMENT   OF   GEOWING   CROPS. 

assig'nor,  provided  the  names  and  descri])tions  of  such  snl)stituted  horses 
were  indorsed,  it  was  held  by  Coleridge  J.  that  the  indorsements  did  not 
reqnire  an  additional  stamp,  being  only  for  the  purpose  of  identification. 
The  sou  of  the  assignor  claiming  them,  all  the  circumstances  were  left 
to  the  jury  on  the  question  of  property,  although  the  son  swore  he  had 
purcliased  them,  the  business  appearing  to  have  been  the  assignor's 
(Barker  v.  Asfoii).  It  was  ruled  by  Williams  J.  that  the  Bills  of  Sales 
Act  only  renders  bills  of  sale  void  for  defect  of  registration,  not  as  between 
tlie  parties,  but  as  against  creditors  {Hills  v.  SJieppard). 

An  assi/jnment  by  bill  of  sale,  as  security  for  a  debt  (due  for  money  lent 
and  work  done  as  an  attorney)  to  an  attorney  from  his  client,  of  the 
subject  matter  of  a  suit,  during  its  pendency,  in  this  case  an  unexpired 
term  in  a  farm,  together  with  the  crops  growing  on  it,  is  not  void  on 
the  ground  of  champerty  {Anderson  v.  Raiclijfe  and  Walker).  When  on 
the  face  of  an  assignment  of  fersonalty  it  is  plain  that  it  was  intended  to 
operate  as  a  continuing  security,  and  to  apply  to  property  afterwards 
acquired,  and  substituted  for  that  which  was  originally  assigned,  it  will, 
if  the  words  are  capable  of  such  a  construction,  be  so  applied.  And 
where  in  such  a  case  the  deed  was  found  capable  of  such  a  construction, 
although  rather  in  the  indirect  form  of  a  power  of  attorney,  than  in  the 
way  of  direct  conveyance,  it  was  construed  to  extend  to  stock  and  growing 
crops  on  a  farm  not  occupied  by  the  assignor  at  the  time  of  the  execution 
of  the  deed  {Allott  (Exor.)  v.  Carr  and  Scholfield). 

The  testator  in  Quayle  v.  Davidson,  devised  a  farm  to  his  wife,  and 
after  her  death  to  D.,  "  in  trust  for  JJ.'s  son  being  brought  i/p  to  work  the 
farm,"  provided  if  D.  have  no  male  issue,  then  to  other  persons.  D. 
iiad  no  child  at  the  date  of  the  will,  but  after  the  testator's  death  had  a 
son.  It  was  held  by  the  judicial  committee  of  the  Privy  Council,  that 
D.'s  son  did  not  take  any  beneficial  interest  under  the  will,  the  words 
"  in  trust  for  D.'s  son  being  brought  up,  &c.,"  being  a  mere  recom- 
mendation or  expression  of  hope  or  confidence  ;  but  qucere  if  D.'s  son 
had  been  born  before  the  date  of  the  will  whether  he  would  have  taken 
nn  interest. 

A  tenant  farmer  bequeathed  his  household  goods,  &c.,  "  together 
with  all  his  live  and  dead  farming  stock,  implements,  and  all  other  his 
liouseliold  and  farming  effects,"  to  his  wife  for  life,  or  so  long  as  she 
should  continue  his  widow.  Tie  directed  also  that  after  his  decease 
an  inventory  should  be  taken  of  his  said  personal  estate,  but  he  gave 
no  direction  as  to  any  valuation  being  made.  After  his  death  an  in- 
ventory of  his  personal  estate  generally  was  made  for  the  purpose  of 
the  prr)bafce  duty,  Init  no  inventory  was  signed  as  directed  by  the  will. 
The  widow  married  again,  and  the  legatees  in  remainder  claimed  that 


OMISSION    OF    STATEMENT    IN    INSURANCE    POLICY.       517 

the  widow  and  her  husband  may  be  charged  witli  the  value  of  the  fol- 
lowing articles  included  in  the  inventory  :  growing  turnips,  fallows, 
labour,  seeds,  and  manure,  wlieat,  &c.,  oxen,  sheep,  and  pigs,  some  of 
which  the  tenant  was  bound  to  consume  on  the  premises,  and  others 
not.  It  was  held  that,  as  the  testator  had  not  directed  a  valuation,  the 
legatees  in  remainder  could  not  call  for  an  account  of  farming  effects 
of  a  consumable  nature  specifically  bequeathed,  which  had  been  actually 
consumed  by  the  tenant  for  life  in  the  ordinary  course  of  husbandry 
{Bryant  v.  Easterson). 

In  the  case  oi  Shaw  v.  Rohbcrds,  the  TplahitiS  insured  jjremises  against 
fire  hy  the  dcscj'iption  of  a  granary,  &c.,  and  "  a  Jcil/i  for  drying  corn  in 
use "  communicating  therewith.  By  the  third  condition  of  iusurance 
the  policy  was  to  be  forfeited,  unless  the  buildings  were  accurately 
described,  and  the  trades  carried  on  therein  specified  ;  and  by  the  sixth, 
if  any  alteration  were  made  in  the  building  or  covering,  or  the  risk  of 
fire  increased,  the  alteration,  &c.,  was  to  be  notified  and  allowed  by  in- 
dorsement on  the  policy,  otherwise  the  insurance  to  be  void.  The 
plaintiff  carried  on  no  trade  in  the  kiln  except  drying  corn  ;  but  in 
1832  the  bark  from  a  vessel  which  had  sunk  near  Lynn  was  dried 
gratuitously,  and  no  notice  was  given.  No  greater  fire  was  made  ; 
but  in  the  course  of  drying,  the  bark  in  the  kiln  took  fire,  and  the 
other  premises  were  burnt  down.  The  jury  found  that  drying  larh 
was  a  distinct  trade  from  drying  corn,  and  more  hazardous,  and  that 
insurance  offices  charge  a  higher  premium  for  a  bark  kiln,  and  a  rule 
was  made  absolute  to  enter  a  verdict  for  the  plaintiff. 

Omission  of  statement  in  fire  insurance  jjolicy. — A  fire  insurance  policy 
contained  a  condition  that  it  should  be  void  "  unless  the  nature  and 
material  structure  of  the  buildings  and  property  insured,  and  of  all  build- 
ings which  contain  any  part  of  the  property  insured,  be  fully  and 
accurately  described,  and  unless  the  trades  carried  on  in  such  buildings 
be  correctly  shown,  or  if  any  alteration  or  addition  be  made  in  or  to 
any  buildings  insured  or  in  which  any  insured  property  be  contained 
by  which  the  risk  of  fire  is  increased."  The  policy  stated  that  a  steam 
engine  was  erected  on  the  premises,  which  was  used  for  the  purpose 
of  raising  goods  ;  machinery  had  also  been  erected  for  grinding  corn 
for  horses,  which  was  driven  by  the  engine,  and  the  Court  of  Ex- 
chequer held  that  the  omission  to  state  this  fact,  did  not  violate  the 
condition  {Baxendale  v,  llardingltam). 

The  taw  of  the  market  was  thus  laid  down  by  the  Court  of  King's 
Bench  in  the  Mayor  of  Northanqiton  v.  Ward :  "  By  law  every  man 
has,  of  common  right,  a  liberty  of  coming  into  any  public  market  to 
buy  and  sell  without  paying  any  toll,  if  it  be  not  due  by  custom  or 


518  LAW    OF   THE   MARKET. 

prescription  ;  but  if  he  requires  any  particular  easement  or  convenience, 
as  a  stall  in  the  market,  he  must  have  the  licence  of  the  owner  of  the 
soil  for  that  purpose,  if  there  be  no  particular  sum  fixed  by  the  custom 
of  the  mai-ket  for  stallage.  If  there  be  a  fixed  sum  or  duty  by  custom, 
that  cannot  be  exceeded,  but  still  he  must  agree  with  the  owner  of  the 
soil."  And  it  was  held  in  Tlie  Mayor  of  Newjiort  y.  Saunders,  that 
assumpsit  may  be  maintained  by  the  owner  of  a  market  for  stallage, 
as  for  use  and  occupation  of  premises,  and  that  without  showing  any 
contract,  in  fact,  between  him  and  the  occupier  of  the  stall.  And  inr 
Lord  Tenterdcn  C.J.  :  "  Tolls  may  be  recovered  in  assumpsit,  and  no 
proof  is  required  of  anything  like  a  contract  by  the  piirty  against  whom 
tlie  claim  is  made.  Evidence  is  given  of  the  right  to  receive  them,  and 
that  is  always  deemed  sufficient.  Stallage  is  not  distinguishable  from  tolls 
in  that  respect.    The  party  entitled  to  stallage  may  waive  the  tort." 

A  person  who  exposes  goods  for  sale  in  a  puMic  marJcet  has  a  right  to 
occupy  the  soil  with  lasMs  necessary  and  proper  for  containing  the 
goods  (Townend  v.  Woodruff);  and  ^w  Alderson  B.  :  "Erecting  a 
stall  is  very  different  from  placing  goods  in  baskets  on  the  ground  for 
sale "  {ih.)  But  if  any  one  is  refused  at  a  fair  or  market  the  accom- 
modation to  which  he  is  entitled,  a  court  of  equity  cannot  interfere  by 
injunction  ( Weale  v.  West  lliddlesex  Water  WorJcs).  Blakey  v.  Dins- 
dale  seems  to  establish  that,  in  order  to  maintain  an  action  for  setting 
goods  near  to,  hit  out  of  the  limits  of  the  marJcet,  it  is  incumbent  on 
the  plaintiff  to  prove  that  the  defendant  did  so  fravdulentlg,  in  order 
to  avoid  the  toll ;  and  the  distress  of  goods  thus  fraudulently  sold  was 
illegal.  But  the  proprietor  of  a  market  cannot  bring  an  action  for  toll 
against  a  person  who  sells  out  of  the  limits,  unless  he  shows  that  he 
first  apprised  him  that  there  was  room  in  the  market,  to  which  he 
might  resort. 

This  was  the  substance  of  the  decision  of  the  Court  of  Queen's  Bench, 
in  the  celebrated  Covent-garden  case  of  Prince  v.  Lewis. 

King  Charles  II.,  by  letters  patent,  granted  to  William  Earl  of  Bed- 
ford, his  heirs  and  assigns,  leave  to  hold  a  market  within  specified 
limits  within  the  parish  of  St.  Paul's,  Covent-garden,  on  every  day  in 
the  week  (except  Sunday  and  the  Feast  of  Nativity)  for  the  buying 
and  selling  of  all  kinds  of  fruits,  flowers,  I'oots,  and  herbs  whatsoever. 
By  53  Geo.  III.  c.  71,  reciting  these  letters  patent,  &c.,  the  owners  of 
the  market  were  authorized  to  take  from  the  seller  the  tolls  then  usually 
taken  or  collected  within  the  market.  The  plaintiffs  were  the  lessees 
of  the  market  under  the  Duke  of  Bedford,  and  tlie  defendant  resided 
in  James-street,  about  70  or  80  yards  without  the  limits  of  the  market. 
Between  the  hours  of  six  and  eight  on  the  4th  of  January,  1825,  a 


FRAUD    ON    LESSEE    OF    MARKET.  519 

waggon  loaded  with  greens  was  drawn  up  before  his  door,  and  he  sold 
them  tliere.  There  was  evidence  to  show  that  during  some  part  of 
the  time  he  was  selling  there  was  room  in  the  market  for  his  cart ;  but 
the  plaintiffs  did  not  apprise  him  of  the  fact,  when  they  demanded  toll. 
It  appeared  that  part  of  the  space  in  the  market  was  let  out  to  yearly 
tenants  for  the  sale  of  different  articles,  not  being  fruits,  flowers,  or 
vegetables,  and  that  in  fact  there  were  china  shops,  old  iron  shops,  and 
some  public-houses — in  short,  two-thirds  of  the  market  was  occupied 
with  covered  buildings.  Tolls  had  frequently  been  collected  in  James- 
street  ;  and  in  consequence  of  so  much  of  the  market-place  being 
appropriated  to  otber  purposes,  the  remaining  space  was  on  ordinary 
occasions  fully  occupied.  Ahhofi  C.J.  (without  adverting  to  the  fact 
that  during  part  of  the  time  while  the  defendant  was  selling  his  vege- 
tables there  was  room  for  his  cart  in  the  market)  was  of  opinion  that 
the  lessees  of  the  market  were  not  entitled  to  maintain  this  action 
unless  they  gave  up  the  whole  space  for  the  use  of  those  who  attended 
the  market  from  day  to  day  to  sell  those  commodities  to  the  sale  of 
which  the  market  was  devoted.  The  i^laintiffs  were  non-suited,  with 
liberty  reserved  to  move  to  enter  a  verdict ;  but  the  Court  of  Queen's 
Bench  discharged  the  rule.  As  it  was  proved  that  the  market  was 
generally  occupied,  they  held  that  it  lay  upon  the  plaintiffs  to  show 
that  the  defendant  knew  that  on  the  morning  in  question  there  was 
space  for  his  cart  in  it,  and  that  they  had  given  notice  to  him  to  that 
effect. 

A  marlcet  ivJikh  had  existed  de  facto  for  more  than  twenty  years,  and 
for  which  tolls  had  been  taken  as  for  a  legal  market,  but  which  the 
jury  found  had  no  legal  origin,  is  not  a  market  "  legally  established  " 
within  the  50  Geo.  Til.  c.  41,  s.  5,  and  a  hawker  trading  therein  with- 
out a  licence  may  be  arrested  and  taken  before  a  magistrate  {Benjamin 
V.  Andrews).  To  avoid  the  penalty  the  market  must  be  one  created  by 
grant,  and  not  merely  a  market  de  facto  (ib.). 

The  circumstances  ivhirh  constitute  a  fraud  on  the  lessee  of  a  market 
were  illustrated  in  Bridyland  v.  Shaiitcr.  Here  the  plaintiffs  were 
the  lessees  of  Sir  John  St.  Aubyn,  of  a  market  called  Devonport 
Market,  within  the  borough  of  Devonport,  under  a  written  agreement 
not  under  seal.  The  defendant,  a  cattle-jobber  at  Ugborough,  had  on 
several  market-days  brought  sheep  to  the  premises  of  a  public-house 
40  yards  beyond  the  limits  of  the  market,  where  he  left  them  while  he 
went  into  the  market  in  search  of  customers,  whom  he  brought  back 
to  the  public-house,  and  there  bargained  with  them  for  the  Sale  of  the 
sheep,  and  refused  to  pay  any  tolls  in  respect  of  such  sales.  By  a 
private  act  the  market  was  enlarged  into  one  for  cattle,  &c,  ;  and  Sir 


5?.0  RETURNS  OF  SALES  OF  CORN. 

John  St.  Aubyn  was  empowered  to  let  the  erections,  buildings,  &c.,  on 
the  ground  whereon  the  market  should  be  held,  and  to  demand  and 
take  certain  tolls  of  and  from  any  person  or  persons  bringing  any 
goods  or  articles  to  the  market.  There  was  also  a  clause  providing  that 
if  the  owner  sliould  demise  or  lease  the  market  or  the  site  thereof,  the 
lessee  should  be  subject  to  such  exceptions  or  restrictions  as  might  be 
expressly  contained  in  the  lease,  and  take  and  enjoy  the  rent  and  tolls 
authorised  to  be  taken  by  the  act,  as  the  owner  would  be  entitled  to  do 
if  the  lease  had  not  been  made.  At  the  trial  it  was  contended  for 
the  defendant  that  the  market,  being  an  incorporeal  hereditament, 
could  only  be  leased  by  deed  ;  and  that  the  defendant  had  not  been 
guilty  of  any  disturbance  of  the  market  for  which  he  was  liable  in 
tliis  action,  the  right  to  toll  l^eing  only  in  respect  of  articles  brought 
to  the  market,  Gurneij  B.  overruled  these  objections,  and  a  verdict  was 
found  for  the  plaintiff  with  nominal  damages,  leave  being  reserved  to 
the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  in  his  favour. 
The  Court  of  Exchequer  discharged  the  rule,  and  held  that  the  lessee 
of  tlie  market  under  a  parol  demise  had  a  right  to  take  tolls,  and  that 
this  was  a  ft-aud  on  the  market,  for  which  case  would  lie  by  the  lessee 
of  the  market. 

In  Smith  v.  Hudson  the  defendant,  a  farmer  in  Norfolk,  sold  John 
AYillden  48i  qrs,  barley  to  be  delivered  to  Willden's  order  on  the 
Great  Eastern  Railway  :  the  barley  was  duly  delivered  at  Swaffham 
Station  on  the  7th  November,  1863.  Willden  became  bankrupt  on  the 
9th  November,  and  on  the  11th  November,  and  before  the  bankrupt 
had  given  any  directions  about  the  corn,  the  defendant  gave  a  verbal 
notice  to  the  station  master  at  Swaffham  not  to  deliver  the  corn  into 
the  possession  of  the  bankrupt  or  his  assignees  or  any  other  person 
witliout  defendant's  consent  in  writing,  but  to  deliver  the  same  to  him 
or  his  order,  and  subsequently  on  the  same  day  gave  a  written  notice  to 
_  the  station  master  to  the  same  eflFect.  At  the  time  these  notices  were 
given,  the  corn  was  still  on  the  platform  of  the  goods  shed  at  the  station. 
The  Ijankrupt  had  given  no  order  respecting  it,  nor  had  he  examined 
the  bulk  to  see  whether  it  corresponded  with  the  sample,  nor  had  he 
given  notice  to  the  defendant  whether  he  declined  or  accepted  tlie  corn. 
It  was  held  by  the  court  that  the  plaintiflPs,  the  assignees  in  bankruptcy, 
were  not  entitled  to  the  corn,  34  L.  J.  (N.  S.)  Q.  B.  145. 

Returns  of  sales  of  corn,  under  1  &  2  Geo.  IV.  c.  87,  are  not  conclusive 
evidence,  if  evidence  at  all,  to  show  the  parties  to  whom  the  corn  was 
delivered  ;  for  it  is  no  part  of  the  duty  of  a  corn-factor  to  mention  this 
in  the  vci\xrry'{WoodUy  v.  Brown).  It  was  enacted  by  22  Car.  II.  c.  8, 
s.  2,  that  no  one  should  sell  corn  excejjt  hy  the  eiyht-gallon  Winchester 


DIFFERENT   MEASURES    OF    CORN".  521 

measure ;  and  semhle,  since  5  Geo.  IV.  c.  74,  an  agreement  to  sell  by 
the  Winchester  bushel,  not  containing  any  declaration  of  the  proportion 
which  that  measure  bears  to  the  imperial  bushel,  is  void  {Wafls  v. 
Friend).  By  this  act  the  imperial  standard  bushel  of  eight  gallons  or 
80lbs.  avoirdupois  was  substituted.  For  heaped  measure  (potatoes, 
lime,  and  fruit,  &c.)  the  same  standard  was  adopted  for  the  bushel,  with 
the  proviso  that  the  bottom  of  the  vessel  should  be  plain  and  even,  and 
19|  inches  from  outside  to  outside.  "In  Mark  Lane,  however,  wheat 
(taking  it  only  as  an  illustration,  though  as  great  a  diversity  exists  as 
to  barley  and  other  products)  is  nominally  sold  by  the  contents  of  the 
imperial  bushel  without  reference  to  weight.  Measure  is  in  fact  found 
to  be  so  much  affected  by  quality  and  other  circumstances  that  practi- 
cally an  average  estimate  of  the  weight  of  the  imperial  bushel  has  been 
formed,  and  62lbs.  is  generally  taken  as  equal  to  and  representing  the 
imperial  bushel. 

"  In  the  markets  of  Birmingham,  Warwick,  Walsall,  Stratford,  Al- 
cester,  Worcester,  Evesham,  Kidderminster,  Bromsgrove,  Gloucester, 
Tewkesbury,  Hereford,  Ledbury,  and  generally  through  the  counties 
of  Warwick,  Worcester,  Gloucester,  and  Hereford,  wheat  is  sold  by  the 
bushel  of  62lbs. ;  whilst  at  Monmouth,  Abergavenny,  and  in  Mon- 
mouthshire generally,  it  is  sold  by  the  bushel  of  80lbs.  At  Nantwich, 
Shrewsbury,  Market  Drayton,  and  Wellington,  it  is  sold  by  the  bushel 
of  751bs.  In  Wolverhampton  and  Stafford  721bs.  is  reckoned  to  the 
bushel.  In  Manchester  English  wheat  is  sold  by  the  bushel  of  GOlbs., 
and  American  wheat  by  the  bushel  of  70lbs.  At  Liverpool,  Bideford, 
and  Torrington,  a  bushel  of  wheat  means  701bs.  ;  at  Aberystwith, 
65lbs. ;  at  Carmarthen  and  Haverfordwest,  64lbs. ;  at  Hull  and  Boston, 
and  Lincolnshire  generally,  63lbs.  ;  and  at  Wakefield,  Doncaster,  and 
Leeds,  GOlbs.  At  Aylesbury,  Cirencester,  Dorking,  Farnham,  Petworth, 
Uxbridge,  Midhurst,  Oxford,  Eobert's  Bridge,  Chichester,  Biighton, 
Linfield,  and  East  Grinstead,  wheat  is  sold  by  the  load  of  five  quarters ; 
at  Hitchin,  by  the  load  of  five  bushels  ;  at  Pontefract,  by  the  load  of 
three,  and  at  Bedford  by  the  load  of  five  bushels.  At  Ulverstone  wheat 
is  sold  by  the  load  of  144  quarts;  at  Bridgnorth,  by  the  bag  of  11 
scores  ;  at  Much  Wenlock,  by  the  bag  of  1 1  scores  and  41bs.  ;  at  Lud- 
low, by  the  bag  of  11  scores  and  lOlbs. ;  at  Leominster,  by  the  bag  of 
12  scores  ;  at  Whitehaven,  by  weight  of  14  stone  ;  at  Nottingham  and 
Grantham,  at  36  stone  ;  at  IMalton  and  at  Scarborough,  by  the  weight 
of  40  stone  ;  at  Swansea,  by  the  sack  of  three  busliels  ;  at  Barnard 
Castle,  Darlington,  and  Morpeth,  by  the  boll ;  at  Beccles,  by  the  coomb  ; 
at  Preston  and  Garstang,  by  the  windle  of  2201bs.  ;  at  Denbigh,  by  the 
hobbett  of  168lbs. 


5-2;2  SALE    BY    THE    HOBBETT. 

In  Suffolk  nearly  all  strain  is  sold  by  tlic  cooniL  of  4  bushels,  and  in 
Cambridf^osliirc  by  the  quarter  of  8  bushels.  These  are  but  samples  of 
the  universal  confusion  on  the  subject,  the  custom,  however,  of  selling 
all  grain  by  weight  is  vastly  on  the  increase,  and  will  probably  become 
general,  the  standard  weights  per  imperial  bushel  being,  for  wheat,  G3lbs. ; 
for  barley,  56lbs.  ;  and  for  oats,  42lbs. 

Stat.  5  &  6  Will  IV.,  c.  63,  s.  6,  ahoUshes  all  "  local  or  cKstomary 
measures,  and  imposes  a  penalty  on  every  person  who  shall  sell  Iry  any 
denomination,  or  measure  other  than  one  of  the  imperial  measures,  or  some 
multiple  or  aliquot piart  thereof."  But  it  was  held  by  the  Court  of  Queen's 
Bench  in  Hughes  v.  Humphrey  that  this  applies  only  to  sale  by  measure 
of  capacity,  and  not  to  sale  by  weight  estimated  in  pounds  ;  and  that, 
therefore,  it  does  not  extend  to  sale  by  any  local  term  designating  a 
given  number  of  pounds  weight. 

Hughes  v.  Humphreys  was  a  case  of  sale  hy  the  hohhrtt,  wdiich  is  a 
measure  of  the  Llanrwst  market,  and  contains  four  AVelsh  pecks,  each 
of  them  42lbs.  in  weight ;  it  therefore  contains  lG8lbs. ;  while  an  ordi- 
nary sack  contains  six  Welsh  pecks,  or  2521bs.  The  sale  was  made 
by  sample,  at  Pthyl,  in  Flintshire,  at  so  much  per  hobbett,  and  the 
wheat  was  delivered  in  sacks  of  the  ordinary  kind.  Williams  J.  directed 
a  verdict  to  be  entered  for  the  defendant  on  the  third  issue  under  5  &  6 
Will.  lY.,  c.  63,  and  the  Court  of  Queen's  Bench  ordered  it  to  be 
entered  for  the  plaintiff.  And  per  Lord  CampMl  C.J. :  "  If  this  was 
really  a  sale  by  measure  of  capacity  it  would  be  contrary  to  the  Act, 
And  the  question  therefore  comes  to  be,  "Was  it  a  sale  by  measure  or  a 
sale  by  weight  in  pounds  ?  Now,  according  to  the  evidence,  when  you 
buy  by  hobbett  you  buy  not  dimensions  but  avoirdupois  pounds,  and 
the  contract  is  not  fulfilled  unless  that  weight  is  made  ;  it  is  therefore 
a  sale  of  so  many  times  IGSlbs.,  which  is  a  sale  by  weight,  and  no  in- 
fringement of  the  statute  5  &  6  Will.  IV.,  c.  63,  or  of  any  other  act." 
Erie  J.  observed  :  **  It  is  clearly  a  sale  by  the  pound,  the  hobbett  being 
a  given  multiple  of  a  pound." 

In  Owens  v.  Denton  a  sale  by  the  hobbett  was  held  ihegal,  it  being 
there  assumed  that  the  hobbett  was  a  measure  of  capacity.  And  so 
in  Tyson  v.  Thomas  it  was  held  that  an  action  could  not  le  maintained 
vpon  a  contract  to  sell  hy  the  holbett,  it  appearing  on  the  evidence  that 
a  holbett  consisted  cf  four  pieclcs  of  21  legal  quarts  each,  and  not,  as  in 
Hughes  v.  Humphreys,  a  certain  weight  estimated  in  pounds.  And  p)er 
Lord  Kemjon,  C.J.,  in  Chenie  v.  Watson:  "The  contents  of  measures 
can  only  he  jyroved  hy  production  in  open  Court."  It  was  in  evidence 
there,  that  the  round  strike  pressed  the  corn  down,  and  left  more  in 
the  bushel  than  the  flat  strike.     The  provisions  of  36  Geo.  III.,  c.  88, 


SALE    OF    CORN    BY    SAMPLE.  523 

ss.  2  &  3,  whicli  require  the  butter-packing  vessel  to  be  branded  under 
a  penalty  with  the  name  or  the  names  in  full  of  the  cooper  and  seller, 
the  exact  weight  or  tare  thereof,  indirectly  prohibits  any  sale  of  Ijutter 
in  vessels  not  properly  marked,  and  therefore  the  contract  of  sale  for  a 
number  of  firkins  of  butter  not  so  marked  is  void,  and  the  plaintiff  can- 
not recover,  and  the  clause  may  be  used  against  him  as  a  defence  to  an 
action.  The  Court  of  Queen's  Bench  in  Foster  v.  Taylor  directed  a  non- 
suit, and  said  that  it  was  rightly  held  at  the  trial  that  the  onus  lay  at 
all  events  on  the  defendant  to  prove  that  the  plaintiff  had  not  complied 
with  the  statute. 

And  scmbJe  by  the  Court  of  Exchequer  Chamber  that  the  15th  section 
of  5  Geo.  IV.,  c.  74,  is  not  repealed  by  5  &  6  Will.  IV.,  c.  53,  and  con- 
sequently that  contracts  by  local  weight  may  be  lawfully  made  if  the 
proportion  to  the  standard  is  expressed  ;  though  it  is  otherwise  with 
respect  to  measures,  all  local  measures  being  abolished  by  5  &  6  Will.  IV., 
c.  63,  s.  6  {Giles  v.  Jones). 

The  seller  of  corn  hij  samjyle  in  a  marlcet  is  henefited  hij  the  marJcct, 
as  well  as  the  seller  of  corn  which  is  pitched  there  in  hulk  and  sold  ,- 
and  if  he  refuses  to  pay  the  same  toll  which  is  paid  by  the  seller  of 
corn  in  bulk,  an  action  on  the  case  lies  against  him  for  the  injury  done 
to  the  market  in  selling  by  sample  (The  Bailiffs  of  Teivlceshury  v.  Brick- 
nail).  Where  a  toll  had  been  customarily  taken  ly  the  collector  putting 
his  liand  into  the  sack  and  lifting  out  a  handful,  and  placing  it  in  a  howl 
held  near  the  mouth  of  the  sack,  and  that  functionary  varied  fi'om  his 
ordinary  mode  by  sweeping  instead  of  lifting  such  toll,  it  was  held,  by 
the  Court  of  King's  Bench  in  Norman  v.  Bell,  that  trover  lay  against 
him  for  the  excess.  It  is  now  provided  by  5  Geo.  IV.,  c.  74,  s.  9,  that 
where  articles  are  sold  by  stricken,  not  heaped  measure,  "  they  shall  be 
stricken  with  a  round  stick  or  roller,  straight,  and  of  the  same  diameter 
from  end  to  end." 

By  19  &  20  Vkt.,  c.  114,  s.  1,  no  water,  scmd,  earth,  or  other  mcdter  is 
to  he  put  into  a  hundle  or  truss  of  hay  or  straw  intended  for  sale  ivithin 
the  cities  of  London  and  Westminster  or  within  30  miles  thereof,  to  in- 
crease the  weight,  under  a  penalty  not  exceeding  £10.  By  section  2, 
salesmen,  &c.,  are  to  furnish  the  buyers  with  a  ticket  stating  the  number 
of  trusses  sold,  and  the  name  and  address  of  the  owner.  This  Act  and 
36  Geo.  III.,  c.  88,  are  to  be  construed  together. 

An  assignment  for  the  benefit  of  creditors  hy  a  trader  and  farmer,  of  all 
her  ^^  effects,  stock,  hooks  and  hook  debts,''  conveys  the  cattle  on  the  farm 
{Lewis  V.  Rogers,  Exor.).  A  farmer  who  is  in  the  habit  of  huging  half 
as  many  more  si/rep  as  was  necessary  to  stock  his  farm,  and  of  sellino- 
the  surplus  at  a  profit,  is  a  trader  within  the  bankrupt  laws  as  a  sheep- 


52-4  DEFINITION    OF    TRADER. 

salesman  {E.r  parte  Xnrall).  x\ud  so  if  he  huijs  horses  unfit  for  farming, 
and  resells  them,  and  avows  his  intention  to  take  ont  a  licence,  and 
become  a  horse-dealer,  these  facts  were  held  in  Wriijht  v.  Bird  to  be 
evidence  of  trading.  A  colonel  of  a  regiment  who  sells  horses  occasion- 
aUij  at  TattersalTs  {Ex  parte  BlarJcmore),  or  a  person  who  Jceeps  hounds, 
huijing  dead  horses  and  selling  the  skins  and  hones  (Summerseit  v. 
Jarvis),  are  not  liable  as  traders.  But  a  farmer  tnah'ng  lime  from  a 
lime-pit,  opened  and  worked  before  the  commencement  of  his  term, 
and  selling  the  surplus  beyond  what  he  required  for  manure,  is  not 
a  trader  witliin  the  bankrupt  laws  {Ex  parte  Ridge).  And  so  where 
the  defendant  in  Patten  v.  Gould  lought  sixtg  pigs  in  the  course  of  the 
gear,  fed  them  on  his  stuMles,  and  resold  some  at  the  end  of  a  week ; 
and  also  bought  200  busliels  of  ray  grass  to  sell,  which  he  mixed  with 
seed  he  raised  on  the  farm,  and  resold  at  a  profit — it  was  held  that 
neither  of  these  acts  made  him  a  "trader"  within  the  scoi^e  of  the  bank- 
ruptcy laws.  Borrovgh  J.  observed,  that  in  a  year  like  181 G,  when  so 
much  wheat  was  beaten  down  with  rain  and  tempest,  it  was  most  profit- 
able to  stock  a  farm  with  pigs. 

The  authorities  on  the  subject  were  much  considered  in  Bell  and 
Anor.,  Assignees,  v.  Young.  The  case  stated  by  the  arbitrator  for  the 
opinion  of  the  Court  of  Common  Pleas  found  that  H.  M.  Hairland,  a 
farmer,  who  was  under  covenant  with  his  landlord  "  to  consume  the 
whole  of  the  turnips  and  other  roots  upon  the  premises,"  kept  cows  as 
part  of  his  stock  on  the  farm,  in  order  tliat  he  migld  sell  milk  thromjh 
his  man  at  the  neighlouring  toivn,  to  chance  and  regidar  customers,  hesides 
malcing  hitter  for  sale  of  the  surplus  ynilk,  and  that  his  keeping  cows  to 
this  extent  was  a  good,  proper,  and  husbandlike  way  of  managing  the 
farm  as  he  did,  and  that  cows  in  fact  were  the  most  profitable  stock  he 
could  keep.  The  Court  held  that  he  was  clearly  not  a  cowkeeper  within 
the  meaning  of  the  Bankrupt  Act,  12  &  13  Vict,  c.  106,  s.  65.  Their 
decision  was  governed  by  Ex  parte  Bering,  where  a  farmer  in  the  Isle  of 
Thanet  occupying  two  farms  (a  considerable  portion  of  which  was  sown 
with  canaryseed,  the  manure  for  which  was  all  purchased),  containing 
together  200  acres,  and  bound  to  fodder  his  straw  and  green  crops  on 
tliem,  kept  five  cows,  four  of  which  were  Alderneys,  and  seven  horses, 
and  no  other  stock  ;  and  it  was  held  tliat  his  selling  the  milk  of  the 
cows  regularly  to  a  retail  dealer  in  Margate,  who  paid  for  it  on  an  average 
30.S.  a-week,  did  not  render  him  subject  to  the  bankrupt  laws  as  a  cow- 
keeper.  Ex  parte  Hammond  was  similar  in  principle  to  the  above.  Here 
a  tenant  of  130  acres  under  a  farming  lease,  which  obliged  him  tofcdlow 
or  plant  with  peas  or  potatoes  (among  other  things)  everg  third  gear,  had 
on  his  farm  12  acres  of  young  potatoes,  and  20  acres  of  green  peas. 


SELLING    HORSES    WITHIN    LIMITS    OF    MARKET.  525 

growing  in  open  fields  every  year,  and  consigned  the  produce  for  table 
consumption  to  London  salesmen,  to  whom  he  allowed  such  commission 
as  was  usually  allowed  by  market  gardeners  ;  and  it  was  held  that  he 
was  not  a  market  gardener  within  the  5  &  6  Vict.,  c.  122,  s.  10.  And 
see  12  &  13  Vict.,  c.  106,  s.  144,  as  to  oion-liahiUfy  of  Imnkrupt  for  rent 
accruing  after  issuing  of  fiat  or  filing  of  petition  of  adjudication  of 
bankruptcy  against  him. 

Owner  of  marlcet  liable  for  nuisance  from  the  droppings. — The  owner 
of  a  market  allowed  sheep  to  be  penned  there,  and  he  found  the 
hurdles  for  the  pens,  and  derived  a  profit  in  addition  from  the  toll  on 
the  sheep,  whose  droppings  created  a  nuisance  on  the  part  where  they 
were  penned.  It  was  held  by  the  Court  of  Common  Pleas  that  the 
appellant,  the  owner  of  the  market,  was  liable  to  an  order  for  the  re- 
moval of  the  nuisance  under  section  12  of  the  Nuisances  Eemoval  Act 
(18  &  19  Vict.  s.  121),  as  being  the  person  within  the  meaning  of  that 
section,  "  by  whose  act,  default,  permission,  or  sufferance  "  the  nuisance 
arose. 

Cattle  fair  ?iot  to  he  held  on  piece  of  ground  put  hy  for  recreation  by 
Gorporaiion. — Where  by  an  Act  of  Parliament  a  corporation  were 
directed  to  cause  a  piece  of  land  to  be  drained  and  levelled,  and  kept 
in  proper  condition  for  purposes  of  public  recreation,  the  Court  re- 
strained the  corporation  by  injunction  from  permitting  a  cattle  fair 
to  be  held  on  such  piece  of  ground.  {Attorney  General  v.  Corporation 
of  So uthampton. ) 

Selling  horse  tvithin  limits  of  marlcet.— ^j  a  local  act  for  establish- 
ing a  market,  power  was  given  to  the  proprietors  of  the  market  to  take 
tolls  on  horses  brought  into  the  market  place  ;  and  by  one  of  its 
clauses  it  was  enacted  that  every  person  who  should  sell  at  any  place 
within  the  hmits  of  the  act  (other  than  in  the  market-place,  or  in  his 
own  dwelling-house,  or  in  any  shop  attached  to  or  being  part  of  any 
dwelling-house)  any  article  in  respect  of  which  tolls  were  by  the  act 
authorised  to  be  taken,  other  than  eggs,  butter,  and  fruits,  should  for- 
feit a  sum  not  exceeding  40s.,  provided  that  nothing  therein  should 
restrain  any  person  from  crying  or  selling  from  door  to  door  within  the 
limits  of  the  act  any  such  article  as  aforesaid,  provided  such  person 
should  have  first  paid  for  such  articles  the  regular  market  tolls,  and 
provided  such  articles  should  first  have  been  brought  into  the  market 
for  inspection  there.  It  was  held  that  a  horse  was  an  article  within 
the  meaning  of  such  clause,  and  that  a  sale  of  horses  within  the  limits 
of  the  act  by  a  licensed  auctioneer  in  a  yard  which  formed  part  of  the 
dwelling-house  and  premises  of  a  third  person  subjected  the  auctioneer 
to  a  penalty  of  40^.,  the  place  of  sale  not  being  within  the  exception 


526  WAHEANTY    OF    SEED. 

contained  in  such  clause  {Lltntdaff  and  Canlon  Dit^lrirl  AfarM,  Company 
appts.  y.  Li/tulon  resp.) 

Warrant iiuj  i urn q)  seed  to  he  rai)e  seed. — An  action  by  seed  merchant 
lies  against  seed  brokers  for  falsely  warranting  turnip  seed  to  be  rape 
seed,  although  it  was  sold  by  sample,  and  was  of  greater  value  than 
turnip  seed,  the  phiintiff  having  sustained  actual  loss  and  injury  in  his 
business,  fi-om  having  resold  it  as  rape  seed,  and  having  to  compensate 
his  customers.     {Lovcgrove  v.  Fisher.) 

Warraniij  of  seed. — In  Plnder  appt.  v.  Button  resp.,  the  action  was 
for  damages  sustained  by  the  appellant  having  contracted  to  sell  to  the 
respondent  a  quantity  of  mangold-wurzel  seed  warranted  to  be  of  good 
growing  stock,  and  having  delivered  seed  not  according  to  such  war- 
ranty. Tlie  memorandum  signed  by  appellant  was  merely,  "  Sold  Mr. 
Button  half  a  ton  of  yellow  mangold  wurzcl  seed,  at  9d.  a  lb.,  for  the 
latter  end  of  the  year."  Kespondent  was  allowed  to  give  parol  evi- 
dence that  appellant  said  the  seed  was  to  be  sown  by  himself,  and  be  of 
"  good  growing  stock."  Several  of  respondent's  customers  were  called 
to  prove  that  the  seed  was  "  unproductive  and  worth  nothing,"  and 
there  was  some  evidence,  although  the  appellant  denied  it,  that  the 
seed  when  delivered  by  the  appellant  was  kiln-dried,  and  therefore  in- 
jured. It  was  admitted  that  the  season  of  1860,  when  the  bargain  was 
made,  was  very  wet  and  unfavourable,  and  also  that  there  was  no 
i'raud.  For  the  appellant,  it  was  contended  that  there  was  no  war- 
ranty, and  no  evidence  of  the  quality  or  unproductiveness  of  the  seed. 
The  learned  judge  of  the  Lincoln  County  Court  ruled  "that  there 
was  necessarily  an  implied  warranty  that  the  seed  would  grow,"  and 
gave  a  £50  verdict  for  the  respondent ;  and  The  Court  of  Queen's 
Bench  gave  judgment  for  the  appellant.  And  j;e?-  Coclclurn  C.J. ;  "It 
does  not  appear  that  the  seed  delivered  was  dead  or  bad,  or  had  wholly 
lost  its  character  as  seed,  but  only  that  it  had  a  defective  germinative 
or  reproductive  power.  We  are  not  called  on  to  decide  whether  on  a 
general  contract  for  seed  there  is  an  implied  warranty  that  it  is  growing 
seed.  This  is  not  such  a  contract ;  it  is  a  special  contract  for  such  seed 
as  the  appellant  should  raise  from  seed  '  of  a  good  growing  stock.'  It  is 
not  denied  that  the  seed  he  delivered  was  fairly  raised  from  such  seed  "  of 
a  good  growing  stock  ;"  and  there  being  an  express  warranty,  there  can 
be  no  warranty  implied  beyond  it.  It  was  agreed  that  the  appellant  should 
sow  a  certain  quantity  of  mangold  wurzel  seed  on  his  own  land  of  *  a  good 
growing  stock,'  and  should  sell  the  respondent  the  seed  raised  therefrom. 
There  is  nothing  to  show  that  he  has  not  done  so  ;  and  if  so,  the  only 
warranty  he  gave  has  been  complied  with.  The  judgment  of  the 
County  Court,  therefore,  was  wrong,  and  this  appeal  must  be  allowed." 


MANUHE    NOT   CORRESPONDING    WITH    WARRANTY.       527 

Rlslc  of  verulpe  in  adsenre  of  express  warrnnlij. — Althongli  a  vendor 
is  informed  of  the  purpose  for  which  a  material  is  required,  yet  if  the 
vendee  insiDects  it,  its  unsoundness  or  unfitness  for  the  purpose,  in  tlie 
absence  of  any  express  warranty,  is  no  defence  to  an  action  for  the  full 
price  ;  7;«r  GocUurn  C.J.  {Fitzgerald  v.  Iveson),  4  H.  &  N.  412,  28 
L.  J.  Exch.  238. 

Damages  for  selling  manure  not  corresponding  ivith  warranty. — W., 
being  agent  to  sell  for  two  distinct  principals,  H.  and  defendant,  both 
dealers  in  manure,  contracted  with  plaintiff  to  take  back  manure  which 
as  agent  for  H.  he  had  supplied  to  plaintiff,  on  condition  that  plaintiff 
would  take  certain  other  manure  which  defendant  dealt  in  instead,  and 
which  W.  warranted,  it  being,  as  the  jury  found,  usual  to  sell  sucli 
manure  with  a  warranty.  Defendant  executed  the  order  for  the  latter 
manure,  and  received  payment  from  plaintiff,  who  was  also  a  dealer 
in  manure,  and,  as  defendant  knew,  purchased  to  sell  again.  Plaintiff 
having  resold  the  niauui'e  to  different  purchasers,  was  threatened  with  an 
action  by  one  of  them  for  loss  sustained  by  reason  of  the  manure  being, 
as  was  proved,  of  an  inferior  quality,  and  plaintiff  made  good  the  loss, 
but  no  complaints  were  made  by  the  other  pui'chasers.  It  was  held, 
first,  that  defendant  was  liable  to  plaintiff  in  an  action  on  the  warranty 
given  by  W.  ;  secondly,  that  the  difference  between  the  value  of  the 
manure  supplied  and  its  value  if  it  had  been  according  to  the  warranty 
was  a  correct  measure  of  damages.  And  semble,  that  the  loss  which 
the  plaintiff  made  good  to  his  vendee  was  damage  naturally  arising  from 
defendant's  breach  of  contract,  and  for  which  he  was  liable  to  the 
plaintiff ;  and  that  if  the  two  contracts  made  by  W.  with  plaintiff  were 
to  be  considered  as  only  one,  plaintiff  had  sufficient  interest  in  it  to 
maintain  the  action.  The  jury  gave  the  ordinary  measure  of  damages — 
i  e.,  difference  between  the  actual  value  and  the  value  guaranteed  {Dingle 
V.  Hare). 

Where  warranty  not  implied. — The  sale  of  an  article  not  by  sample, 
but  by  a  particular  description,  does  not  necessarily  import  a  warranty, 
if  all  the  circumstances  show  that  it  was  understood  as  a  mere  ex- 
pression of  opinion  or  belief ;  and  words  having  a  known  natural 
meaning  can  have  a  particular  meaning  attached  to  them,  as  prevailing 
in  a  certain  trade,  only  by  clear  evidence,  as  a  matter  of  fact,  of  their 
general  use  and  acceptation  in  such  meaning.  The  defendant,  a  corn 
dealer,  sold  to  the  plaintiff,  also  a  corn  dealer,  barley  by  sample,  which 
he  called  "  seed  barley,"  but  which  he  had  himself  just  purchased  by 
sample,  not  having  seen  the  bulk,  and,  as  the  plaintiff  knew,  being 
ignorant  of  what  sort  it  was.  It  turned  out  to  be  an  inferior  kind  of 
barley,  and  different  from  ordinary  seed  barley.     There  was  no  evidence 


538    NO    IMPLIED    WARRANTY    THAT   MEAT    FIT    FOR   FOOD, 

that  in  the  corn  trade  the  words  "  seed  barley  "  had  acquired  a  particu- 
lar meaning,  though  there  was  evidence  that  it  had  in  the  locality 
such  a  meaning.  It  was  held  that  there  was  no  evidence  of  a  war- 
ranty, nor  of  a  contract  for  anything  else  than  what  the  words  naturally 
imported,  viz.,  barley  seed  which  would  grow ;  and  such  barley  having 
been  delivered,  that  there  was  no  cause  of  action.  The  rule  to  set  aside 
the  nonsuit  was  discharged.  And  j^er  Martin  B.  :  "  There  was  no  war- 
ranty. A  warranty  is  an  absolute  engagement  that  the  article  sold  is  of 
a  particular  quality  or  kind,  and  will  answer  a  particular  purpose.  Here 
there  was  a  mere  expression  of  opinion  or  belief.  The  defendant  had 
negotiated  for  a  quantity  of  barley,  which  he  believed  to  be  '  seed 
barley,'  and  sold,  as  he  had  bought,  by  sample  ;  saying  that  he  believed 
it  to  be  seed  barley,  but  did  not  know  what  sort  it  was.  Assuming, 
even,  that  the  words  '  seed  barley '  meant  what  the  plaintiff  maintains, 
still,  if  it  was  understood  that  there  was  a  purchase  of  the  article  which 
was  shown,  it  would  be  the  same  if  any  other  name  had  been  given  to 
it.  If  we  could  see  that  '  seed  barley '  was  an  article  well  known  and 
commonly  sold  as  such,  then  it  might  be  that  the  sale  of  barley  by  that 
name  might  import  a  warranty.  But  it  was  not  so  here.  And  as  to 
the  damage,  even  if  there  was  a  breach  of  warranty,  it  would  only  be 
nominal,  for  the  plaintiff  brought  his  loss  upon  himself  by  warranting 
the  barley  as  'Chevalier'  or  a  certain  particular  quality."     {Carier  v. 

Cricli:.) 

No  implied  warranty  that  meat  fit  for  food. — There  is  no  implied 
warranty  that  an  article  exposed  for  sale  as  human  food  is  fit  for  that 
purpose  ;  and  if  a  meat  salesman  in  Newgate  market  exposes  a  carcase 
for  sale  which,  in  consequence  of  some  latent  defect  of  which  he  is 
ir^norant,  is  mifit  for  human  food,  he  is  not  liable  to  a  penalty  under 
section  52  of  14&  15  Vict.  c.  91  for  selling  it,  nor,  in  the  absence  of 
any  fraud  on  his  part,  will  an  action  on  the  case  for  deceit  lie  against 
him ;  nor  will  an  action  to  recover  the  price  lie  by  a  purchaser,  who, 
Ijclievinf  it  to  be  fit  for  human  food,  has  purchased  it  to  sell  to  retail 
customers.  And  par  Curiam  :  "  The  undoubted  general  law  is  that,  in 
the  absence  of  all  fraud,  if  a  specific  article  is  sold,  the  buyer  having  an 
opportunity  to  examine  it  and  selecting  it,  the  rule  of  Caveat  emptor 
applies,  {Chaivler  v.  Hopldns,  4  M.  &  W.  399,  8  L.  J.  (N.  S.)  Ex.  14, 
Farldmon  v.  Lee,  2  East  314,  and  Morleij  v.  Aitmhorough,  3  Ex.  500, 
and  18  L.  J.  (N.  S.)  Ex.  148),  and  the  plaintiff  has  to  establish  that  in 
the  case  of  a  salesman  dealing  with  a  retail  buyer  there  is  an  exception 
to  the  general  rule,  and  that  there  is  an  imi)lied  warranty  that  the  meat 
is  fit  for  the  purpose  for  which  probably  it  is  bought.  None  of  the 
cases  cited  decide  this  case,  although  in  JhiniVy  v.  Bollelt  (IG  ]\I.  &  W. 


SELLING    SULPHURED    HOPS.  529 

646,  17  L.  J.  (N.  S.)  Ex.  190),  all  the  law  is  examined  and  collected, 
and  the  matter  was  much  discussed.  We  are  of  opinion  that  a  salesman 
oflFering  for  sale  a  carcase  with  a  defect  of  which  he  is  not  only  ignorant, 
but  has  not  any  means  of  knowledge  (the  defect  being  latent),  is  not 
liable  to  any  punishment,  and  does  not,  as  a  matter  of  law,  completely 
warrant  that  the  carcase  is  fit  for  human  food,  and  is  not  bound  to 
refund  the  price  of  it  should  it  turn  out  not  to  be  so  "  {Emberton  v. 
Matthews). 

Selling  had  meat. — A  meat  salesman  can  be  indicted  and  convicted  at 
common  laiv  for  hiowingly  sending  or  exposing  meat  for  sale  in  a  public 
market  as  fit  for  human  food,  which  in  fact  was  7iot  so,  and  the  defendant 
was  imprisoned  for  six  months  :  per  Willes  J.  {Reg.  v.  Stevenson). 

Carrying  had  meat. — A  carrier  can  be  indicted  and  convicted  at 
common  law  for  Icnoicinghj  bringing  to  market  meat  unfit  for  human 
food  :  j^er  Gurney  R.  {Keg.  v.  Jarvis). 

Ahsence  of  intent  to  sell  bad  meat  for  food. — A  person  is  not  indictable 
for  sending  to  a  meat  salesman  meat  he  knows  to  be  unfit  for  human 
food,  if  he  does  not  intend  (as  appeared  in  this  case,  from  the  evidence 
of  a  bone-boiler  called  by  the  defendant)  that  it  is  to  be  sold  for  human 
food  :  per  Willes  J.  {Reg.  v.  Crawley). 

Sending  bad  cider  to  customer. — A  cider  merchant  at  Cheltenham  sold 
to  the  defendant,  a  publican  in  London  (to  be  delivered  to  him  there), 
a  hogshead  of  cider  warranted  "  good  "  and  "  prime."  A  hogshead 
being  delivered,  it  was  tapped,  and  found  unfit  for  use.  The  defendant 
at  once  wrote  to  the  plaintifi"  that  the  little  he  had  sold  was  complained 
of,  and  that  if  it  continued  to  be  so  he  should  have  to  return  it.  No 
notice  was  taken  of  this  letter  for  about  a  month,  during  which  period 
the  defendant  was  trying  to  sell  it,  and  found  it  unsaleable.  He  then 
wrote  to  the  plaintiff,  proposing  to  return  the  hogshead,  but  the  plaintiff 
refused  to  assent  to  this,  and  sued  the  defendant  for  the  price.  The 
defendant  paid  into  court  the  value  of  the  part  he  had  used,  and  was 
held  not  to  be  liable  for  the  residue,  and  scmUe  for  none  {Lucy  v. 
Mouflet). 

Selling  sulphured  hops. — The  defendant,  a  hop  merchant,  entered  into 
a  contract  with  the  plaintiff",  who  was  a  hop  grower,  for  the  purchase  of 
hops  by  sample.  Inasmuch  as  the  defendant  could  not  sell  hops  to  his 
customers  if  sulphur  had  been  used  in  their  growth,  he  inquired  of  the 
plaintiff"  at  the  time  of  making  such  contract  if  sulphur  had  been  so 
used,  and  the  plaintiff"  stated  that  it  had  not,  and  thereupon  the  contract 
was  made.  The  plaintiff  knew  of  the  objection  by  hop  merchants  to 
sulphured  hops,  and  the  defendant  would  not  have  bought  the  hops  if 
he  had  been  aware  that  sulphur  had  been  used,  as  it  was  admitted  it 


530  ADULTERATED    SEED. 

liad  been  in  5  acres  out  of  300,  and  the  sulphured  hops  mixed  with  the 
unsulplmred  afterwards.  It  was  held  by  the  Court  of  Common  Pleas 
that  the  contract  was  conditional  on  sulphur  not  having  been  used  in 
the  growth  of  the  hops  ;  and  that  if  sulphur  had  been  so  used,  the 
defendant  was  at  liberty  to  reject  the  hops,  although  they  corresponded 
with  the  sample  by  which  they  had  been  sold.  And  per  Byles  J. : 
•'  The  case  of  Nichol  v.  Godts  (10  Ex.  191,  and  23  L.  J.  (N.  S.)  Ex.  314) 
comes  very  near  to  the  present  one.  Although  that  was  the  sale  of  an 
ascertained  article,  foreign  refined  rape-oil,  which  corresponded  with 
the  sample,  the  Court  held  that  the  vendee  might  return  it  on  its  not 
answering  to  the  description  by  which  it  was  sold "  {Bamierman  v. 
Wiite). 

SelUiig  refuse  calce. — It  was  held  by  Polloch  C.B.,  in  Jaclcson  v.  Har- 
rison, that  seed-crushers  who  sold  the  refuse  cake  when  the  oil  had  been 
expressed  from  the  linseed  to  farmers  for  oilcake,  but  without  any  de- 
scription as  cattle  food,  or  any  express  or  actual  warranty  as  such,  and 
Avithout,  so  far  as  appeared,  anythiug  being  said  as  to  its  use,  or  any  in- 
timation that  it  was  bought  for  that  purpose,  are  not  liable  on  an  implied 
warranty  that  it  was  good  for  cattle  food,  when  the  cows  died  (from  its 
mechanical,  and  not  chemical  action)  after  eating  it. 

Adiilterafed  seed. — In  Dm.uj  v.  GiUctt,  which  was  tried  in  the  Common 
rieas  at  Westminster,  tlie  verdict  turned  on  the  amount  of  burnet  seed 
among  the  h\  qrs.  of  sainfoin  sold  by  the  defendant  to  the  plaintiff, 
without  a  sample  or  a  warranty. 

It  was  allowed  by  the  skilled  witnesses  on  both  sides  that  you  would 
expect  to  meet  with  burnet  in  every  sainfoin  sample  ;  but  according 
to  the  testimony  of  the  witnesses,  and  Prof.  Buckmann  especially,  who 
thought  it  was  a  crop  of  burnet,  the  per-centage  in  the  seed  purchased 
by  the  plaintiff  was  very  great.  The  seed  was  duly  drilled  in  with 
barley  in  the  February  of  1858,  and  fed  with  sheep  that  autumn,  mown 
in  1859,  fed  again  in  1860,  and  then  ploughed  up  as  being  perfectly 
useless,  instead  of  running  out  its  five  or  six  years  ;  and  at  the  end 
of  that  time  the  plaintifl"  applied  to  the  defendant  for  compensation, 
and  wished  for  an  arbitration  by  a  mutual  friend,  who  fixed  the  claim 
for  compensation  at  a  most  moderate  figure.  The  defendant  declined  all 
such  overtures,  and  principally  relied  on  the  claim  being  a  stale  one,  in 
consequence  of  the  lapse  of  time,  and  on  the  fact  that  the  plaintiff, 
instead  of  merely  running  his  lambs  over  the  sainfoin  after  the  barley  was 
cut,  had  folded  sheep  on  it,  who  had  eaten  the  very  heart  out  of  it,  and 
laid  the  foundation  for  lob  and  other  weeds  among  the  plants  next  spring. 

The  general  tenor  of  liis  evidence  went  to  show  that  no  sainfoin  sam- 
ples were  now  free   from  a  very  great  admixture  of  burnet.  and  that 


CONVICTION    UNDER   ADULTERATION    OF    SEEDS    ACT.      531 

no  purchaser  could  exjiect  it.  In  shape  the  two  seeds  are  very  distin- 
guishable, as  the  sainfoin  is  oval  and  the  burnet  has  four  angles  ;  and 
while  the  former  costs  2s.  2\d.  a  lb.,  the  latter  costs  only  Is.  The 
seedsmen's  theories  were  very  variouSo  One  had  seen  more  than  one 
part  in  five  burnet ;  another  thought  a  fourth  or  a  fifth  a  fair  sample,  but 
had  never  seen  less  than  a  fourth,  and  did  not  expect,  on  an  average,  to 
get  less  than  a  sixth  in  it  ;  while  some  said  an  eighth  or  a  tenth.  A 
great  Strand  dealer  "  would  not  give  a  fourth  burnet  if  he  knew  it.  I 
should  not  have  done  you  justice  if  I  did."  In  fact,  he  went  so  far  as 
to  say  he  would  not  sell  it  if  it  was  in  that  state,  but  would  clean  it. 
Another  eminent  dealer  said  tliat  he  might  send  three  or  four  per  cent, 
out  in  his  samples,  but  certainly  not  more  than  five  ;  and  has  for  twenty 
years  past  only  recommended  milled  seed,  i.e.,  set  loose  from  the 
shell.  He  added,  there  "  has  not  been  much  more  burnet  of  late  years, 
but  there  has  been  much  more  noise  made  about  it.  If  I  w'as  asked 
for  ^;?/re  sainfoin,  I  w'ould  not  sell  it  all  ;  if  I  was  asked  for  the  best, 
I'd  send  the  best  I  had."  He,  however,  thus  quahfied  the  last  remark 
on  cross-examination  :  "I  should  not  do  you  justice  if  you  paid  me  the 
best  price  and  I  sent  you  one-fourth  burnet."  The  plaintiff  as  it  hap- 
pened, had  paid  the  top  price,  52s.,  in  1858.  and  hence  this  witness 
virtually  settled  the  question  against  the  defendant  who  called  him. 
Mr.  Justice  Keating  asked  the  jury  to  consider  was  it  such  seed  as 
would  answer  to  the  agreement  between  the  parties,  or  was  it  such  as 
might  be  reasonably  sold  for  sainfoin  seed.  The  jury,  after  a  very  short 
consultation,  found  for  the  plaintiff  for  the  £41  6s.  Df?.  claimed.  On  the 
count  charging  fraud  there  was  a  verdict  for  the  defendant,  as  there  was 
not  the  smallest  ground  for  attributing  to  him  anything  of  the  kind. 
The  seed  was  proved  to  have  come  to  him  direct  irom  Mr.  Forshaw,  a 
very  aged  and  infirm  farmer  in  the  neighbourhood  (whose  health  alone 
prevented  him  from  travelling  up  to  speak  to  the  fact),  and  had  been 
passed  on  at  once  to  the  plaintiff. 

Conviction  vnder  the  Adulteration  of  Seeds  Act,  18G9. — At  the  Lord 
Mayor's  Court  on  Nov.  26,  1877,  one  T.  S.  was  charged  with  having 
sold  killed  seeds  with  intent  to  defraud.  By  this  Act,  killing  or  dyeing 
seeds,  and  the  sale  of  such,  is  prohibited.  The  custom  appears  to  have 
been  to  buy  charlock-seed,  and  to  kill  it  by  artificial  means,  to  prevent 
it  from  growdng,  as  thereby  the  fraud  would  be  discovered.  This  dried 
or  killed  seed  is  then  mixed  with  turnip  or  other  similar  seeds,  and  the 
whole  is  sold  as  good  seed.  The  value  of  turnip-seed  is  about  80s.  a 
bushel ;  that  of  charlock-seed  3s.  &d.  In  this  case  the  defendant  was 
charged  with  killing  and  afterwards  selling  28  bushels  of  killed  charlock- 
seed  ;  he  was  found  guilty,  and  fined  £5  for  each  offence. 

M    51    2 


53;J      SALE  AND  MARKET  PRICE — RECOVERY  OF  DIFFERENCE. 

Recoveritig  diff&rence  between  sale  and  marJcet  price  where  sheep  not 
delivered. — The  plaintiff  having  contracted  with  the  defendant  to  buy 
of  him  a  lot  of  48  sheep  at  53s.  a  head  (less  than  the  market  price  at 
the  time),  to  be  paid  for  on  delivery,  took  away  five,  for  which  he  paid 
in  a  day  or  two,  and  agreed  to  take  the  rest  in  a  fortnight.  Within 
that  time,  before  any  application  for  the  remainder,  the  defendant  sent 
them  away  and  re-sold  them.  The  vendee  then  within  a  fortnight 
applied  for  19  "to  make  half  the  sheep  at  half  the  time,"  offering  to 
pay  for  them,  and  finding  that  they  were  re-sold,  sued  the  vendor  on  the 
contract  and  also  in  trover.  It  was  held  that  he  was  not  entitled  on 
either  count  to  recover  the  full  value,  but  only  the  difference  between 
the  price  he  was  to  have  paid  for  them  and  the  market  price  when  he 
was  entitled  to  them,  and  the  rule  was  made  absolute  to  reduce  the 
damages  on  the  second  count  from  £118  19s.  to  £5.  And  per  Curiam: 
"  It  is  to  be  understood  that  though  in  a  case  like  this  the  plaintiff  may 
not  recover  more  than  this,  it  is  possible  that  if  a  stranger  had  converted 
the  goods,  the  plaintiff  would  have  been  entitled  as  against  him,  to  re- 
cover the  whole  value  of  the  amount  or  proceeds.  That  might  depend 
upon  whether  the  jilaintiff  would  be  liable  to  the  seller  for  the  contract 
price  ;  but  probably  in  such  a  case,  he  would  be,  for  there  the  seller 
would  be  in  no  default ;  and  if  he  could  not  deliver  the  goods,  owing  to 
the  wrongful  act  of  a  third  party,  it  may  be  that  he  could  recover  the 
whole  price,  and  that  the  vendee  would  be  entitled  to  recover  the  whole 
from  the  stranger"  (Chinery  v.  Viall). 

Violation  of  consignor'' s  orders  to  carrier  as  to  delivery. — Although  the 
consignor  of  goods  directs  a  carrier  to  deliver  them  to  the  consignee  at  a 
particular  place,  the  carrier  may  deliver  them  wherever  he  and  the  con- 
signee agree.     The  plaintiff  having  sold  corn  by  sample  to  be  delivered 

to  the  purchaser  at  his  mill  at  B ,  sent  the  corn  by  the  defendants' 

railway,  carriers  paying  the  freight  to  B station,  and  an  extra  sum 

for  cartage  from  B to  the  mill.     In  pursuance  of  general  orders 

previously  given  by  the  consignee  to  the  defendants,  but  not  communi- 
cated to  the  plaintiff,  the  defendants  left  the  wheat  at  their  station  at 
B.,  and  advised  the  consignee  of  its  arrival,  who  examined  it,  but  left 
it  there  for  two  months,  and  afterwards  refused  to  take  it.  The  wheat 
was  deteriorated  in  quality  during  that  time.  It  was  held  that  the 
defendants  were  not  liable  to  an  action  by  the  plaintiff  for  not  deliver- 
ing at  the  mill,  as  the  non-delivery  there  was  pursuant  to  the  orders 
of  the  consignee,  and  that  it  made  no  difference  in  this  respect  that 
the  plaintiff  could  not  recover  the  price  of  the  wheat  from  the  pur- 
chaser, in  consequence  of  there  being  no  acceptance  of  the  wheat  within 
the  meaning  of  the  Statute  of  Frauds  ;  and  scmble  the  rights  of  the 


MEASURE    OF    DAMAGES    FOR    NON-DELTVERY.  533 

plaintiff  and  the  purchaser  were  not  affected  by  the  non-delivery  at  the 
mill  {London  and  North  Western  Railway  Company  ajjpts.  v.  Bartlett 
respt.) 

Conskjnee  sues  for  missiny  yoods  at  place  of  destination. — Where  goods 
are  sent  by  a  carrier,  the  consiynee  is  e7ititled  to  recover  their  value  at  the 
place  to  which  they  are  consiyned,  as  distinguished  from  the  place  at 
which  they  were  delivered  to  the  carrier  {Rice  and  Another  appts.  v. 
Baxendale  respt.). 

Damayes  in  action  for  non-delivery,  measiure  of. — In  an  action  ao-ainst 
carriers  for  the  non-delivery,  according  to  contract,  of  goods  of  a 
marketable  kind  intended  for  sale,  the  jury  may  give  as  damayes  the 
difference  between  the  market  value  on  the  day  the  yoods  ouyht  to  have 
been  Irowjht  to  market,  and  the  day  on  which  they  afterwards  icere, 
although  no  notice  be  given  to  the  carriers  that  the  goods  were  intended 
for  market ;  for  such  damages  are  the  natural  and  immediate  conse- 
quence of  the  defendant's  act.  There  is  no  difference  in  the  applica- 
tion of  this  rule,  between  a  delay  occasioned  by  the  detention  of  o-oods 
in  the  hands  of  the  carrier,  and  delay  necessary  for  the  purpose  of 
restoring  goods  to  a  marketable  state,  when  delivered  by  the  carrier  in 
a  damaged  condition. 

Here  the  plaintiff  sent  hops  in  bags  from  Kent  to  London  by  the 
defendants'  railway,  for  the  purpose  of  delivery  to  the  vendee,  a  hop 
dealer.  The  hops  were  detained  by  the  defendants  several  days,  and 
received  some  damage  by  water,  and  the  vendee  refused  to  accept  them. 
The  plaintiff  dried  the  hops,  and  when  fit  for  sale  the  price  had  fallen 
in  value.  Independently  of  that,  the  stained  portion  of  the  hops 
deteriorated  the  marketable  value  of  the  whole,  although  for  the  pur- 
pose of  brewing  the  value  of  the  bulk  was  unaffected.  It  was  held 
by  the  Court  of  Exchequer  that  the  plaintiff  was  entitled  to  recover,  as 
damages  from  the  defendants,  the  difference  in  price  of  the  amount  of 
deterioration  in  market  value,  and  was  not  confined  to  the  value  of  the 
parts  actually  damaged,  although  the  defendants  had  no  notice  that  the 
hops  were  sent  for  the  purpose  of  sale  and  not  for  use.  And  per 
Channell  B. :  "I  think  that  the  doctrine  laid  down  in  Hadley  v.  Baxen- 
dale (9  Ex.  341,  23  L.  J.  (N.  S.)  Ex.  179),  by  this  Court  does  not  apply 
to  this  case,  and  I  also  agree  in  the  decision  of  the  Court  of  Queen's 
Bench  in  the  case  of  Synced  v.  Poor  (28  L.  J.  (N.  S.)  Q.  B.  178),  which 
seems  to  me  to  be  perfectly  distinguishable  from  this  case  :  in  each  of 
the  above  cases  the  damages  were  consequential,  but  here  there  was  a 
strict  diminution  in  value.  In  Smeed  v.  Poor  the  Court  admitted  that 
the  plaintiff  was  entitled  to  recover  compensation  for  all  heads  of 
damage   directly  resulting  from  the  non-delivery  of  the  thrashing- 


534  ACCErTAXCE   OF   HOPS. 

machine  ;  but  what  was  attempted  to  be  recovered  there,  and  what  tlie 
Court  heki  was  not  reasonable,  was  in  my  opinion  not  at  all  necessarily 
consequential  damage  from  the  non-delivery  of  the  thrashing-machine. 
Here  the  bops  were  delivered  in  a  damaged  condition,  and  I  agree  in 
the  statement  that  there  is  no  difference  between  their  being  delivered 
in  a  damaged  condition  for  the  purpose  of  this  enquiry,  and  their  having 
been  kept  in  the  defendants'  own  premises,  as  from  the  facts  found 
by  the  jury,  for  all  purposes,  it  is  precisely  the  same  us  if  they  had 
been  in  the  defendants'  possession,  and  not  in  the  plaintiff's.  At  the 
time  they  became  available  to  the  plaintiff  as  goods  for  sale,  the  market 
had  fallen  from  the  defendants  not  performing  their  contract  ;  if  there 
is,  therefore,  any  case  where  that  can  be  treated  as  damage,  this  is  a 
case  of  that  description.  This  seems  to  me  to  be  the  test  by  which 
you  must  endeavour  to  ascertain  the  damages  ;  if  you  cannot  resort 
to  this  test,  I  own  I  do  not  know  to  what  test  you  can  resort.  I  am 
therefore  of  opinion  that  the  rule  in  this  case  should  be  discharged" 
(Collard  v.  South  Eastern  Railway  Comjiayuj). 

The  measure  of  damages  for  non-delivery  of  goods  by  a  carrier,  as 
laid  down  in  Hadley  v.  Baxendale,  was  approved  of  by  the  Court  in 
Gee  V.  Lancashire  and  Yorkshire  Railway  Comimny  (30  L.  J.  (N.  S.) 
Ex.  11). 

Acceptance  of  hops. — Plaintiff,  a  hop  grower,  sent  samples  of  hops  to 
his  factor  ;  and  defendants,  hop  merchants,  agreed  with  plaintiff  at  the 
factor's  premises  to  purchase  some.  The  facte  r  made  out  a  bought  note, 
and  delivered  it  to  defendants  together  with  the  sample.  At  defendants' 
request  the  date  of  the  note  was  altered  to  give  them  longer  time  for 
payment.  In  an  action  for  not  accepting  the  hops,  this  was  held  not  a 
sufficient  note  or  memorandum  to  bind  defendants  to  the  bargain  within 
sec.  17  of  the  Statute  of  Frauds.  The  declaration  was  in  assumpsit  for 
refusing  to  receive  hops.  The  plaintiff"  accompanied  the  defendants  to 
the  factors,  and  after  bargaining  for  the  sale  of  the  hops  at  £16  16s. 
per  cwt,  the  sold  note  was  then  given  to  the  plaintiff^,  and  the  bought 
note  was,  with  the  sample,  delivered  to  the  defendants.  In  the  sold 
note,  the  date  was  October  19th,  but  19th  was  crossed  out  and  20th 
substituted  at  defendants'  request,  the  custom  in  the  hop  trade  being 
to  pay  on  the  Saturday  week  after  the  purchase,  so  that  if  the  sale  had 
been  completed,  the  payment  would  have  taken  place  on  November  3rd, 
the  defendants  obtaining  thereby  a  week  longer  for  payment.  On 
October  23rd,  the  hops  were  sent  to  the  factor  according  to  usage,  to 
be  weighed.  The  plaintiff  was  present,  as  was  also  one  of  the  defen- 
dants during  some  portion  of  the  weighing.  One  of  Messrs.  Noakes's 
warehousemen  weighed  for  the  plaintiff",  and  one  of  the  defendants'  men 


STATUTE    OF    FRAUDS.  535 

acted  for  them.  A  dispute  having  arisen  about  the  weighing,  and  as 
to  the  condition  of  the  hops,  the  defendants  refused  to  take  them  at  all. 
In  consequence  of  the  badness  of  the  hop  season  in  England,  English 
hops  became  suddenly  almost  unsaleable,  and  on  November  3rd  they 
were  not  worth  more  than  £8  per  cwt.,  although  the  bargain  had  been 
made  on  October  19th  at  £16  16s.  per  cwt.  It  was  contended  on  the 
defendants'  behalf,  that  this  being  a  contract  for  the  sale  of  goods  above 
£10,  there  was  no  note  or  memorandum  in  writing  made  by  the  party 
to  be  charged  with  the  contract  or  by  his  agent  thereunto  lawfully 
authorised,  so  as  to  satisfy  the  17th  section  of  the  Statute  of  Frauds, 
and  a  verdict  for  £420  was  taken  for  the  plaintiff,  leave  being  reserved 
to  the  defendants  to  move  to  enter  a  nonsuit.  It  was  contended  that 
Noakes  the  factor  was  as  much  the  agent  of  the  defendants  as  the 
plaintiff,  just  as  a  stock  or  sharebroker  or  an  auctioneer  would  be 
between  a  vendor  and  purchaser,  that  he  made  out  the  usual  bought 
and  sold  notes,  and  handed  the  bought  note  to  the  defendant,  that  the 
defendants  expressly  directed  him  to  alter  the  date,  and  that  there  was 
evidence  for  the  jury  that  Noakes  was  acting  as  the  defendants'  agent. 

In  the  Exchequer  Chamber,  the  decision  of  the  Court  of  Exchequer 
was  reversed,  and  it  was  held  that  there  was  evidence  from  which  a 
jury  might  find,  that  Noakes  was  the  agent  of  the  defendants  as  well 
as  of  the  plaintiff  to  draw  up  a  record  of  the  contract  between  them, 
and  that  if  he  were,  the  writing  by  him  of  "  Messi-s.  Evans  "  was  a 
signature  binding  on  the  defendants  within  the  17th  section  of  the 
Statute  of  Frauds  ;  and  per  Byles  J. :  "It  seems  to  me  that  there  was 
evidence  sufficient  to  sanction  a  verdict  for  the  plaintiff.  It  is  plain 
that  the  signature,  though  not  at  the  foot  of  the  document,  but  at  the 
beginning,  is  abundantly  sufficient.  Then  in  the  first  place,  was  the 
plaintiff  bound  by  what  Noakes  did  ?  The  Messrs.  Noakes  were  em- 
ployed by  him  as  factors  ;  there  was  therefore,  no  doubt,  more  evidence 
against  him  than  against  the  defendants.  But  the  defendant  and  the 
plaintifF  knew  what  Noakes  was  doing.  "What  does  the  defendant  do  ? 
Next  of  all  he  sees  a  duplicate  written  by  the  hand  of  the  agent,  and 
he  knows  it  is  a  counterpart  of  that  which  was  binding  on  the  plaintiff, 
he  knew  what  was  delivered  out  to  him  was  a  sale  note  in  duplicate, 
and  accepts  and  keeps  it.  The  evidence  of  what  the  defendant  did 
both  before  and  after  Noakes  had  written  the  memorandum,  shows 
that  Noakes  was  authorised  by  the  defendant  ;  and  the  case  comes 
directly  within  the  terms  of  Lord  Abinger's  judgment  in  Johnson  v. 
Dodgson  (5  Taun.  786)."  And  per  Keating  J. :  "  There  is  abundance 
of  authority  from  Lemaijna  v.  Stcmleg  (3  Lev.  1), -downwards,  that  the 
name  appearing  on  the  face  of  the  document  is  a  sufficient  signing 


53C)       DA^IAGES    FROM    DELAY    TN    DELIVERY    OF    GOODS. 

within  the  statute."  And  per  AffUor  J.:  "I  agree  with  my  brothers 
Crompton  and  BlacHurn  that  Graham  v.  Marsoti  (5  Bing.  N.  C.  603, 
and  8  L.  J.  (N.  S.)  C.  P.  324),  is  not  inconsistent  with  Johnson  v. 
Dodgson  (2  M.  &  W.  653,  and  6  L.  J.  Ex.  185).  In  the  former  case 
the  circumstances  failed  to  raise  the  question  of  authority  which  is 
raised  here"  {Durrcll  v.  Evans). 

Delay  in  delivery  of  goods  may  not  he  set  tip  in  reduction  of  damages 
on  breach  of  warranty.— In  an  action  for  goods  sold  and  delivered,  or 
in  an  action  upon  a  guarantee  of  the  payment  of  the  price  of  such 
goods,  it  is  not  competent  for  the  defendant  to  set  up  in  reduction  of 
damages,  the  fact  that  the  goods  were  delivered  by  the  vendor  to  the 
vendee,  after  the  stipulated  time  in  the  breach  of  the  agreement  be- 
tween them.  And  per  3IeUor  J.:  "There  is  a  manifest  distinction 
between  the  principle  of  Mondel  v.  Steele  (8  M.  &  W.  858,  871),  and 
the  endeavour  to  set  off  damages  arising  from  delay  or  similar  causes  " 
(Oasfler  and  Another  v.  Pound). 

Putting  oil  into  plaintiff's  Miles  by  defendant  passes  the  property  in 

it, There  was  an  agreement  between  the  plaintiff  and  C,  for  the  sale 

to  the  plaintiff  of  all  the  oil  produced  from  the  whole  crop  of  pepper- 
mint grown  on  his  farm  in  the  year  1858,  and  C,  after  having  had  the 
oil  weighed,  according  to  contract,  and  put  into  the  bottles,  which  the 
plaintiff  had  sent  to  him  for  that  purpose,  sold  it  to  the  defendant.  It 
was  held  by  the  Court  of  Exchequer,  on  the  authority  of  Aldridge  v. 
Johnson  (5  W.  R.  703),  and  Logan  v.  Le  Ilesiirier  (6  Pr.  C.  116), 
that  the  bottles  having  been  sent  by  the  plaintiff  and  filled  up  by  C.  or 
his  agent,  the  property  in  the  oil  had  passed  to  the  plaintiff,  and  that 
he  could  maintain  an  action  of  trover  against  the  defendant  {Langton 
V.  niggi7is). 

Contract  for  turnip  seed  to  satisfy  Statute  of  Frauds.— The  plaintiff,  a 
seed  merchant  in  Kent,  wrote  to  the  defendants,  seedsmen  in  London, 
offering  to  sell  the  seed  of  growing  turnips  ;  to  which  the  defendants 
replied,  asking  the  quantities  and  price  for  white  globe  turnip  seed. 
The  plaintiff  answered  that  all  he  could  offer  at  present  was  the  pro- 
duce of  five  acres  at  18s.  Gd.  per  bushel  delivered  at  the  Bricklayers 
Arms  Station.  The  defendants  offered  to  take  two  or  three  acres  at 
16s.  Gd.  The  jjlaintiff  wrote  saying  he  could  not  accept  less  than  18s., 
his  contract  price  with  London  houses.  The  defendants  then  wrote  the 
following  letter,  dated  March  21st :  "  In  reply  to  your  favour  of  this 
morning,  we  beg  to  say,  as  our  neighbours  are  giving  you  18s.  per 
bushel  for  white  globe  turnip,  we  as  a  beginning  with  you  will  take 
the  produce  of  three  acres  at  that  price,  to  be  delivered,  as  soon  as 
liarvested,  free  of  carriage  to  London  station.     Let  us  know  what  other 


SALE    OF   TURNIP    SEED.  537 

sorts  you  may  have  to  offer,  as  also  Wurzel  seed  of  sorts  for  1861 
harvest.  AVaiting  your  reply,  we  remain,  &c."  The  plaintiff  verb- 
ally told  the  defendants  he  accepted  the  offer.  The  defendants  having 
refused  to  receive  the  seed,  it  was  held  by  the  Court  of  Exchequer,  con- 
firming Wightman  J.'s  ruling  on  the  trial,  that  there  was  a  binding 
contract  in  writing  within  the  l7th  section  of  the  Statute  of  Frauds, 
although  the  plaintiff  never  replied  in  writing  to  the  defendants'  last 
letter.  The  plaintiff'  gave  evidence  to  the  effect  that  he  did  not  reply 
by  letter  to  the  defendants'  letter  of  March  21st,  but  that  being  in 
London  on  March  25th  he  called  at  the  defendants'  shop,  and  had 
some  conversation  with  Ainsworth  one  of  the  defendants  on  the 
subject  of  other  seeds,  in  the  course  of  which  he  said  :  "  I  think 
we  have  some  transaction  with  you  ?"  and  the  plaintiff  replied, 
*'  Yes,  a  contract  for  three  acres  of  white  globe."  Ainsworth,  on 
the  other  hand,  stated  that  he  said  to  the  plaintiff  when  he  called,  "  I 
believe  we  have  been  writing  to  you  about  some  turnip  seed  ? "  and  the 
plaintiff  said,  "  Yes,  but  I  cannot  accept  your  offer  ; "  and  that  acting 
upon  that  the  defendants  bought  turnip  seed  elsewhere  at  a  higher 
price.  It  appeared  that  the  market  had  fallen  considerably  between 
March  and  August.  Wighiman  J.  left  it  to  the  jury  to  say  whether  the 
plaintiff  at  the  interview  rejected  or  accepted  the  terms  of  the  letter  of 
March  21st,  reserving  leave  to  the  defendants  to  move  on  the  question 
of  whether  there  was  any  contract  in  writing  to  satisfy  the  1 7th  section 
of  the  Statute  of  Frauds.  The  jury  found  that  the  contract  was 
accepted,  and  the  verdict  was  entered  for  the  plaintiff.  And  per 
Wilde  B. :  "The  single  question  is  whether  the  letter  of  21st  of  March 
is  a  sufficient  memorandum  within  the  Statute  of  Frauds  ?  If  it  is  a 
contract  to  buy  three  acres  of  turnip  seed  at  185.  per  bushel,  then  the 
point  is  not  arguable.  I  think  it  is  a  contract.  I  will  only  say  in 
reference  to  the  words  '  waiting  your  reply,'  that  if  they  are  to  be 
regarded  as  making  only  a  proposal,  then  there  is  not  a  contract,  but 
I  do  not  give  that  effect  to  the  words.  The  letter  makes  enquiries 
as  to  other  sorts  of  turnip  seeds,  and  also  as  to  wurzel  seed,  and  the 
defendants  wait  for  a  reply  as  to  that  part  of  the  letter"  {Watts  v. 
Amsu'orth). 

No  contract  where  sale  conditional  on  ansicer  hy  return  of  j^ost  which 
teas  not  sent. — A  letter  making  an  offer  for  a  horse,  adding,  "  Send  a 
reply  by  return  of  post,"  was  held  by  Bgles  J.  to  be  conditional,  and 
not  to  constitute  a  contract  in  the  absence  of  a  reply  ;  and  the  subject 
of  the  letter  having  been  sent  to,  but  not  actually  received  by  the 
defendant,  it  was  also  held  there  was  no  delivery  to  him.  The  offer 
having  received  no  answer,  and  being  conditional  on  return  of  post,  the 


538  SEIZURE   AND    SALE    UNDER    BILL    OF    SALE. 

plaintiff  could  not  recover  oiT  goods  bargained  and  sold,  and  there  not 
having  been  a  delivery  proved,  the  plaintiff  could  not  recover  on  goods 
sold  and  delivered,  and  the  verdict  for  the  defendant  was  confirmed  by 
the  Queen's  Bench  {Kirhy  v.  Trotter).  And  in  Emmott  v.  Riddell,  a 
proposal  on  one  side,  not  answered  by  the  other  until  after  a  delay  of 
some  months,  and  then  not  assented  to,  but  some  months  afterwards 
acceded  to,  was  held  by  Martin  B.  to  be  no  evidence  of  a  contract. 

Vemhr  liable  for  fahe  representation  of  length  of  lease  even  ivhen  vendee 
had  means  of  knowledge. — The  mere  possession  by  a  purchaser  of  the 
means  of  knowledge,  does  not  prevent  the  vendor's  liability  for  a  false 
representation ;  and  the  vendor  having  sold  a  lease  as  of  a  longer  term, 
he  knowing  it  to  be  a  shorter,  was  held  liable  though  he  had  sent  a  draft 
conveyance  reciting  the  lease,  the  recital  not  having  been  referred  to  by 
the  purchaser,  and  the  plaintiff's  verdict  was  upheld  by  the  Queen's 
Bench  (Ferrier  v.  Peacoclc), 

Assignment  hg  hill  of  sale  to  attorneg  from  client  not  void  on  ground  of 
champerty. — Anderson  v.  RadcUjfe  and  WalJcer  was  affirmed  in  error, 
and^^r  Curiam  :  "The  Court  of  Queen's  Bench  which  decided  Simpson 
V.  Lamh  (7  E.  &  B.  84,  26  L.  J.  (N.  S.)  Q.  B.  121)  distinguished  this 
case  from  that,  on  the  ground  that  here  there  was  not  an  absolute 
purchase,  but  only  a  security  for  costs  already  due." 

Seizure  and  sale  under  a  hill  of  sale. — On  a  bill  of  sale  with  covenant 
for  payment  of  the  money  at  a  distant  day  "  or  at  such  other  day  or 
time"  as  the  creditor,  the  assignee,  might  appoint  by  notice  in  writing, 
it  was  held  by  the  Court  of  Queen's  Bench  that  reasonable  notice  was 
required,  and  the  assignee  having  made  a  demand  of  payment  in  half- 
an-hour,  and  in  default  of  payment  seized  and  sold,  he  was  liable  to  an 
action  of  trespass,  but  that  the  damage  must  be  estimated  with  reference 
to  the  probability  of  the  debtor's  having  been  able  to  obtain  the  money 
had  reasonable  notice  been  given  ;  and  semhle  pier  Crompton  J.  that  a 
reasonable  notice  means  not  merely  such  time  as  might  be  necessary  for 
him  to  get  the  money,  supposing  him  to  have  had  it  ready,  but  time  to 
raise  it,  supposing  that  he  had  it  not  {Brightleg  v.  Norton). 

Portion  of  tjankrvpfs  farm  produce  sold  and  placed  separate  does  not 
pass  to  assignees. — Whore,  according  to  the  custom  of  some  parts  of 
England,  the  sold  produce  of  a  farm  is  stacked  apart  from  the  unsold 
produce  thereof,  with  liberty  for  the  purchaser  to  remove  such  sold 
produce  from  time  to  time  as  he  may  require  it,  and  at  the  date  of  the 
bankruptcy  of  the  seller  a  portion  only  of  such  sold  produce  has  been 
removed,  it  was  held  that  the  purchaser  was  entitled  to  the  benefit  of 
the  unremoved  portion,  and  that  the  same  did  not  pass  to  the  assignees 
of  the  seller  as  being  in  his  order  and  disposition,  within  the  meaning  of 


RAILWAY    COMPANY    TO    TAKE    WHOLE    ESTATE.  539 

the  125 til  section  of  the  Bankrupt  Law  Consolidation  Act,  1849  {Ex 
parte  Vidler  and  A?iother  re  Terry). 

Railway  dividing  one  jMi't  of  farm  from  another. — A  railway  passed 
through  a  farm,  and  divided  it,  so  that  the  buildings  could  not  be  con- 
veniently used  for  one  part  of  the  farm.  This  was  held  by  Romilly  M.R. 
to  be  an  injury  within  the  meaning  of  8  &  9  Vict.  c.  18,  s.  69,  which 
required  the  substitution  of  other  buildings,  and  that  the  compensation 
paid  for  the  damage  might  be  applied  in  the  erection  of  new  buildings 
upon  that  part  of  the  farm  which  required  them.  It  was  also  held  on 
the  authority  of  In  re  Buclcingham  Railway  Company  (14  Jur.  1065), 
that  the  application  for  the  sanction  of  the  Court  was  not  within  8  &  9 
Vict.  c.  18,  s.  80,  and  that  the  railway  company  was  not  liable  to  pay 
the  costs,  but  that  the  costs,  exclusive  of  those  of  the  railway  company, 
must  be  paid  out  of  the  fund  in  Court  {In  re  Oxford,  Worcester,  and 
Wolverliampton  Railway  Company  ex  parte  the  Devisees  of  Milivard). 

When  railway  company  obliged  to  take  house  and  premises. — A  railway 
company  under  the  compulsory  powers  of  the  Land  Clauses  Consolida- 
tion Act  cannot  take  a  portion  of  a  garden  and  orchard  essential  to  the 
enjoyment  of  a  mansion  and  premises  ;  they  must  take  the  entire  house 
and  curtilage  ;  and  therefore  where  a  mansion  and  premises  were  sur- 
rounded by  a  brick  wall,  and  a  railway  company  took  a  portion  of  the 
garden  and  orchard,  and  divided  one  part  of  the  premises  from  another, 
and  destroyed  all  the  internal  communication,  it  was  held  that  the  com- 
pany were  bound  to  take  the  whole  estate.  And  a  company  may 
abandon  a  notice  given  with  the  intention  of  taking  lands  under  the 
compulsory  powers  conferred  upon  them  :  such  notice,  without  some  act 
to  obtain  possessson,  is  not  a  contract  binding  on  the  company :  i^er 
Romilly  M.R.  {Reg.  v.  Wycombe  Railivay  Company). 

Requiring  company  to  take  all  the  premises  they  cut  through. — A  land 
owner  having  received  notice  from  a  railway  company  to  treat  for  the 
sale  of  a  part  of  his  premises,  does  not  by  offering  to  sell  that  part  at  a 
price  named  by  him  preclude  himself,  if  the  company  decline  the  off'er, 
from  requiring  them  to  take  the  whole  under  the  92ud  section  of  the 
Lands  Clauses  Consolidation  Act :  per  Wood  V.C.  {Gardner  v.  Charing 
Cross  Railway  Company). 

Mortgage  on  living  sold  no  ground  for  rescinding  contract. — An  advow- 
son  was  sold,  and  after  the  sale  the  purchaser  found  that  there  was  a 
mortgage  on  the  living  for  money  advanced  to  build  a  new  parsonage- 
house.  It  was  held  by  the  House  of  Lords  on  appeal  from  Stuart  V.C. 
and  the  Lord  Justices  that  this  did  not  form  a  groimd  for  resci?iding  the 
sale  of  the  advowson,  or  for  alloiving  to  the  purchaser  a  deduction  from  the 
amount  of  the pu^rchase  money.   And  j;^r  Lord  Campbell:  "  No  misrepre- 


540         INACCURATE  PARTICULARS  OF  SALE. 

sentatiou  on  the  part  of  the  vendor  was  alleged ;  but  it  was  said  he  did 
not  communicate  the  fact  of  this  charge  on  the  living  ;  that  could  not 
afifect  the  sale  of  the  advowson,  the  value  of  which  it  did  not  diminish 
but  rather  increased,  for  tlie  living  was  more  valuable  for  having  a  good 
parsonage-house  on  the  land,  than  if  the  house  was  bad  or  there  was 
none.  The  case  of  BurneJJ  v.  Brown  (1  J.  &  W.  G8)  did  not  apply  ;  for 
there  the  right  of  sporting  over  the  land  did  affect  the  value  of  the  land, 
which  was  the  thing  sold.  This  was  a  case  where  the  maxim  Caveat 
emptor  applied  ;  and  the  purchaser  not  having  made  himself  acquainted 
with  all  the  facts,  which  he  might  easily  have  done,  had  no  title  now  to 
ask  for  compensation."  And  j;>er  Cramvorth  Lord  :  "  Before  the  law 
was  altered  as  to  titles,  I  question  much  whether,  if  the  vendor  of  an 
advowson  knew  that  there  was  a  modus  affecting  a  particular  farm,  he 
was  bound  to  say  a  word  about  it  "  {Edwards  Wood  v.  MarjorihaiiliU  and 
Others). 

Inaccurate  particulars  of  sale. — If  particulars  inaccurately  describe 
premises  to  be  sold  by  auction,  the  Court  will  refuse  to  direct  a  specific 
performance  of  the  contract,  though  the  error  might  have  been  ascer- 
tained on  a  minute  inspection  of  the  particulars  and  conditions  of  sale  ; 
and  the  evidence  of  an  auctioneer  is  admissible  to  state  what  took  place 
at  the  auction.  In  the  disputed  lot  (which  was  described  as  "  an  undi- 
vided moiety  in  freehold  plantation,  &c."),  the  particulars  said,  "  the 
apportioned  rent  of  this  lot  is  £16  per  annum,"  whereas  it  was  only  £8, 
but  the  error  was  patent  on  such  particulars.  And  2)er  Sir  J.  Romillij 
M.R. :  "  I  regret  I  cannot  make  a  decree  for  specific  performance, 
because  the  defendant  has  occasioned  this  suit  by  refusing  the  offer 
made  to  put  an  end  to  the  contract.  In  case  of  mistake,  the  principle 
upon  which  the  Court  proceeds  is,  that  if  it  appears  upon  the  evidence 
that  there  was  in  the  description  of  the  property  a  mistake,  which  a 
person  might  londfide  make,  and  he  swears  positively  that  he  did  make 
such  mistake,  the  evidence  not  being  contradicted,  this  Court  cannot 
enforce  the  specific  performance  of  the  contract  against  him.  If  there 
is  no  ground  for  the  mistake,  if  no  man  with  his  senses  about  him  could 
have  misapprehended  the  description  or  character  of  the  parcels,  then 
it  is  not  sufficient  for  him  to  say  that  he  made  a  mistake  or  he  did  not 
understand  what  he  was  about.  It  is  quite  different  from  Matins  v. 
Freeman  (2  Keen,  25;  S.  C.  6  L.  J.  (N.  S.)  Ch.  133),  where  a  man  bought 
one  lot  by  mistake  for  another,  and  as  soon  as  the  auction  was  over, 
stated  that  he  had  made  the  error,  and  refused  to  sign  the  contract. 
Still  the  statement  here  is  contained  in  the  lot,  and  grammatically  it 
applies  to  the  apportioned  rent  of  the  lot,  and  the  lot  is  an  undivided 
moiety,  and  I  cannot  say  upon  that  statement  that  it  is  not  possible  a 


REMUNERATION    OF    AGENT   WHERE    SALE    GOES    OFF.     541 

person  may  have  been  hond  fide  deceived  in  the  matter,  and  he  swears 
he  was  so  deceived  "  {Swaisland  v.  DearsJeij). 

Right  of  agent  to  remimeration  where  sale  goes  off. — In  the  absence  of 
any  express  contract,  auctioneers  are  entitled  to  reasonable  remunera- 
tion for  sales  by  private  contract,  effected  through  their  instrumentality, 
even  although  by  the  act  or  default  of  the  vendor  the  contract  is  re- 
scinded ;  and  it  is  for  the  jury  whether  the  same  commission  as  on  sales 
by  auction  is  reasonable  ;  and  semJ)le  that  apart  from  express  contract, 
they  would  be  entitled  to  the  expenses  of  abortive  attempts  at  sale,  but 
it  would  not  be  reasonable  that  the  auctioneer  should  charge  not  only 
expenses  and  a  fixed  fee,  but  also  commission :  jjer  Coclihurn  C.J.  {Clark 
V.  Smytliies). 

Agent  should  declare  himself  at  an  auction. — A  party  bidding  at  an 
auction,  and  giving  his  own  name  simply  to  the  auctioneer,  must  be 
understood  to  be  the  contracting  party,  and  ought  to  be  held  liable  as 
such  ;  if  he  is  bidding  only  as  agent,  and  wishes  to  protect  himself  from 
being  treated  as  the  contracting  party,  he  ought  to  say  so  {Williamson 
V.  Barton). 


51iJ  EEPRESENTATION   AND    WARRANTY. 


CHAPTER    XV. 

HORSES    AND    CATTLE. 

W/icn  ihci'P  is  no  warranty  the  rule  "  Caveat  emptor  "  applies  to  sales  ; 
and  excej^t  there  he  deceit,  eithefr  hy  fraudulent  comealment  or  a  fraudulent 
misrepresentation,  no  action  for  unsoundness  lies  by  the  vendee  against 
the  vendor,  upon  the  sale  of  a  horse  or  other  animal  {ffill  v.  Balls).  It 
Avas  formerly  a  current  notion  that  a  sound  price  was  tantamount  to  a 
warranty  of  soundness.  Lord  Mansfield  C.J.,  however  (a.d.  1778), 
ruled  in  Stuart  v.  Wilkins  that  there  must  be  an  express  warranty  of 
soundness,  which  extends  to  all  faults,  known  or  unknown  to  the  seller, 
in  order  to  maintain  an  action.  If  a  seller  warrant  a  horse  sound,  he 
does  it  at  his  peril  if  the  horse  was  not  sound  at  the  time  of  the  sale, 
whether  he  knew  it  or  not  (1  LoflFt.  14G).  But  jj^r  Erskine  J.:  "Where 
there  is  evidence  of  a  warranty,  the  fairness  of  the  price  paid  is  a 
circumstance  tending  to  confirm  that  evidence "  {Kiddell  v.  Burrmrd). 
It  need  not  be  averred,  nor  if  averred  proved,  that  the  defendant  knew 
of  the  unsoundness  {WiUia)nson  v.  Allison). 

In  Salmon  v.  Ward,  Best  C.J.  laid  down  t/ie  distinction  hctween  a 
representation  and  a  tvarranty.  Xo  direct  evidence  had  been  given  of 
anytliing  that  passed  at  the  time  when  the  contract  Avas  made  ;  but 
some  letters  were  put  in,  one  of  them  written  by  the  plaintiff,  which 
contained  these  words,  "  You  will  remember  that  you  represented  the 
horse  to  me  as  a  five-year-old,  &c. ;  "  and  one  from  the  plaintiff,  in 
which  the  defendant  in  answer,  stated,  inter  alia,  "The  horse  is  as  I 
represented  it."  On  this  his  Lordship  observed  :  "  The  question  is 
whether  I  and  the  jury  can  collect  that  a  warranty  took  place.  I  quite 
agree  that  there  is  a  difference  between  a  Avarranty  and  a  representa- 
tion ;  because  a  representation  must  be  known  to  be  false.  No  parti- 
cular words  are  necessaiy  to  constitute  a  Avarranty.  If  it  were  so,  there 
Avould  be  more  tricks  in  horse  cases  than  there  are  at  present.  If  a 
man  say.s,  'This  horse  is  sound,'  that  is  a  warranty.  If  the  jury  found 
that  the  representation  alluded  to  in  the  letters  occurred  at  the  time  of 
the  sale,  and  witiiout  any  qualification,  then  I  am  of  opinion  that  it  is  a 


AVERMENT  OF  WARRANTY.  513 

warranty.  If  it  occurred  before,  or  if  it  was  qualifiad,  then  it  must  be 
taken  to  be  a  representation,  and  not  a  warranty." 

Lord  Eldon  Cli.,  in  Geddes  v.  Pennington,  held  that  if  the  horse 
answered  the  warranty  at  the  time  of  sale,  a  misrepresentation  as  to  the 
place  from  ivhich  it  icas  procured  does  not  suffice  to  set  aside  the  sale, 
though  it  might  be  a  material  consideration  with  respect  to  costs  ;  and 
the  judgment  of  the  Scotch  Court  of  Session,  where  three  out  of  five 
judges  held  that  the  accident  was  not  owing  to  vice  in  the  horse,  but 
lack  of  skill  in  the  driver,  was  affirmed  by  the  House  of  Lords,  without 
costs  on  either  side. 

On  a  motion  for  a  nonsuit  in  Cave  v.  Coleman,  the  Court  of  Queen's 
Bench  held  that  the  simple  words,  "  You  may  depend  upon  it  that  the 
horse  is  perfectly  quiet  and  free  from  vice^'  spoken  hy  the  defendant  in  the 
course  of  dealing,  and  before  the  bargain  teas  complete,  was  sufficient  to 
support  an  averment  of  warranty,  although  the  word  "warrant"  was 
not  used.  In  Dunlop  v.  Waugh,  where  a  horse  sold  as  an  eight-year- 
old  proved  to  be  fourteen,  but  the  defendant  showed  the  written 
pedigree  at  the  sale,  and  said  that  he  knew  no  more,  as  the  mark  was 
out  of  his  mouth,  Lord  Kenyon  C.J.  ruled  that  this  clearly  was  no 
Avarranty,  as  the  defendant  told  all  he  knew,  and  entered  into  no  express 
undertaking  that  the  horse  was  of  the  age  stated  in  the  pedigree.  So 
in  Anderson  v.  Rohson,  which  was  an  action  for  the  price  of  a  horse 
which  had  thrown  a  spavin,  and  evidence  as  to  warranty  went  to  show 
that  plaintiff  had  merely  said,  on  defendant's  making  inquiry,  that  the 
horse  was  "  sound  as  far  as  he  knew,"  and  he  had  not  previously  dis- 
covered anything  the  matter  with  him,  Gresswell  J.  held  that  there  was 
no  warranty,  and  the  plaintiff  had  a  verdict.  This  case  differed  mate- 
rially from  Wood  v.  Smith,  where,  although  the  defendant  at  the  time 
of  the  sale  said,  "  The  mare  is  sound  to  the  best  of  my  knowledge,  but 
I  never  warrant ;  I  would  not  even  warrant  myself,"  it  was  proved  that 
he  knew  her  to  be  unsound  at  the  time :  and  hence  the  Court  of  Queen's 
Bench  refused  a  nonsuit.  Bayley  J.  observed :  "  The  general  rule  is 
that  whatever  a  person  represents  at  the  time  of  a  sale  is  a  tvarranty.  But 
the  party  may  either  give  a  general  warranty,  or  he  may  qualify  that 
warranty.  By  a  general  warranty  a  person  warrants  at  all  events  ;  but 
here  the  defendant  gives  a  qualified  warranty,  as  he  only  warrants  the 
mare  sound  for  all  he  knows.  This  is  a  qualified  warranty,  and  the 
purchaser  may  maintain  assumpsit  on  it,  if  he  can  show  that  the  horse 
was  unsound  to  the  knowledge  of  the  seller." 

It  was  ruled  by  the  Court  of  Queen's  Bench  in  Hort  v.  Lord  Neicry 
that,  although  a  person  may  disclaim  against  making  a  warranty  of  a 
horse,  yet  if  he  give  him  a  character  for  a  particular  quality,  as  by  saying 


54-4  WARRANTY    OF    "  CLEVER    HACK.' 

that  he  is  quiet  in  harness,  and  do  it  in  sncli  a  manner  as  reasonably  to 
make  an  impression  on  the  mind  of  the  buyer  that  he  is  generally  quiet 
in  harness,  he  will  be  bound  by  that  representation  ;  and  if  it  is  not 
true,  an  action  will  lie  to  recover  bacli  the  price  of  the  horse.  And^^er 
Curiam  :  "  In  this  case  the  defendant,  knowing  that  the  witness  had 
been  requested  to  speak  to  him  to  give  a  character  of  the  horse,  asserts 
that  he  is  quiet  in  harness.  That  description  of  the  horse  is  carried  on 
to  the  plaintiff,  who,  relying  upon  it,  buys  him.  Would  any  man  of 
common  sense,  to  whom  that  communication  was  made,  understand 
that  the  defendant  meant  to  convey  an  impression  that  the  horse  was 
(jmeralhj  quiet  in  harness,  or  only  that  he  was  quiet  the  last  time  he 
drove  him  ? " 

Warranti/  of  horse  heing  "  a  cUvn  hack  "  does  not  imply  that  it  is 
sound. — Cleohurij  v.  Tattersall  was  brought  to  recover  from  the  defen- 
dants, the  well-known  proprietors  of  the  horse  establishment  at  Hyde 
Park  Corner,  the  sum  of  £43,  upon  an  alleged  warranty  of  a  horse, 
purchased  by  the  plaintifp  at  one  of  their  public  sales.  It  appeared 
that  the  plaintiff,  a  solicitor,  was  on  the  11th  May  looking  over  the  list 
of  horses  entered  for  sale  the  following  day  at  Tattersall's.  He  saw  a 
horse,  described  in  the  catalogue  as  "  a  bay  gelding,  a  clever  hack  and 
hunter,"  and  on  the  following  day  he  went  to  the  sale,  purchased  the 
animal  for  21  guineas,  and  rode  it  home  to  his  residence  at  Bayswater, 
when  it  "  blundered"  and  stumbled  twice  during  the  journey;  and  on 
the  day  after  he  sent  it  to  Mr.  Field,  the  veterinary  surgeon,  who 
examined  it,  and  gave  a  certificate  that  it  was  lame  in  both  its  fore-legs. 
It  was  then  returned  to  Messrs.  Tattersall's,  who  refused  to  receive  it,  on 
the  ground  that  no  warranty  of  soundness  had  been  given,  and  that  the 
horse  really  was  what  it  was  described  to  be — "  a  clever  hack  and  good 
hunter."  Witnesses  were  called  to  prove  that  the  horse  was  in  an 
unsound  state.  Blackburn  J.  said  that  as  a  point  of  law  he  must 
certainly  rule  that  the  description  of  the  horse  as  "  a  clever  hack"  did 
not  amount  to  a  warranty  of  soundness  ;  the  only  question  for  the  jury 
was  whether,  upon  all  the  facts,  they  considered  the  horse  entitled  to  be 
described  as  "a  clever  hack."  The  jury  considered  that,  from  the 
description,  the  plaintiff  had  a  right  to  expect  something  difierent,  and 
they  returned  a  verdict  in  his  favour.  A  verdict  was  then  taken  for  the 
plaintiff,  but  judgment  was  stayed,  the  learned  judge  giving  the  defen- 
dants leave  to  move  to  enter  a  nonsuit,  in  the  event  of  the  Court  being 
of  opinion  that  he  was  wrong  in  law  in  his  ruling  with  regard  to  the 
contract.  The  defendants  did  not  carry  the  point  into  a  higher  court ; 
and  we  understand  from  them  that  the  horse  has  gone  well  both  as  hack 
and  hunter  since. 


UNAUTHORISED    WARRANTY    BY    SERVANT.  545 

Unauthorised  tvarranfy  Inj  servant. — In  Brady  v.  Tod  (30  L.J.  (N.S.) 
223  C.P.),  it  was  decided  that  the  servant  of  a  private  owner  entrusted 
on  one  particnhir  occasion,  not  at  a  fair  or  other  public  mart,  to  sell  and 
deliver  a  horse,  is  not  therefore  by  law  authorised  to  bind  his  master  by 
a,  warranty ;  but  the  buyer  who  takes  a  warranty  in  such  a  case  takes  it 
at  the  risk  of  being  able  to  prove  that  the  servant  had  his  master's 
authority  to  give  it.  The  defendant  was  not  a  horse-dealer,  but  a 
tradesman  residing  in  London,  who  also  had  a  farm  in  Essex,  which 
was  managed  by  his  bailiff  Greig ;  and  the  latter,  by  the  defendant's 
authority,  sold  the  horse  in  question  to  the  plaintiflF,  and,  as  the  jury 
found,  with  a  warranty  that  it  was  sound  and  quiet  in  harness  ;  but  it 
was  also  proved  that  the  defendant  gave  no  authority  to  Greig  to  give 
any  warranty.  The  horse  having  turned  out  vicious  in  harness,  the 
plaintiff  brought  this  action  and  recovered,  leave  being  reserved  to  the 
defendant  to  enter  a  nonsuit.  And  per  Erie  C.J. :  "  Upon  this  rule  to 
set  aside  the  verdict  for  the  plaintiff,  and  enter  it  for  the  defendant,  on 
the  plea  denying  the  warranty  of  a  horse,  the  question  has  been,  whether 
the  warranty  by  the  defendant  was  proved.  The  jury  have  found  that 
Greig  in  selling  the  horse  for  the  defendant  warranted  it  to  be  sound 
and  quiet  in  harness.  The  defendant  stated,  and  it  must  on  this 
motion  be  taken  to  be  true,  that  he  did  not  give  authority  to  Greig  to 
give  any  warranty. 

"  The  relevant  facts  are,  that  the  plaintiff  applied  to  the  defendant, 
who  is  not  a  dealer  in  horses,  but  a  tradesman  with  a  farm,  to  sell  the 
liorse  ;  that  the  defendant  sent  his  farm-bailiff  Greig  with  the  horse  to 
the  plaintiff,  and  authorised  him  to  sell  it  for  30  guineas.  The  plaintiff 
contends  that  an  authority  to  sell  and  deliver  imports  an  authority  to 
him  to  w^arrant.  The  subject  has  been  frequently  mentioned  by  judges 
and  text  writers,  but  we  cannot  find  that  the  point  has  been  ever 
decided.  It  is  therefore  necessary  to  consider  it  on  principle.  The 
general  rule  that  the  act  of  an  agent  does  not  bind  his  principal,  unless 
it  was  within  the  authority  given  to  him,  is  clear  ;  but  the  plaintiff 
contended  that  the  circumstances  created  an  authority  in  the  agent  to 
warrant  on  various  grounds ;  among  others,  he  referred  to  cases  where 
the  agent  has  by  law  a  general  authority  to  bind  his  principal,  though 
as  between  themselves  there  was  no  authority,  such  as  partners,  masters 
of  ships,  and  managers  of  trading  business  ;  and  stress  was  laid  on  the 
expressions  of  several  judges,  that  the  servant  of  a  horse-dealer  or  a 
livery-stable  keeper  can  bind  his  master  by  a  warranty,  though  as 
between  themselves  there  was  an  order  not  to  warrant.  See  Helyear  v. 
Hatvke  (5  Esp.  72),  Alexander  v.  Gibson  (2  Camp.  555),  and  Fenn 
v.  Harrison  (3  T.  K.  759).     We  understand  those  judges  to  refer  to  a 


540  AUTHORITY    OF    AGENT    TO    BIND    PRINCIPAL. 

general  agent  employed  for  a  princijial  to  carry  on  his  Lnsiness,  that  is 
the  business  of  horse-dealing,  in  which  case  there  would  be  by  law  the 
authority  here  contended  for. 

"  But  the  facts  of  the  present  case  do  not  bring  the  defendant  within 
this  rule,  as  he  was  not  shown  to  carry  on  any  trade  of  dealing  in 
horses.  It  was  also,  contended  that  a  special  agent  without  any  express 
authority  in  fact  might  have  an  authority  by  law  to  bind  his  principal ; 
as  where  a  principal  holds  out  that  the  agent  has  such  authority,  and 
induces  a  party  to  deal  with  him  on  the  faith  that  it  is  so.  In  such  a 
case,  the  principal  is  concluded  from  denying  this  authority  as  against 
the  party,  who  believed  what  was  held  out,  and  acted  on  it  {Pickering 
V.  Busl',  15  East,  38).  But  the  facts  do  not  bring  the  defendant  within 
this  rule.  The  main  reliance  was  placed  on  the  argument  that  an 
authority  to  sell  is  by  implication  an  authority  to  do  all  that  in  the 
usual  course  of  a  sale  is  required  to  be  answered,  and  that  therefore  the 
defendant  by  implication  gave  to  Greig  an  authority  to  answer  that 
question,  and  to  bind  him  by  his  answer.  It  was  a  part  of  this  argu- 
ment, that  an  agent  authorised  to  sell  and  deliver  a  horse  is  held  out  to 
the  buyer  as  having  authority  to  warrant.  But  on  this  point  also  the 
plaintiff  has  in  our  judgment  failed. 

"  We  are  aware  that  the  question  of  warranty  frequently  arises  upon 
the  sale  of  horses,  but  we  are  also  aware  that  sales  may  be  made  with- 
out any  warranty  or  even  inquiry  about  wan-anty.  If  we  laid  down  for 
the  first  time  that  the  servant  of  a  private  owner  entrusted  to  sell  and 
deliver  a  horse  on  one  particular  occasion  is  therefore  by  law  authorised 
to  bind  his  master  by  a  warranty,  we  should  establish  a  precedent  of 
dangerous  consequence.  For  the  liability  created  by  a  warranty  ex- 
tending to  unknown  as  well  as  known  defects  is  greater  than  is  expected 
by  persons  inexperienced  in  law ;  and  as  everytliing  said  by  the  seller  in 
the  bargaining  may  be  evidence  of  warranty  to  the  effect  of  what  he 
said,  an  unguarded  conversation  with  an  illiterate  man  sent  to  deliver  a 
horse  may  be  found  to  have  created  a  liability,  which  would  be  a  surprise 
equally  to  the  servant  and  the  master.  Wc  therefore  hold  that  a  buyer 
taking  a  warranty  from  such  an  agent  as  was  employed  in  this  case, 
takes  it  at  the  risk  of  being  able  to  prove  that  he  had  the  principal's 
authority,  and  if  there  was  no  authority  in  fact,  the  law  from  the  cir- 
cumstances does  not  in  our  opinion  create  it. 

"  When  the  facts  raise  the  question,  it  will  be  time  enough  to  decide 
the  liability  created  by  such  a  servant  as  a  foreman  alleged  to  be  a 
general  agent,  or  such  a  special  agent  as  a  person  entrusted  with  the 
sale  of  a  horse  in  a  fair  or  other  public  mart  where  stranger  meets 
stranger,  and  the  usual  course  of  business  is  for  the  person  in  posses- 


RECEIPT    OF    DOUCEUR    BY    AOENT    FROM    SELLER.       547 

sion  of  the  horse  and  appearing  to  be  the  owner  to  have  all  the  powers 
of  an  owner,  in  respect  of  the  sale ;  the  authority  may,  under  such 
circumstances  as  are  last  referred  to,  be  implied,  though  the  circum- 
stances of  the  present  case  do  not  create  the  same  inference.  It  is  un- 
necessary to  add,  that  if  the  seller  should  repudiate  the  warranty  made 
by  his  agent,  it  follows  that  the  sale  would  be  void,  there  being  no 
question  raised  upon  this  point." 

Limiiation  of  parUcidar  of  horses  sold. — Under  a  particular  specifying 
horses  sold  by  the  plaintiff  to  the  defendant,  the  plaintiff  cannot  recover 
the  price  of  horses  sold  by  the  defendant  for  the  plaintiff  as  his  agent 
(Holland  v.  Hoplcins). 

Receipt  of  douceur  hy  agent  from  seller. —  WUson  v.  Sfevetis  was  an 
action  against  Mr.  Stevens,  a  veterinary  surgeon,  for  having  kept  for  an 
unreasonable  time  a  horse  which  he  had  been  employed  by  the  plaintiff 
to  sell,  and  for  having,  when  employed  by  the  plaintiff  to  examine  and 
purchase  a  horse  for  him,  bought  an  unsound  horse,  and  received  a 
bribe  of  £5  from  the  seller  for  the  same.  The  plaintiff,  Mr.  Wilson, 
was  recommended  to  the  defendant  as  a  man  in  whom  he  might  safely 
confide  to  purchase  horses  for  him,  and  it  was  agreed  that  Mr.  Stevens 
should  charge  £2  2s.  for  each  of  such  purchases.  Several  dealings  took 
place,  some  satisfactory,  some  otherwise,  before  the  purchases  of  the 
horses  which  were  the  subject  of  this  action.  The  charge  was  two-fold, 
and  related  to  two  horses.  A  horse  was  bought  of  Mr.  Eice,  for  the 
plaintiff,  for  £105.  After  some  time,  not  being  quite  pleased  with  it, 
Mr.  Wilson  sent  it  to  the  defendant  for  sale.  It  was  kept  by  Mr. 
Stevens  for  113  nights  without  being  sold,  Mr.  Wilson  being  absent 
almost  the  whole  of  that  time  in  Scotland.  On  his  return,  finding  it 
still  in  the  stables,  he  took  it  away,  and  sent  it  to  Lawrence's  stables,  by 
whom  it  was  sold  in  a  very  few  days,  for  £G0.  Mr.  Stevens  brought  an 
action  against  Mr.  Wilson  for  the  keep  and  care  of  this  horse,  which 
Mr.  Wilson  resisted.  It  was  tried  at  Guildhall,  when  it  appeared  that 
no  legal  defence  could  be  offered,  and  a  verdict  was  given  for  the 
plaintiff. 

In  the  course  of  this  trial,  it  came  out  that  Mr.  Stevens  had  received 
£10  from  Mr.  Rice  for  selling  this  horse  to  the  plaintiff;  and  there- 
upon Baron  JIartin  told  the  jury  that  an  agent  had  no  right  to 
take  a  single  farthing  from  the  party  with  whom  he  was  dealing ;  that 
it  was  a  disgraceful  and  dangerous  transaction;  and,  although  they 
could  not  reach  it  in  that  action,  Mr.  Wilson  had  another  remedy ;  and 
he  directed  them  to  deduct  the  £10  so  received  from  the  amount 
claimed  by  the  plaintiff.  Upon  this  Mr.  Wilson  made  further  inquiries, 
and  hence  the  present  action.     Mr.  Stevens  had  previously  bought  for 

N    N    2 


548       ACTION    AGAIXST    AGENT    FOR    BREACH    OF    DUTY. 

him  another  horse  from  a  dealer  named  Sewell.     At  the  time  of  the 
l)urLhase,  when  trying  it,  Mr.  Wilson  was  not  quite  satisfied  with  the 
horse's  movements,  and  especially  with  the  contracted  shape  of  the  feet, 
but  Mr.  Stevens  said  it  was  nothing,  that  the  horse  was  sound  and 
right;  and,  relying  upon  that  advice,  Mr.  Wilson  bought  it  for  £90. 
It  soon  turned  out  to  be  a  screw,  and  fell,  and  broke  both  its  knees,  and 
three  veterinary  surgeons  certified  that  it  was  unsound,  with  contracted 
feet  and  diseased  eyes  of  long  standing.     It  was  also  sent  to  the  de- 
fendant himself  for  examination  ;  and,  not  remembering  that  it  was  the 
very  one  he  had  put  upon  Mr.  Wilson,  he.  also  gave  a  certificate,  which 
was  read,  that  it  was  lame  and  unsound,  with  diseased  eyes,  and  that 
these  defects  were  of  long  standing.     The  horse  was  sent  to  Gower's  and 
sold  for  £51,  Sewell  himself  being  the  buyer. 

An  action  was  brought  against  Sewell  on  his  warranty ;  and  there- 
upon Sewell  paid  the  whole  difference  between  the  sum  he  received  for 
the  horse,  and  that  at  which  it  had  been  sold,  together  with  the  costs. 
Mr.  Wilson  then  discovered  that,  for  putting  this  horse  upon  him,  Mr. 
Stevens  had  received  from  Sewell  the  sum  of  £5.  The  present  action 
was  brought  for  the  breach  of  duty  by  Stevens  in  that,  having  been 
employed  and  paid  by  Mr.  Wilson  to  use  his  professional  skill  in  the 
choice  of  a  sound  horse  for  him,  he  had  either  negligently  or  ignorantly 
bought  an  unsound  one,  and  for  having  taken  a  bribe  of  £5  for  so 
doing.  Mr.  Stevens  had  received  £10  for  one  horse,  and  £5  for  another, 
at  the  same  time  charging  Mr.  Wilson,  as  his  professional  adviser,  for 
buying  these  horses.  Mr.  Field's  examination  (he  being  ill)  was  read, 
where  he  stated  that,  from  the  condition  of  the  horse  when  he  saw  it,  it 
must  have  been  in  a  diseased  state  five  months  before,  such  as  any  man 
of  ordinary  professional  skill  ought  to  have  detected,  and  Mr.  Mavor 
and  another  gentleman  gave  evidence  to  the  same  effect. 

For  the  defence,  it  was  contended  that,  as  to  the  first  charge,  there 
was  proof  that  eveiy  possible  endeavour  was  made  to  sell  the  horse; 
and,  as  to  the  second,  that  it  was  not  proved  that  the  unsoundness  had 
actually  existed  at  the  time  of  the  purchase,  or  could  have  been  then 
discovered,  and  also  that  it  was  not  proved  that  the  horse  seen  by  the 
veterinary  surgeons  was  actually  Sewell's  horse,  and  that  the  £5  was  not 
a  bribe  paid  at  the  time,  but  a  present  made  to  Mr.  Stevens  afterwards 
for  his  trouble.  Witnesses  were  then  called  to  prove  this,  and  among 
them  tlie  defendant  himself,  who  admitted  the  receipt  of  the  £10  from 
Ptice  and  the  £5  from  Sewell,  but  added  that  he  had  returned  the  latter 
after  the  action  had  been  settled  by  Sewell ;  and  he  also  said  that  he 
did  not  believe  the  horse  for  which  he  gave  the  certificate  was  the  same 
horse   he  hud  bought  for  Mr.  Wilson.     Baron  Martin  told  the  jury 


DEFINITION    OF    BONE    SPAVIN.  549 

that  upon  the  first  charge  they  would  exercise  their  own  judgment 
whether  there  was  any  proof  that  defendant  had  not  made  reasonable 
endeavours  to  sell  the  horse.     If  they  thought  he  had,  he  would  be 
entitled  to  their  verdict  on  the  first  count.     But  the  other,  on  which 
the  plaintiff  mainly  relied,  was  a  much  more  serious  matter,  and  he 
would  tell  them  at  once  that  an  agent,  employed  and  piald  to  act  for  a 
purchaser  of  anything,  has  no  right  whatever  to  receive  a  single  farthing 
from  the  seller.     It  was  a  transaction  perfectly  unjustifiable,  and  which 
the  plaintiff  had  acted  most  properly  in  bringing  under  the  considera- 
tion of  a  jury.     He  then  went  through  the  evidence,  and  left  it  to  them 
to  say  if  they  had  any  doubt  that  the  horse  seen  by  the  veterinary 
surgeons  was  the  same  horse,  remembering  that  Sewell  had  actually 
admitted  it  to  be  so  by  paying  the  loss  upon  it;  and  that  if  so  satisfied, 
they  would  give  the  plaintiff  a  verdict  upon  the  second  count,  with  such 
damages  as  they  thought  proper ;  and  the  damages  to  which  he  would 
be  entitled  would  be  the  inconvenience  and  cost  he  had  reasonably  been 
put  to,  and  which  he  had  not  recovered  from  Sewell,  including  the 
£2  2s.  which  the  defendant  had  received  for  the  services  he  had  failed 
to  render.     The  jury  returned  a  verdict  for  the  defendant  on  the  first 
count,  and  for  the  plaintiff  on  the  second  count,  damages  £5.     His 
Lordship  immediately  certified  for  costs  and  for  the  special  jury,  and 
observed  to  the  jury :  Gentlemen,  this  was  a  very  proper  action  to 
bring,  and  a  very  proper  verdict.     It  is  just  what  I  would  have  given 
myself. 

Loss  of  good  bargain  evidence  of  value. — Although  no  damages  can  be 
recovered  for  the  loss  of  a  good  bargain,  the  bargain  would  be  evidence 
of  the  value  of  tM  horse  supposing  him  to  he  sound  {Clare  v.  Magnard). 

Definition  of  lone  spaviji. — "  Bone  spavin  is  a  bony  deposit  on  articu- 
lating surfaces  of  joint.  The  term  '  spavin  '  really  means  the  lameness 
and  not  the  disease.  In  splint  especially,  and  in  spavin,  traces  may 
disappear  and  disease  exist." 

Responsihilitg  of  hirer  of  horse. — As  between  the  lender  and  hirer  of 
horses,  the  hirer,  in  the  absence  of  any  custom  in  the  trade,  is  only 
bound  to  use  reasonable  care,  to  employ  a  competent  coachman  {Ahron 
V.  Fussell). 

In  the  case  of  Head  v.  Tattcrsalt,  7  L.  R.  Ex.  7,  the  plaintiff  bought 
of  the  defendant,  an  auctioneer,  a  horse  described  in  the  catalogue  as 
having  been  hunted  with  the  Bicester  and  Duke  of  Grafton's  hounds. 
The  contract  of  sale  contained  a  condition  that  "  horses  net  answerinsr 
the  description  must  be  returned  before  5  o'clock  on  the  following 
Wednesday  evening,"  the  sale  having  taken  place  on  Monday.  The 
horse  had  not  in  fact  been  hunted  with   either  pack  of  hounds   as 


550  BIDDING    BY    "  PUFFERS  "    AT    AUCTIONS. 

described,  and  the  plaintiff  was  told  this  before  he  had  taken  the  horse 
away  by  a  groom  who  had  had  charge  of  the  horse.  Tiie  plaintiff  never- 
theless took  the  horse  away.  On  the  road  to  the  plaintiff's  premises, 
and  while  under  the  charge  of  plaintiff's  servant,  the  horse  took  fright, 
ran  away,  and  was  injured.  The  plaintiff  thereupon  returned  the  horse 
as  not  answering  the  description  before  the  Wednesday  evening,  and 
brought  an  action  to  recover  the  value  given.  The  jury  found  that  the 
plaintiff  was  induced  to  buy  the  horse  by  the  warranty,  and  that  the 
injury  sustained  by  the  horse  was  not  in  any  way  caused  by  the 
negligence  of  the  plaintiff's  servant,  and  a  verdict  was  entered  for 
the  plaintiff  for  the  value  of  the  horse.  This  verdict  was  upheld  by 
the  Court  of  Exchequer.    . 

A  bidder  at  a  sale  hy  auction,  under  the  usual  conditions  that  the  highest 
bidder  shall  be  the  purchaser,  may  retract  his  bidding  before  the  hammer 
falls,  as  until  then  his  offer  is  not  assented  to  by  the  auctioneer  as  the 
agent  of  the  vendor  {Payne  v.  Cave).  "Where  a  sale  is  on  these  condi- 
tions, and  a  horse  is  bid  iq)  by  a  puffer  (here  a  servant  of  the  owner, 
who  bid  the  horse  up  to  23  guineas  after  a  bond  fide  bidder  had  bid  12 
guineas),  it  was  settled  in  Crowdcr  v.  Austin  that  the  vendor  has  not  an 
action  for  the  price  against  the  last  bidder,  to  whom  it  was  knocked 
down  for  29  guineas.  Best  C.J.  said  that  "  such  puffing  was  a  gross 
fraud,  and  that  a  seller  had  a  right  to  have  one  person  to  bid  for  him  at 
a  sale,  but  must  declare  it  in  the  conditions.  Here  defendant  was 
entitled  to  have  the  horse  at  the  next  bidding  to  that  of  the  only  fair 
bidder."  A  rule  nisi  to  set  aside  the  nonsuit  was  discharged  without 
argument,  ParTce  J.  observing  that  "  the  opinion  of  Lord  Mansfield  in 
Bexicell  v.  Christie  is  not  a  mere  dictum,  but  a  long  elaborate  judgment ; 
and  he  was  followed  by  Lord  Kenyon  C.J.  in  a  case  of  Blachford  v. 
Preston ;  and  in  Howard  v.  Castle.  And  it  is  now  fully  settled  that 
the  vendor  may  employ  one  person  to  prevent  a  sale  at  an  uncier-value, 
provided  it  be  not  stated  in  the  particulars  or  advertisements  that  the 
sale  is  "  ivithout  reserve.''  But  the  employment  of  a  single  puffer  when 
the  sale  is  '-without  reserve"  will  avoid  it  at  law  {Thornett  v. 
Haines). 

The  conditions  of  sale  by  auction  printed,  and  posted  up  under  tJie 
auctio7ieer's  box,  in  a  Repository,  coupled  with  his  declaration  that  the 
conditions  are  as  usual,  constitute,  according  to  Mesnard  v.  Aldridge,  a 
sufficient  notice  of  them  to  purchasers.  In  that  case,  where  a  horse 
was  bought  on  Wednesday  with  a  warranty  of  soundness,  and  one  con- 
dition was  that  all  horses  purchased  there,  in  case  of  any  unsoundness 
being  discovered,  should  l^e  returned  before  the  evening  of  the  second 
day  after  the  sale,  the  return  of  a  horse  on  Saturday  was  decided  to  be 


HORSE    SOLD    WITH    ALL    FAULTS.  551 

too  late,  and  the  purchaser  was  deemed  to  have  been  cognizant  of  the 
conditions,  though  they  were  not  read  over  before  the  sale  by  the 
auctioneer.  And  so  in  Smart  v.  Hyde,  where  a  mare  was  sold  under  a 
somewhat  similar  condition,  at  Lucas's  Repository,  and  the  defendant 
pleaded  to  a  declaration  on  a  warranty  of  soundness  that  the  sale  took 
place  subject  to  that  condition,  and  that  the  same  was  agreed  to  by  the 
parties,  and  that  the  notice  and  certificate  of  unsoundness  were  not 
given  within  the  time  limited  {i.  e.,  before  noon  of  the  day  after  the 
sale),  the  plea  was  held  good,  and  not  amounting  to  the  general  issue. 
It  admits  the  contract  and  promise ;  but  shows  it  to  have  been  made 
subject  to  certain  rules,  which  had  not  been  complied  with.  That  was 
clearly  not  a  denial  of  the  contract,  as  alleged  in  the  declaration. 

In  Buchanan  v.  Parnshaiv  a  horse,  warranted  six  years  old  and 
sound,  was  discovered  ten  days  afterwards  to  be  twelve  years  old.  The 
Court  of  King's  Bench  held  that  the  condition  of  sale— "  That  the 
purchaser  of  any  horse  warranted  sound,  who  should  conceive  the  same 
to  be  unsound,  should  return  him  within  two  days,  otherwise  he  should 
be  deemed  sound  " — must  be  confined  solely  to  the  unsoimdmss ;  and 
that,  as  regarded  that,  it  was  a  wise  and  reasonable  one ;  but  that,  as 
the  age  of  the  horse  was  not  open  to  the  same  difficulty,  he  ought  to 
have  been  taken  back,  and  therefore  the  buyer  might  maintain  an  action 
against  the  seller.  And  the  buyer's  right  to  recover  was  held  not  to  be 
aflFected  by  his  having  sold  the  horse,  after  offering  him  to  the  defen- 
dant (/&.).  The  imsoimdness  in  By  water  v.  Richardson  was  of  a  nature 
not  liJcely  to  he  discovered  (especially  as  he  was  shown  on  a  bark  ride  at 
Lucas's  Repository)  in  the  twenty-four  hours,  within  which  the  buyer 
had  the  option  of  returning  the  horse ;  but  still  the  Court  of  King's 
Bench  upheld  the  condition  as  not  unreasonable,  although  it  would 
have  been  inoperative  if  the  facts  had  shown  any  fraud  or  artifice  in  the 
seller.  In  contracts  of  this  nature,  where  a  horse  is  "sold  with  all 
faults,"  there  is  no  fraud  unless  the  seller  by  jwsitive  means  renders 
it  impossible  for  the  purchaser  to  detect  latent  faults ;  and  the  dictum 
of  Lord  Kenyon  C.J.  in  Hellish  v.  Jlotteux,  that  the  seller  is  bound  to 
disclose  such  of  the  latter  as  have  come  to  his  knowledge,  was  expressly 
overruled  by  Lord  Ellenhoroucjh  C.J.,  in  Baylehole  v.  Walters,  which 
Lord  Denman  relied  upon  in  Bywater  v.  Richardson. 

The  cjnestion  as  to  whether  a  private  ivarranty  could  he  incorporated 
into  the  conditions  of  sale  at  TattersalVs,  where  the  well-known  course 
of  business  is,  that  horses  sold  there  are  not  warranted  unless  a  state- 
ment to  that  effect  is  made  in  the  catalogue,  was  very  much  discussed 
in  Hopkins  v.  Tanqueray,  which  was  an  action  for  alleged  breach  of 
warranty.     The  defendant,  in  that  case,  had  sent  his  horse  California  to 


55ii  EFFECT    OF   PRIVATE   WARRANTY. 

Tattersall's,  aud  he  was  advertised  to  be  sold  there  on  Monday  (May  30, 
1853).  On  the  previous  Sunday  the  defendant  saw  the  phiintiff,  Nvhom 
he  knew,  kneeling  down  in  the  stall  to  examine  his  horse's  legs,  and 
said  to  him,  "You  need  not  examine  his  legs;  you  have  nothing  to  look 
for ;  I  assure  you  he  is  perfectly  sound  in  every  respect."  To  this 
plaintiff  replied,  "If  you  say  so,  I  am  perfectly  satisfied;"  and  imme- 
diately got  up.  Next  day  the  plaintiff,  having,  as  he  said,  "  made  up 
his  mind  on  the  29th  of  May  to  buy  him,  relying  on  defendant's  positive 
assurance  that  he  was  sound,"  bought  the  horse  for  280  guineas.  The 
horse  broke  down  at  his  trainer's,  and  was  sold  for  144:  guineas,  and  it 
was  sought  to  recover  in  this  action  the  difference  between  that  sum 
and  the  price  he  was  originally  sold  at.  It  was  contended,  among  other 
points  for  the  defendant,  that  the  conversation  was  not  equivalent  to  a 
warranty,  but  a  mere  representation  of  opinion  and  belief,  which,  in  the 
absence  of  fraud,  gave  no  ground  for  an  action ;  and  farther,  that  it  was 
no  part  of  the  contract  under  which  the  horse  was  sold  on  the  Monday  ; 
and  that  the  representation  could  not  be  incorporated  into  such  con- 
tract, it  having  been  made  on  a  Sunday.  All  idea  of  fraud  was  dis- 
claimed. 

Talfourd  J.  thought  there  was  not  any  evidence  of  warranty,  but  de- 
clined to  nonsuit  ;  and  the  jury  found,  in  reply  to  his  lordship's  ques- 
tions— (1)  That  a  warranty  was  embodied  in  the  contract  of  sale  and 
(2)  (though  as  to  this  the  evidence  was  conflicting)  that  California  was 
unsound  at  the  time  of  sale  ;  and  gave  a  verdict  for  the  plaintiff  of 
.£142  16s.  The  Court  of  Common  Pleas  held  that  there  was  no  evi- 
dence of  a  warranty,  express  or  implied,  to  go  to  the  jury  ;  as  the  con- 
versation on  the  Sunday  was  a  mere  representation  of  what  the  plaintiff 
hondfith  believed  to  be  the  fact,  and  formed  no  part  of  the  contract  of 
sale  on  the  next  day.  Cressicell  J.,  however,  intimated  his  opinion  that 
if  such  representation  had  been  made  at  the  time  of  sale,  so  as  to  form 
part  of  the  contract,  it  might  have  amounted  to  a  warranty.  Maule  J. 
said  in  the  course  of  the  argument:  "Assuming  that  the  defendant 
privately  warranted  his  horse  to  the  plaintiff  before  the  sale,  a  very 
serious  question  would  arise,  whether  such  a  warranty  could  be  en- 
forced. Bo7id  fide  bidders,  to  whom  the  horse  was  not  warranted, 
might  thus  be  induced  to  offer  a  higher  price,  supposing  the  plaintiff 
to  be  bidding  on  the  same  footing  as  themselves.  That  sort  of  double- 
dealing  could  hardly  have  been  intended  by  either  of  these  gentlemen. 
Eacli  would,  in  effect,  be  taking  the  chance  of  an  advantage  at  the 
expense  of  third  persons."  And  2wr  Jervis  C.J.  :  "  It  might  be  a 
ground  for  setting  aside  a  sale  between  the  seller  and  a  third  person." 
In  the  case  of  Chapman  v.  Gwijther  (1  N.R.  Q.B.,  403)  the  plaintiff 


GENERAL    RULE    FOR    HORSE-DEALING.  553 

bought  of  the  defendant  two  horses  and  the  following  memorandum 
was  signed  by  defendant  at  the  time  of  sale  : 

"June  Uh,  1865. 

"Mr.  Chapman  bought  of  Mr.  G.  Gwyther,  a  brown  horse  six  years 
old,  warranted  sound,  for  £180  :  also  a  bay  horse  five  years  old 
for  £90.     Warranted  sound. 

"  George  Gwyther. 
"  Warranted  sound  for  one  month. 

"George  Gwyther." 

It  was  held  that  the  latter  words  limited  the  duration  of  the  warranty. 
The  general  rule  for  horse-dealing  was  thus  laid  down  by  3IauJe  J.  in 
Keates  v.  Earl  Cadogan :  "  If  a  horse-dealer  contracts  to  sell  a  gentle- 
man a  horse  fit  to  carry  him,  and  he  sells  him  one  which  he  knows  to 
be  unfit  for  the  purpose,  he  does  not  perform  his  contract.  But  if  a 
man  buys  a  horse  generally,  the  seller  will  not  be  responsible,  although 
knowing  that  his  customer  wanted  the  horse  for  his  own  riding,  he  sells 
him  one  which  will  not  carry  him."  If  there  has  been  a  parol  agree- 
ment, which  is  afterwards  reduced  by  the  parties  into  writing,  that 
writing  must  alone  be  looked  to,  to  ascertain  the  terms  of  the  contract ; 
but  where,  as  in  Allen  v.  Pinlc,  the  plaintiff  merely  received  the  following 
memorandum  from  the  seller  : — ■ 

"  Bought  of  G.  Pink  a  horse  for  the  sum  of  £7  2s.  Qd. 

"G.  Pink," 

and  brought  an  action  to-  recover  back  the  price  he  had  paid  for  the 
horse,  which  proved  unruly  and  vicious  in  harness,  he  was  allowed  to 
give  parol  evidence  of  a  warranty  given  him  by  the  defendant  at  the 
time  of  the  sale,  to  the  effect  that  he  was  a  quiet  worker,  and  would  go 
well  in  spare  harness.  A  fraudulent  representation  at  the  time  of  sale  in- 
validates the  ivarranty ;  though  it  does  not  relate  to  any  point  included 
in  it;  and  in  Steward  v.  Cocsvclt,  where  the  written  warranty  was 
simply  to  the  effect  that  the  horse  was  ''sound,  and  free  from  vice," 
Burrough  B.  admitted,  as  general  evidence  of  fraud,  that  the  horse 
was  represented  at  the  time  of  sale  as  five  off,  whereas  he  was  only 
rising  five.  But  Geddes  v.  Pennington  is  an  authority  to  show  that 
if  the  warranty  is  answered,  a  mere  trivial  misrepresentation  as  to  the 
place  from  which  the  horse  was  procured  would  not  suffice  to  set  aside 
the  sale.  A  representation  must  he  Icnown  to  he  false ;  and  hence  where 
as  in  Dickenson  v.  Gapp^  the  receipt  ran  thus  : — 


554-  WHAT   CONSTITUTES   WARRANTY. 

**  Sept.  7.   Eeceived  of  Robert  Dickenson  £100  for  a  bay  gelding  got 
by  Cheshire  Cheese,  and  warranted  sound," 

and  according  to  the  evidence  on  an  action  of  breach  of  warranty  of 
breed,  the  gelding  was  not  got  by  Cheshire  Cheese,  but  the  defendant 
believed  it  was,  Dallas  C.J.  considered  it  to  be  a  representation  merely, 
and  that  the  warranty  was  confined  to  the  soundness. 
The  warranty  in  EicMrdson  v.  Brown,  ran  thus  :— 

"  To  be  sold,  a  black  gelding,  five  years  old.     Has  been  constantly 
driven  in  the  plough.      Warranted:' 

The  plain tiflf  proved  him  sound,  and  got  a  verdict  for  the  price  ;  and 
a  rule  for  a  nonsuit  on  the  ground  that  the  warranty  referred  to  the 
horse's  previous  employment,  wliich  the  plaintiff"  ought  to  have  proved, 
was  refused  by  the  Court  of  Common  Pleas,  and  the  warranty  was  held  to 
apply  to  the  soundness  only.  Both  these  cases  were  referred  to,  as  being 
directly  in  point  by  Tindal  C.J.  in  his  judgment  in  Buddy.  Fairmener, 
which  was  an  action  to  recover  the  expense  of  keeping  a  grey  colt  for 
a  year,  which,  as  plaintiff"  contended,  had  been  warranted  to  him  by 
defendant  as  a  four-year-old  when  it  was  only  three.  The  receipt  was 
to  this  effect  : — 

«  Received,  August  4,  1830,  of  Mr.  Budd,  ten  pounds  for  a  grey  four- 
year-old  colt,  warranted  sound  in  every  respect. 

"  John  Fairmener." 

TindaJl  C.J.  directed  a  nonsuit,  and  said,  "  The  first  part  of  the  receipt 
contains  a  representation,  and  the  latter  part  a  warranty.  In  the  case 
of  a  representation,  to  render  liable  the  party  making  it,  the  facts 
stated  must  be  untrue  to  his  knowledge  ;  but  in  the  case  of  warranty, 
he  is  liable,  whether  they  are  within  his  knowledge  or  not."  The  Court 
of  Common  Pleas  discharged  a  rule  7iisi  for  setting  aside  the  nonsuit, 
and  Ahkrson  J.  said  :  "  A  ivarrantij  must  be  complied  wil/i,  whether  it  is 
material  or  not ;  hut  it  is  othenvise  as  to  a  repi'esentation.  As  at  present 
advised,  if  the  word  ivarranted  had  been  the  last  word,  I  should  have 
held  that  it  extended  to  the  wiiolc.  But  here  I  think  it  is  confined  to 
the  soundness  only." 

"  If  the  servant  of  a  horse-dealer  with  express  directions  not  to  warrant 
do  warrant,  the  master-  is  hound ;  because  the  servant  having  a  general 
authority  to  sell  is  in  a  condition  to  warrant,  and  the  master  has  not 
notified  to  the  world  that  the  general  authority  is  circumscribed"— 
per  Bayleij  J.  {Pickcrimj  v.  Busk).     And  the  rule  is  the  same  as  regards 


WARRANTY  BY  SERVANT.  555 

the  servant  of  a  livery  stable-keeper— ;7er  Ashurst  J.  {Feim  v.  Harrison); 
but  if  the  owner  of  a  horse  tvere  to  send  a  stranger  to  a  fair  with  express 
directions  ?iot  to  warrant  the  horse,  and  the  latter  acted co7itrary  to  the  orders, 
the  purchaser  could  only  have  recourse  to  the  person  who  actually  sold 
the  horse,  and  the  owner  would  not  be  liable  on  the  warranty,  because 
the  servant  was  not  acting  within  the  scope  of  his  employment  {ib). 

It  was  expressly  laid  down  by  Lord  Ellenhoroufjh  C.J.,  in  Alexander 
V.  Gibson,  where  the  defendant's  servant  swore  that  he  was  expressly  for- 
bidden hj  his  master  to  giveaivarranty,  and  denied  that  he  had  given  one, 
while  another  witness  said  that  he  had  warranted  the  horse  "  sound  all 
over;"  that  if  a  servant  is  authorized  to  sell  a  horse  and  receive  the 
stipulated  price,  he  is  impliedly  authorized  to  give  a  warranty  of 
soundness  which  will  bind  his  master,  and  that  it  is  enough  to  prove 
that  he  gave  it,  without  calling  him  or  showing  that  he  had  any 
special  authority  to  do  so.  His  lordship  ruled,  in  Helyear  v.  Hawhe, 
that  ivhat  a  servant  has  said  respecting  the  horse  at  the  time  of  the  actual 
sale,  as  part  of  the  transaction  of  selling,  is  evidence  against  the 
principal,  but  not  what  he  may  have  said  at  another  time;  and 
further,  that  being  entrusted  to  do  all  that  he  can  to  effectuate  the 
sale,  he  binds  his  master  even  if  he  exceeds  his  authority.  And  see 
Irving  v.  Motley.  Erskine  J,  also  declined  to  receive  evidence  in  Allen 
V.  Denstone,  that  defendant's  son  said  on  the  day  of  the  sale,  in  answer 
to  a  question  about  the  price,  that  he  would  warrant  the  horse  all 
right  except  being  a  whistler,  as  it  was  a  mere  conversation  with  a 
stranger,  and  not  a  statement  made  in  the  course  of  the  bargain.  His 
lordship  said:  "  It  might  have  been  admissible  if  it  had  been  shown 
that,  in  offering  the  horse  for  sale,  the  defendant's  son  had  offered  to 
give  a  warranty,  as  that  would  have  been  a  statement  accompanying 
an  act  done  in  the  course  of  his  agency;"  and  after  a  verdict  for 
the  defendant,  the  Court  of  Common  Pleas  refused  a  new  trial. 

The  general  rule  in  selling  a  horse  hy  a  servcmt  or  agent  is  thus  stated 
in  Oliphanfs  Law  of  Horses,  2nd  ed.,  page  105  :  "  The  master  or  owner 
is  bound  by  a  warranty  given  by  his  servant  or  agent  at  the  time  of 
sale,  without  his  consent,  and  even  against  his  express  direction;  and 
the  only  exception  is  the  case  of  the  agent  of  a  person,  who  is  neither 
a  horse-dealer,  or  stable-keeper,  warranting  a  horse  in  spite  of  the  ex- 
press orders  of  the  owner  to  the  contrary ;  and  then  if  the  principal  is 
unwilling  to  stand  by  it,  he  should  at  once  offer  to  rescind  the  con- 
tract." 

The  case  of  a  warrant g  hg  a  servant  ivho  was  merely  entrusted  to  de- 
liver a  horse  was  lully  considered  by  the  Court  of  Exchequer  in  Woodin 
V.  Burford,  which  decided  that  a  warranty  of  a  person,  in  this  case  a 


556         REFUSAL    OF    MASTEFv    TO    CONFIRM    WARRANTY. 

servant,  who  is  merely  authorized  to  deliver  a  horse,  does  not  bind  the 
principal ;  and  that  in  an  action  on  the  warranty,  the  seller  is  not  bound  by 
the  statements  or  receipt  of  the  servant,  as  no  express  authority  to  give 
the  wai-ranty  was  shown.  Bayley  J.  said :  "  What  is  said  by  a  servant 
is  not  evidence  against  the  master,  unless  he  has  some  authority  given 
him  to  make  the  representation;  and  the  question  here  is  whether  there 
is  reasonable  ground  for  inferring  such  authority.  It  is  quite  clear 
that  before  the  time  when  the  horse  was  delivered  to  the  plaintiff,  and 
the  receipt  was  given,  there  had  been  a  bargain  between  tlie  defendant 
and  the  plaintiff,  and  all  that  the  servant  was  directed  to  do  was  to  take 
the  horse  to  the  plaintiff  and  receive  the  money.  It  seems  to  me  that, 
althou!;h  a  warranty  given  by  a  person  entrusted  to  sell  p-imCi  facie 
binds  the  principal,  yet  the  warranty  of  a  person  entrusted  merely  to 
deliver  is  not  prima  facie  binding  on  the  principal,  but  an  express 
authority  must  be  shown,  which  was  not  done  here."  Jordan  v.  Nor- 
ton is  also  an  author ity  to  show  tluit  where  an  agent  is  merely  instructed  to 
receive  and  pay  for  a  horse  if  a  certain  ivarranty  is  given,  and  he  brings  it 
home  without  one,  the  principal  may  repudiate  his  ad,  and  return  it  tvithin 
areasonahJe  time. 

The  rule  of  laiv  as  to  a  master  taJcifig  hade  a  horse,  and  returning  the 
money  if  he  will  not  stand  to  a  ivarranty  improperly  given  hy  his  servant, 
was  thus  touched  upon  by  Lord  Ahinger  C.B.,  in  Cornfoot  v.  FoivTce-. 
"  Put,"  said  his  lordship,  "  the  ordinary  case  of  a  servant  employed 
to  sell  a  horse,  but  expressly  forbidden  to  warrant  him  sound:  is  it 
contended  that  the  buyer,  induced  by  the  warranty  to  give  ten  times 
the  price  which  he  would  have  given  for  an  unsound  horse,  when  he 
discovers  the  horse  to  be  unsound,  is  not  entitled  to  rescind  the  con- 
tract ?  This  would  be  to  say  that  though  the  principal  is  not  bound 
by  the  false  representation  of  an  agent,  yet  he  is  entitled  to  take  ad- 
vantage of  that  false  representation  for  the  purpose  of  obtaining  a 
contract  beneficial  to  himself  which  lie  could  not  have  obtained  with- 
out it." 

If  an  agent  is  guilty  of  fraud  in  transacting  his  principiaVs  business,  the 
irrincipal  is  responsible;  and  where  a  principal  claims  the  purchase- 
money  by  virtue  of  a  contract  made  for  him  by  his  agent,  which  was 
defeasible  by  reason  of  fraud,  and  is  put  an  end  to  by  the  vendee,  the 
a'J'ent  holds  the  purchase-money  as  received  to  the  use  of  the  vendee. 
This  was  the  tenor  of  the  decision  in  Murray  v.  Ma?in,  which  was  an 
action  by  a  livery-stable  keeper  for  the  keep  of  a  horse,  to  which  the  de- 
fendant pleaded  a  set-off  for  money  received  by  the  plaintiff  for  his  use. 
The  defendant  had  sent  the  horse  to  the  livery-stables  of  the  plaintiff, 
where  it  stood  for  some  time,  and  was  sold  for  £125,  with  a  warranty 


SUING   AUCTIONED    FOR    PURCHASE-MONEY    RETURNED.     557 

that  it  was  sound  and  free  from  vice.  The  purchaser  returned  the 
horse  in  three  weeks  as  unsound,  and  got  back  from  the  plaintiff  the 
£125,  the  amount  which  the  defendant  sought  to  set-ofF,  on  the 
ground  that  it  was  received  for  his  use  by  the  plaintiflF.  The  jury- 
found  for  the  plaintiff,  and  the  Court  of  Exchequer  refused  a  new 
trial. 

This  case  governed  the  decision  of  the  Court  of  Queen's  Bench  in 
Stevens  v.  Legh,  where  an  auctioneer  ivas  sued  for  the  ^purchase-money  of  a 
horse,  ivMch  he  had  returned  to  the  vendee  after  the  fraudulent  misrepre- 
sentations which  he  had  been  employed  by  the  plaintiff  to  maJce  had  been 
discovered.  The  plaintiflF,  a  horse-dealer  in  Bristol,  had  here  instructed 
the  defendant  to  sell  a  horse  for  him,  representing  to  him  that  it  was  a 
useful  horse,  &c.,  and  accustomed  to  harness  work,  but  that  he  was  not 
to  warrant  it.  The  defendant  sold  it  and  represented  it  as  such  ;  and 
the  purchaser  afterwards  rescinded  the  contract,  on  the  ground  of  fraud, 
as  the  horse  proved  worthless,  and  gave  the  defendant  notice  not  to  pay 
over  the  purchase-money  to  the  plaintiflF;  and  it  was  held  by  the  Court 
that  these  facts  afForded  the  defendant  a  good  defence,  and  they  refused 
to  disturb  the  verdict. 

The  case  of  Foster  appt.  v.  Rev.  W.  Smith  resp.,  which  was  one  of 
money  had  and  received  for  the  price  of  a  mare  sold  by  defendant  to 
plaintiflF,  and  afterwards  returned,  was  very  complicated,  fi'om  the  con- 
flict of  evidence  as  to  whether  the  agent  had  really  warranted  the  mare, 
and  on  whose  account  he  received  her  when  she  was  returned.  The 
plaintiflF  had  purchased  the  mare  from  Sparrow,  a  veterinary  surgeon  at 
Cambridge,  for  £44  ;  and  stated  that  at  the  time  of  sale  he  said  to 
Sparrow,  "  I  suppose  she  is  all  right,"  and  received,  as  a  reply,  *'  If 
there  is  anything  not  right,  she  is  not  yours  ;  she  belongs  to  the  Rev. 
Mr.  Smith,  of  Drayton,  who  is  not  the  man  to  do  anything  wrong." 
This  Sparrow  denied,  in  his  examination  ;  and  said  that  he  told  plain- 
tiflF the  defendant  never  warranted,  it  was  his  iiabit  never  to  do  so,  but 
that  he  (S.)  believed  the  mare  to  be  perfectly  sound,  and  that  if  he  mis- 
represented her  he  would  take  her  back.  Sparrow  paid  over  the  £44 
to  the  defendant,  who  acknowledged  to  having  received  it ;  and  in 
about  nine  weeks  the  mare  was  returned  to  Sparrow,  whose  evidence 
was  to  the  eflFect  that  he  got  her  then  to  try  and  sell  for  the  plaintiflF, 
while  the  latter  said  that  he  got  her  for  the  defendant ;  but  there  was 
no  evidence  that  the  defendant  had  assented  to  or  knew  of  the  return  of 
the  mare,  or  taken  any  part  in  these  transactions. 

The  defendant  said  he  had  employed  Sparrow  to  sell  eight  horses  for 
him  before  in  the  course  of  fifteen  years,  and  had  over  and  over  again 
repeated  to  him  that  he  never  would  warrant  a  horse,  and  he  was  not 


558         PLEA  FOR  BREACH  OF  WARRANTY. 

to  do  it  for  liim,  but  he  gave  no  particnlnr  orders  about  this  mare. 
The  judge  of  the  County  Court  left  these  questions  to  the  jury:  1,  Was 
the  mare  sound  or  unsound  at  the  time  of  sale  ?  2,  Was  there  a  war- 
rauty  given  by  Sparrow  to  the  plaintiff?  3,  Was  the  warranty  given 
by  the  defendant's  authority  ?  and  4,  When  the  mare  was  sent  back  to 
Sparrow,  was  she  received  by  him  for  the  plaintiff'  or  defendant  ?  The 
jury  found  that  the  mare  was  unsound  ;  that  a  warranty  was  given,  but 
not  by  defendant's  authority,  and  that  she  was  received  by  Sparrow  on 
the  defendant's  account  ;  and  the  judge,  considering  the  finding  to  be 
ambiguous,  ordered  the  verdict  to  be  entered  for  the  defendant.  The 
Court  of  Common  Pleas  directed  a  new  trial  with  costs  (which  are 
always  granted  to  the  successful  party  on  an  appeal  from  the  County 
Court)  ;  and  j-j^r  Jem's  C.J. :  "  The  proper  question  for  the  jury  was 
whether  it  was  part  of  the  contract  that  the  mare  should  be  returned  if 
she  proved  to  be  unsound.  If  so,  and  she  were  returned,  there  would 
be  a  failure  of  consideration,  and  the  plaintiff"  would  be  entitled  to 
recover  back  the  price."  The  case  went  down  again,  and  the  plaintiff 
had  a  verdict. 

In  an  action  on  a  bill  given  for  the  price  of  a  horse  sold  under  a 
warranty,  t?ie  breach  of  the  warranty  is  an  answer  to  plaintiff's  demand, 
if  the  defendant  has  tendered  the  horse  McTc.,  though  the  plaintiff  did  not 
accept  it  {Lewis  v.  Cosgrave).  "Where  the  buyer  of  a  horse  with  a  war- 
ranty resells  with  a  warranty  a  horse  which  proves  unsound,  and  being 
sued  thereon  offers  his  vendor  the  option  of  defending,  but  in  conse- 
quence of  receiving  no  answer  defends  it  himself,  and  fails,  he  may 
recover  these  costs  from  his  vendor  as  part  of  the  damage  occasioned 
by  his  breach  of  warranty  (Lewis  v,  PeaTce)  ;  but  he  cannot  recover 
such  costs,  if  he  could  have  discovered  the  breach  of  warranty  by  a 
reasonable  examination  before  the  resale  (Wrighfup  v.  Chamberlain). 
In  Clare  v.  Maynard,  however,  where  the  vendee,  who  had  purchased  a 
horse  for  £45  with  a  warranty  of  soundness,  and  sold  it  to  Mr.  Collins  for 
£55,  was  obliged  to  repay  the  latter  his  money,  and  take  the  horse  back, 
in  consequence  of  its  proving  unsound,  the  Court  of  Queen's  Bench,  on 
a  motion  for  a  new  trial,  laid  down  that  a  claim  of  compensation  for  a 
good  bargain  could  not  be  allowed  as  damages  in  an  action. 

A  warranty  need  not  have  an  agreement-stamp,  and  comes  within  the 
exception  in  the  schedule  of  55  Geo.  III.  c.  184,  as  it  is  "a  memoran- 
dum letter  of  agreement  relative  to  the  sale  of  any  goods,  wares,  and 
merchandize  ; "  and  it  was  held  by  Lord  Ellenhorough  C.J.  that  a 
receipt  for  the  price  of  a  horse  containing  a  warranty  of  soundness  may 
also  be  read  in  evidence,  to  prove  the  warranty,  without  an  agreement- 
stamp  {Slcrine  v.  Elmore).     But   the  fact  of  a  receipt  containing  a 


PARTNERSHIP    IN    A    HORSE.  559 

warranty  is  not  always  conclusive  evidence  ;  and  ib  was  held  not  to  be 
so  where  the  warranty  was  introduced  into  the  receipt  by  an  after- 
thought of  the  defendant's  coachman,  and  signed  by  the  plaintiff,  who 
was  merely  a  marksman  {Fairmaner  v.  Budd). 

The  following  "  memorandum  of  agreement  between  "William  Short 
and  William  Brooke — which  is,  the  horse  to  be  £34,  William  Brooke 
to  have  half  at  <£17,  and  to  pay  half  the  horse's  expenses  being  with 
Job  Marson  from  his  arriving  at  Malton,  Feb.  1,  1831,  &c.,"  and  duly 
signed  by  the  parties,  was  decided  on  the  authority  of  Venning  v.  Leclcie 
to  be  an  agreement  for  an  undivided  moiety  of  a  horse  within  the  above 
exception  in  55  Geo.  III.  c.  184,  and  not  to  require  a  stamp  {Marson  v. 
Shm^t).  The  question  of  partner shij)  in  a  horse  was  very  much  discussed 
in  French  v.  Stijring,  where  the  plaintiff  and  defendant,  being  partners 
in  a  horse  (Census),  agreed  that  the  plaintiff  should  have  the  entire 
management  of  it,  and  that  the  expense  of  the  keep,  training,  and 
running  him  should  be  borne,  and  his  winnings  should  be  shared  by 
both  equally.  The  horse  won  nothing  ;  and  the  plaintiff  having  paid 
the  whole  of  the  expenses,  it  was  held  that  even  if  a  partnership  existed 
between  the  plaintiff  and  the  defendant  in  the  management  and  running 
of  the  horse,  half  the  sum  expended  by  the  plaintiff  was  in  the  nature 
of  an  advance  by  him  of  capital  on  behalf  of  the  defendant,  and  which 
he  was  entitled  to  recover  from  the  defendant.  And  semlle  per  Coclcburn 
C.J.,  that  the  agreement  constituted  a  partnership  between  the  plaintiff 
and  the  defendant  ;  and  per  Wiltes  J.,  that  it  was  rather  an  agreement 
between  two  tenants  in  common  (who  had  acquired  a  title  to  the  horse 
at  different  times  and  by  different  contracts)  as  to  the  management  of 
their  common  property,  than  a  partnership. 

In  an  action  on  a  warranty  (Cotlins  v.  Jenhins),  a  letter  written  by 
plaintiff's  attorney  in  Middlesex,  apprising  the  defendant  of  the  breacli 
of  the  warranty,  and  that  the  horse  was  standing  at  livery  at  the 
defendant's  expense,  coupled  with  an  admission  in  Middlesex  by 
defendant's  agent  of  the  receipt  of  such  letter,  was  held  sufficient  to  satisfy 
an  undertaking  to  give  material  evidence  of  some  matter  in  issue  arising  in 
that  county.  Tindal  C.J.  said :  "  It  appears  to  me  that  this  case  is 
determined  by  that  of  Curtis  v.  Drinhwater.  The  letter  written  by  the 
plaintiff's  attorney  was  material  to  a  point  in  issue,  since  its  object  was 
to  increase  the  damages.  The  proof  that  such  a  letter  was  written  in 
the  county  of  Middlesex,  coupled  with  the  admission  by  defendant's 
agent  in  the  same  county  of  its  having  been  received,  was  according 
to  the  principle  of  that  case  a  compliance  with  the  plaintiff's  under- 
taking. 

In  Greenwag  v.  Titchmarsh,  where  the  venue  had  been  clianged  from 


560  TROVER    FOR    A    HORSE. 

"Middlesex  to  Herts  on  the  ordinary  affidavit,  and  brought  back  again, 
the  question  \Yas  wliether  the  horse  had  been  bought  by  a  person  named 
Grout  on  his  own  account  or  as  agent  for  the  plaintiff.  Grout  had 
bought  the  horse  of  the  defendant  at  Biggleswade  Fair  (Feb.  13,  1840) 
witli  a  warranty,  and  told  him  at  Royston  Fair,  on  March  4th,  that  the 
horse  was  unsound,  and  he  must  take  him  back.  On  March  5,  the 
plaintiff's  attorney  wrote  in  Middlesex  a  letter,  posted  in  London,  telling 
defendant  of  the  unsoundness,  and  saying  that,  unless  the  price  was  re- 
turned, the  horse  would  be  sold,  and  he  would  become  liable  for  the 
difference.  After  this  the  horse  stayed  for  some  days  at  Grout's,  in 
Surrey,  and  food  and  stabling  were  paid  for  by  the  defendant  at  Enfield, 
in  Middlesex.  On  March  11th,  the  horse  was  sold  by  the  plaintiff  ;  and 
in  an  action  for  the  difference  between  the  two  sales  and  the  expenses  of 
the  keep  and  resale,  it  was  held,  on  the  point  being  reserved,  that  pay- 
ment in  Middlesex  of  the  keep  of  the  horse  after  notice  of  unsoundness 
was  sufficient  to  satisfy  the  undertaking,  as  such  evidence  was  material 
to  the  damages.  And  per  Parlce  B. :  "  The  case  of  Collins  v.  JenMns 
shows  that  the  evidence  to  be  given  under  an  undertaking  like  the 
present  is  not  confined  to  the  mere  issue  in  the  cause,  but  includes  also 
the  question  of  damages,  which  are  to  be  considered  for  this  purpose  as 
a  matter  in  issue  between  the  parties.  Here  part  of  the  amount  claimed 
and  recovered  by  the  plaintiff  was  paid  in  Middlesex,  and  that  payment 
was  good  evidence  on  the  question  whether  the  sum  claimed  was  a 
reasonable  amount  or  not.  If  the  case  had  stood  merely  on  the  letter, 
there  would  have  been  considerable  doubt." 

It  was  observed  by  Jervis  C.J.,  in  Read  v.  Fairlanlcs,  that  "  in  ordi- 
imry  cases  of  trover  for  a  horse,  ihe  plaintiff  recovers  the  value  of  the  horse, 
and  not  tchat  it  might  have  earned  desides."  Maule  J.  mentioned  a  case 
of  trover  for  a  cow,  where  the  value  not  only  of  the  cow,  but  also  of  her 
milk,  was  claimed;  and  added,  "I  rather  think  that  the  value  of  the 
thing  at  the  time  of  the  conversion  is  all  that  can  be  recovered."  And 
again,  on  the  question  of  damages,  his  lordship  said  :  "  Although  it  be 
true  that  in  trover  the  owner  may  recover  for  the  conversion  of  the 
improved  chattel,  it  does  not  follow  that  he  is  entitled  to  recover  the 
improved  value  as  damages.  Tlte  j)ropei'  amount  of  damages  is  the 
amount  of  pecuniary  loss  which  the  plaintiffs  have  been  put  to  by  the 
defendant's  conduct.  My  brother  Parhe  has  said  that  a  plaintiff  may 
recover  special  damages  in  trover.  That  was  where  money  had  been 
necessarily  laid  out  in  consequence  of  a  conversion  (/?>.)."  The  case 
alluded  to  by  the  learned  judge  was  that  of  Davis  v.  Osicell,  which  was 
one  of  trover  for  a  pony  value  £lo,  and  the  special  damage  alleged  in 
the  declaration  was  that  after  the  conversion  of  the  pony  by  the  defend- 


WARRANTY  OF  A  HORSE  ".SOUND  AND  QUIET  IN  HARNESS."  561 

ants  the  plaintiff  was  obliged  to  hire  other  horses  instead.  Parhe  B. 
ruled  that  special  damage  may  he  recovered  in  trover  if  it  is  laid  in  the 
declaration,  but  that  where  no  such  special  damage  is  laid  the  value  of 
the  article  at  the  time  of  the  conversion  is  the  measure  of  damages.  At 
his  lordshij^'s  recommendation,  however,  it  was  agreed  that  the  plaintiff 
should  have  the  expense  of  the  hire  of  other  horses,  less  the  keep  of  his 
own  pony  during  the  time,  and  the  plaintiff  abated  some  part  of  his 
demand,  and  consented  to  a  verdict  of  £25.  A  rule  to  show  cause  why, 
on  defendant  delivering  up  to  plaintiff  a  horse  for  which  he  had  brought 
trover,  and  paying  his  costs,  all  further  proceedings  should  not  be 
stayed  on  an  affidavit  that  the  animal  was  not  in  a  worse  state  than 
when  he  came  into  the  possession  of  the  defendant,  but  in  an  improved 
condition,  was  discharged,  on  cause  shown,  with  costs  {Makinson  v. 
RawUnson). 

Where  A  had  wrongfully,  and  without  the  licence  of  B,  ridden  his  hoise, 
and  so  caused  his  death,  a  promise  by  a  third  person  to  pay  the  damages 
thereby  sustained,  in  consideration  that  B  would  not  bring  an  action 
against  A,  is  a  collateral  promise  within  the  Statute  of  Frauds,  and 
must  be  in  writing  {Kirkliam  v,  Ilarter).  But  an  agreement  to  sell  a 
mare  on  condition  that  if  she  prove  in  foal  she  should  he  returned  to  the 
vendor  on  the  payment  of  a  certain  sum,  is  not  a  distinct  agreement  for 
the  resale  of  the  mare  within  the  scope  of  the  statute,  but  a  mere  quali- 
fication of  the  original  contract  of  sale  which  was  executed,  and  need  not 
be  in  writing  ( Williams  v.  Burgess). 

A  tcarranty  that  a  horse  is  "  sound  and  qtiiet  in  harness  "  was  ruled  by 
Lord  Ah'inger  C.B.,  in  Smith  v.  Parsons,  to  be  supported  by  proof  that 
the  defendant  verbally  warranted  the  horse  to  be  "  perfectly  sound  and 
quiet  in  all  respects,"  as  the  latter  phrase  includes  the  going  quiet  in 
harness.  A  somewhat  similar  case,  of  Coltherd  v.  Puncheon,  had  been 
decided  previously  in  the  Queen's  Bench,  where  the  plaintiff  had  a 
verdict  on  a  warranty  that  the  horse  was  "  a  good  drawer,  and  ivould 
pull  quietly  in  harnessy  The  defendant  moved  to  set  it  aside,  on  the 
ground  that  being  "  a  good  di'awer"  (which  appeared  by  the  evidence) 
and  "pulling  quietly  in  harness"  were  not  convertible  terms.  The 
Court,  however,  held  that  they  were,  "  because  no  horse  can  be  said  to 
be  a  good  drawer  if  he  will  not  pull  quietly  in  harness;  and  therefore 
proof  that  he  is  merely  a  good  puller  will  not  satisfy  the  warranty. 
The  word  '  good  '  must  mean  '  good  in  all  particulars.' " 

Where  the  plaintiff  declared  that  in  consideration  of  his  re-delivery 
to  the  defendant  of  an  unsound  horse,  the  defendant  promised  to  deliver 
to  him  another  horse  whicli  should  be  worth  £80,  and  be  a  young  horse, 
and  a  breach  was  assigned  in  both  those  respects,  it  was  held  no 

0   0 


562  DEALING    ON    SUNDAY. 

variance,  tliongli  it  was  proved  that  the  defendant  also  promised  that 
the  horse  was  sound  {Miles  v.  Sheirard). 

It  was  ruled  by  the  Court  of  Common  Pleas  with  regret  in  Dmry  v. 
De  la  Fontaine,  that  where  neither  the  vendor  nor  his  agent  in  the  sale 
of  a  horse  were  working  within  their  ordinary  calling  on  a  Sunday,  the 
sale  must  be  held  good.  The  plaintiff  was  a  banker,  who  had  sent  his 
horse  for  sale  to  the  repository  of  one  Hull,  a  horse- auctioneer,  who 
was  not  therefore  acting  within  his  ordinary  calling  when  he  sold  the 
horse  to  the  defendant  by  private  contract.  In  Bloxsome  v.  Williams, 
the  defendant  was  a  coach-proprietor  and  dealer  in  horses  ;  and  the 
plaintiff's  son  verbally  agreed  one  Sunday,  as  he  was  travelling  on  his 
coach,  to  buy  a  horse  from  him  for  39  gs.,  on  a  warranty  that  it  was 
sound  and  rising  seven.  No  earnest  was  given  ;  and  on  the  next  Tues- 
day the  price  was  paid,  apd  the  horse,  which  proved  to  be  unsound  and 
seventeen,  was  delivered.  There  was  no  proof  that  the  plaintiff  or  his 
sou  knew  that  the  defendant  was  a  horse-dealer ;  and  Park,  J.  overruled 
the  objection  of  the  latter,  that  the  contract  being  made  on  a  Sunday 
came  within  the  29  Car.  II.  c.  7,  s.  2.  The  Court  upheld  the  verdict 
for  the  price  of  the  horse,  on  the  ground  that  this  was  not  a  sale  on  a 
Sunday  ;  and  that  if  it  was  so,  it  did  not  appear  that  the  plaintiff  was 
privy  to  the  fact  of  this  being  the  defendant's  ordinary  employment  ; 
and  that  as  the  defendant  was  the  only  person  acting  illegally,  it  did 
not  lie  in  his  month  to  make  the  objection  on  the  statute,  and  thereby 
take  advantage  of  his  own  wrong. 

The  bargain  in  Williams  v.  Paul,  where  the  plaintiff,  a  drover,  sold 
three  cows  and  a  heifer  to  defray  his  expenses  during  a  journey  from 
Sussex  to  Wales,  was  made  on  a  Saturday  night,  subject  to  the  defen- 
dant's approval  next  morning.  The  four  were  approved  of  and  left,  but 
were  not  paid  for  at  the  end  of  the  three  months,  as  agreed  on  ;  and 
Bayley  J.  considered  that  the  defendant  having  kept  the  beasts,  and 
subsequently  promised  to  pay,  was  liable  for  the  value  upon  a  quantum 
meruit,  though  not  for  the  price  agreed  upon  by  the  bargain  completed 
on  Sunday.  On  these  grounds,  although  the  Court  considered  that  it 
was  a  Sunday  contract,  because  the  bargain  on  Saturday  was  incomplete 
till  the  beasts  were  inspected,  they  refused  to  enter  a  nonsuit. 

The  objection  under  the  statute  in  Fennell  v.  Ridlcr  was  of  a  novel 
kind.  The  plaintiffs  were  horse-dealers,  and  objected  that  the  statute 
did  not  apply,  as  their  contract  with  the  defendant,  an  innkeeper,  who 
had  given  them  a  warranty,  was  made  witJdn  his  own  yard  icith  closed 
gates,  and  in  the  presence  of  the  parties  and  their  servants  only  ;  and 
under  the  direction  of  Park  J.,  they  had  a  verdict.  The  Court,  how- 
ever, considered  that  the  case  was  strictly  within  the  scope  of  the  words 


SUSPICION  OF  UNSOUNDNESS   INSUFFICIENT.  5G3 

of  tlie  statute  "  exercising  himself  in  the  duties  of  piety  aud  true  re- 
ligion publicly  and  privalehj"  and  made  the  rule  absolute  for  a  new 
trial.  But  where  a  farmer  kept  a  stallion,  and  covered  mares  with  it 
on  a  Sunday,  the  contract  was  not  held  void  under  the  statute,  as  it  was 
not  done  in  the  "exercise  of  his  ordinary  calling";  but  even  if  it  were, 
the  contract  having  been  executed,  he  had  a  lien  on  the  mare  if  the 
covering  fees  were  not  paid  {Scarfe  v.  Morgan).  But  quitre  whether  the 
statute  29  Car.  II.  c.  7  avoids  a  previous  parol  contract  for  the  sale  of 
goods,  where  the  delivery  and  acceptance  take  place  on  a  Sunday  {Beau- 
mont V.  Brengeri). 

A  farmer  is  not  wathin  the  Sunday  Trading  Act,  29  Car.  II.  c.  7,  s.  1, 
Queen  v.  Silvester  33  L.J.  (N.S.)  M.C.  79.  The  appellant,  a  farmer, 
was  convicted  and  fined  for  haymaking  on  Sunday,  but  the  Court  of 
Queen's  Bench  on  appeal  quashed  the  conviction. 

It  is  not  sufficient,  on  a  trial  of  ivarranty,  for  the  plaintiff  to  give  such 
evidence  as  to  induce  suspicion  that  the  horse  is  unsound  ;  if  he  only 
throws  the  soundness  into  doubt  he  cannot  recover,  he  must  positively 
prove  the  horse  unsound  at  the  time  of  sale.  And  hence  in  Eaves  v. 
Dixon,  where  the  horse  died  a  few  days  after  the  sale,  and  on  dissection 
veterinary  surgeons  gave  it  as  their  opinion  that  inflammation  of  the 
lungs  might  lead  to  mortification  in  three  days,  and  that  if  the  inflam- 
mation had  existed  at  the  time  of  the  sale  there  would  have  been  thick 
breathing,  and  the  plaintiff  had  a  verdict  on  the  warranty,  the  Court 
directed  a  nonsuit.  A  ivarranty  only  refers  to  the  state  of  a  thing  at  the 
time  of  sate ;  but  it  may,  as  in  Liddard  v.  Kain,  become  a  continuing 
warranty.  There  defendant  remarked  at  the  time  of  sale  that  one  of 
the  pair  of  horses  he  purchased  had  a  cough  and  nose-running,  and  said 
in  reply  to  the  plaintiff"s  assurance  that  he  would  be  well  in  a  week, 
that  he  would  not  take  him  unless  the  plaintiff"  would  let  him  stand  in 
his  stable  for  a  fortnight.  To  this  the  latter  assented,  and  said,  "  I 
will  deliver  both  the  horses  at  the  end  of  the  fortnight,  sound  and  free 
from  blemish."  At  the  end  of  that  time  one  still  had  a  cough,  and  the 
other  a  swollen  leg,  and  was  lame  and  blemished  from  a  kick  in  the 
stable.  The  jury  found  for  the  defendant  in  an  action  for  the  price, 
and  the  Court  refused  to  disturb  the  verdict.  The  plaintiff"  had  agreed 
to  deliver  up  both  horses  at  the  end  of  the  fortnight,  sound  and  free 
from  blemish  ;  and  the  warranty,  therefore  did  not  apply  to  a  mere 
unsoundness  at  the  time  of  sale,  but  was  a  continuing  warranty  to  the 
end  of  the  fortnight.  And  where,  as  in  Simmonds  v.  Garr,  an  agent 
for  the  sale  of  horses  sold  a  horse  of  the  defendant's  and  another  of  a 
third  person's  to  the  plaintiff"  at  the  same  time,  at  an  entire  price  of 
90gs.,  and  warranted  both  to  be  sound.  Lord  Ellenlorough  C.J.  held 


564  WHAT  CONSTITUTES  UXSOUNDNESS. 

that  the  plaintiff  had  no  action  of  assumpsit  against  the  defendant 
for  the  unsoundness  of  the  horse  which  belonged  to  him,  declaring  as 
upon  a  sale  of  one  horse,  since  the  contract  concerning  the  two  was 
entire. 

The  doctrine  as  io  ii-lutt  consiiltdes  wisoumhiess  was  very  early  laid 
down  by  EUeiibwough  C.J.  in  Elton  v.  Brogden,  where  the  defendant 
allowed  that  the  horse  was  lame  at  the  time  of  the  sale,  but  said  that 
such  lameness  was  only  temporai'y,  and  that  he  was  noiv  quite  sound. 
His  lordship  said,  "  I  have  always  held,  and  now  hold,  that  a  warranty 
of  soundness  is  broken  if  the  animal  at  the  time  of  the  sale  had  any 
infirmity  \\\)ou  him  which  rendered  him  less  fit  for  present  service.  It 
is  not  necessary  that  the  disorder  should  be  permanent  or  incurable. 
Whilst  a  horse  has  a  cough  I  say  he  is  unsound,  although  that  may  be 
either  temporary  or  may  prove  mortal.  The  horse  in  question  ha^'iug 
been  lame  at  the  time  of  the  sale  when  he  was  warranted  to  be  sound, 
his  condition  subsequently  is  no  defence  to  the  action."  In  Etton  v. 
Jordan,  where  a  witness  for  the  defendant  admitted  that  he  had 
landaged  one  of  the  horse's  forelegs  ~beccwse  it  teas  ivcaker  than  the  other, 
his  lordship  repeated  this  definition.  It  was,  however,  laid  down  by 
Coleridge  J.  in  Boldm-o  v.  Brogden,  that  if  a  horse  were  sold  with  any 
ailment  on  him  which  might  be  reasonably  expected  to  give  way  to 
f-light  medical  treatment,  and  to  leave  behind  it  no  seeds  of  future 
disease,  he  was  not  unsound  within  the  meaning  of  a  warranty.  This 
decision,  and  one  to  the  contrary  effect  by  Parlce  B.  in  Coates  v.  Stevens, 
were  both  brought  under  review  in  Kiddell  v.  Barnard  in  the  Court  of 
Exchequer,  and  the  question  finally  settled. 

The  above  was  an  action  of  assum[)sit  to  recover  back  the  money  for 
three  hidlocl^s  which  hcul  Iccn  ivarrantcd  sound.  Adam  Bryant,  a  man 
in  the  plaintiff's  employ,  had  purchased  them  for  him  at  Lew  Down 
fair,  in  Devon,  for  £40,  a  fair  price  if  they  had  been  sound.  At  the 
time  of  the  sale  Bryant  had  complained  of  the  badness  of  their  colour; 
and  the  defendant  said,  "  I  will  warrant  them  sound."  It  was  also 
proved  by  witnesses  that  all  three  appeared  more  or  less  unsound  at  the 
time  of  sale,  and  two  of  them  after  a  resale  turned  out  to  be  so ;  and 
the  plaintiff  had  to  pay  £20  as  compensation  to  the  purchaser,  while 
the  other  died  on  its  road  to  Leicestershire.  Eighty-three  bullocks  of 
the  plaintiff's  had  been  taken  by  his  drover  from  Devonshire  to  North- 
ampton by  stages  of  fourteen  and  fifteen  miles  per  da}^,  and  all  with  the 
exception  of  these  three  stood  the  journey  well.  Erskine  J,  said,  "  The 
third  question  is,  were  the  cattle  unsound  at  the  time  of  sale?  The 
l)laintiff  must  prove  that  the  beasts  had  some  disease  or  seeds  of  disease 
at  the  time  of  the  sale,  which  rendered  them  in  some  degree  unfit  or  less 


MEANING  OF  WORD   "SOUND."  565 

fit  for  ordinary  use.  Tlius  it  is  in  tlie  case  of  horses,  so  with  respect  to 
oxen.  The  defendant  -warrants  that  tliey  liave  no  disease  which  would 
prevent  them  from  being  fattened,  and  made  fit  for  sale  to  a  butcher, 
or  render  them  disqualified  for  travelling;  One  of  the  beasts  died  on 
the  road  from  unsoundness.  Did  the  unsoundness  come  on  by  any 
accidental  circumstances  after  the  sale,  as  taking  cold  or  drinking  cold 
water?  if  so,  that  is  not  such  unsoundness  as  to  affect  this  verdict;  or 
were  the  symptoms  referable  to  antecedent  disease  ?  if  so,  the  case  is 
made  out  as  to  that  animal.  For  the  other  two  bullocks,  you  have  it  in 
evidence  that  the  butcher  who  bought  them  observed  their  bad  con- 
dition, and  it  is  also  said  that  they  were  unsound  at  the  time  of  the  sale 
on  Lew  Down.  The  question  is,  are  you  satisfied  that  these  beasts  had 
the  disease  upon  them  at  the  time  of  the  sale  ?  "  The  jury  returned  a 
verdict  of  £25  for  the  plaintiff,  and  a  rule  to  show  cause  on  the  ground 
of  misdirection  was  refused. 

Parhe  B.  said,  "  I  think  no  rule  ought  to  be  granted  in  this  case. 
In  the  case  which  has  been  referred  to,  of  Coates  v.  Stevens,  I  am 
reported  and  correctly  reported  to  have  said  to  the  jury  'I  have 
always  considered  that  a  mem  who  hiiijs  a  horse  ivarmnted  sound  must 
he  taJcen  as  buijlnrj  for  immediate  use,  and  he  has  a  right  to  expect  one 
capable  of  that  use,  and  of  being  immediately  put  to  any  fair  work  the 
owner  chooses.  The  rule  as  to  uns<oundness  is,  that  if  at  the  time  of 
tlie  sale  the  horse  has  any  disease  ivliich  either  aduaJhj  does  diminish  the 
natural  usefidness  of  the  animal ;  so  as  to  make  him  less  cajMMe  of  vjork 
of  any  description,  or  which  in  its  natural  progress  will  diminish  the 
natural  usefidness  of  the  animal ;  or  if  the  horse  has  either  from  disease 
or  accident  undergone  any  alteratioji  of  structure  that  either  actually  docs 
at  tlie  time  or  in  its  ordinary  effects  will  diminish  the  natural  usefulness 
of  the  horse,  siwh  horse  is  unsound.  If  the  cough  actually  existed  at 
the  time  of  sale  as  a  disease  so  as  actually  to  diminish  the  natural 
usefulness  of  the  horse  at  that  time,  and  to  make  him  then  less  capable 
of  immediate  work,  he  was  then  unsound  :  or  if  you  think  the  cough, 
which  in  fact  did  afterwards  diminish  the  usefulness  of  the  horse, 
existed  at  all  at  the  time  of  the  sale,  you  will  find  for  the  [ilaintiff.  I 
am  not  now  delivering  an  opinion  formed  on  the  moment  on  a  new 
subject ;  it  is  the  result  of  a  full  and  previous  consideration.' 

*'  This  is  the  rule  I  have  ever  acted  on,  in  cases  of  unsoundness, 
although  in  so  doing  I  must  differ  from  the  contrary  doctrine  laid 
down  by  Coleridge  J.  in  the  case  of  Boldero  v.  Brogden,  which  has 
been  referred  to.  In  short  the  word  '  soicnd' mea?is  tvhat  it  eo'pi-esses, 
namely,  tfuit  the  animal  is  free  from  disease  at  the  time  he  is  ivarranted 
to  he  sound.     If,  indeed,  the  disease  were  not  in  ordinary  cases  of  a 


566  DEFECT  IN  STRUCTURE  OF  HORSE. 

nature  to  impede  the  natural  usefulness  of  the  animal  for  the  purpose 
for  which  he  is  used — as,  for  instance,  if  a  horse  had  a  slight  pimple  on 
his  skin,  it  would  not  amount  to  an  unsoundness  ;  but  even  if  such 
a  thing  as  a  pimple  were  on  some  part  of  the  body  where  it  might  have 
that  etieet,  as,  for  instance,  on  a  part  which  would  prevent  the  putting 
a  saddle  or  bridle  on  the  animal,  it  would  be  different.  An  argument 
has,  however,  been  adduced  from  the  slightness  of  the  disease  and  the 
facility  of  the  cure  ;  but  if  we  once  let  in  considerations  of  that  kind, 
where  are  we  to  draw  the  line  ?  A  horse  may  have  a  cold  which  may 
be  cured  in  a  day,  or  a  fever  which  may  be  cured  in  a  week  or  month, 
and  it  would  be  difficult  to  say  where  to  stop.  Of  course,  if  the  disease 
be  slight  the  unsoundness  is  proportionably  so,  and  so  also  ought  to  be 
the  damages  ;  but  in  the  question  of  law  I  think  that  the  direction  of 
the  judge  in  this  case  w'as  perfectly  correct,  and  that  this  verdict  ought 
not  to  be  disturbed.  Were  this  matter  presented  to  us  now  for  the 
first  time,  we  might  deem  it  proper  to  grant  a  rule  ;  but  the  matter 
has  been,  we  think,  settled  by  previous  cases,  and  the  opinion  which 
we  now  express  is  the  result  of  deliberate  consideration."  Alder  son  B. 
said,  "  I  am  of  the  same  opinion.  The  word  *  sound  '  means  sound, 
and  the  only  qualification  of  which  it  is  susceptible  arises  from  the 
purpose  for  which  the  warranty  is  given.  If,  for  instance,  a  horse  is 
purchased  to  be  used  in  a  given  way,  the  word  '  sound'  means  that 
the  animal  is  useful  for  that  purpose,  and  '  unsound  '  means  that  he  at 
the  time  is  affected  with  something  which  will  have  the  effect  of 
impending  that  use.  If  the  disease  be  one  easily  cured,  that  will 
only  go  in  mitigation  of  damages.  It  is,  however,  right  to  make 
to  the  defence  of  unsoundness  the  addition  my  Brother  Parlce  has 
made,  namely,  that  the  disqualification  may  arise  either  from  disease 
or  accident ;  and  the  doctrine  laid  down  by  him  on  this  subject,  both 
to-day  and  in  the  case  of  Coatcs  v.  Sinvois,  is  not  new  law,  and  is 
found  to  be  recognized  by  Lord  EUcnlwroiujh  and  other  judges  in 
a  series  of  cases." 

According  to  Hohjday  v.  Morgan,  any  dpfect  in  the  structure  of  a  Jwrse, 
ivhdher  congenital  or  arising  from  suhsequent  disease  or  accideiit,  that 
diminishes  his  natural  usefulness  and  renders  him  less  than  reasonably 
fit  for  present  use,  is  unsoundness ;  and  convexity  in  the  formation  of 
the  cornea  of  the  eye  of  a  horse,  making  him  shortsighted,  and  so 
inducing  a  habit  of  shying,  is  such  a  defect.  At  the  trial  in  the  Lord 
Mayor's  Court  of  London,  before  the  Common  Serjeant,  it  appeared 
that  the  defendant  sold  the  horse  to  the  plaintiff  with  an  express  war- 
ranty of  soundness.  It  was  found  to  shy  going  through  the  streets, 
and  a  veterinary  surgeon  gave  evidence  that  it  had  an  unusual  convexity 


GOGGLES  IN  SHEEP.  567 

in  the  cornea  of  the  eye  which  caused  shortsightedness,  and  that  the  halit 
of  shying  might  arise  from  this ;  but  that  there  was  no  disease  in  the 
eye,  the  peculiar  formation  being  congenital.     His  honour  directed  the 
jury  that  if  they  thought  that  the  habit  of  shying  arose  from  a  defect 
of  vision  caused  by  natural  malformation  of  the  eye,  this  was  unsound- 
ness.    The  jury  found  a  verdict  for  the  plaintiff,  leave  being  reserved 
to  move  to  enter  it  for  the  defendant,  or  for  a  new  trial  under  stat.  20 
&  21  Vict.  c.  157,  s.  10,  and  the  Court  of  Queen's  Bench  confirmed 
their  finding.     And  i)er  Lord  Ckimplell  C.J. :    "  The  direction  of  the 
Common  Serjeant  was  wholly  unexceptionable,  being  in  eflfect  that  if 
the  shying  arose  from  malformation  of  the  eye,  that  was  unsoundness, 
although  the  defect  was  congenital.     Although  in  the  authorities  cited 
{Kiddell  V.  Burnard,  Coates  v.  Stevens,  Barley  v.  Forrest,  and  Brown  v. 
Elliington)  for  the  defendant,  the  cases   of  supervening   disease   and 
accident  are  alone  mentioned,  yet  it  is  not  from  thence  to  be  assumed 
that  the  learned  judges  would  have  said,  that  if  a  congenital  defect  had 
been  found  to  exist,  there  would  not  have  been  a  breach  of  the  warranty 
of  soundness,  the  defect  being  such  as  to  prevent  the  animal  from  per- 
forming that  which  might  reasonably  be  expected  from  him.     Suppose 
a  horse  to  be  born  blind  or  with  a  contracted  foot,  surely  that  would  be 
a  breach  of  warranty  of  soundness,  although  the  deficiency  or  defect 
existed  before  the  animal  was  foaled.     Then  as  to  the  point  that  this 
was  such  a  defect  as  the  purchaser  was  bound  to  take  notice  of  ;  there 
being  an  express  warranty,  he  was  not  bound  to  examine  so  closely  as 
to  ascertain  whether  the  cornea  were  so  formed  as  to  produce  short 
sight ;  the  most  prudent  man  could  not  be  expected  to  do  that.     The 
plaintiff  had  a  right  to  rely  on  the  warranty,  and  that  I  think  was 
broken." 

It  would  also  seem,  from  the  decision  of  Allott  C.J.,  in  Jolijf  v. 
Bendell,  that  the  imrcliaser  of  sheep  or  cattle  may  have  his  action  when 
they  prove  to  have  some  hereditary  disease  in  them  ivhich  in-events  them 
from  thriving.  This  was  a  case  of  assiifnjjsit  on  a  sheep  warranty,  the 
first  count  of  which  stated  the  sheep  to  be  sound,  and  tlie  second  free 
from  goggles.  Tlie  sheep,  100  in  number,  were  sold  on  the  12  th  of 
August,  1823.  At  the  time  of  the  sale  they  were  apparently  sound, 
and  continued  so  till  the  middle  of  the  next  October,  when  one  or  two 
of  them  were  seized  with  goggles,  which  exhibited  itself  in  giddiness, 
swelling  of  the  eyes,  and  hanging  of  the  head.  They  grew  weaker  and 
weakei',  and  generally  died  in  about  a  week  or  ten  days  after  the 
seizure,  and  on  dissection,  water  was  found  in  the  head  or  brain. 
About  50  had  died,  and  50  continued  well  up  to  the  time  of  the  trial. 
There  was  no  contagion,  other  sheep  with  which  they  were  fed  and  kept 


568  COUGH  OF  PERMANENT  NATURE  UNSOUNDNESS. 

having  continued  liealthy.  Witness  stated  that  it  was  an  hereditary 
disease,  arising  from  lireediug  "  in  and  in,  or  from  relations  " — tliat 
sheep  so  disordered  would  tlu-ive  and  seem  to  be  in  sound  health  gen- 
erally until  two  or  three  years  old — that  there  was  no  means  of  dis- 
covering by  the  appearance  or  otherwise  that  sheep  were  so  affected — 
that  it  was  generally  fatal,  and  no  cure  or  prevention  known  for  it,  and 
was  reputed  amongst  farmers  an  unsoundness.  The  evidence  for  the 
defendant  went  to  show  that  the  sheep  were  of  a  pedigree  free  from 
"  breeding  in  and  in,"  and  that  others  of  the  same  sort  and  older  were 
perfectly  sound.  The  warranty  was  proved  without  dispute,  and  the 
sheep  were  all  of  the  same  breed.  For  the  defendant  it  was  contended 
that  the  sheep  having  been  thriving  and  healthy  at  the  time  and  for 
two  months  after  the  sale,  must  be  considered  as  sound  at  that  time  ; 
that,  inasmuch  as  there  were  no  previous  symptoms  to  connect  the 
disease  of  which  they  died  with  their  former  state  of  health,  there  was 
nothing  to  show  that  the  disease  existed  at  the  time  of  the  sale  ;  and 
that  an  hereditary  liability  to  a  particular  disorder  was  of  too  uncertain 
a  nature  to  be  capable  of  proof,  and  could  not  be  legally  considered  as 
an  unsoundness  existing  at  the  time  stipulated  for  in  the  warranty. 
Ahlott  C.J.  left  it  to  the  jury  to  say  whether  at  the  time  of  the  sale  the 
sheep  had  existing  in  their  blood  or  constitution  the  disease  of  which 
they  afterwards  died,  or  whether  it  had  arisen  from  any  subsequent 
cause.  The  verdict  was  for  the  plaintiff  for  £120,  the  value  of  the 
sheep  which  had  died,  and  the  defendant  agreed  to  take  back  the 
remainder. 

It  was  laid  down  by  Lord  Ellenlorough  C.J.,  in  Shillitoe  v.  Claridge, 
that  if  a  liorso  lias  a  covgh  of  a  permanent  7iature,  he  is  unsound,  and 
*•  such  has,  I  believe,  always  been  the  understanding  both  in  the  pro- 
fession and  amongst  veterinary  surgeons.  On  the  counsel  (subse- 
quently Mr.  Justice  Williams)  remarking  that  "at  present  at  least  two- 
thirds  of  the  horses  in  London  have  coughs,"  his  lordship  rejoined, 
"  Be  it  so  ;  but  still  it  is  a  breach  of  the  warranty."  Lord  Mansfield 
C.J.  held  that  roaring  was  not  necessarily  an  unsoundness  ;  and  in 
Basseit  v.  ColUs  a  somewhat  strained  distinction  was  drawn  by  Lord 
Ellenhorovgh  C.J.  between  roaring  which  proceeded  merely  from  a  bad 
habit,  producing  a  noise  offensive  to  the  car,  and  thot  which  is  the 
result  of  any  disease  or  organic  infirmity.  However,  in  a  later  case  of 
Onslow  V.  Eam/'S,  after  hearing  the  evidence  of  Mr.  Field,  Y.S.,  to  the 
effect  that  roaring  is  occasioned  by  the  circumstance  of  the  neck  of  the 
windpipe  being  too  narrow  for  accelerated  respiration,  and  that  the  dis- 
order is  often  prodnred  by  sore  throat  or  other  topical  inflammation, 
and  incommodes  him  when  pushed  to  his  full  speed,  his  lordship  said, 


STRINGHALT  UNSOUNDNESS.  569 

"  If  a  horse  be  affected  by  any  malady  wbich  renders  him  less  service- 
abie  for  a  permanency,  I  have  no  doubt  that  it  is  an  unsoundness.  / 
do  not  go  lij  the  noise,  hut  hy  the  disorder.'^  Subsequently,  in  Best  v. 
Oshorne,  Best  C.J.  ruled  that  the  plaintiff  had  not  done  enough  in 
showing  a  horse  to  be  a  roarer,  and  that  "  to  prove  a  breach  of 
warranty  he  must  go  on  to  show  that  the  roaring  was  symptomatic  of 
disease."  Roaring  is  now  considered  in  practice  to  be  an  unsoundness. 
In  both  Thompson  v.  Patfeson  and  Niglett,  and  Scott  v.  Henderson 
stringhalt  was  considered  an  unsoundness.  In  the  latter  trial  Professor 
Dick  mentioned  that  a  horse's  leg  usually  clears  the  ground  at  least  five 
inches  in  stepping,  whereas  a  stringhalt  would  cause  it  to  be  raised  at 
least  one-third  more.  The  defendant  in  Anderson  v.  BlacMnirn  con- 
sented to  a  verdict  against  him,  as  he  had  evidently  mistaken  string- 
halt  action,  or  "  a  catcliing  gait  with  all  the  legs,"  which  is  very  pecu- 
liar to  all  Arab  horses,  as  this  one  was  for  stringhalt.  According  to 
Professor  Spooner,  it  most  frequently  attacks  horses  whose  crusts  and 
laminee  are  weak  and  very  obliquely  placed.  Laminitis  was  considered 
by  Wilde  C.J.  in  Smart  v,  Allison  to  be  an  unsoundness,  as  it  alters  the 
structure  of  the  feet  to  such  an  extent  as  to  cause  lameness.  Here  the 
off  forefoot  was  especially  impaired,  and  the  disease  was  marked  by  the 
usual  symptoms  (flat  soles  and  ridges  on  the  hoofs  below  the  coronets), 
and  had  evidently  been  in  existence  some  time.  For  the  defence  it  was 
unsuccessfully  urged  that  the  horse  had  been  flatfooted  and  ribbed  in  the 
hoof  from  his  birth,  but  had  never  been  lame  but  once  from  the  effects 
of  a  thorn,  and  that  then,  if  he  had  been  suffering  from  laminitis,  he 
could  not  have  been  hunted  for  two  seasons.  Professor  Spooner,  who 
was  called  for  the  plaintiff"  to  prove  the  alleged  unsoundness,  said  that 
"  Laminitis,  usually  styled  '  fever  of  the  feet,'  commences  with  acute  in- 
flammation of  the  laminae,  substances  which  lie  between  the  coffinbone 
and  exterior  hoof,  protecting  the  latter  from  being  pressed  by  the  former. 
If  the  inflammation  be  so  acute  as  to  occasion  a  disunion  of  the  sensitive 
from  the  horny  lamina,  the  coflinbone  falls  down  upon  the  sole,  pro- 
ducing a  deformity  of  the  hoof,  and  the  horse  becomes  incurably  lame. 
If  it  does  not  proceed  to  that  length  chronic  inflammation  supervenes, 
the  coronet  of  the  hoof  throws  out  ridges,  the  horn  at  the  toe  thiokens, 
and  the  sole  or  space  within  the  frog  becomes  so  flattened  as  to  touch 
the  ground  and  make  the  horse  liable  to  lameness  after  a  hard  day's 
work  or  travelling  on  the  road."  Hall  v.  Rogerson  was  a  case  of  the 
same  class.  A  contraction  of  the  hoof  causing  lameness  {Greenway  v. 
Marshall),  and  a  navicular-joint  disease,  which  is  an  inflammation  of  a 
joint  on  the  inside  of  the  hoof,  and  a  peculiar  incident  of  contracted 
feet,   are    also    an    unsoundness   (By water   v.   Fiichardson);    and   see 


570  BADNESS  OF  SHAPE  NOT  UNSOUNDNESS. 

Matthews  V.  Parker.  A  chest -foundered  horse  is  unsound  {Atferlury 
V.  Fairmaner),  and  so  is  one  suffering  from  cataract  {Higgs  v.  Thrale), 
or  ojMcity  of  the  crystaUim  lens  {Briggs  v.  Baker). 

An  affection  of  the  nerves  in  the  lumbar  region  was  held  in  Wilmot  v. 
Lees  to  be  an  unsoundness.  The  harge  nerves  so  affected  take  their 
origin  from  the  spinal  marrow  as  it  passes  through  the  loins,  and  hence 
there  is  no  proper  nervous  connection  between  the  hind  quarters  and 
the  brain.  The  disease  betrays  itself  very  little  when  the  horse  is  in 
action,  but  is  especially  apparent  when  he  moves  in  the  stall  l)y  the 
jerking  upwards  of  the  near  hind  limb,  and  an  inabihty  to  move  side- 
ways, which  cause  him  to  fail  and  drop  several  inches  on  the  near  side. 
Three  veterinary  surgeons  "could  see  nothing  the  matter"  with  this 
horse,  and  his  groom  swore  that  he  had  acquired  the  habit  of  dropping 
bis  hind  legs  fi-om  his  occasionally  clipping  him  over  the  legs  with  a 
pitchfork  to  make  him  clear  the  bedding.  Under  the  direction  of 
Coleridge  J.  there  was  a  verdict  for  the  defendant  for  the  difference 
between  the  price  given  for  the  horse  and  the  sum  he  sold  for  when 
under  dispute. 

It  was  expressly  laid  down  by  Alder  son  J.,  in  Dickinson  v  Follett, 
that  "  a  horse  cannot  be  considered  unsound  in  Imv  merely  from  badness 
of  shajie.  As  long  as  he  is  uninjured  he  must  be  considered  sound. 
AVhen  the  injury  is  produced  by  the  badness  of  his  action  it  constitutes 
an  unsoundness."  The  evidence  here  was  contradictory  as  to  whether 
the  unsoundness  existed  at  the  time  of  the  sale,  and  a  veterinary  sur- 
geon who  was  called  for  the  defendant  said  that  the  horse  was  so  ill- 
formed  from  turning  out  one  of  its  fore-legs,  that  it  was  incapable  of 
doing  work  to  any  extent  without  cutting  so  as  to  produce  lameness. 
The  law  laid  down  by  the  learned  judge  was  expressly  in  point  for  the 
defendant  in  Broicn  v.  EUwigfon,  where  it  appeared  that  the  plaintiff 
had  objected  to  the  horse's  curby  hocks  at  the  time  of  the  sale,  but 
bought  him  for  £60  on  receiving  a  general  warranty  of  soundness. 
He  sprang  a  curb  a  fortnight  after,  in  his  third  day  with  hounds. 
Veterinary  surgeons  gave  their  testimony  for  the  plaintiff  to  the  effect 
that  curby  hocks  indicate  a  peculiar  form  of  the  hock,  which  was  con- 
sidered to  render  the  horse  more  liable  to  throw  out  a  curb,  but  did  not 
of  itself  occasion  lameness,  and  that  the  horse  had  curby  hocks  at  the 
time  of  sale.  Lord  Abinger  C.B.  told  the  jury  that  a  defect  in  the 
formation  of  the  horse  which  had  not  occasioned  lameness  at  the  time 
of  sale,  though  it  might  render  the  animal  more  liable  to  be  lame  at 
some  future  time,  was  no  breach  of  the  warranty.  The  Court  of  Ex- 
chequer refused  a  new  trial  for  misdircct'on,  which  was  moved  for  on 
the  fi-ouud  that  a  malformation,  the  natural  consequence  of  which  was 


SPLINTS  PRODUCING  LAMENESS.  571 

lameness,  amounted  to  an  unsoundness  ;  and  Alderson  B.  observed 
that,  "  The  law  as  laid  down  by  me  in  Dklcinson  y.  Follctt  has  not 
been  questioned  in  any  subsequent  case." 

Cressivell  J.  also  ruled  in  accordance  with  this  doctrine  in  BaiJeij  v 
Forrest,  where  it  was  contended  for  the  defendant  that  the  mere  fact  of 
a  horse  Tjeing  thin-soled  did  not  of  itself  make  him  unsound,  and  that 
the  plaintiff  could  not  recover  on  the  warranty,  although  the  horse  fell 
lame  shortly  after  the  sale.  "  The  plaintiff,"  said  his  lordship,  "  must 
prove  that  the  horse  was  unsound  at  the  time  of  the  sale,  or  he  cannot 
recover.  Mere  defective  formation  not  producing  lameness  at  the  time 
of  sale,  does  not,  in  my  opinion,  constitute  unsoundness." 

The  subject  of  splints  was  very  much  considered  in  Margetson  v. 
Wright.  Here  the  plaintiff,  an  attorney,  being  desirous  of  possessing 
a  race-horse,  went  to  examine  the  defendant's  stallion  Sara])Son,  who, 
in  addition  to  being  a  crib-biter,  had  a  splint  on  the  oflF  fore-leg,  and 
had  broken  down  in  training.  In  consequence  of  these  defects  the 
plaintiff  purchased  him  for  only  £90,  a  French  veterinary  surgeon 
having  reduced  the  splint  and  given  a  plausible  recipe  for  its  future 
treatment.  Defendant  would  not  give  a  warranty  that  he  would  stand 
training,  and  hence  a  sale  memorandum  was  ultimately  signed  stating 
the  amount  and  time  of  payment,  that  plaintiff  was  to  give  the  defen- 
dant £10  for  each  of  the  first  five  races  the  horse  won  in  1830,  and 
concluding  thus — "  And  the  said  Mr.  Wright  does  hereby  warrant  the 
said  horse  to  be  sound,  wind  and  limb,  at  this  timey  In  the  course  of 
six  months  the  horse  broke  down  in  training,  and  an  action  was  com- 
menced on  the  warranty.  Parke  J.  t)old  the  jury  that  the  parties,  by 
the  insertion  of  the  words  "  at  this  time,"  probably  intended  to  exclude 
a  warranty  of  the  horse's  standing  training  ;  and  that  the  question  for 
them  to  consider  was,  whether  at  the  time  of  the  warranty  the  animal 
was  sound  for  ordinary  purposes,  as  to  go  on  the  road  or  the  like,  the 
express  warranty  rendering  the  defendant  responsible  for  the  conse- 
quences of  the  splint,  though  the  defect  was  visible. 

The  Court  of  Common  Pleas  granted  a  new  trial,  as  they  thought 
that  the  jury  might  have  been  misled  by  the  direction,  which  would 
have  been  less  subject  to  misapprehension  if  it  had  been  left  to  them  to 
consider  whether  the  horse  was  at  the  time  of  the  bargain  sound  in 
wind  and  limb,  saving  those  manifest  defects  contemplated  by  the 
parties.  At  the  second  trial  the  plaintiff  brought  forward  evidence  as 
to  the  nature  and  consequence  of  various  kinds  of  splints,  and  proved 
not  only  that  they  may  or  may  not  be  the  efficient  cause  of  lameness, 
according  to  their  size  or  to  the  position  they  occupy  ;  but  that  Samp- 
son's splint  was  in  a  very  bad  position,  as  it  pressed  on  one  of  the 


01  -Z 


SPLINTS  CAUSING  UNSOUNDNESS. 


sinews,  and  produced  inflammation  and  consequent  lameness  when- 
ever the  horse  worked.  Vaughan  B.  requested  the  jury  to  tell  him 
distinctly  whether  in  their  judgment  the  horse  was  sound  ;  or  if  un- 
sound, whether  the  unsoundness  arose  from  the  splint.  They  said 
"  that  although  the  horse  exhibited  no  symptoms  of  lameness  when 
the  contract  was  made,  he  had  upon  him  the  seeds  of  unsound- 
ness, arising  from  the  splint ; "  and  they  accordingly  found  for  the 
plaintiff. 

On  a  motion  for  a  new  trial,  the  Court  of  Common  Pleas  ordered  the 
postea  to  be  delivered  to  the  plaintiff.  Timhl  C.J.  said  :  "  The  jury 
drawing  tlicir  attention  to  the  particular  splint  to  which  the  evidence 
related,  appear  to  us  to  have  intended  that  this  individual  sjjlinf,  though 
it  did  not  at  the  moment  produce  lameness,  was  at  the  time  of  the  con- 
tract of  that  sort  and  in  that  situation  as  to  contain,  in  their  language, 
the  seeds  of  unsoundness  that  is  the  efficient  cause  of  subsequent  lame- 
ness. If  the  lameness  complained  of  had  proceeded  from  a  new  or 
different  splint,  or  from  the  old  splint  taking  a  new  direction  in  its 
growth  so  as  to  affect  a  sinew,  not  having  pressed  on  one  before,  such 
a  lameness  would  not  have  been  within  the  warranty,  for  it  would  not 
have  constituted  a  present  unsoundness  at  the  time  of  the  warranty 
made.  But  the  jury  find  that  the  very  splint  in  question  is  the  efficient 
cause  of  lameness  ;  and  it  appears  by  the  fresh  evidence  that  some 
splints  cause  lameness  and  that  others  do  not,  and  that  the  conse- 
quences of  a  splint  cannot  be  apparent  at  the  time  like  the  loss  of  an 
eye  or  any  visible  blemish  or  defect  to  a  common  observer.  We  there- 
fore think  that  by  the  terms  of  ar  written  warranty  the  parties  meant 
that  this  was  not  a  splint  at  that  time  which  would  be  the  cause  of 
future  lameness,  and  that  the  juiy  have  found  it  was.  We  therefore 
think  that  the  warranty  was  broken." 

In  Warlon  v.  Floirers  the  horse  had  a  splint  on  the  near  front  leg  at 
the  time  of  the  sale,  but  after  some  examination  a  warranty  of  sound- 
ness was  given.  At  the  end  of  ten  days  the  horse  went  lame,  and  on 
examination  of  his  feet  and  legs  by  Professor  Spooner,  who  had  the 
shoes  taken  off,  that  gentleman  gave  it  as  his  opinion  that  the  lame- 
ness proceeded  from  the  splint,  and  was  of  some  months'  standing. 
Mr.  Webb,  Y.8.,  who  was  sent  to  look  at  the  horse  by  the  defendant, 
maintained  that  the  horse  wanted  shoeing,  and  that  his  lameness  was 
caused  Ijy  the  .growth  of  his  hoofs,  by  which  his  heels  were  let  down 
and  his  navicular  joint  bruised  on  the  pavement.  The  defendant,  on 
hearing  this,  refused  to  take  him  back,  and  brought  evidence  on  the 
trial  to  show  that  he  had  worked  18  miles  a-day  with  the  splint  in  the 
Epping  Coach  before  the  plaintiff  had  him,  and  done  a  potato  mer- 


LAPSE  OF  TIME  WILL  KOT  AFFECT  FALSE  WARRANTY.    573 

chant's  work  for  three  months  after  his  resale  l^y  the  plaintiff,  and  yet 
had  never  gone  lame.  Jervis  C.J.  put  it  to  the  jury  that  if  the  lame- 
ness was  produced  by  the  splint  the  plaintiff  was  entitled  to  recover ; 
but  if  on  the  other  hand  they  were  of  opinion  that  Mr.  Webb  was  right 
in  supposing  the  lameness  to  be  caused  by  want  of  shoeing,  they  must 
find  for  the  defendant.  The  plaintiff  had  a  verdict  for  £32  Gs.  9d., 
being  the  difference  between  the  original  price  and  the  net  proceeds  of 
the  sale,  and  for  keep  during  the  time  he  had  him. 

According  to  the  rule  laid  down  in  Fielder  v.  Starlcin,  no  lengili  of 
time  elcqjsed  after  the  sale  ivill  alter  the  nature  of  a  contract  originaJhj 
false,  though  the  not  giving  notice  is  a  strong  presumptio7i  against  the 
huger  that  the  horse  had  not  at  the  sale  the  fault  complained  of.  Here 
the  mare  was  found  soon  after  the  sale  to  be  a  roarer,  in  addition  to 
having  a  thorough-pin,  and  a  swelled  hock  from  kicking  ;  but  the 
plaintiff  kept  her  three  months,  and  tried  to  cure  her.  He  then  resold 
her,  and  she  was  returned  unsound,  and  defendant  refused  to  receive 
her  baCk  at  the  end  of  six  months,  as  the  plaintiff  (who  got  the  ver- 
dict) had  often  met  him  during  that  time,  and  never  mentioned  the 
matter.  On  her  way  back  to  the  plaintiff's  stables,  after  this  refusal, 
she  died,  and  veterinary  surgeons  thought  she  had  been  unsound  for  a 
twelvemonth. 

A  verdict  for  the  plaintiff,  with  30  gs.  damages,  was  confirmed  ;  and 
on  the  authority  of  this  case  a  new  trial  was  moved  for,  after  a  verdict 
for  the  defendant,  in  Adams  v.  Richards,  which  was  an  action  on  the 
warranty  of  a  pair  of  brown  coach-horses,  to  be  "  perfectly  sound,  free 
from  blemish,  and  in  no  manner  vicious,  and  if  on  the  trial  they  should 
have  any  of  the  above-mentioned  faults  to  he  taken  lack  and  purchase- 
money  returned."  Soon  after  the  sale  one  of  them  turned  vicious  and 
restive,  and  there  was  evidence  that  he  was  so  at  the  sale.  The  plain- 
tiff told  the  defendant  of  this,  but  still  kept  the  horse  for  a  time,  in  the 
hopes  that  he  would  improve  by  use.  The  defendant  took  his  horse 
back  for  a  time,  lending  him  another  to  make  up  the  pair,  and  then  sent 
him  the  vicious  one  back  with  the  assurance  that  it  was  quite  quiet 
now.  On  this  point,  however,  the  plaintiff  differed  with  him,  returned 
the  pair  at  the  end  of  nearly  seven  months,  and  sued  defendant  for 
his  money.  The  Court  said  that  they  fully  assented  to  the  doctrine  in 
Fielder  v.  Starhin  (that  where  a  horse  has  been  sold  warranted  sound, 
which,  it  can  be  clearly  proved,  was  unsound  at  the  time  of  sale,  the 
seller  is  liable  to  an  action  on  the  warranty,  witliout  either  the  horse 
being  returned  or  notice  given  of  the  unsoundness).  Still  ^vltcn  tJiere 
was  an  agreement  to  talce  a  horse  lacJc,  if  on  trial  lie  should  be  found 
faulty,  though  it  were  accompanied  with  an  express  Avarranty,  it  was 


574  REASONABLE  TRIAL  OF  HORSE. 

incumbent  on  the  purchaser  to  return  the  horse  as  soon  as  the  faults 
were  discovered,  unless  the  seller  by  any  subsequent  misrepresentation 
induced  the  purchaser  to  prolong  the  trial.  A  trial  means  a  reasonable 
trial :  but  here  nearly  seven  months  had  elapsed  after  the  horse  was 
known  to  be  restive,  and  before  the  return,  and  therefore  the  verdict 
for  the  defendant  was  right.  Forty  years  after  it  was  urged  on  the 
argument  in  Patteshall  v.  Tranter,  where  the  horse  was  discovered  to 
be  paralyzed  in  the  spine  shortly  after  the  sale,  and  the  plaintiff  gave 
no  notice  for  nine  months,  but  put  him  into  physic  and  cut  his  tail, 
that  Fielder  v.  Starkin  had  been  overruled,  or  at  least  qualified  by  other 
decisions  in  the  interim  ;  but  Lord  Demnan  C.J.  said,  with  the  assent 
of  Littledale,  Patteson,  and  Coleridge  J.J.  :  "We  think  that  Fielder  v. 
Starkin  is  not  overruled."  And  the  nonsuit  was  set  aside  and  a  new 
trial  ordered. 

When  a  certain  time  for  trial  is  fixed  upon,  the  person  granting  it  cannot 
break  off  the  negotiation  till  it  is  concluded.  And  so  in  Ellis  v.  Mortimer, 
where  the  defendant  told  the  plaintiff,  when  only  a  fortnight  out  of  the 
month  was  expired,  that  he  liked  the  horse  but  not  the  price,  and  was 
requested  to  send  the  horse  home,  but  did  not  do  so  till  three  or  four 
days  before  the  close  of  the  month,  the  plaintiff  could  not  maintain  an 
action  against  him  for  the  price. 

A  lorrowed  horse  camiot  he  used  hy  a  servant  {Bringloe  v.  Morrice), 
which  was  the  case  of  a  master  and  servant  riding  by  turns  to  York. 
But  a  man  may  jnd  his  servant  on  a  hired  horse  (ib.) ;  and  if  he  is  about 
to  buy  a  horse  he  is  not  limited  to  trying  its  paces  himself,  but  has  a 
right  to  put  his  groom  or  a  competent  horseman  on  it  for  the  purpose 
oi^a  trial,  and  provided  they  do  nothing  more  than  is  necessary,  even 
if  the  horse  runs  away  and  injures  itself  or  is  killed,  he  is  not  liable 
(Camogs  (Lord)  v.  Scurr).  If  a  person  rides  a  horse  gratuitously  for 
another  at  the  ownei-"s  request,  in  order  to  show  him  for  sale,  he  is  bound 
to  use  such  skill  and  care  as  a  person  conversant  with  horses  might  be 
reasonably  expected  to  use,  and  if  he  does  not,  he  is  equally  liable  with 
a  borrower  for  injury  done  to  the  horse  while  ridden  by  him.  Hence 
in  Wilson  v.  Brett,  where  the  defendant,  a  skilled  horseman,  took  a  horse 
for  inspection  into  a  cricket-field,  where  it  slipped  several  times  oiving  to 
the  nature  of  the  field,  and  broke  its  knees,  the  Court  of  Exchequer  re- 
fused to  set  aside  a  verdict  for  the  plaintiff,  and  considered  that  the 
proper  question  for  the  jury  was  that  put  by  Eolfe  B.,  whether  the  de- 
fendant did  or  did  not  use  such  skill  and  management  in  choosing  his 
ground  and  handling  his  horse  as  he  really  possessed.  And  per^  Eolfe 
B. :  "  The  distinction  between  this  case  and  that  of  a  borrower  is  that 
a  gratuitous  bailee  is  onlg  bound  to  exercise  such  skill  as  he  possesses, 


PHYSICKING  HIRED  HORSE.  575 

Avhereas  a  liirer  or  borrower  may  reasonably  be  taken  to  represent  to  the 
party  who  lets,  or  from  whom  he  borrows,  that  he  is  a  person  of  com- 
petent skill."  But  j;^r  Coleridge  J. :  "  Would  it  not  be  monstrous  to 
hold  that  if  the  owner  of  a  horse,  knowing  it  to  be  vicious  and  un- 
manageable, should  lend  it  to  one  who  is  ignorant  of  its  bad  quality, 
and  conceal  this  from  him,  and  the  rider — using  ordinary  care  and 
skill — is  thrown  from  it  and  injured,  he  should  not  be  responsible?" 
(BlacJcmore  (adx.)  v.  The  Bristol  and  Exeter  Railwcuj  Company). 

The  defendant  in  Curtis  v.  Hannay  had  learnt  the  day  after  the  sale 
that  the  horse  had  defective  eyes  at  the  time  he  bought  him,  lut  Icept  him 
seven  iveeks  before  he  returned  him,  and  said  nothing.  During  that  time 
he  gave  him  medicine  and  blistered  him  for  a  fancied  defect  in  the  feet, 
ivhkh  produced  a  thrush  and  lameness.  The  latter  was  only  temporary, 
and  the  horse  got  better,  and  those  remedies  did  not  affect  the  eyes. 
Under  these  circumstances  Lord  Eldon  C.B.  said  that  the  question  was, 
"  Would  the  horse,  when  .returned  to  the  seller,  be  diminished  in  value 
by  this  doctoring  ?  If  he  would,  the  defendant  should  pay  the  price, 
and  bring  his  action  against  tiie  seller  for  any  defect  in  the  warranty 
existing  at  the  time  of  the  sale.  He  took  it  to  be  clear  law  that  if  a 
person  purchases  a  horse  which  is  warranted,  and  it  afterwards  turns 
out  that  the  horse  was  unsound  at  the  time  of  the  warranty,  the  buyer 
might  if  he  pleased  keep  the  horse  and  bring  an  action  on  the  warranty 
in  which  case  he  would  have  a  right  to  recover  the  difference  between 
the  value  of  a  sound  horse  and  one  with  such  defects  as  existed  at  the 
time  of  the  warranty  ;  or  he  might  return  the  horse,  and  bring  an 
action  to  recover  the  full  money  paid  ;  but  in  the  latter  case  the  seller 
had  a  right  to  expect  that  the  horse  should  be  returned  in  the  same 
state  he  was  when  sold,  and  not  by  any  means  diminished  in  value." 
The  jury  found  for  the  full  price,  as  they  seemed  to  think  that  a  future 
purchaser  would  think  less  of  the  horse  if  he  heard  that  he  had  been 
blistered  and  doctored. 

If  a  horse  is  taken  ill  on  a  journey,  ivithout  any  fault  in  the  hirer,  the 
owner  has  to  pay  the  expense  of  its  cure ;  but  if  the  hirer  takes  upon  himself 
to  prescribe  medicines,  and  the  horse  dies,  he  is  liable  for  the  price  of  it. 
And  so  it  was  ruled  in  Dean  v.  Keate,  where  the  defendant  gave  the 
horse  some  medicine,  mild  in  itself,  and  then  drove  him  very  quick  in 
rough  weather,  producing  thereby  inflammation  of  the  intestines,  which 
he  treated  with  opium  and  ginger,  and  then  when  he  found  the  horse 
dying  in  great  pain  sent  for  the  ftirrier  too  late.  Lord  Ellenborovgh 
C.J.  said,  had  he  called  in  a  farrier  he  would  not  have  been  liable  for 
the  medicines  he  administered  ;  but  when  he  prescribed  himself,  he 
assumed  a  new  degree  of  responsibility,  and  in  prescribing  so  improperly 


570  NO  CUEE  NO  PAY. 

he  did  not  use  that  degree  of  care  which  miglit  be  expected  from  a 
prudent  man  towards  his  own  horse,  and  thougli  acting  liom  fide,  was 
liable  to  the  owner  for  gross  negligence. 

It  was  decided  in  Orchurcl  v.  Rctclcstraiv,  that  ivhere  a  liorse  is  standing 
at  livery,  and  tlie  livery-stahU  Tceejper  at  the  owner's  request  employs  a 
veterinary  surgeon,  he  has  no  lien  on  the  horse  for  tlie  tatter's  charge.  In 
this  case  the  horse  was  blistered  for  splints,  and  on  its  being  demanded 
the  defendant  claimed  a  lien  of  £23  13s.  including  his  charge  for  the 
standing  of  the  horse  and  tlie  hire  of  a  chaise,  and  30s.  for  payment  to 
the  veterinary  surgeon.  Jlaule  J.  told  the  jury  that  the  defendant  was 
not  entitled  to  claim  a  lien  upon  the  horse,  either  in  respect  of  the 
charge  for  its  keep,  or  of  the  surgeon's  charge  for  blistering,  and 
accordingly  a  verdict  was  found  in  trover  for  the  plaintiff — damages 
30  gs.,  being  the  value  of  the  horse.  The  Court  of  Common  Pleas 
confirmed  this  ruling.  Wilde  C.J.  said,  "  Suppose  the  veterinary 
surgeon  had  treated  the  horse  unskilfully  and  damaged  it,  who  would 
have  been  responsible  to  the  owner,  the  livery-stable  keeper  or  the 
veterinary  surgeon  ?  Clearly  not  the  former.  The  veterinary  surgeon 
had  no  lien  for  his  bill,  and  the  livery-stable  keeper  none  for  the  keep 
of  the  horse."  Cressivell  J.  added,  "  There  is  no  rule  of  law  giving  a 
livery-stable  keeper  a  lien  for  money  expended  upon  a  horse  standing 
at  livery  at  the  request  of  the  owner.  The  case,  therefore,  does  not 
fall  within  the  rule  of  law  which  confers  a  lien  upon  one  who  expends 
his  money  or  his  labour  upon  a  chattel  of  another." 

Bates  V.  Hudson  was  a  case  of  ";io  cure  no ]jay"  The i)laintlff lyroved 
that  he  had  been  emj^loyed  by  the  defendant  to  cure  a  flock  of  3b0  sheep 
and  147  lambs  of  the  scab,  at  so  much  jier  head  for  each  sort.  General 
evidence  was  given  that  the  plaintiff  had  performed  his  contract ;  but 
the  defendant  proved  that  the  plaintiff  at  the  time  he  undertook  the 
task  did  not  expect  to  be  paid  unless  he  cured  all  the  flock,  whereas  he 
had  failed  in  at  least  forty  cases.  Alexander  C.B.  held  that  if  the 
plaintiff  agreed  to  cure  all  the  sheep,  at  all  events  that  was  an  entire 
contract,  and  he  could  not  recover  if  some  of  the  flock  were  not  cured. 
The  jury  found  that  the  complaint  had  been  checked  but  not  subdued, 
and  a  verdict  was  entered  for  the  defendant,  which  the  Court  of  King's 
Bench  refused  to  disturb. 

The  question  of  the  liabiJUy  for  the  damage  where  a  highly  improper 
application  fur  a  horse  is  furnished  was  fully  considered  in  Phillips  v. 
Wood.  The  defendant  was  a  chemist  and  druggist,  and  the  first  count 
stated  that  he  had  agreed  to  sell  the  plaintiff  a  quantity  of  ointment, 
reasonably  fit  to  be  api)lied  as  a  blister  to  horses  with  puffed  legs  ;  and 
that  though  it  was  defendant's  duty  to  sell  him  such  oinLmeut,  he  sold 


chemist's  liability  for  selling  IMrROPER  LOTION.    5'<  7 

him  some  which  was  totally  unfit,  and  by  the  application  of  which  his 
mare  was  made  useless.  It  appeared  on  the  trial  before  Littlcdah  J., 
that  the  paintifF,  thinking  his  mare  required  blistering,  agreed  with  his 
father  that  the  latter  should  take  her,  have  her  blistered  and  properly 
treated,  and  send  her  to  grass  in  his  own  field.  The  father,  who  was 
to  be  paid  for  the  keep  of  the  mare,  bought  from  the  defendant  the 
blistering  ointment,  which  was  applied  by  a  man  employed  by  himself, 
to  all  four  legs  at  once.  The  jury  found  that  the  plaintiff  had  not  been 
guilty  of  negligence,  and  gave  him  £32  damages.  A  new  trial  was 
moved  for  on  the  ground  that  the  contract  was  not  properly  stated  in 
the  declaration,  and  also  that  the  plaintiff  himself  was  guilty  of  negli- 
gence, as  he  had  applied  the  ointment  too  severely.  The  Court  of 
King's  Bench  refused  the  rule,  and  thought  that  the  contract  was 
described  according  to  its  legal  effect.  It  was  quite  clear  in  law  that 
this  was  the  son's  contract.  By  the  terms  of  the  agreement  between 
the  father  and  the  son,  the  latter  was  liable  for  the  price  ;  and  if  it  had 
been  a  credit  transaction  the  chemist  might  have  recovered  from  the 
son,  for  the  father  purchased  in  the  character  of  his  agent.  The  Court 
by  no  means  assented  to  the  proposition  that  the  plaintiff  was  bound 
to  show  that  he  himself  is  not  chargeable  with  negligence  before  he 
could  impute  it  to  the  defendant.  That  formed  no  part  of  the  issue  he 
was  bound  to  prove. 

BlacTc  v.  Elliot  was  a  very  important  action  to  recover  damages  for 
the  defendant's  negligence  and  want  of  sJciJl  i?i  selling  a  sheej)  /rash  to 
the  plaintiff,  which  poisoned  his  sheep.  The  plaintiff  was  a  large  farmer 
at  Xew  Heaton,  in  Northumberland,  and  he  had  recently  purchased 
the  stock  and  taken  a  farm  of  about  1,000  acres  at  Burton,  in  addition 
to  his  own.  In  July,  1858,  he  saw  an  advertisement  in  the  "Berwick 
Advertiser  "  headed  "  Important  to  farmers,"  and  greatly  recommend- 
ing the  defendant's  "  Celebrated  sheep  wash,"  for  the  destruction  of 
tick,  lice,  and  vermin  in  sheep.  Accordingly,  on  the  7th  of  August, 
the  plaintiff  being  at  Berwick,  ordered  sufficient  of  this  sheep  wash  to 
wash  700  sheep.  The  wash  w^as  sold  in  powders  ;  and  the  defendant's 
shopman  told  him  he  would  require  14  of  these  powders — one  powder 
being  sufficient  for  50  sheep.  The  plaintiff  ordered  15  powders,  and 
they  were  sent  to  his  Burton  farm.  The  direction  on  the  powders  was 
that  each  powder  was  to  be  mixed  with  three  or  four  gallons  of  boiling 
water,  and  that  then  this  mixture,  with  4lbs.  of  soft  soap,  was  to  be 
diluted  with  45  gallons  of  cold  water,  and  this  would  make  a  wash  for 
50  sheep,  in  which  they  were  to  be  dipped.  The  direction  was  impli- 
citly followed,  and  on  a  Saturday  in  August  869  sheep  were  dipped 
in  this  wash — 60  of  them  being  dipped  in  it  much  diluted,  as  they  had 

p  p 


578  SELLING  POISONOUS  SHEEP  WASH. 

been  washed  before.  The  sheep  were  brought  from  a  considerable 
distance  to  the  sheds,  and  they  were  turned  back  into  the  sheds,  and 
sent  back  to  their  pasture  at  intervals  during  the  day,  and  all  appeared 
to  go  on  well.  On  the  Sunday,  however,  one  of  these  sheep  died.  On 
the  Monday  several  more  died,  and  many  were  seen  to  be  ill— foaming 
at  the  mouth  and  shaking  their  heads,  and  lying  down. 

On  the  Tuesday  a  great  number  died  ;  more  still  on  the  Wednesday  ; 
until,  in  the  course  of  a  few  days,  850  of  the  sheep  had  died,  19  only 
surviving,  and  these  19  were  part  of  the  60  which  had  been  dipped 
in  the  very  diluted  mixture.  It  was  also  found  that  the  hands  and 
arms  of  the  shepherds  which  had  been  dipped  in  the  liquor  became  sore, 
and  mortified  and  sloughed,  and  they  were  ill  for  some  time  from  it. 

It  was  suggested  that  the  sheep  had  been  allowed  to  eat  the  her- 
bage on  which  they  stood  after  they  were  washed,  and  that  a  shower 
of  rain  had  washed  oflP  them  much  of  the  mixture,  and  saturated  the 
herbage  of  the  field  where  they  were  placed,  and  thus  poisoned  them. 

On  the  sheep  all  dying  in  this  manner,  Mr.  Black  had  one  of  the 
powders  analyzed,  and  it  was  admitted  that  it  contained  li  lb.  of 
arsenic,  Ijlb.  of  soda  ash,  and  2oz.  of  sulphur,  each  powder  weighing 
21b.  lOoz.  The  sheep  were  dissected  and  found  to  have  been  poisoned. 
Tliey  were  all  much  swollen  and  black.  The  plaintiff  then  saw  the 
defendant,  who  went  over  to  his  farm.  The  defendant  said  then  it  was  a 
bad  job,  that  his  powders  had  never  poisoned  any  sheep  before,  and 
he  knew  he  was  responsible.  The  defendant  then  sold  the  skins  of  the 
sheep  to  a  skinner  who  joined  them  on  the  road  for  2s.  each,  and  the 
carcases  were  buried.  The  plaintiff  claimed  £1,737  as  the  value  of  his 
sheep.  The  defendant,  however,  afterwards  resisted  this  demand,  and 
set  up  as  a  defence  the  improper  mixing  and  diluting  of  his  powders, 
contending  that  the  solution  made  was  stronger  than  it  ought  to  have 
been  according  to  his  directions. 

Those  that  had  the  disease  had  a  frothy  mucous  about  the  brow, 
nose,  and  mouth,  the  eye  was  very  dull,  and  evident  pain  in  the  bowels, 
the  breathing  was  most  laborious,  the  head  was  swollen,  and  thrown 
back.  The  urinary  discharge  was  black  and  bloody.  The  skin  w^as 
of  a  black  and  blue  appearance,  and  the  wool  falling  off'  in  large 
patches,  particularly  on  the  back  and  across  the  loins.  Professor  Dick, 
of  Edinburgh,  Dr.  Thomi)Son,  and  other  scientific  witnesses,  were 
called  to  prove  that  the  sheep,  on  dissection,  exhibited  traces  of  arsenic 
in  their  intestines,  and  as  much  as  six  grains  was  found  in  a  sheep, 
which  was  quite  sufficient  to  account  for  the  death.  The  quantity  of 
arsenic  in  each  powder  sold  by  the  defendant  for  the  washing  of  each 
sheep  amounted  to  195  grains.     Willea  J.  ^ummod  up  at  considerable 


WHAT  CONSTITUTES  AN  ACCEPTANCE.  579 

length  :  "With  regard  to  the  question  of  compensation,  assuming  that 
they  found  for  the  plaintiflP,  it  -n'ould  "  (his  Lordship  said)  "  be  a  matter 
for  consideration  whether  they  should  find  a  verdict  in  respect  of  the 
700  sheep,  for  which  the  packages  were  sold,  or  whether  in  respect  of 
the  whole.  He  observed  that,  although  the  damages  were  laid  at 
£1,700,  he  thought  if  the  jury  found  for  the  plaintiff,  £1,400  would 
be  sufficient  to  cover  the  loss.  The  decision  must  be  founded  on 
whether  this  was  a  '  reasonable,  fit,  and  proper '  composition  to  be  used, 
according  to  the  directions  on  the  package,  for  dipping  sheep.  If  they, 
turning  the  matter  over  in  their  minds,  thought  that  the  result  could 
not  be  reasonably  attributed  to  any  other  cause  than  the  impropar 
composition,  then  they  ought  to  find  their  verdict  for  the  plaintiff. 
But  if  the  plaintiff  had  not  made  that  out  to  their  satisfaction,  then 
they  ought  to  return  their  verdict  for  the  defendant."  The  jury 
returned  a  verdict  for  the  plaintiff,  damages  £1,400. 

Where  there  is  no  contract  a  veterinary  surgeon  must  go  upon  a 
qiicmtum  meruit  [Sewell  v.  Coi'p)  ;  and  in  the  same  case  Best  C.J. 
refused  to  receive  in  evidence,  as  coming  from  a  body  not  known  to 
the  law,  a  certificate  of  the  Royal  Veterinary  College  of  attendance 
at  lectures.  It  was  held  by  Lord  Ellenborough  C.J.  that,  under  a 
general  count  for  work,  labour,  and  materials,  a  farrier  may  recover  for 
attendances  and  medicines  administered  in  the  cure  of  a  horse  {Clark  v. 
Mumford). 

What  constitutes  an  accei)tance  was  very  much  considered  in  Elmore  v. 
Stone,  which  was  an  action  by  a  livery-stable  keeper  to  recover  the  price 
of  a  pair  of  carriage  horses  for  which  he  had  asked  the  defendant  ISOgs. 
The  defendant  declined  at  the  time  to  give  that,  but  afterwards  sent  to 
say  that  "the  horses  were  his;  but  as  he  had  neither  servant  nor  stable, 
the  plaintiflF  must  keep  them  at  livery  for  him,"  and  the  latter  accord- 
ingly removed  them  out  of  his  sale  stable  into  another.  31ansfield  C.J. 
thought  there  was  a  sufficient  delivery,  but  reserved  the  point,  and  the 
jury  found  for  the  plaintiff.  The  Court  of  King's  Bench  discharged 
the  rule  for  a  nonsuit,  as  they  considered  that  the  horses  were  com- 
pletely the  horses  of  the  defendant,  and  that  when  they  stood  at  the 
plaintiff's  stables  they  were  in  effect  in  the  defendant's  possession. 

The  case  of  Carter  v.  Toussaint  was  also  a  sale  on  credit ;  and  as  in 
Tenvpest  v.  Fitzgerald,  the  'purchaser  had  exercised  various  acts  of  oivner- 
ship  over  the  horse.  The  facts  were  as  follows  :  The  plaintiffs,  who 
were  farriers,  sold  the  defendant,  by  a  verbal  contract,  which  specified 
no  time  of  payment,  a  race-horse  for  £30.  It  required  firing  at  the 
time,  which  was  done  in  the  presence  and  with  the  consent  of  the  defen- 
dant, who  agreed  with  the  plaintiffs  to  keep  the  horse  for  21  days,  free 

p  p  2 


580  SALE  ON  CREDIT. 

of  charge.     At  the  end  of  that  time,  plaintiffs'  servant,  by  direction  of 
the  defendant,  took  the  horse  to  grass  in  Kimpton  Park,  and  entered  it 
(simply  because  the  defendant  wished  to  conceal  from  his  friends  the 
fact  of  his  having  a  race-horse)  as  one  of  the  plaintiflFs'.     Eventually 
defendant  refused  to  take  the  horse,  and  under  Abbott  C.J.'s  direction  a 
verdict  was  found  for  the  plaintiffs  ;  and  the  Court  of  King's  Bench 
made  the  rule  absolute  for  a  nonsuit,     Brrj/Jr?/  J.  said  :  "The  Statute 
of  Frauds  is  a  remedial  law,  and  we  ought  not  to  endeavour  to  strain 
the  words  in  order  to  take  a  particular  case  out  of  the  statute.     In  the 
17th  section  it  is  provided  that  in  the  case  of  a  sale  of  goods  above  the 
value  of  .£10  the  buyer  must  accept  and  actually  receive  part  of  the 
goods  so  sold.     There  can  be  no  acceptance  or  actual  receipt  by  the 
buyer  unless  there  be  a  change  of  possession  ;  and  unless  the  seller 
divests  himself  of  the  possession  of  the  goods,  though  but  for  a  moment, 
the  property  remains  in  him.     Here  the  plaintiffs  had  a  lien  on  the 
horse,  and  were  not  compellable  to  part  with  the  possession  till  the 
price  was  paid.     Then  the  question  is,  was  there  anything  to  deprive 
them  of  that  right  ?     It  is  said  that  the  horse  was  fired,  but  after  that 
he  still  remained  in  their  possession,  and  then  he  was  sent  under  the 
care  of  their  servant  to  Kimi)ton  Park.     But  that  was  no  act  of  delivery 
to  dispossess  them  of  the  horse.     At  Kimpton  Park  he  was  entered  in 
the  name  of  one  of  the  plaintiffs,  and  they  therefore  still  retained  a 
control  over  him.     How  can  it  be  said  that  the  horse  was  in  the  pos- 
session of  the  defendant  when  he  had  no  right  to  compel  a  delivery  to 
him.     For  he  could  not,  on  tendering  the  keep,  maintain  trover  against 
the  park-keeper,  because  the  possession  had  not  passed  from  the  vendors 
to  him.     The  case  of  Elmore  v.  Stone  is  distinguishable.     There  the 
original  owner  of  the  horse  had  stables  in  which   he  kept  horses  as 
owner,  and  others  where  he  kept  them  as  livery-stable  keeper ;  and  the 
Court  considered  that  by  changing  tlie  horse  from  the  one  to  the  other 
he  had  divested  himself  of  the  possession,  and  given  up  his  lien.     But 
there  is  no  circumstance  of  that  sort  here." 

The  {)rincipal  question  in  Jordan  v.  Noiion  was  irhdher  there  ever 
was  a  complete  contract  of  jmrchase,  the  terms  of  which  had  to  he  gathered 
from  Utters.  The  plaintiff  and  defendant  lived  thirty  miles  apart,  and 
on  October  16,  1837,  at  the  request  of  the  latter,  a  mare  was  sent  to  a 
public-house  half-way  between  their  residences,  for  the  defendant  to  try; 
but  as  he  would  only  offer  20gs.  for  her,  the  plaintiff's  groom  took  her 
back.  Next  day  plaintiff  wrote  and  offered  him  the  mare  at  20gs.,  and 
defendant  replied — 

"  I  will  take  the  mare  at  20gs.,  of  course  ivarranted ;  but  as  you  say 


GATHERING  TERMS  OF  CONTRACT  FROM  LETTERS.        581 

you  have  another  horse  that  I  shall  buy,  the  same  expense  will 
bring  the  two  up  ;  therefore,  as  the  mare  lays  out,  turn  her  out 
with  my  mare.  I  will  meet  you  at  West  Wycombe  which  day  you 
like,  and  pay  you  at  once. 

"W.  Norton." 

This  and  three  other  appointments  were  broken  ;  and  in  answer  to  a 
remonstrance  i'rom  the  plaiutitf,  defendant  wrote  thus — 

"October  26. 
"  Of  course  I  mean  to  have  the  mare ;  and  if  you  had  read  my  note 
properly  it  would  have  saved  you  a  great  deal  of  trouble.  My 
son  will  be  at  World's  End  on  Monday,  when  he  will  take  the 
mare  and  pay  you.  If  you  want  to  go  elsewhere,  send  anybody 
with  a  receipt,  and  the  money  shall  be  paid— only  say  in  the 
receipt,  sound  and  quiet  in  harness.'" 

On  October  27th  plaintift*  wrote — 

''  I  send  the  mare  as  desired ;  she  is  warranted  sound  and  quiet  in 
double  harness.  I  never  put  her  in  single  harness,  as  I  never 
wanted  it." 

The  mare  was  accordingly  sent,  and  left  with  the  landlord  at  the 
World's  End,  where  the  defendant's  son  took  her  away  without  any 
receipt  or  warranty,  and  rode  her  home  to  the  defendant's.  In  a 
couple  of  days  her  legs  swelled,  and  she  was  sent  home  as  unsound; 
but  plaintiff"  would  not  receive  her,  and  she  was  turned  out  of  the 
yard,  and  wandered  no  one  knew  where.  The  defendant's  son  and 
the  person  who  took  her  back  spoke  to  her  unsoundness,  and  the 
former  said  that  his  father  had  been  angry  with  him  for  bringiug 
her  buck  without  a  receipt.  The  jury  found  that  the  defendant  had 
not  accepted  the  mare,  and  that  the  son  had  no  authority  to  bring 
her  home  without,  and  gave  a  verdict  accordingly.  A  rule  to  enter 
it  for  the  plaintiff  for  £21  was  discharged.  And  2)er  Curiam:  "The 
correspondence  amounts  altogether  merely  to  this — that  the  defendant 
agrees  to  give  20gs.  for  the  mare  if  there  is  a  warranty  of  her  being 
sound  and  quiet  in  harness  generally,  but  to  this  the  plaintiff  has 
not  assented,  and  thus  the  parties  never  contracted  ad  idem.  There 
is  nothing  in  the  parol  evidence  of  the  acts  or  conduct  of  the  parties 
to  supply  the  deficiency  in  the  contract.  The  defendant  is  not  bound 
by  his  son's  conduct  at  the  World's  End,  as  he  gave  him  only  a  limited 


583  OIVTXG  HALFPEXXY  AS  EAENEST  MONEY. 

authority,  and  told  plaintiff  that  his  son  would  only  receive  the 
mare  if  he  sent  a  warranty  that  the  mare  was  sound  and  quiet  in 
harness.  There  was  not  a  complete  contract  in  writing  by  which 
both  parties  were  bound,  no  sufficient  delivery  to  defendant,  and  no 
acceptance." 

In  Bach  v.  Owen,  the  plaintiff,  one  ]\Iay  morning,  a.d.  1792,  agreed 
to  give  the  defendant  a  colt  for  defendant's  mare,  and  pay  2gs.  to  boot 
on  December  17th,  plaintiff  to  keep  the  colt  till  September  29th.  The 
defendant,  accordingly,  paid  a  halfpenny  fo  hind  the  bargain,  but  would 
not  either  receive  the  colt  nor  deliver  the  mare,  and  it  was  held  that 
the  plaintiff  might  have  an  action  against  him,  alleging  a  demand  on 
him  for  his  mare,  but  without  alleging  any  delivery  or  offer  to  deliver 
his  own  colt ;  for  payment  of  earnest  money,  however  small,  had  vested 
I^laintiff 's  colt  in  the  defendant.  But  where,  as  in  BlenMnsop  v.  Clayton, 
the  plaintiff  sent  his  horse  with  his  servant  to  a  fair  to  sell,  and  the 
latter,  on  receiving  the  defendant's  offer  of  £45  for  the  horse,  tooJc  out  a 
shilling,  drew  the  edge  aross  the  defendant's  palm,  and  put  it  into  his  pocket 
again  irithovt  muling  a  tranftfer  of  the  shilling  even  for  a  moment,  and 
then  the  defendant  returned  in  half-an-hour  to  the  plaintiff's  stable, 
and  on  the  plea  of  some  supposed  unsoundness,  which  was  urged  by  a 
chapman  to  whom  he  wished  to  sell  it,  refused  to  take  the  horse ;  the 
Court  of  Common  Pleas  held  that  the  Statute  of  Frauds  was  not  satis- 
fied, and  after  a  verdict  for  the  plaintiff  granted  a  new  trial.  The  case 
they  said  was  very  different  from  that  of  a  haystack,  as  in  Chaplin  v. 
Rogers,  for  there  nothing  more  could  be  done  to  confer  a  possession. 

There  was  this  distinction  between  Blenkinsopy.  Clayton  and  Tempest 
V.  Fitzgerald — that  in  the  former  the  contract  was  not  for  ready  money, 
but  the  horse  was  to  be  delivered  within  an  hour,  and  the  defendant 
treated  it  as  his  own  hy  offering  it  for  sale ;  whereas,  in  the  latter  the 
express  contract  was  for  ready  money,  and  the  payment  of  the  price 
was  an  act  concurrent  with  the  delivery  of  the  horse.  The  facts  in 
Tempest  v.  Fitzgerald  were  as  follows  :  In  August,  1817,  the  defendant, 
who  was  plaintiff's  visitor,  agreed  to  purchase  a  horse  for  45  guineas, 
and  fetch  it  about  September  27th,  as  he  returned  from  Doncaster 
Races.  It  was  understood  to  be  a  ready-money  bargain,  and  the 
plaintiff  proposed  to  put  the  horse  into  physic,  and  have  it  ready  for 
the  hunting  season.  On  September  20th  defendant  returned,  ordered 
his  horse  out  of  the  stable,  saw  his  groom  gallop  and  leap  him,  and  gave 
directions  about  haltering  him.  He  then  asked  the  plaintiff's  son  to 
keep  him  another  week,  and  said  he  would  call  in  seven  days  when 
the  races  were  over,  and  left  orders  to  have  the  horse  sweated.  On  the 
27th  he  returned,  and  found  that  the  horse  had  died ;  and  on  his  refusal 


EXERCISE  OF  OWNEr.SHIP  BY  FEEDING  CATTLE.  583 

to  accept,  an  action  was  brought,  which  ended  in  a  verdict  for  the  plain- 
tiff. The  Conrt  of  Queen's  Bench,  however,  considered  that  there  was  no 
acceptance  of  the  horse  'within  the  11  ih  section  of  the  Statute  of  Frauds,  and 
granted  a  new  trial.  At)bott  C.J.  said :  "  The  defendant  had  no  right  of 
property  in  the  horse  till  the  price  was  paid,  and  could  not  then  exercise 
any  right  of  ownership.  If  he  had  at  that  time  ridden  away  with  the 
horse  the  plaintiff  might  have  maintained  trover."  Andj^cr  Baylcy  J. : 
"  This  was  a  ready-money  bargain,  and  the  purchaser  could  have  no 
right  to  take  away  the  horse  until  he  had  paid  the  price.  If  the  argu- 
ment on  the  part  of  the  plaintiff  were  to  prevail,  the  defendant  might 
have  maintained  an  action  for  the  horse  without  paying  the  price,  which 
would  be  contrary  to  the  express  terms  of  the  contract." 

The  above  case  governed  the  decision  in  Holmes  v,  Hosklns.  There  the 
defendant  was  a  butcher,  and  ver'bally  ipromised,  one  Saturday,  to  huy  15 
head  of  cattle  in  2)laintiff's  field,  for  £190.  Finding  he  had  not  got  his 
cheque-book,  he  told  the  plaintiff  to  call  at  his  house  for  payment  in  the 
evening.  It  was  arranged  that  the  cattle  should  stay  in  the  plaintiff's 
field  till  the  next  Tuesday.  The  defendant  was  out  when  the  plaintiff 
called  in  the  evening,  but  he  sent  a  message  to  request  the  loan  of  some 
of  plaintiff's  hay  from  the  rick  to  feed  the  cattle,  and  fed  them  with  it 
till  the  next  Wednesday.  He  afterwards  refused  to  pay  for  the  cattle, 
as  he  said  he  had  offered  too  much.  Martin  B.  thought  there  was  no 
evidence  of  an  acceptance  and  receipt  under  the  17th  section  of  the 
Statute  of  Frauds,  and  nonsuited  the  plaintiff,  with  leave  to  move  to  enter 
a  verdict  for  £190,  if  the  Court  thought  the  evidence  sufficient.  The 
Court  of  Exchequer  upheld  the  learned  judge's  ruling.  Parke  B.  said, 
''In  order  to  satisfy  the  statute,  there  must  he  cm  accejitcmce  and  an  actual 
or  constructive  delivery.  Now  in  this  case  there  was  no  actual  delivery, 
and  therefore  to  entitle  the  plaintiff  to  recover  there  must  be  such  a 
dealing  with  the  cattle  by  the  defendant  as  ouiier  that  the  plaintiff' 
would  lose  his  lien.  But  it  is  clear  that  the  plaintiff  never  meant 
to  part  with  his  cattle  until  the  price  was  paid,  and  there  is  no  ground 
for  holding  that  the  mere  giving  permission  to  feed  the  cattle  changed 
the  possession.  In  this  case  there  has  been  no  actual  receipt,  for  the 
defendant  never  had  the  cattle  ;  and  the  only  question  is,  whether  the 
act  of  feeding  the  cattle  with  the  plaintiff's  assent  is  an  exercise  of  such 
an  act  of  ownership  as  to  amount  to  an  acceptance  and  constructive  de- 
livery. I  think  that  it's  not.  Elmore  v.  Stone  was  relied  on  for  the 
plaintiff;  but  that  case  is  very  different  from  the  present;  for  there, 
when  the  vendor  assented  to  the  purchaser's  request,  there  was  an 
acceptance  by  which  the  former  lost  his  lien." 

Sawulers  v.  Topp  was  another  case  of  the  same  class.     The  defendant 


584  ACCEPTANCE  AFTER  DELIVERY. 

went  with  plaintiff  to  his  farm,  and  selected  from  a  flocTc  45  couples  of 
ewes  and  lambs,  which  he  agreed  to  buy  at  40s.  a  couple,  also  a  stag 
sheep  and  dry  ewe  at  40s.  each.  These  he  directed  plaiutiff's  shepherd 
to  send  to  his  farm  at  "VYimbourne  in  the  course  of  the  day.  They  were 
accordingly  sent  along  with  two  couples  of  ewes  and  lambs  (which  he 
bought  from  plaintiff  without  inspection  at  another  of  his  farms)  to 
"Wimbourne,  and  left  in  his  field.  The  defendant  did  not  see  them 
there,  but  after  the  lapse  of  two  days  sent  his  man  to  drive  them  14 
miles  to  his  residence,  and  said,  after  counting  them  on  their  arrival, 
"  It's  all  right  ;"  adding,  with  respect  to  the  two  couple,  "They  do  not 
match  very  well  with  those  I  have  got."  The  next  day  the  defendant 
A\Tote  to  complain  that  the  plaintiff  had  not  sent  the  same  sheep  he 
bought,  and  that  unless  £2  was  deducted  he  would  not  take  them,  and 
they  were  accordingly  sent  back.  The  defendant  contended  that  the 
bargain  for  the  45  couples  and  the  two  couples  was  one  transaction,  and 
void  by  the  17th  section  of  the  Statute  of  Frauds,  as  there  had  been  no 
])art  payment  or  acceptance.  Tlie  jury  found  that  there  was  a  distinct 
bargain  for  the  45  coujiles  only,  and  tlie  verdict  was  entered  for  the 
plaintiff,  with  leave  for  the  defendant  to  move  to  enter  a  nonsuit,  if  the 
Court  thought  there  was  no  evidence  of  acceptance  to  satisfy  the 
statute. 

The  Court  of  Excliequer  decided  that  the  plaintiff  was  entitled  to 
retain  his  verdict  for  the  45  couples,  as  there  was  clearly  evidence  of  an 
acceptance  after  deliveiy,  though  they  doubted,  but  did  not  consider  it 
necessary  to  decide  the  point,  whether  under  the  statute  there  could  be 
an  acceptance  before  delivery.  Alclerson  B.  said  that  he  "  did  not  agree 
with  the  case  of  Anderson  v.  Scott,  which,  I  think,  required  fuller  con- 
sideration." His  lorship  added :  "  Here  there  was  evidence  of  an  accept- 
ance by  the  inspection  and  separation  of  the  sheep  at  the  time  when  they 
were  in  the  vendm''s  possession,  and  very  slight  evidence  of  the  accept- 
ance of  the  sheep  when  received  would  be  sufficient  to  show  an  acceptance 
coupled  with  the  receipt,  because  they  were  previously  selected  by  the 
vendee  himself.  It  is  only  a  question  of  degree.  In  truth  the  previous 
selection  of  the  sheep  is  very  material  to  show  the  nature  of  the  accept- 
ance when  the  sheep  were  received.  The  defendant  says,  '  It  is  all 
right.'  If  he  had  never  seen  the  sheep,  and  there  liad  been  no  previous 
acceptance,  his  saying  '  It  is  all  right '  would  have  had  no  eflect  ;  but 
when  he  had  previously  examined  and  selected  the  sheep,  it  was  for  the 
jury  to  say  whether  he  did  not  mean,  '  These  are  the  sheep  which  I 
selected.'  Suppose,  in  the  case  of  a  remarkable  animal,  for  instance  a 
liorse  with  peculiar  spots,  the  vendee  had  said,  '  All  right,'  there  could 
be  no  doubt  he   would  mean,  '  This  is  the  horse  I  bought.'     That 


BUYING  HORSE  FOR  LESS  THAN  £10.  585 

shows  the  whole  question  is  one  of  degree  only  ;  and  the  previous  fact 
of  selection  may  well  be  used  as  a  circumstance  from  which  the  jury 
might  properly  infer  an  acceptance  at  the  time  of  the  receipt." 

Where  the  conirad  for  the  sale  of  a  horse  is  not  to  he  iierformed  within 
a  year,  the  agreement  itself,  or  some  memorandum  or  note  of  it,  must 
be  in  writing,  and  be  signed  by  the  party  to  be  charged,  or  his  agent, 
within  the  4th  section  of  the  Statute  of  Frauds. 

If  the  price  is  under  £10,  and  the  seller  states  ivhat  he  aslcs  for  his 
horse,  and  a  Iniycr  says  he  tvill  yive  it,  the  bargain  is  struck,  and  neither 
of  them  is  at  liberty  to  be  off,  provided  that  immediate  possession  of 
the  horse  or  the  money  be  tendered  by  either  side. 

Where  a  horse  is  houyld  for  any  in-ice  or  consideration  vnder  the  value 
of  £\0,  and  there  is  not  an  actual  imyment  and  delivery  at  the  time  of 
sale,  and  the  contract  is  to  he  performed  within  a  year,  the  bargain  may 
be  bound  by  any  of  the  following  five  methods  :  1st,  an  agreement  to 
deliver  the  horse  on  a  certain  day,  a  day  also  being  agreed  uj)on  for  pay- 
ment of  the  price,  and,  in  default,  the  buyer  may  have  an  action  for  the 
horse,  or  the  seller  for  his  money  ;  '•l\\^^',^\ii  payment  of  the  lohole  price, 
and  then  if  the  seller  do  not  deliver  the  horse  the  buyer  may  sue  him, 
and  recover  it  ;  "ivdAj ,  part  payment  of  the  purchase-money ,  and  then  the 
buyer  may  sue  for  and  recover  the  horse,  or  the  seller  may  sue  for  the 
residue  of  the  price ;  4thly,  an  earnest  may  be  given,  and  even  the 
smallest  sum  is  sufficient,  and  in  such  case  the  remedies  are  reciprocal  ; 
5thly,  an  actual  delivery  of  the  house,  and  even  if  there  be  none  of  the 
purchase-money  paid,  no  earnest  given,  or  no  day  set  for  payment,  the 
seller  may  at  any  time  sue  the  buyer,  and  recover  his  money  {OliplianVs 
Law  of  Horses,  2nd  ed.,  p.  4). 

In  Marvin  v.  Wallace,  a  complete  verhal  haryain  had  heen  made  for  the 
sale  of  the  horse  in  qvestion  hy  tlie  plaintiff  to  tlie  defendant  for  more  than 
£10  ;  and  hefure  there  had  heen  an  actual  delivery  of  the  horse,  the  p)laintiff 
asked  the  defetidant  to  lend  him  it  to  use  for  a  short  time,  as  he  had  two 
or  three  journeys  to  make.  Defendant  assented,  telling  him  to  take 
care  of  him  ;  and  the  horse  remained  a  fortnight  with  the  plaintiff,  not 
as  vendor,  but  as  borrower,  during  which  he  threw  him  down  and  broke 
his  knees.  On  the  day  fixed  for  the  return  of  the  horse,  plaintiff  sent 
him  to  the  defendant  who  said  he  had  been  injured  in  the  interval,  and 
would  not  receive  him.  There  was  no  part  payment,  and  no  memo- 
randum in  writing.  It  was  objected  that  there  was  no  evidence  to  go 
to  the  jury  of  any  acceptance  and  actual  receipt  of  the  horse,  but  Lord 
Camphell  C.J.  would  not  stop  the  case.  Defendant  then  gave  evidence 
that  by  the  original  verbal  bargain  the  horse  was  not  to  be  delivered 
for  a  month  ;  and  that  plaintiff  retained  possession,  not  as  a  borrower. 


586  MEANING  OF  ACCEPTANCE. 

bnt  by  virtue  of  the  original  bargain.  His  lordship  accordingly  left  the 
question  to  the  jury,  "  whether  the  verbal  contract  for  the  sale  of  the 
horse  was  complete  before  there  was  any  agreement  about  the  horse 
being  returned  by  the  plaintiff,  and  the  horse  was  lent  to  the  plaintiff 
by  the  defendant  as  his  owner  ;  or,  whether  the  retainer  of  the  horse 
was  part  of  the  bargain  ?  "  The  jury  found  the  contract  to  be  complete 
before  the  permission  to  keep  the  horse  was  given  to  the  plaintiff,  and 
that  the  horse  was  lent  by  the  defendant  as  his  owner.  A  verdict  was 
directed  for  the  plaintiff,  with  leave  to  move  to  enter  a  verdict  for  the 
defendant,  or  a  nonsuit,  on  the  ground  that  there  was  no  evidence  of  a 
sufScient  acceptance  of  the  horse  in  question  within  the  17th  section  of 
the  Statute  of  Frauds. 

The  Court  of  Queen's  Bench  discharged  the  rule.  Erie  J.  said  : 
"  The  question  is  whether  the  buyer  has  accepted  the  horse,  and 
actually  received  it.  All  that  passed  has  been  merely  by  word  of 
mouth.  There  has  been  nothing  which,  according  to  the  language  of 
many  cases,  amounts  to  manual  delivery.  The  statute  for  many  years 
was  very  much  praised.  I  believe  that  the  person  who  inserted  the 
words  had  no  notion  what  he  meant  by  '  acceptance.'  That  opinion  I 
found  on  the  everlasting  discussion  which  has  gone  on,  as  if  possession 
according  to  law  could  mean  only  manual  prehension.  It  may  mean 
that,  or  it  may  mean  handing  over  to  a  servant  ;  but  the  question  is 
whether  there  has  been  an  exercise  of  the  right  inconsistent  with  any 
supposition  but  that  of  ownership  ;  whether  there  is  an  actual  sale 
and  an  act  which  is  inconsistent  with  anything  but  ownership  ?  When 
you  apply  that  here,  you  have  the  finding  of  the  jury  that  there  was  an 
actual  sale,  and  that  the  purchaser  was  assumed  to  be  in  actual  posses- 
sion. He  permitted  the  other  party  to  retain  the  horse.  All,  indeed, 
passed  by  word  of  mouth  ;  but  to  my  mind  it  is  a  most  decisive 
case  of  possession,  and  one  in  which  the  vendor  had  lost  his  claim 

to  lieu." 

Lord  Campbell  C.J.  added  :  "  I  agree  with  the  rest  of  the  Court, 
while  the  Statute  of  Frauds  remains  we  are  bound  to  give  effect  to  it, 
and  shall  do  so  ;  but  we  are  doing  so  here.  There  has  been  an  accept- 
ance and  receipt  of  the  chattel  on  the  finding  of  the  jury,  which  is  quite 
justified  by  the  evidence.  The  vendor  became  the  bailee  of  the  horse, 
and  held  by  the  authority  of  the  vendee.  The  case  is  within  the  excep- 
tion of  section  17.  I  must  say  that,  giving,  as  I  do,  full  effect  to  the 
statute  while  it  remains,  I  shall  rejoice  when  it  is  gone.  In  my  opinion 
it  does  much  more  harm  than  good.  It  promotes  fraud,  rather  than 
prevents  it,  and  introduces  distinctions  which  I  must  confess  are  not 
productive  of  justice." 


EXTENSION  OF  STATUTE  OF  FRAUDS.  587 

The  statute  was  furilier  extended  by  9  Geo.  IV.  c.  1 4,  b.  7,  by  which 
it  is  enacted  that,  "  tlw  provisions  of  the  Stalnte  of  Frauds  shall  extend 
to  all  contracts  for  the  sale  of  goods  to  the  value  of  £10  or  upwards, 
notwithstanding  the  goods  may  he  intended  to  he  delivered  at  some  future 
time,  or  mag  not  at  the  time  of  such  contract  he  actually  made,  procured^ 
or  provided,  or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite 
for  the  making  or  completing  thereof,  or  rendering  the  same  fit  for 
delivery."  It  is  now  well  settled  that  the  17th  section  of  29  Car.  II. 
c.  3,  and  the  7th  section  of  9  Geo.  IV.  c.  14  (Lord  Tenterden's  Act)  are 
to  be  read  together.  The  effect  of  the  last-mentioned  enactment,  there- 
fore, is  to  substitute  "value"  for  "price"  in  the  17th  section  of  former 
statute,  and  to  adopt  a  uniform  rule  in  all  cases.  A  contract  for  the 
sale  of  goods  of  the  value  of  £10  or  upwards  is  not  the  less  within 
such  17th  section,  because  it  embraces  something,  viz.,  agistment  to 
which  the  statute  does  not  extend.  Hence,  as  in  Harman  v.  Reeve, 
where  it  was  agreed  by  parol  between  A.  and  B.  that  the  former  should 
sell  the  latter  a  mare  and  foal,  and  should  at  his  own  expense  keep 
them  until  a  certain  day,  and  that  A.  should  also  for  a  given  time  keep 
a  mare  and  foal  belonging  to  B.,  and  that  in  consideration  of  all  this  B. 
should  fetch  away  A.'s  mare  and  foal  on  the  day  named,  and  pay  him 
£30,  it  was  held  by  the  Court  of  Common  Pleas  that  this,  so  far  as  it 
related  to  the  sale  of  A.'s  mare,  was  a  contract  within  the  17th  section 
of  the  Statute  of  Frauds,  and  void  for  want  of  writing,  no  point  having 
been  made  at  the  trial  as  to  the  value. 

Where  cattle  were  alleged  in  the  indictment  to  he  the  property  of  a 
person  who,  it  appeared  in  evidence,  ivas  merely  the  agister,  and  not  the 
actual  owner,  the  Judges,  in  Rex  v.  Woodward,  held  it  to  be  sufficient. 
He  may  also  maintain  trespass  against  any  one  who  takes  the  beasts 
(2  Roll.  Abr.  551).  And  so  where  a  horse  is  sold  at  a  re^Dository,  the 
auctioneer  may  maintain  trespass  or  an  indictment  for  larceny  in  his 
own  name,  if  it  be  stolen  before  delivery ;  and  such  special  property 
also  entitles  him  to  maintain  an  action  for  goods  sold  and  delivered 
against  the  buyer,  though  the  sale  was  at  the  house  of  such  third 
person,  and  the  goods  were  known  to  be  his  property  {Williams  v. 
Millingtoji).  The  general  liabiliig  of  an  agister  was  considered  in  Broad- 
water V.  Blot.  The  defendant,  a  farmer,  had  received  the  plaintiff's 
horse  to  agist,  but  it  strayed  out  of  the  field  with  several  more  of  defen- 
dant's horses,  and  was  lost  ;  while  the  others  were  merely  impounded. 
The  defendant  had  advertised,  and  offered  to  bear  half  of  plaintiff's 
expenses.  It  did  not  appear  that  the  loss  of  the  horse  was  occasioned 
by  the  defect  of  the  fences,  or  that  he  had  strayed  through  the  gates  at 
the  time  that  the  witnesses  spoke  to  their  being  open ;  but  evidence  was 


5S8  COMPENSATION  FOR  AGISTMENT. 

given  of  g-eneral  bad  condition  of  fences  on  the  farm,  and  negligence  as 
to  leaving  gates  open.  Gibhs  C.J.  said:  "  All  the  defendant  is  obliged 
to  observe  is  reasonable  care.  He  does  not  insure,  and  is  not  answer- 
able for  the  wantonness  or  mischief  of  others.  If  the  horse  had  been 
taken  from  his  premises,  or  had  been  lost  by  accidents  which  he  could 
not  guard  against,  he  would  not  be  responsible.  I  admit  that  particular 
neo-ligence  must  be  proved,  by  occasion  of  which  the  horse  was  lost ;  or 
gross  general  negligence,  to  which  the  loss  may  be  ascribed  in  ignor- 
ance of  the  special  circumstance  which  occasioned  it.  If  there  were 
a  want  of  due  care  and  diligence  generally,  the  defendant  will  be  liable. 
The  question  is,  were  the  defendant's  fences  in  an  improper  state  at  the 
time  the  horse  was  taken  in  to  agist  ?  Did  he  apply  such  a  degree  of 
"  care  and  diligence  to  the  custody  of  the  horse  as  the  plaintiff",  who 
entrusted  the  horse  to  him,  had  a  right  to  expect  ?  I  shall  leave  it  to 
the  jury" — who  found  for  the  value  of  the  horse. 

AVhere  a  tenant  of  one  Rev.  Hugh  Smith  relied  on  the  prescriptive 
riuht  of  his  landlord  to  have  for  himself  and  his  tenants,  &c.,  occupiers 
ot^he  messuage  and  farm  of  Blaenmerin,  "  the  sole  and  exclusive  right 
of  pasture  and  feeding  of  sheep  and  lambs,"  on  the  locus  in  quo,  as  to 
the  said  messuages  and  farm  appertaining,  it  was  held  by  the  Court  of 
Queen's  Bench,  confirming  the  ruling  of  Coleridge  J.,  that  this  did  not 
entitle  him  to  take  in  the  sheep  and  lambs  of  other  persons  upon  tack 
to  pasture  thereon,  for  that  by  the  terms  of  the  grant  some  interest  in 
the  pasture  was  reserved  to  the  lord,  and  the  al)ove  practice  was  preju- 
dicial to  such  interest  {Jones  v.  Richard). 

As  regards  com2)ensation  for  agistment  in  Harman  v.  Reeve,  it  was 
suggested,  |;^r  Curiam  :  "  Could  not  the  plaintiff  sue  the  defendant  for 
the  six  weeks'  agistment  of  the  mare  and  foal  on  the  principle  suggested 
Ijy  Bagleij  B.  in  Wood  v.  Benson  and  Earl  of  Falmouth  v.  Thomas  ?  'It 
by  no  means  follows  that,  becausre  you  cannot  sustain  a  contract  on  the 
whole,  you  cannot  sustain  it  in  part,  provided  your  declaration  be  so 
framed  as  to  meet  the  proof  of  that  part  of  the  contract  which  is  good.'" 
A  contract  for  agistment  is,  according  to  Jones  v.  Flint,  not  a  contract 
for  an  interest  in  land.  The  question  as  to  whether  agisted  cattle  are 
the  suhject  of  lien  was  first  decided  in  Chapnan  v.  Allen,  where  five  kine 
were  put  to  pasturage  at  twelve-pence  a-weck  each.  The  Court  said 
that  it  "  was  not  like  to  the  case  of  an  inne-keeper  or  tailor ;  they  may 
retain  the  horse  or  garment  delivered  to  them  until  they  be  satisfied  ; 
but  not  when  one  receives  horses  or  kine,  or  other  cattell,  to  pasturage, 
paying  for  them  a  weekly  summe,  unless  there  be  such  agreement 
between  them." 

Lord  Lllenhorovgh  C.J.  thus  remarked  on  this  case  in  Chase  v.  West- 


NO  LIEN  IN  CASE  OF  AGISTMENT.  589 

more :  "It  does  not  appear  to  have  been  decided  on  the  "Tonnd  supposed, 
but  rather  on  the  ground  that  a  person  taking  in  cattle  to  agist  could 
not  detain  them  until  the  price  be  paid  ;  or  if  he  could  in  general  do  so, 
yet  that  in  the  particular  case  the  defendant  was  guilty  of  a  conversion 
as  against  the  plaintiff,  who  was  a  purchaser  of  the  cattle,  by  having 
delivered  them  over  to  a  third  person,  on  receiving  from  such  third 
person  the  amount  of  his  demand." 

And  in  Hohbij  v.  R^issell  (exor.  de  son  fort  of  John  Smith),  where  it 
was  in  evidence  that  the  defendant,  after  the  death  of  John  Smith, 
obtained  possession  of  a  pair  of  new  boots,  a  cow  and  calf,  a  barren 
cow,  a  pony-mare  and  colt,  and  a  hackney  mare,  which  had  been  his 
property  ;  and  that  at  the  time  of  his  death  the  cow  and  calf  were 
agisted  with  Mr.  E.  Jones,  and  that  the  defendant  paid  Mr.  E.  Jones 
for  their  agistment,  in  order  to  obtain  possession  of  them,  Cresswell  J. 
ruled  that  the  defendant  was  not  entitled  to  any  allowance  in  respect 
of  what  he  paid  Mr.  E.  Jones,  as  the  latter  had  no  lien  on  the  cattle 
for  their  agistment ;  and  the  Court  of  Exchequer  refused  a  rule  for  a 
new  trial. 

The  cases  on  the  subject  were  also  alluded  to  at  some  length  by  Lord 
Lyndhurst  C.B.,  in  his  judgment  in  Judson  v.  Ether idge,  where  to  a 
count  in  detinue  defendant  pleaded  that  the  plaintiff  had  delivered  the 
horse  to  him  to  be  stabled  and  taken  care  of,  and  fed  and  kept  by 
him  for  the  plaintiff  for  reward,  and  that  £10  became  due  to  him  from 
the  plaintiff  as  a  reasonable  reward,  and  so  justified  the  detainer  for 
that  sum  ;  but  on  general  demurrer  the  plea  was  held  bad.  Lord 
Lyndhurst  C.B.  said  :  "  Upon  this  plea,  the  question  is  whether,  on 
the  state  of  facts  disclosed,  the  defendant  has  or  has  not  a  lien  upon 
the  horse.  I  am  of  opinion  that  he  has  no  lien.  The  present  case  is 
distinguishable  from  the  cases  of  workmen,  and  artificers,  and  persons 
carrying  on  a  particular  trade,  who  have  been  held  to  have  a  lien  by 
the  value  of  labour  performed  in  the  course  of  their  trade  upon  chattels 
bailed  to  them.  The  decisions  on  the  subject  seem  all  one  way.  In 
ChaTpman  v.  Allen,  it  was  decided  that  a  person  receiving  cattle  to  agist 
had  no  lien.  In  Yorl(e  v.  Greenhaugh,  it  was  held,  not  merely  by  C.J. 
Holt,,  but  by  the  whole  Court,  in  their  decision,  that  a  livery-staih 
keejier  had  no  lien."  Bolland  B.,  who  acknowledged  that,  according  to 
Jacobs  V.  Latovr,  a  trainer  has  a  lien,  added  :  "  The  doctrine  might 
perhaps  be  extended  further,  so  as  to  embrace  the  case  of  a  breaker 
into  whose  hands  a  young  horse  is  placed  to  be  broken  in.  The  breaker 
makes  it  a  different  animal.  The  chattel  is  improved  by  the  applica- 
tion of  his  labour  and  skill.  In  the  present  case  it  does  not  appear 
that  anything  was  to  be  done  to  the  animal,  to  improve  it  or  render 


590  LIEN  BY  TEAINER  OF  KACE-HOESES. 

it  a  different  animal,  by  the  application  of  the  skill  and  labour  of  the 
bailee." 

In  Jackson  y.  Cummins  and  Others,  which  was  a  case  of  trespass  for 
entering  an  outhouse  of  the  plaintiif' s,  and  seizing  and  driving  away  10 
cows  which  had  been  depastured  on  the  defendant's  land,  the  jury 
found  that  there  was  no  such  agreement,  that  the  defendant  should 
retain  and  keep  possession  of  the  cows  until  the  amount  due  for  pasturage 
was  paid,  and  gave  their  verdict  for  the  plaintiff,  ParTce  B.  reserving 
leave  to  the  defendant  to  move  to  enter  a  nonsuit,  if  the  Court  were  of 
opinion  that  a  lien  existed  at  common  law  for  the  agistment  of  cattle, 
but  the  rule  was  discharged. 

It  was  ruled  by  Parke  B.,  in  Binns  v.  Piijoff,  that  an  innkeeper  has  no 
lien  on  a  horse  for  its  keep,  loiJess  it  he  Irovijht  hy  a  guest ;  but  he  can 
only  retain  it  for  its  own  keep,  not  for  that  of  others  the  property  of 
the  same  person.  And  see  Smith  v.  Deartore.  Speaking  of  a  lien  on 
a  racehorse,  in  Forth  v.  Simpson,  Patteson  J.  said  :  "  An  innkeeper's 
lien  stands  on  a  different  principle  ;  he  has  a  lien  on  the  guest's  horse, 
because  the  law  obliges  him  to  take  it  in.  My  brother  Parke's  view  of 
a  trainer's  lien,  as  stated  by  him  in  Jackson  v.  Cummins,  exactly  sup- 
ports our  decision,  which  is  also  quite  consistent  with  his  observation 
in  the  same  case,  that  where  a  horse  is  to  be  trained  for  a  specified  race 
the  trainer  may  have  a  lien  for  his  charges  until  the  horse  is  given  up." 
The  judo-ment  oi  Erie  J.  in  this  case  shows  that  an  ordinary  trainer  has 
no  lien  on  the  horses  vnder  his  charge.  His  lordship  said  :  "  A  trainer 
of  racehorses  has  the  benefit  of  one  general  principle,  that  the  person 
exercising  care  and  skill  in  the  improvement  of  a  chattel  is  entitled  to 
a  lien  on  such  chattel  for  his  charges  in  respect  of  his  care  and  skill ; 
but  there  is  another  general  principle,  that  in  order  to  complete  a  right 
of  lien  there  must  be  a  continuing  right  of  possession,  and  this  principle 
defeats  the  claim  of  lien  in  the  present  case.  It  is  quite  clear,  upon 
the  evidence,  that  the  owner  was  entitled  to  have  his  horses  re-delivered 
to  him  for  the  purpose  of  running  at  any  races  he  pleased,  and  this  is 
quite  inconsistent  with  the  trainer's  right  of  continuing  possession." 
Hence  it  would  seem  that  if  a  case  arose  under  the  "half-profits" 
principle  which  has  si)rung  up  of  late  years,  whereby  the  owner  sends 
his  horse  to  a  trainer  and  sti])nlates  that  he  is  to  train  and  keep  him 
free  of  expense,  and  run  him  where  he  likes,  and  to  give  the  owner  half 
his  winnings,  that  the  trainer  would  have  a  lien. 

SuV)ject  to  the  above  qualification,  which  was  made  by  the  Court  of 
Queen's  Bench  in  Forth  v.  Simpson,  and  which  seems  to  have  struck 
Aldirson  B.  in  Smrfe  v.  Morgan,  the  general  ride  of  lien  was  thus  ex- 
plained by  Parke  B.  in  the  latter  case  :  "  The  artificer  to  whom  goods 


auctioneer's  lien.  591 

are  delivered  for  the  purpose  of  being  worked  np  into  form  ;  or  the 
farrier,  by  whose  slcill  tlie  animal  is  cured  of  a  disease  ;  or  the  horse- 
breaker,  by  whose  skill  he  is  rendered  manageable,  have  liens  on  the 
chattels  in  respect  of  their  charges  ;  all  such  specific  liens  being  con- 
sistent with  the  principles  of  natural  equity  are  favoured  by  the  law, 
which  is  construed  liberally  in  such  cases.  This  being  the  principle, 
let  us  see  whether  this  case  falls  within  it ;  and  we  think  it  does.  The 
object  is,  that  the  mare  may  be  made  more  valuable  by  being  in  foal. 
She  is  delivered  to  the  defendant,  that  she  may  by  his  skill  and  labour, 
and  the  use  of  his  stallion  for  that  object,  be  made  so  ;  and  we  think, 
therefore,  that  it  is  a  case  which  falls  within  the  principle  of  those 
cited  in  argument."  Here  the  mare  had  been  sent  more  than  once  to 
the  defendant's,  who  was  a  farmer,  to  be  covered  by  his  stallion ;  but 
as  lis.  for  the  last  service  was  not  paid,  defendant  refused  to  deliver 
up  the  mare  until  the  lis.  (which  was  not  tendered)  and  £9  7s.  Hd. 
which  included  the  fee  for  covering  other  mares  of  plaintiff's  and  some 
poor-rates,  was  paid.  In  an  action  for  trover,  to  which  "Not  guilty" 
and  "The  mare  was,  and  is,  not  the  property  of  the  plaintiff"  were 
pleaded,  Parke  B.  directed  a  verdict  for  £25,  reserving  leave  to  the 
defendant  to  enter  a  nonsuit  on  three  points.  It  was  held  (1)  that  the 
defendant  had  a  specific  lien  for  covering  the  mare,  as  she  might  be 
made  more,  valuable  by  proving  in  foal ;  (2),  that  the  claim  of  defendant 
to  retain  the  mare  for  his  general  balance  was  not  a  waiver  of  his  lien 
for  his  charge  on  the  particular  occasion,  and  did  not  dispense  with  the 
necessity  of  a  tender  of  that  sum  ;  and  (3),  that  even  if  the  covering  of 
mares  with  his  stallion  was  done  within  the  exercise  of  his  ordinary 
calling,  on  a  Sunday,  that  still,  it  having  been  executed,  the  lien 
attached. 

The  question  as  to  vhether  an  auctioneer  has  a  lien  on  a  horse  for  his 
commissio?i  and  charges  was  very  much  considered  in  Eobinson  v.  Rutter, 
and  it  was  decided  that  he  had  a  lien. 

It  was  decided  by  the  Court  of  Queen's  Bench,  in  WarJow  v.  Ham- 
son,  that  although  at  a  sale  by  auction,  the  auctioneer  may,  after  a 
hiddiiig  lias  been  accepted,  become  the  agent  of  the  lyidder  for  the  purpose 
of  signing  a  memorandum  of  the  agreement,  he  is  not  an  agent  for  the 
bidder  at  all  till  the  bidding  is  accepted;  and  until  the  hammer  is 
knocked  down  both  the  bidder  and  the  vendor  are  free,  and  may  retract 
if  they  choose  to  do  so.  Hence,  where  the  owner  of  a  mare  sent  her 
to  the  defendant  with  instructions  to  sell  her  by  auction  without 
reserve,  and  the  plaintiff  was  the  highest  bond  fide  bidder,  but  the 
mare  was  knocked  down  to  the  owner,  who  made  a  higher  bid,  it  was 
held   that   the   plaintiff   could   not   maintain   an    action  against   the 


592  ^  LIABILITY  OF  AUCTIONEER. 

defendant,  on  the  ground  that  he  was  his  agent,  and  was  bound  to 
complete  the  contract  on  his  behalf.  The  defendant  was  in  partner- 
ship as  auetioneer  with  one  Brothcrton,  who  kept  a  horse  repository 
at  Birmingham.  Among  the  lots  advertised  to  be  sold  on  June  24th, 
1858,  were  "Boxes  8,  9  &  10,  the  three  following  horses,  the  property 
of  a  gentleman,  without  reserve."  "  No.  24,  '  Janet  Pride,' a  brown 
mare  without  white,  five  rears  old,  by  lago  out  of  Stonny  Petrel,"  &c. 
There  were  printed  conditions  of  sale,  of  which  the  first  was:  "The 
highest  Viidder  to  be  the  buyer,  and  if  any  dispute  arises  between  two 
or  more  bidders,  before  the  lot  is  returned  into  the  stables,  the  lot  so 
disputed  shall  be  put  up  again  and  resold,  or  the  auctioneer  may 
declare  the  purchaser."  The  plaintiff  attended  at  the  sale,  and  when 
'  Janet  Pride '  was  put  up  he  bid  for  her  60gs.  ;  almost  immediately 
after  the  owner  bid  61gs.,  and  as  the  plaintiff  was  informed  that  it 
was  the  owner  who  made  that  bid,  he  abstained  from  making  any 
further  bid,  and  the  mare  was  knocked  down.  The  plaintiff  then 
went  to  the  office  of  the  defendant,  and  claimed  the  mare  as  being 
his  property,  but  the  defendant  refused  to  give  her  up,  and  allowed 
the  owner  to  take  possession  of  her.  The  jury  returned  a  verdict  for 
the  plaintiff,  and  leave  was  reserved  to  the  defendant  to  move  for  a 
rule  to  show  cause,  why  the  verdict  should  not  be  set  aside  and  a 
verdict  entered  for  him,  or  why  a  nonsuit  should  not  be  entered.  The 
Court  made  the  rule,  which  gave  the  plaintiff  the  choice  of  either  of 
these  courses,  absolute.  The  counsel  for  the  defendant  relied  upon 
Payne  v.  Cave  and  BartleU  v.  Pi/rnelh 

And  j?i?r  Curiam  :  "  Payne  v.  Cme  has  been  considered  good  law  for 
nearly  seventy  years.  That  case  decided  that  a  bidding  at  an  auction, 
instead  of  being  a  conditional  purchase,  is  a  mere  offer  ;  that  the 
auctioneer  is  the  agent  of  the  vendor  ;  that  the  assent  of  both  parties 
is  necessary  to  the  contract ;  that  this  assent  is  signified  by  knocking 
down  the  hammer,  and  that  till  then  either  party  may  retract.  This 
is  quite  inconsistent  with  the  notion  of  a  conditional  purchase  by  a 
bidding,  and  with  the  notion  of  there  being  any  personal  promise  by 
the  auctioneer  to  the  bidder,  that  the  bidding  of  an  intending 
purchaser  shall  absolutely  be  accepted  by  the  vendor.  The  vendor 
himself  and  the  bidder  being  respectively  free  till  the  hammer  is 
knocked  down,  the  auctioneer  cannot  possibly  be  previously  bound. 
At  this  auction,  the  mare  was  never  knocked  down  to  the  plaintiff, 
and  the  relation  of  principal  and  agent  between  him  and  the  de- 
fendant never  had  commenced.  We  are  not  called  iipoji  to  say  whether 
thfire  is  any  or  vhat  remedy  on  the  conditions  of  sale  ayainst  the  vendor, 
v)h9  violates  the  comlition  that  the  article  shall  be  bona  fide  sold  icithoid 


RECOVERY  OF  KEEP  WHERE  WARRANTY  BROKEN.        593 

reserve ;  but  we  are  clear  that  the  bidder  has  no  remedy  against  the 
auctioneer,  whose  authority  to  accept  the  offer  of  the  bidder  has  been 
determined  by  the  vendor,  before  the  hammer  has  been  knocked  down." 
This  tase  has  been  taken  into  a  Court  of  Error. 

It  was  settled  by  the  Court  of  Queen's  Bench,  in  Caswell  v.  Coare, 
that  unless  the  plaintijf  licul  previouslij  iendered  the  horse,  he  cannot 
recover  for  the  kee}),  because  it  was  not  the  defendant's  fault  that  the 
plaintiff  kept  him  ;  and  a  rule  was  made  absolute  to  reduce  a  £30  10s. 
verdict  (which  included  lOgs.  for  keep)  to  £20,  the  plaintiff  under- 
taking to  deliver  back  the  horse,  whose  warranty  was  broken,  free 
of  all  expense.  And  per  Littledale  J.,  in  3IacJccnzie  v.  HancocJc,  where 
the  defendant,  after  due  notice,  refuses  to  receive  a  horse  back,  the 
plaintiff  may  recover  the  keep  for  as  long  a  time  as  may  be  reasonably 
occupied  in  endeavouring  to  sell  the  horse  to  the  best  advantage.  In 
Ellis  V.  Chinnock,  where  a  horse  warranted  "  sound,  free  from  vice, 
and  quiet  in  harness  "  was  sold  on  May  7th,  and  refused  when  tendered 
back  on  May  30th,  the  same  rule  was  acted  upon  by  Coleridge  J.,  and 
the  plaintiff  recovered  the  amount  of  its  expenses  at  a  livery-stable 
from  the  latter  period  up  to  Eeading  Fair  (July  25th).  Again,  in 
Chesterman  v.  Lamb,  where  the  defendant  had  notice  at  the  end  of  a 
fortnight  (July  11th)  that  the  horse  was  unsound,  and  on  September 
16th  it  was  sold,  the  whole  of  the  horse's  expenses  at  livery  from 
July  26th  were  allowed.  Lord  Denman  C.J.  said:  "The  question 
whether  the  horse  has  been  kept  an  unreasonable  time  before  the 
resale  is  a  question  for  the  jury  ;  "  but  the  two  reports  of  the  case 
differ  as  to  whether  the  £9  176-.  claimed  for  keep,  included  keep  from 
the  time  the  notice  of  unsoundness  was  given,  or  merely  the  livery- 
stable  charges. 

The  law  upon  the  subject  is  thus  laid  down  in  "  Selwyn's  Nisi 
Prius,"  8tli  edition,  vol.  i.,  p.  657  :  As  soon  as  the  unsoundness  is 
discovered,  the  buyer  should  immediately  tender  the  horse  to  the  seller ; 
and  if  he  refuses  to  take  him  hack,  sell  the  horse  as  soon  as  possible 
for  the  best  price  that  can  be  procwed,  for  the  purchaser  is  entitled  to 
recover  for  the  keep  of  the  horse  for  such  time  only  as  would  be 
required  to  sell  him  to  the  best  advantage."  It  may  be  inferred, 
from  the  language  of  Tindal  C.J.,  in  Watson  v.  Benton,  that  the 
expenses  of  keep  up  to  the  time  of  the  offer  to  return  an  unsound  horse 
may  be  recovered  as  damages.  His  lordship  said  :  "  You  will  give  as 
damages  the  difference  between  the  price  paid  and  the  real  value  of  the 
horse,  and  damages  for  the  expense  which  the  plaintiff  was  put  to 
Ity  selling  him  that  which  was  of  no  use  to  him  for  a  certain  time, 
at  least  to  the  time  when  he  offered  the   horse   to   the  defendant." 


59 i  DAMAGES  ON  EETQRXING  A  HORSE. 

In  Ellis  V.  Chi/uwcJc,  keep  between  may  7th  and  May  oOth  was  not 
asked  for  ;  but  Coleridge  J.  in  his  summing  up,  expressly  said  : 
"All  the  plaintiff  is  allowed  to  do  is  to  keep  it  for  a  reasonable 
time,  till  he  can  fairly  sell  it,  and  for  that  time  he  ought  to  be  allowed 
for  keeping  it." 

Where  in  an  action  for  the  keep  of  a  horse  (Kinff  v.  Price)  it  ap- 
peared that  the  defendant  rescinded  the  contract  entered  into  hy  his  ivife 
for  the  sale  of  the  horse  same  time  after  the  contract  was  made,  he  was 
taken  to  have  rescinded  it  from  the  day  it  was  entered  into ;  and  as  the 
horse  was  kept  by  the  plaintiff  in  the  intermediate  time,  and  was 
received  back  by  the  defendant  in  improved  condition,  a  verdict  for  the 
value  of  such  keep  was  confirmed  by  the  Court  of  Queen's  Bench. 

The  question  of  damages,  on  returning  a  horse,  was  considered  by  Lord 
Denman  C.J.  in  Clar-e  v,  Maynard,  where  the  plaintiff  bought  the  horse 
from  the  defendant  at  Northallerton  Fair  for  £45,  warranted  sound, 
and  sold  it  with  a  similar  warranty  to  Mr.  Collins  for  £55,  which  the 
plaintiff  had  been  obliged  to  repay,  along  with  £3  3s.  for  expenses. 
The  horse  was  sold  by  auction  for  £17  14s.,  and  the  plaintiff  recovered 
£27  6s.  (the  difference  between  that  and  £45),  the  expense  of  bringing 
the  horse  to  London,  the  keep  of  the  horse  from  the  time  of  the  pur- 
chase to  the  time  of  sale  by  auction,  and  £1  8s.  Qd.  part  of  an  attorney's 
charge  for  service  of  notice  on  defendant  in  Yorkshire  (who  had  not 
answered  two  letters  on  the  subject)  that  the  horse  would  be  sold  by 
auction.  His  lordship  disallowed  £10  10s.  repaid  to  Mr.  Collins,  as 
well  as  £1  Is.  for  an  examination  at  the  Eoyal  Veterinary  College, 
£1  Is.  for  counsel's  opinion,  and  the  attorney's  charges  for  two  letters 
to  the  defendant,  and  for  preparing  a  case  for  counsel.  A  new  trial  was 
moved  for,  on  the  ground  that  the  plaintiff  should  get  the  £10  extra, 
not  as  the  value  of  the  good  bargain  he  had  lost,  but  as  a  remuneration 
for  the  capital  he  had  expended  and  the  labour  he  had  bestowed  on  the 
horse  to  increase  its  value.  The  Court  of  Queen's  Bench,  however, 
refused  the  rule,  saying  it  was  in  substance  a  claim  of  compensation 
for  a  good  bargain,  which  could  not  be  allowed  as  damages  in  an 
action. 

"Where  a  horse  ivas  bought  iviih  a  warranty  of  soundness,  and  turned 
out  not  to  he  so,  hut  only  Sgs.  out  of  12gs.  had  been  paid  hy  the  defend- 
ant, Lord  Kenyon  C.J.,  on  its  being  proved  in  an  action  for  the  9gs., 
that  the  horse  at  the  time  of  the  sale  was  only  worth  £1  lis.  Gd.,  and 
had  since  been  sold  for  only  30s.,  held  that  the  plaintiff  could  only  re- 
cover the  value,  and  nonsuited  the  plaintiff  {King  v.  Boston).  It  was 
laid  down  in  Power  v.  Welles,  that  where  the  contract  is  still  open  an 
action  for  money  had  and  received  will  not  lie.     The  plaintiff  had  given 


SUING  ON  WARRANTY.  595 

a  mare  of  bis  own  and  20  gs.  for  a  horse  of  defendant's,  wliich,  on  dis- 
covering that  it  was  unsound,  he  sent  back  with  a  letter,  and  put  both 
letter  and  halter  into  defendant's  hands,  who  refused  to  take  them,  and 
turned  the  messenger  out  of  his  yard  when  he  asked  for  the  plaintiffs 
20  gs,  and  mare  back  again.  There  should  have  been  a  special  decla- 
ration on  the  warranty,  and  trover  did  not  lie  for  the  mare,  as  the  ex- 
change had  been  effected,  and  the  property  transferred  thereby.  But 
where,  as  in  Panne  v.  WMIe,  in  reply  to  an  action  for  money  had  and 
received,  the  defendant  admitted  the  warranty,  but  denied  the  unsound- 
ness and  refused  to  take  back  the  horse  or  return  the  money,  adding 
that  if  the  horse  were  unsound  he  would  do  so,  and  the  horse  was 
proved  to  be  a  roarer  and  unsound,  Lord  ElUiilorough  C.J.  thought 
that  such  special  promise  to  rescind  the  contract  and  return  the  money 
if  the  horse  were  unsound  took  this  out  of  the  general  rule,  and  suffered 
the  plaintiff  to  have  a  verdict  for  the  amount. 

The  course  tvliich  a  jmrchaser  is  to  pursue,  when  a  warranted  horse 
has  proved  unsound,  was  very  fully  laid  down  by  the  Court  of  Queen's 
Bench  in  Street  v.  Blay.  The  action  was  in  assumpsit  for  a  horse  sold 
and  delivered  with  a  warranty  by  plaintiff,  on  Feb.  2nd,  1830,  for  £43, 
to  defendant,  a  horse  dealer,  who  sold  him  to  Bailey,  one  of  his  cus- 
tomers, the  same  day,  at  a  £2  profit.  This  new  purchaser  kept  him  a 
day  and  parted  with  him  in  exchange  to  one  Osborne,  who  kept  him 
a  day  and  sold  him  again  to  the  defendant  for  £30.  No  warranty 
was  given  except  on  the  first  sale,  and  the  defendant  sent  the  horse 
back  lame  to  the  plaintiff's  premises,  saying  that  he  was  unsound,  on 
February  9th;  but  the  latter  would  not  receive  him,  and  brought  his 
action. 

The  defendant  had  a  verdict,  and  Lord  Tenter  den  C.J.  reserved  the 
question  for  the  Court,  whether  or  not  the  defendant,  after  having  sold 
the  horse,  could,  upon  becoming  possessed  of  him  again,  return  him  to 
the  plaintiff  and  refuse  payment  of  the  price,  by  reason  of  the  original 
unsoundness.  The  Court  of  Queen's  Bench  made  a  rule  absolute  for 
a  new  trial,  or  to  enter  a  verdict  for  a  reduced  sum  in  lieu  of  damages, 
as  the  defendant  had  a  clear  right  of  action  against  the  plaintiff  for 
breach  of  warranty.  They  held  that  there  was  no  authority  to  show 
that  a  purchaser  may  return  a  warranted  article  where  he  has  done  more 
than  was  consistent  with  the  purpose  of  trial,  as  exercising  dominion 
of  an  owner  over  it,  by  selling  and  parting  with  the  property  to 
another,  and  that  supposing  it  were  competent  for  the  defendant  to  re- 
turn the  horse  after  having  accepted  it  and  taken  it  into  his  possession, 
if  he  had  never  parted  with  it  to  another,  he  could  not  do  so  after  a 
resale  at  a  profit.     He  could  not  require  the  original  vendor  to  take  it 

Q    Q    2 


596  PURCHASER  MUST  SUE  ON  WARRANTY. 

back  again,  nor  by  reason  of  the  unsoundness  resist  an  action  by  the 
vendor  for  the  price,  but  might  give  the  breach  of  warranty  in  evidence 
in  reduction  of  damages.  And  semhU,  the  jmrchaser  of  a  sj)Ocific  war- 
ranted article,  having  once  accepted  it,  can  in  no  instance  return  the  chattel 
and  recover  the  price  as  money  paid  on  a  coisideration  ivMch  has  failed. 
He  must  sue  on  the  warrant ij  unless  there  has  leen  a  condition  in  the  con- 
tract authorising  the  return,  or  the  vendor  has  received  lack  the  chattel, 
and  thereby  consented  to  rescind  the  contract,  or  has  leen  guilty  of  a 
fraud,  which  destroys  the  contract  altogether.  But  where  the  contract  is 
executory  only  when  the  chattel  is  received,  as  where  goods  are  ordered 
of  a  manufacturer,  and  he  contracts  to  supply  them  of  a  certain  quaUty 
or  fit  for  a  certain  purpose,  the  vendee  may  rescind  the  contract,  if  the 
goods  do  not  answer  the  warranty,  provided  he  has  not  kept  them  a 
longer  time  than  was  necessary  for  the  purpose  of  trial,  or  exercised  the 
dominion  of  an  owner  over  them  by  selling  them.  The  authority  of 
this  case  was  fully  acknowledged  in  the  following  year  by  the  Court  of 
Exchequer,  in  Gompertz  v.  Denton,  where  they  expressly  decided  that 
the  purchaser  of  a  horse  can  recover  for  a  breach  of  warranty  in  an 
action  of  damages  only,  and  cannot  sue  on  the  indelitatus  counts,  as  on 
a  fiiilure  of  the  original  consideration,  unless  under  the  circumstances 
pointed  out  above  ;  and  Lord  Lyndhurst  C.B.  said  :  "The  case  of  Street 
V.  Blay  seems  to  heve  been  very  much  considered." 

It  was  also  settled,  in  Hurst  v.  Orhell,  that  ivhere  a  horse  has  been 
bought  and  the  price  paid,  but  the  jnir chaser,  by  the  terms  of  the  axjreemeni, 
has  the  option  of  returning  tlie  horse  iviihin  a  certain  time  allowing  a 
certain  sum  for  the  use  of  it,  the  residue  of  the  price  may  be  recovered 
by  him  after  the  horse  has  been  returned  or  tendered  in  an  action  for 
money  had  and  received.  Here  the  plaintiff  had  agreed  to  buy  a  pair 
of  horses  for  X80  from  the  defendant,  £10  to  be  allowed  by  him  out 
of  the  £80  if  he  returned  the  horses  within  the  month,  and  he  was, 
to  pay  £80  if  he  kept  them  over  that  time.  Defendant  gave  the 
following  receipt : 

"£80.  Received  of  —  Hurst,  Esq.,  eighty  pounds,  for  two  grey 
horses,  warranted  sound  and  quiet  in  harness.  Ten  pounds  more 
if  the  horses  are  kept. 

"  Henry  Orbell." 

The  ])]aintiff  returned  the  horses  within  a  month.  The  objection  that 
the  action  should  have  been  on  the  special  contract,  or  that  the  plain- 
tiff should  have  proved  liis  readiness  to  pay  the  £10  before  attempting 
to  recover  back  any  part  of  the  £80  as  money  had  and  received  to  his 


SALE  OF  STOLEN  HORSES.  597 

use,  was  held  to  be  much  "too  refined."  The  defendant  merely  held 
the  £70  to  the  use  of  the  party  who  should  be  entitled  at  the  time  when 
the  option  was  to  be  determined. 

It  was  ruled  by  the  Court  of  Common  Pleas,  in  Lee  .v.  Bayes  and 
Eohinson,  that  the  sale  by  puhlic  auction  at  a  liorse  rejwsttory  out  of  the 
City  of  London  is  not  a  sale  in  market  overt,  according  to  the  statutes 
2  &  3  Ph.  &  M.  c.  7,  and  31  Eliz.  c.  12  ;  and  also  on  the  authority  of 
}Vlute  V.  Spettigue  (which  overrules  Gimson  v.  Woodfall  and  Peer  v. 
Humphreys),  that  the  obligation  which  the  law  imposes  on  a  plaintiff  to 
prosecute  the  party  who  has  stolen  his  goods,  does  not  apply  where  the 
action  is  against  a  third  party  innocent  of  the  felony.  The  facts  of  the 
case,  which  were  very  hitricate,  were  as  follows  : 

The  plaintiff's  horse  had  been  stolen  out  of  the  Essex  marshes,  and 
the  defendant  Bayes  bought  it  on  commission,  by  public  auction,  at 
Ilea's  Horse  Repository,  Nov.  27,  1855,  through  the  agency  of  one 
Proctor,  for  £8  5s.  His  customer  did  not  like  it,  and  it  was  sent  back 
again  to  Robinson's  Repository  in  Little  Britain,  where  it  w^as  claimed 
by  the  plaintiff.  Bayes  told  the  plaintiff  where  he  had  bought  the 
horse,  but  he  refused  to  give  it  up,  and  Robinson  and  his  clerk  refused 
to  do  so  without  his  authority.  A  police  officer  was  procured,  and  Lee 
gave  Bayes  in  charge  for  stealing  the  horse.  The  inspector  refused  to 
take  the  charge,  but  sent  a  constable  with  the  parties  to  Rea's  Reposi- 
tory, where  the  auctioneer  satisfied  the  plaintiff  that  the  horse  had  been 
bought  there.  Lee,  Bayes,  and  the  constable  then  went  back  to  Robin- 
son's, when  Bayes,  Robinson's  son,  and  the  foreman  refused  to  give  up 
the  horse,  in  spite  of  the  offer  of  an  indemnity  to  Robinson  ;  but  on  the 
7th  of  December,  Robinson's  attorney  offered  by  letter  to  give  it  up,  on 
an  indemnity  being  given  to  himself  and  Bayes.  .The  action  was 
brought  for  a  wrongful  conversion  and  detainer.  The  defendants  main- 
tained that  as  the  horse  was  sold  at  a  public  auction,  the  plaintiff  could 
not  recover,  but  that  at  all  events  he  was  bound  first  to  prosecute  the 
thief  to  conviction,  and  that  there  was  no  evidence  of  di  joint  conversion. 
The  jury  found  that  Bayes  had  purchased  the  horse  lomi  fide,  and 
returned  a  verdict  for  the  plaintiff,  damages  £30,  to  be  reduced  to  £5 
if  the  horse  was  returned.  WiUes  J.  said  :  "  Here  the  defendants  had 
notice  that  the  horse  belonged  to  Lee ;  and  although  what  passed  on 
the  first  occasion  when  the  horse  was  demanded  was  merely  a  reference 
to  Bayes,  as  the  party  who  had  deposited  it  as  owner,  on  the  second 
occasion  there  was  an  absolute  and  unqualified  refusal  to  acknowledge 
Lee's  title  and  an  assertion  of  the  title  of  Bayes,  which  clearly  was 
evidence  of  a  conversion.  The  letter  of  the  7th  of  December,  though 
written  after  the  commencement  of  the  action,  may  serve  to  throw  light 


598  SELLING  GLANDERED  HORSE. 

on  the  previous  transaction."  The  Court  held  that  there  was  evidence 
of  a  joint  conversion,  and  discharged  a  rule  to  enter  a  nonsuit  or  a 
verdict  for  the  defendant. 

The  16  &  17  Vicf.  c.  62  (which  was  continued  by  19  &  20  Vicl.  c.  101), 
inflicts  by  sec.  1  a  £20  penalty  on  anyone  "  bringing  or  attempting  to 
bring  for  sale  any  horse  or  other  animal  into  any  market,  fair,  or  other 
open  or  public  place,  where  animals  are  commonly  exposed  for  sale, 
knowing  such  horse  or  other  animal  to  be  affected  with  or  labouring 
vnder  the  disease  called  glanders,"  or  "  turning,  keeping,  or  depasturing 
any  horse  or  other  animal  infected  with  or  labouring  under  such  disease 
in  or  upon  any  forest,  chase,  wood,  moor,  marsh,  heath,  common,  waste 
land,  open  field,  road  side,  or  other  undivided  or  uninclosed  land."  A 
question  arose,  in  Hill  v.  Balls,  on  the  meaning  of  "puilic  jjZace  "  in 
this  act.  The  declaration  stated  that  the  defendant  was  possessed  of  a 
glandered  horse,  and  knowing  it  had  such  disease  caused  it  to  be  sold 
by  auction  at  a  Horse  Repository,  and  the  plaintifl'  believing  it  to  be 
healthy  bought  it  at  the  sale  and  paid  for  it.  It  was  utterly  worthless 
from  disease,  and  the  plaintiff  not  only  paid  a  veterinary  surgeon  to 
examine  it,  but  it  mortally  infected  another  horse  of  his  in  the  same 
stable,  and  the  plaintiff  paid  a  large  sum  of  money  in  endeavouring  to 
cure  the  infected  horse.  It  was  held  that  no  cause  of  action  was  dis- 
closed, since  the  declaration  not  being  founded  on  any  fraudulent  mis- 
representation or  breach  of  warranty  did  not  show  that  the  defendant 
liad  committed  an  illegal  act,  for  although  by  the  statute  the  bringing 
or  attempting  to  bring  for  sale  a  horse  "  into  any  market,  fair,  or  any 
other  open  or  public  place,"  knowing  it  to  be  infected  with  the  glanders, 
is  made  an  offence,  yet  a  horse  repository  is  not  necessarily  a  "  public 
]>lace"  within  the  meaning  of  the  statute,  and  it  was  not  stated  to  be 
huch  a  place. 

The  subject  of  a  conspiracy  to  cheat  was  considered  in  Rex  v.  Pywell. 
The  defendant  Pywell  advertised  the  sale  of  horses,  which  he  undertook 
to  warrant.  General  Maclean,  on  application  at  his  stables,  saw 
another  of  the  defendants,  who  said  he  had  lived  with  the  owner  of  the 
liorse,  knew  it  well,  and  would  warrant  it  sound.  The  horse  was 
Ijought  with  a  warranty  for  50gs..,  and  turned  out  worthless  before  the 
week  for  returning  was  expired.  Lord  Ellenborough  C.J.  stopped  the 
case,  and  said  "  that  if  this  was  to  be  considered  an  indictable  offence, 
then  instead  of  all  the  actions  which  had  been  brought  .on  warranties, 
the  defendants  ought  to  have  been  indicted  as  cheats,  and  that  no 
indictment  could  be  maintained  in  a  case  like  this,  without  evidence  of 
a  concert  between  the  parties  to  effectuate  a  fraud." 

This  case  was  followed  by  Reg,  v.  Kenriclc,  which  was  an  indictment 


CONSPIRING  TO  CHEAT  BY  SALE  OF  HORSES.  5 ^'9 

found  at  the  Middlesex  Sessions,  and  removed  by  cerfiorari,  at  the 
instance  of  the  defendants.  It  chanjed  the  two  defendants  with  con- 
spiriny  to  cheat  and  defraud  one  Feather stonhavgh  hy  false  pretences  as 
to  the  sale  of  two  horses,  and  the  verdict  of  guilty  was  confirmed  by  the 
Court.  In  his  elaborate  judgment  on  the  law  of  false  pretences,  in  Reg. 
V,  Bryan,  Erie  J.  thus  explained  the  diflerence  between  the  two  fore- 
going cases  :  "  Although  in  the  case  of  Rex  v.  Pywell  it  was  held  not 
indictaUe  to  praise  the  quality  of  a  horse,  hioivinj  it  not  to  le  umihy  of 
the  praise  put  on  him,  yet  in  the  case  of  Reg.  v.  Kenrklc,  as  far  as  I 
understand  the  case,  for  I  was  counsel  for  the  man,  the  fact  which 
brought  that  case  within  the  definition  was  the  fact  that  Kenrick 
averred  that  these  horses  had  been  the  property  of  a  lady  deceased, 
were  now  the  property  of  her  sister,  and  had  never  been  the  property 
of  a  horse  dealer,  and  were  quiet  and  proper  to  drive.  The  purchaser 
wanted  those  horses  for  a  woman  of  his  family  ;  the  substance  of  the 
contract  was,  that  they  were  the  property  of  a  lady,  who  had  driven 
the  horses,  and  it  was  a  false  assertion  of  a  definite  existing  fact ;  '  they 
are  the  property  of  the  sister  now,'  when  they  were  the  property  of 
another  person  :  'they  never  were  the  property  of  a  horse  dealer,' 
whereas  they  were  the  property  of  a  horse  dealer,  and  had  run  away 
and  produced  a  fatal  accident.  The  case  of  Reg.  v.  Kenrklc  was  not  the 
warranting  a  horse  sound,  as  in  the  case  of  Rex  v.  Doddridge,  but  it 
was  the  affirming  of  a  false  fact,  which  the  party  knew  to  be  false,  and 
on  that  ground  the  conviction  proceeded." 

His  lordship  also  observed  :  "In  the  ordinary  case  of  a  man  coming 
up  to  the  seller  of  a  horse  at  a  fair,  and  saying,  '  Allow  me  to  try  that 
horse,'  and  he  rides  away  and  sells  it,  if  the  jury  are  of  opinion  that  he 
got  possession  animo  furandi,  it  is  a  larceny.  But  if  he  were  to  profess 
to  the  seller  of  the  horse,  'I  like  the  horse,  and  I  will  pay  you  next 
Monday,'  and  the  seller  says,  'I  agree  to  that,'  although  the  jury  find 
that  he  did  that  animo  furandi,  unquestionably  that  was  not  indictable 
before  stat.  7  &  8  Geo.  IV.  c.  29,  s.  53,  which  seems  to  make  persons 
responsible  in  a  criminal  court,  where  there  was  a  contract  of  sale  ;  but 
yet  it  fell  within  the  same  category  of  criminal  intention,  as  the  cases 
I  have  adverted  to,  where  the  possession  was  obtained  animo  furandi. 
Looking  at  all  the  cases  which  have  been  decided  there,  those  that  seem 
to  have  been  the  subject  of  the  greatest  comment,  appear  to  me  to  fall 
within  the  principle,  that  where  the  substance  of  the  contract  is  falsely 
represented,  and  by  reason  of  that  the  money  is  obtained,  the  indictment 
is  good  "  {ib.). 

According  to  Whiie  v.  Spettigue,  an  action  of  trover  is  maintainalle  to 
recover  the  value  of  goods  u'hich  have  leen  stolen  from  the  plaintiff,  and 


OOO  RFX'OVEFvY  OF  STOLEN  GOODS  IN  TROVER. 

which  the  defendant  has  innocently  piu'chascd,  although  no  steps  have 
been  taken  to  bring  the  thief  to  justice. 

Goods  which  have  been  stolcji  may  he  recovered  in  trover  from  the  pur- 
chaser of  them  in  market  overt,  upon  a  conversion  by  him,  subsequent  to 
the  conviction  of  the  felon,  without  any  order  of  restitution  having  been 
made;  for  the  eflTcct  of  the  7  &  8  Geo,  IV.  c.  29,  s.  57,  is  to  revest  the 
property  in  stolen  goods  in  the  original  owner  upon  conviction  of  the 
felon  {Sylvester  \.  Scattergood).  And  ^;<?r  Lord  CampMl  C.J. :  "It  is 
admitted  that  the  sale  in  market  overt  would  be  no  answer  to  the  action 
if  an  order  of  restitution  had  been  made.  We  have  now  to  determine 
Avhat  is  the  consequence  of  such  an  order  being  wanting.  The  plaintifl: 
must  rely  on  the  statute,  as  at  common  law  the  property  is  permanently 
changed  by  the  sale  in  market  overt,  and  looking  at  the  statute  we  must 
take  it,  that  on  the  conviction  of  the  thief  the  property  revests.  The 
stat.  21  Hen.  VIII.  c.  11  restored  the  party  to  his  goods,  and  that  could 
not  be  that  he  had  merely  a  right  to  retake  them  under  a  writ  of  resti- 
tution. The  present  act  provides  that  '  the  property  shall  be  restored.' 
I  think  both  the  statutes  must  be  taken  to  have  the  same  meaning,  and 
their  object  cannot  be  effectually  carried  out  unless  we  suppose  the  right 
of  property  to  be  restored  to  the  owner  on  conviction,  without  any  order 
being  made.  At  the  same  time,  it  is  much  to  be  regretted  whenever  an 
order  is  not  made  so  as  to  obviate  the  necessity  of  an  action ;  but  it  is 
not  a  condition  precedent,  and  this  action  is  well  brought.  The 
dictum  of  Bidler  J.  in  Horwood  v.  Smith,  that  the  property  of  the 
plaintiff  begins  after  the  conviction  of  the  felon,  accords  with  our 
view,  and  is  decisive  of  the  case." 

Douglas  v.  Corhett  was  a  somewhat  remarkable  action  for  malicious 
prosecution  for  sheepi-stecding.  The  plaintiff  was  a  small  farmer,  and 
in  October,  1855,  sold  seven  sheep.  The  purchaser  took  them  to 
Southam  fair,  where  defendant,  a  sheep-farmer,  claimed  six  as  belong- 
ing to  a  parcel  of  ten  stolen  from  him  in  September,  1855.  Plaintiff 
said  the  whole  seven  were  part  of  a  lot  of  17  he  had  had  for  months, 
and  he  had  still  four  of  the  lot  left  at  his  farm,  which  defendant  might 
see.  Defendant  went  to  plaintiff's  farm  with  his  shepherd  and  a  police- 
man, and  his  shepherd  claimed  one  of  the  four  as  belonging  to  the 
ten.  The  plaintiff  came  up  while  the  shepherd  was  in  the  act  of 
leading  it  away,  and  after  an  angry  discussion  said  it  was  one  of 
the  17  that  he  had  bought  at  Banbury  fair,  and  the  defendant  said 
it  was  one  of  ten  stolen  from  his  field  in  September.  Good,'  a  neigh- 
bour of  plaintiff's,  on  being  appealed  to  by  the  plaintiff,  said  it  was  not 
one  of  the  same  breed  as  the  17  he  got  from  Banbury  fair,  and  defend- 
ant drove  the  four  away.     Plaintiff  sued  him  in  the  County  Court,  and 


INJURY  OR  LOSS  OF  CHATTELS  AT  INN.        601 

defendant  laid  an  information  before  a  magistrate  for  felony.  The 
plaintiff  at  first  did  not  give  satisfactory  proof  that  he  had  purchased 
sheep  at  all,  and  was  committed  for  trial,  but  acquitted.  In  the 
present  trial  it  appeared  on  the  balance  of  testimony  that  the  sheep 
was  really  one  of  the  17  purchased  by  the  plaintiff'  at  Banbury  in 
June,  and  could  not  have  been  stolen  from  defendant  m  Septem- 
ber; but  still  there  were  many  facts  to  lead  to  the  conclusion  that 
the  sheep  was  not  one  of  the  17,  but  one  of  the  ten.  Defendant, 
as  it  appeared,  laid  an  information  merely  on  the  advice  of  his 
attorney,  as  being  the  shortest  way  to  stop  proceedings  in  the  County 
Court. 

Bramtvell  J.  told  the  jury  that  the  question  of  malice  was  for  them, 
but  expressed  a  strong  opinion  that  they  ought  not  on  this  evidence  to 
find  it.  He  told  them,  that  as  to  the  question  of  reasonable  and 
probable  cause,  there  seemed  no  doubt  that  defendant  bona  fide  believed 
it  was  one  of  his  stolen  sheep,  and  asked  the  jury  to  find  as  a  fact 
"  whether  defendant  had  reasonable  ground  for  that  belief  ? "  The  jury 
found  he  had ;  and  his  Lordship  ruled  that  there  was  reasonable  and 
probable  cause  for  instituting  the  prosecution,  and  that  therefore  the 
question  of  malice  became  immaterial,  and  directed  a  verdict  for  de- 
fendant. A  rule  nisi  for  a  new  trial  for  misdirection  was  discharged 
{Erie  J.  diss.). 

When  chattels  have  deeti  deposited  in  apullic  inn,  and  there  lost  or  in- 
jured, the  2)7-imd  facie  presumption  is  that  the  loss  or  damage  was 
occasioned  by  the  negligence  of  the  innkeeper  or  his  servants.  But 
this  presumption  may  be  rebutted;  and  if  the  jury  find  in  favour  of 
the  innkeeper  as  to  negligence,  he  is  entitled  to  succeed  on  a  plea  of. 
Not  guilty.  Thus  in  Dawson  v.  Ghamney,  where  the  plaintiff  gave  his 
horse  on  a  Penrith  market  day  to  an  ostler,  at  the  Bell  and  Bullock, 
who  placed  him  in  the  stall  ivith  a  Icicking  horse  tvhicli  injured  him,  the 
Court  held  that  as  the  defendant  in  his  answer  convinced  the  jury  that 
there  had  been  all  due  care  taken,  and  he  got  a  verdict  on  the  first 
issue  Not  guilty,  that  proof  took  away  the  ground  of  action,  according 
to  all  the  authorities,  and  a  rule  for  a  new  trial  was  refused. 

In  Degge  v.  Tucker  the  declaration  stated  that  the  plaintiff,  at  de- 
fendant's request,  deUvered  to  defendant,  then  being  a  livery-stable 
keeper,  a  horse  of  the  plaintiff,  to  be  by  him  taken  due  and  proper 
care  of,  and  to  be  kept  in  a  separate  stall  in  the  defendant's  stable,  for 
reward  to  be  paid  by  the  plaintiff  in  that  behalf;  and  that  the  defendant 
accepted  the  care  and  custody  of  the  said  horse  upon  such  terms ;  yet 
he  would  not  take  due  or  proper  or  any  care  thereof,  or  keep  it  in  a 
separate  stall,  and  by  means  of  the  premises  the  horse  was  so  Iciclced  by 


602  KEEPING  SWINE  A  NUISANCE. 

the  other  horses  that  it  became  of  no  value  to  the  plaintiff.  The  defeiiJaiit 
pleaded  "  Not  guilty ; "  and  at  the  trial  a  verdict  was  found  for  the 
plaintiff,  with  £7  damages.  It  was  held  by  the  Court  of  Exchequer 
that  the  cause  of  action  was  founded  on  contract,  and  not  on  tort,  and 
therefore  the  plaintiff  was  deprived  of  costs  by  the  County  Corn-t  Act, 
13  &  14  Viit.  c.  61,  s.  11.  In  Stannian  v.  Davis,  an  innkeeper  was 
held  liable  for  an  injury  done  to  a  horse  which  was  taken  out  of  the  inn 
and  immoderately  ridden  and  whipped,  though  it  did  not  appear  by 
whom.  And  an  innlceejyer  on  a  marlcet-day  i)lacing  a  gig  Monging  to  a 
guest  in  the  open  street,  according  to  the  usual  custom,  is  liable  if  the 
gig  be  stolen  {Jones  v.  Tgler). 

In  Mackenzie  v.  Cox,  three  dogs  ivcre  taken  care  of  hj  the  ostler  of  the 
defendant,  a  stable-keeper,  who  was  paid  to  buy  them  food,  and  keep 
them  in  the  defendant's  stable  with  the  plaintiff's  horse.  The  plaintiff 
asked  if  the  dogs  would  be  safe,  and  the  defendant  said  he  never  lost 
anything,  and  referred  him  to  the  ostler.  The  missing  dog  was  locked 
up,  and  stolen  between  twelve  and  one  o'clock  at  night,  the  door  having 
been  opened,  as  it  was  thought,  by  a  false  key.  Infonnation  of  the  loss 
was  given  at  once.  The  declaration  stated  that  the  defendant  received 
the  dogs  to  be  kept,  fed,  and  taken  care  of  for  reward,  which  the  second 
plea  traversed.  Gurney  B.  put  it  to  the  jury,  whether  the  defendant 
received  the  dogs,  and  whether  he  had  been  negligent,  both  of  which 
points  the  defendant  called  witnesses  to  disprove ;  and  his  lordship  held 
that  even  if  a  person  does  take  goods  into  his  possession  for  reward,  he 
is  not  answerable  for  their  loss  if  he  takes  reasonable  care  of  them ;  and 
that  it  was  for  the  jury  to  say  whether  locking  these  dogs  into  a  stable 
was  not  taking  reasonable  care  of  them,  and  that  if  a  dog-stealer  came 
in  the  night  and  stole  the  dog,  the  defendant  was  not  answerable  for  the 
loss.     The  verdict  was  for  the  defendant  on  both  issues. 

The  keeping  of  swine  so  as  to  he  a  nuisance,  is  an  offence  within 
11  &  12  Vict.  c.  63,  s.  59  (Dighy  v.  West  Ham  Board  of  Health). 
Under  a  local  act  following  closely  the  words  of  the  Markets  and  Fairs 
Clauses  Act,  10  &  11  Vict.  c.  14,  s.  19,  it  is  no  offence  to  slaughter'  cattle 
elsewhere  than  in  a  public  slaughter-house,  unless  there  be  an  intention  to 
sell  ths  carcase  as  human  food  {Elias  v.  Nightingale).  Llogd  v.  Walkey 
was  an  action  for  negligence  in  tiot  p-operly  securing  a  cow  of  the  defend- 
ant's in  a  slaughter-house,  and  the  declaration  stated  that  by  means 
thereof  the  cow  "  ran  at,  butted  at,  gored,  killed  and  destroyed  a  cow  of 
tlie  plaintiff."  Plea,  a  payment  of  30s.  into  Court,  and  "  that  the 
plaintiff  had  not  sustained  damages  to  a  greater  amount  than  the  said 
sum  of  30s.  in  respect  of  the  causes  of  action  in  the  declaration  mentioned.'' 
Iteplication  that  he  had.     It  was  then  proposed  to  give  in  evidence  for 


cows  POISONED  IN  PASTUPtE.  603 

the  defendant,  that  the  plaintiff's  cow  was  not  killed  by  the  defendant's 
cow,  but  that  after  being  so  hurt  it  was  killed  by  a  butcher.  Gok-ridtje  J. 
declined  to  receive  such  evidence  as  to  the  killing  by  the  butcher,  as  the 
contrary  was  admitted  by  the  defendant's  plea.  Where  the  declaration 
stated  that  the  defendant  struck  the  plaintiff's  cow  divers  blows,  by 
reason  whereof  she  died,  and  it  appeared  that  the  defendant  having 
beaten  the  plaintiff's  cow  unmercifully,  the  plaintiff  mercifully  put  it  to 
death,  it  was  objected  for  the  defendant  that  this  was  a  variance,  as  the 
animal  might  not  have  died  from  the  defendant's  blows ;  but  the  Court 
considered  that  the  objection  was  cured  by  the  verdict,  and  refused  a 
rule  to  enter  a  nonsuit  {Hancock  v.  Southall). 

In  the  case  of  Golam  v.  Hall  (6  L.  R.  Q.  B.  206),  the  respondent  was 
huntsman  of  the  Old  Berkeley  Hunt  at  Chorley  Wood,  and,  on  the  19th 
]\Iarch,  1870,  a  horse  was  sent  there  to  be  slaughtered  for  the  hounds  ; 
the  horse,  however,  was  not  immediately  slaughtered,  but  was  lent  to 
another  person  for  the  purpose  of  being  worked,  and  was,  in  fact,  put 
to  work.  It  was  held  that  the  respondent  w^as  guilty  of  an  offence  under 
sect.  9  of  the  12  &  13  Vict.  c.  92,  which  imposes  a  penalty  on  any 
person  who,  having  the  management  of  any  place  for  the  purpose  of 
slaughtering  horses  or  other  cattle  not  intended  for  butcher's  meat,  shall 
use  or  permit  to  be  used  any  horse  or  cattle  brought  to  such  place  for 
the  purpose  of  being  slaughtered. 

The  case  of  coivs  leing  j)oisoned  m  their  pasture  was  the  subject  of 
Lathhury  v.  Earle.  The  plaintiff  was  a  large  dairy  farmer  at  Stratton, 
and  the  defendant  a  railway  contractor,  who  was  engaged  in  making 
a  railway  through  the  plaintiff's  farm.  The  wood  for  the  line  was 
pickled  with  creosote  and  oil  of  tar,  and  the  defendant  had  a  tank  for 
this  purpose  near  the  plaintiff's  farm.  When  the  pathway  was  laid 
down,  the  stuff  in  the  tank  was  pumped  out  into  a  culvert,  which  passed 
under  the  canal  and  to  a  watercourse  going  through  the  plaintiff's  field 
where  the  cattle  were  watered.  This  was  in  the  autumn  of  1852,  and 
in  April  1853,  when  the  cattle  were  turned  out,  their  mouths  in  five 
days  became  burnt  and  black,  and  their  hocks  affected.  On  a  request 
being  made,  the  defendant  cleaned  out  the  watercourse,  the  length  of 
the  plaintiff's  field,  but  not  the  culvert  under  the  canal,  and  promised 
compensation,  and  plaintiff  put  the  cows  into  a  field  he  had  saved  for 
mowing.  At  the  end  of  a  raoTLth  the  cows  were  put  back,  but  did  not 
recover  till  after  calving,  T:  ey  fell  off  so  much  in  their  milk  that  the 
deficiency  was  calculated  ?t  7000  quarts  at  Id.  per  gallon,  for  the  first 
three  months,  the  loss  being  £182  odd,  as  they  ought  to  have  o-iven 
during  May,  June,  and  July  16  quarts  a-day,  and  for  the  next  four 
months  £204,  calculating  the  milk  at  10  quarts  a-day.     Besides  this. 


GO 4.  POISONING  CATTLE  BY  YEW  CLIPPINGS. 

his  loss  on  the  hay  was  £10,  but  £30  was  deducted  for  cheese  he  had 
made,  and  milk  used  on  the  premises.  It  was  attempted  to  show  that 
liis  cows  were  affected  with  the  "mouth  disease,"  but  he  denied  that 
they  had  the  running  and  blisters  in  the  mouth  consequent  upon  it ;  and 
Professor  Spooner  stated  that  the  effect  of  creosote  was  to  suspend  the 
secretions  of  the  body,  especially  the  secretions  of  milk,  and  stated  that 
none  of  the  symptons  from  which  the  cows  were  described  to  have 
suffered  were  analogous  to  those  of  "mouth  disease."  It  was  attempted 
to  show  for  the  defence  that  other  cattle  drank  of  the  stream,  and  were 
uninjured,  but  the  plaintiff  had  a  verdict  for  £266  8s. 

In  the  case  of  Wilson  v.  Neivhury  (7  L.  R.  Q.  B.  31),  the  declaration 
stated  that  the  defendant  was  possessed  of  yew  trees,  the  clippings  of 
which  he  knew  to  be  poisonous,  and  that  it  was  the  duty  of  the  defen- 
dant to  prevent  the  clippings  from  being  placed  on  land  not  occupied 
by  him  ;  that  the  defendant  took  so  little  care  of  the  clippings  that 
they  were  placed  on  land  not  occupied  by  him,  whereby  the  horses  of 
the  plaintiff  were  poisoned  :  held  that  the  declaration  disclosed  no  facts 
from  which  a  duty  could  be  inferred  in  the  defendant  to  take  care  of 
the  clippings. 

Wliere  the  occupier  of  land  acquiesces  in  the  erection  of  works  (here 
copper  smelting  furnaces)  of  a  nature  to  do  injury,  but  which  appear 
not  to  be,  in  fact,  injurious  to  the  adjoining  land,  there  is  no  implied 
acquiescence  in  the  natural  extension  of  those  works  in  the  ordinary 
course  of  operations  ;  and  Sir  J.  RomilJy  M;R.,  in  BanMuirt  v.  Houf/hton, 
would  not  restrain  the  party  agrieved  from  proceeding  at  law  to  obtain 
compensation  by  damages  for  the  injury  sustained  ;  and  semble  that  this 
Court  would  not  in  such  case  interfere  by  iu junction  to  restrain  the 
continuance  of  the  works,  but  would  leave  the  parties  to  their  remedy 
at  law. 

Uougldon  v.  BanMiart,  on  a  motion  for  injunction,  was  under  the 
following  circumstances  :  In  the  year  1853  the  plaintiff  became  tenant 
of  certain  farm  lands  in  Glamorganshire,  near  which  there  were  some 
copper  mines,  known  as  the  "Eed  Jacket  Mines,"  and  opened  for 
working  in  1849.  Shortly  after  the  plaintiff  obtained  possession  of  his 
farms  the projnietors  of  the  Red  Jacket  Mines  considerably  increased  their 
furnaces,  and  in  the  course  of  time  the  plaintiff's  horses,  sheep,  cows,  &c., 
began,  as  he  alleged,  to  grow  ill  and  die,  so  much  so  that  in  1854 
the  plaintiff  lost  no  less  than  between  200  and  300  sheep  alone.  In 
1856  tlie  plaintiff,  having  previously  suspected  that  the  copper  fumes 
from  the  furnaces  poisoned  his  cattle,  submitted  one  of  his  dead  horses 
to  Mr.  Herapath  for  examination,  when  that  gentleman  at  once  pro- 
nounced the  boast  to  have  died  from  aborbing  copper  fumes.     Plain- 


EFFECT  OF  SULPHATE  OF  LEAD  ON  CATTLE.      605 

tiflf,  upon  this,  and  upon  the  smoke  from  the  new  and  large  furnaces 
not  being  discontinued,  commenced  an  action  against  the  proprietors 
of  the  mines,  and  obtained  £450  damages  against  them.  The  pro- 
prietors moved  the  Rolls  Court,  in  December,  1858,  for  an  injunction 
to  restrain  the  plaintiflF  proceeding  on  this  verdict,  on  the  ground  that 
he  had  permitted  the  nuisftnce  he  complained  of ;  and  the  Court,  in 
January,  1859,  dismissed  such  motion  with  costs.  While  the  latter 
part  of  these  proceedings  were  going  on,  the  defendants  to  the  present 
suit  began  to  erect  certain  new  copper  works,  called  the  "  Briton-ferry 
Works"  in  the  vicinity  of  the  "  Red  Jacket"  works  and  the  plaintiff's 
farm  ;  so  that,  what  with  the  copper  fumes  and  smoke  of  both  these 
mines  working  together,  the  plaintiff  alleged  his  condition  to  be  all  but 
intolerable.  His  Honour,  after  hearing  tlie  evidence  on  both  sides, 
granted  an  injunction  to  restrain  the  proprietors  of  the  Briton-ferry 
Mines  from  permitting  smoke  to  issue  from  their  works  so  as  to  produce 
any  damage  to  the  land  and  property  of  the  plaintiff,  and  directed  an 
issue  at  law  to  try  the  fact  whether  the  smoke  from  the  defendants' 
furnaces  did  injuriously  affect  the  plaintiff's  farm  or  not. 

Stevens  v.  BosweU  was  a  similar  case  to  Lathhury  v.  Earle.  The 
plaintiff  had  a  dairy  farm,  on  which  he  Jcejit  thirty  or  forty  cows  near 
certain  lead  ivories,  which  had  a  blastiny  and  three  calciiiiny  furnaces, 
and  in  1851-53  four  cows,  forty-eight  lambs,  and  six  colts  died,  poisoned 
with  sulphate  of  lead,  which  was  found  in  their  insides,  as  well  as  in 
the  hay,  the  hedges,  and  the  weeds  on  the  farm.  It  was  also  detected 
in  the  milk  after  it  had  passed  through  the  cow ;  though  it  did  not 
affect  vegetation,  but  only  animal  life.  On  examination,  the  carcases 
had  oxide  of  lead  in  the  mucous  membrane,  as  well  as  in  the  lungs  and 
liver  in  great  black  patches.  There  was  also  a  black  streak  round  the 
gums  ;  and  one  pig's  kidneys  were  bare  of  fat.  It  was  urged  by  the 
counsel  for  the  defence  that  the  land  on  the  farm  was  of  a  poisonous 
nature,  and  had  been  for  centuries,  and  that  the  smelting  works  had 
nothing  to  do  with  it.  A  juror  was  withdrawn,  and  the  jilaintiff 
was  to  receive  £500  damages,  and  the  defendants  to  purchase  the  farm 
at  full  value.  The  nearest  point  of  the  farm  which  was  thus  injured 
by  the  lead  fumes  was  half  a  mile  from  the  works,  and  the  most  distant 
a  mile  ;  and  the  white  smoke  from  the  blast  furnace  gave  a  small  pro- 
portion of  oxide  of  lead,  and  the  remainder  of  carbonate  and  sulphate 
of  lead. 

Professor  Herapath  described  the  effect  as  "  a  stunted  growth,  and 
leanness,  shortness  of  breathing,  paralysis  of  the  extremities  (particu- 
larly the  hinder  ones),  the  flexor  muscles  of  the  forelegs  affected  so  that 
the  beasts  stand  on  their  toes,  swelling  of  the  knees,  but  no  constipa- 


G06        SYMPTOMS  OF  POISONING  BY  SULPHATE  OF  LEAD. 

tion  or  colic,  as  in  the  human  race.  lu  a  few  days  death  followed.  If 
the  injured  beasts  were  removed  to  another  farm  they  never  throve. 
In  the  young  the  symptoms  were  more  conspicuous  and  the  mortality 
greater.  Lambs  were  yeaned  paralytic  ;  when  three  weeks  old  they 
could  not  stand,  although  they  had  made  great  efforts  to  do  so  :  in 
attempts  to  feed  out  of  a  bottle  they  were  nearly  suffocated  from 
paralysis  of  the  glottis,  and  twenty-one  died  early  out  of  twenty-three. 
Colts  also  died ;  and  those  that  lived  could  not  be  trotted  150  yards 
without  distressed  breathing.  Pigs  confined  to  the  stye  were  not 
injured  ;  but  if  allowed  to  roam  were  soon  affected.  The  milk  of  cows 
and  sheep  was  reduced  in  quality  and  quantity  ;  and  cheese  made  from 
the  former  had  less  fat  in  it.  I  find  in  the  milk  of  both  minute  traces 
of  lead.  It  will  be  observed  that  of  the  symptoms,  those  of  emaciation, 
paralysis,  and  the  blue  line  in  the  gum  of  the  lower  jaw,  are  similar  to 
those  of  the  human  subject,  that  constipation  and  colic  are  absent,  and 
that  we  get  two  new  ones — shortness  of  breath,  and  swelled  knees." 


INDEX. 


ABANDONMENT, 

not  presumed  fi'om  mere  fact  of  nou  user,  86 

stopping  up  Vfindows  prima  facie,  77 

parol  agreement  for  substitution  of  new  way,  no  evidence  of,  87 

permanent  obstruction,  evidence  of,  87 

ACCEPTANCE, 

meaning  of,  586 

what  constitutes,  579 

after  delivery,  584 

to  satisfy  statute,  586 

verbal  promise  does  not  constitute,  583 

by  vendee  dealing  with  goods  purchased,  498 

by  vendee  selecting  and  marking  a  particular  article,  500 

vendee  may  after  acceptance  dispute  quality  of  goods,  502 

of  turnip  seed,  503 

what  sufficient  to  satisfy  17 th  section  of  statute,  503 

actual,  and  receipt  of  goods,  501 

where  goods  lost  in  transit  a,  503 

and  delivery  of  timber,  130 

ACCIDENT, 

to  horse  through  bad  fence,  138 

by  fall  of  haystack,  lb, 
to  cattle  straying  on  railway,  148 
to  pony  through  neglect  to  fasten  gates,  152 
to  sheep  through  defective  railway  fence,  153 

ACCOUNT  STATED, 

what  sufficient  evidence  to  sustain  verdict  upon,  63 

ACKNOWLEDGMENT, 

of  title,  422 

what  takes  debt  out  of  statute,  504 

ADDITIONAL  RENT, 

for  ploughing  up  pasture,  312 
for  underletting,  314 

ADULTERATION  ACT, 
conviction  under,  531 
selling  adulterated  sainfoin  seed,  530 


608  INDEX. 

AGENT, 

right  of,  to  sue  for  remimeration  when  authority  rescinded,  475 

auctioneer  agent  for  both  buyer  and  seller,  477 

authority  to  execute  lease,  419 

notice  to  quit  by,  420 

letting  by,  without  authority,  421 

power  to  let  on  unusual  terms,  467 

act  ratified  by  employer,  ib. 

representation  that  he  had  authority  to  act,  ib. 

guarantee  of  solvency  by,  468 

authority  of,  to  bind  principal,  546 

receipt  of  douceur  by,  547 

warranty  by  veterinary  sm-geon  as  agent,  557 

AGISTMENT, 

agreement  to  agist  cattle,  60 
general  liability  of  agister,  587 
compensation  for,  588 
contract  for,  not  an  interest  in  land,  ib. 
does  not  create  a  lien,  589 

AGREEMENT, 

for  sale  of  growing  crops,  50 

growing  timber,  55 

growing  underwood,  56 

growing  grass,  58 

crops  and  tillage,  60 
with  landlord  to  accept  new  tenant,  61 
to  occupy  lodgings  at  yearly  rent,  64 
by  parol  to  deliver  up  possession,  65 
by  landlord  to  supply  complete  furniture,  66 
by  outgoing  tenant  to  leave  fixtures,  ib. 
parol,  for  lease,  311 
when  operates  as  lease,  410 
to  let,  agreement  to  give  possession,  411 
contract  for  sale  of,  411 
agreement  not  under  seal,  413 
instrument  void  as  lease,  good  as,  413 
parol,  for  lease.  415 

not  giving  possession  under  a  new  one,  for  lease,  416 
stamp  on,  416 

subject  matter  of,  within  stamp  act,  417 

terms  of,  reduced  to  writing,  coupled  with  promise  of  party  to  sign,  bind  party 
so  promising,  421 

AGRICULTURAL  HOLDINGS  ACT,  43-49 

AGRICULTURAL  PURPOSES, 
right  of  way  for,  91 

ALLUVION, 

lands  formed  by,  on  seashore,  168 


INDEX.  609 

ANCIENT  LIGHTS, 

obstraction  of,  77 

may  be  altered,  not  enlarged,  97 

new  lights  not  corresponding  with,  97 

ANCIENT  MEADOW, 

ploughing  up,  for  building  purposes,  308 
conversion  of,  into  arable  land,  310 

APPLE  FARM  LEASE, 

apple-trees  not  excepted  in,  121 

APPLE-TREES, 

not  within  the  exception  "  other  trees  "  in  cider  county,  121 

APPRAISEMENT, 

necessary  before  indebitatus  assumj}sit  will  lie  by  landlord  for  moiety  of  crops 

in  lieu  of  rent,  57 
goods  sold  without,  294 
stamp  when  sufficient  without  award  stamp,  332 

APPRAISERS, 

sworn  appraisers  in  stat.  2  Will.  &  Mary,  Sess.  1,  c.  5,  need  not  be  professional,  332 

APPREHENSION, 

of  trespassers,  when  justifiable,  3G4 

ARBITRATORS, 

hearing  one  party  in  absence  of  the  other  without  notice,  419 
may  employ  attorney  to  draw  award,  419 

ASSIGNMENT, 

by  tenant  of  lease,  61 

when  agreement  to  underlet  amounts  to  an,  289 

demise  by  yearly  tenant  for  a  term  of  years  not  an,  290 

of  tenant  right  by  tenant  to  landlord,  323 

of  agreement  for  a  lease,  415 

by  bill  of  sale  to  attorney  not  void  on  ground  of  champerty,  538 

ASSIGNEE, 

when  entitled  to  away-going  crop,  322 

electing  not  to  take  to  lease,  what  effect  on  covenants  by  lessee  to  leave  hay 

straw,  &c.,  322 
bound  by  covenant  to  repair,  427 
of  reversion,  rights  of,  425 

AUCTION, 

purchaser  of  largest  value  entitled  to  deeds,  478 

printed  particulars  of,  cannot  be  altered  by  parol  evidence  of  Verbal  statement 

of  auctioneer,  479 
bidding  by  '•  puffers  "  at,  550 
bidder  at,  may  retract  bidding,  550 
conditions  of  sale  sufficient  notice  to  bidders,  550 

li  R 


610  INDEX. 

AUCTIONEER. 

agent  for  buyer  and  seller,  477 

right  of,  to  commission,  478 

description  in  catalogue,  549 

auctioneer's  lien,  591 

not  agent  for  bidder  till  bidding  accepted,  501 

liability  of,  592 

AVERAGE 

price  of  corn  of  seven  years,  453 

AWARD 

admissible  in  evidence  on  part  of  landlord,  322 

stamp  when  not  necessary,  332 

when  unratified,  trover  ■will  not  lie,  512 

AWAY-GOING  CROP, 

award  admissible  in  evidence  on  part  of  landlord  on  issue  between  him  and 

execution  creditor  of  tenant,  322 
right  of  tenant  to,  320 
custom  of  country  as  to,  321 

BAILEE, 

action  by  gratuitous  bailee  for  horse  killed  through  defective  fences,  138 
negligence  of,  under  different  bailments,  232 — 260 

BAILIFF, 

has  authority  to  receive  tender,  271 

authority  to  distrain  equivalent  to  authority  to  receive  rent,  278 

distrain  of  wrong  sheep  by,  278 

ratification  of  acts  of,  by  landlord,  278 

BAILIFF  (FARM), 

jurisdiction  of  justices  as  to,  205 

entitled  to  notice  to  quit,  208 

not  a  partner,  209 

not  authorised  to  draw  bills  or  pledge  credit  of  master,  209 

authority  to  bind  master  by  contracts,  210 

BANKRUPTCY  LAWS, 

farmer  ordinarily  not  within  them  as  a  trader,  523 

when  farmer  within  them  as  a  trader,  524 

fanner  keeping  dairy  cows  not  within  them,  524 

non-liability  of  bankrupt  for  rent  accruing  after  filing  of  petition,  525 

BARGAINED  AND   SOLD  (GOODS), 

where  growing  crops  are  sold  distinct  from  the  land,  GO 
for  value  of  fixtures  left  by  agreement  for  landlord,  67 

BARK, 

lessor  may  bring  trover  for  bark  of  trees  cut  during  lease,  1 1 5 
tenant  not  liable  for  cattle  barking  trees,  128 
what  constitutes  delivery  of,  494 


INDEX.  6  1 1 

BARK — con  (inucd. 

drying  bark  distinct  trade  from  drying  corn,  517 

Fire  Insurance  Company  not  liable  for  fire  resulting  from  drying  bark,  517 

BARLEY, 

warranty  of  seed,  514 
sale  of,  to  bankrupt,  520 
meaning  of  seed  barley,  528 

BEAR, 

tied  up  by  too  long  chain,  IGi 

BEASTS   OF   PLOUGH, 
distrain  of,  286 

BEES, 

subject  of  larceny,  344 

BEQUEST, 

of  money  for  liberation  of  poachers,  invalid,  389 

BILL   OF   SALE.     {See  Sale.) 

BILLS   OF   EXCHANGE, 

given  by  tenant  to  agent  and  dishonoured,  277 

joint  occupants  of  farm  cannot  bind  each  other  by  them,  515 

BONES, 

uncrushed,  exempt  from  toll,  340 

BOUNDARIES, 

liability  of  land  to  be  rated  virhere  boundaries  cannot  be  ascertained,  441 
BULK, 

refusal  of  seller  to  show,  482 

not  equal  to  sample,  484 

right  of  purchaser  to  inspect,  486 

drawing  samples  fi-om,  after  purchase,  500 
BULL 

running  at  "  red,"  160 

keeping  ferocious,  162 

BULLOCK; 

warranty  of  soundness  of,  564 

BUSHES, 

general  property  in,  109 

exception  of.  for  repair  of  fences,  116 

CARRIERS, 

liability  of  railway,  at  Common  Law,  232 
restriction  of  liability  by  booking  ticket,  233 
construction  of  conditions  on  ticket,  241 
Railway  and  Canal  Traffic  Act,  242 
just  and  reasonable  contract  by,  242 

II  R  2 


613  INDEX. 

CARRIERS — continued. 

dogs  within  Traffic  Act,  247 

conditions  by  railways  must  be  reasonable,  252 

responsible  for  delay,  255 

delivery  of  goods  by,  within  reasonable  time,  2Gi 

CARTS, 

claim  of  way  for  carts  and  cattle,  1)3 

CATARACT, 

unsoundness  in  horse,  570 

CATTLE, 

claim  of  way  for  cattle  and  carls,  93 
injury  to  cattle  on  railway,  235 
suffocated  in  railway  van,  246 
crowding  cattle  in  truck,  261 
cattle  dealers  travel  at  own  risk,  253 
injured  by  working  of  mines,  604 
by  lead  works,  606 

CAVEAT  EMPTOR, 

rule  of,  542 

CHAMPERTY, 

assignment  by  client  to  attorney  not  void  on  ground  of,  538 

CHEST-FOUNDERED 
horse  unsound,  570 

CIDER, 

trade  meaning  of,  481 
selling  bad,  529 

CLOSE, 

definition  of,  347 

hirer  of  grass  in  close  has  right  of  action  against  one  who  breaks  the  soil,  347 

CLOVER, 

Bown  does  not  constitute  permanent  pasture,  308 
compensation  for  sowing,  324 

COAL, 

grant  to  pass  under  fore-shore,  169 

OOLLISTON, 

injm-y  to  cattle  tlu'ough,  240 

COMMON, 

proof  of  user  of  right  of  common,  84 
right  of  common  of  pasture  for  pigs,  85 
forcible  entry  on  common  of  pasture,  358 
lord  of  manor  not  entitled  to  shoot  on,  383 

CONSIGNEE, 

notice  of  refusal  by  consignee  to  receive  goods  need  not  be  sent  by  carrier  to 
consignor,  263 


INDEX.  613 

CONSIGNOR, 

cannot  require  notice  from  cnrricr  of  consignee's  refusal  to  receive  goods,  203 

CONSUMING  PRICE, 
definition  of,  334 
relative  value  of,  335 

CONTRACT, 

for  purchase  of  growini,^  timber,  o.j 
indivisible  contract  for  interest  in  land,  67 
by  parol  to  live  at  boarding  house,  08 
entire  timber  contract,  129 

of  hiring,  may  be  qualitied  by  proof  of  customary  holidays,  199 
for  service  for  more  than  one  year,  203 
of  service  not  necessarily  for  specific  time,  206 
.    under  Railway  and  Canal  TrafEc  Act,  242 
just  and  reasonable,  242 

with  first  railway  does  not  make  second  railway  liable,  2ol 
conditions  on  railway  tickets  must  be  reasonable,  252 
unreasonable  conditions,  254 
with  sack  contractors,  200 

for  sale  of  agreement  for  lease  does  not  imply  lessor's  power  to  lease,  411 
for  quiet  enjoyment,  403 
for  purchase  of  land  when  complete,  476 
as  to  coal  mines  worked  out,  476 
discharge  of  surety  by  variation  in  contract,  483 
articles  sold  by  contract  must  reasonably  answer  description,  485 
alternative  contract  must  be  stated,  490 
seller  cannot  recover  price  of  part  of  contract,  491 
meaning  of  "  directly  "  in  contract  of  delivery,  493 
to  furnish  turnip  seed,  507 
for  sale  of  growing  turnip  seed,  530 
complete  contract  of  purchase  of  horse  from  letters,  580 
giving  halfpenny  to  bind  contract,  581 

CONVICTION, 

of  poaching  under  9  Geo.  IV.  c.  09,  309 
for  using  trap  for  game,  375 
for  trespass,  375 

COPROLITES, 

proper  mode  of  rating,  120 

COPYHOLDER, 

liable  in  trover  for  removing  timber,  110 
may  cut  trees  for  repairs,  110 

CORN  RENT, 

reservation  of,  452 
how  estimated,  453 

CORNEA, 

unusual  convexity  in,  unsoundness.  566 


6U  INDEX. 

COKX  MEASURES, 

in  different  markets,  521 

COEN  SALES, 
returns  of,  520 

COVENANT, 

not  to  lop  or  top  trees,  109 

not  to  grub  up  trees,  125 

breach  of,  not  to  underlet,  288 

to  farm  in  a  husbandlike-manner,  306 

to  manage  pasture,  308 

to  repair  hedges,  310 

to  fallow  a  certain  quantity,  815 

to  keep  buildings  in  repair,  315 

to  spend  money  in  manure,  315 

to  consume  hay  and  sti^aw,  326 

not  to  sell  hay,  327 

to  bring  manure  for  hay  sold,  339 

as  to  rotation  of  crops,  415 

to  repair,  426 

to  yield  up  in  good  repair,  427 

not  to  assign  or  under-let,  453 

to  repair,  454 

to  leave  land  stocked  with  game,  454 

COWS, 

poisoned  in  pasture.  603 
poisoned  by  yew  clippings,  604 

CURBY  HOCKS, 
in  horse,  570 

CUSTODIA  LEGIS, 
goods  in,  294 

CUSTOMS  (AGRICULTURAL), 
Bedfordshire,  2 
Berkshire,  3 
Buckinghamshire,  3 
Cambridgeshire,  3 
Cheshire,  16 
Cornwall,  4 
Cumberland,  5 
Derbyshire,  6 
North,  7 
Devonshire,  8 
Dorsetshire,  8 
Durham,  9 
Essex,  10 
Gloucestershire,  10 


INDEX.  615 


CUSTOMS— co7iti7iued. 
Hampshire,  11 
Hereford,  12 
Hertfordshire,  11 
Kent,  U 
Lancashire,  16 
Leicestershire,  17 
Lincolnshire,  North,  18 

South,  IS 
Middlesex,  20    . 
Monmouth,  12 
Norfolk,  21 
Northamptonshire,  22 
Northumberland,  9 
Nottinghamshire,  23 

South,  24 
Oxfordshire,  25 
Eutland,  26 
Shropshire,  26 
Somersetshire,  27 
Stafifordshire,  28 
SufEolk,  28 
Surrey,  29 
Sussex,  31 
Wales,  North,  38 

South,  39-43 
Warwickshire,  32 
Westmoreland,  5 
Wight,  Isle  of,  33 
Wiltshire,  33 
Worcestershire,  34 
Yorkshire,  East  Riding,  35 

North  Riding,  36 

West  Riding,  37 

CUSTOM, 

to  take  profit  in  alieno  solo,  78 

to  dig  clay  in  copyhold,  98 

of  copyholders  to  fell  timber,  114 

of  country  as  to  consumption  of  hay  and  straw,  299 

of  the  country  generally,  315 

as  to  paying  for  tillages,  317 

of  country  excluded  by  lease,  323 

let  in  by  omission  in  lease,  823 

to  leave  manure,  324 

DAIRY, 

demise  of,  267 

DAMAGE, 

by  game  to  crops,  391 
compensation  for,  389 


016  i:ndex. 

DAMAGE — coniimicd. 

to  surface  of  land,  100 
to  horse  through  bad  fence,  138 
to  horses  by  fall  of  haystack,  139 
to  cattle  by  pollution  of  stream,  181 

DAMAGE  FEASANT, 
dog  taken,  3G8 

DAMAGES,  MEASUKE  OF. 
for  aggravated  trespass.  127 
nominal  where  crops  solel  for  fnll  value,  294 
for  removing  soil,  356 
for  trespass,  359 

for  not  keeping  buildings  in  repair,  429 
for  non-delivery  of  goo<ls,  492 
for  breach  of  contract,  509 
in  trover,  518 
for  non-delivery,  533 
in  trover  for  a  horse,  560 
question  of  damages  on  returning  horse,  594 
how  estimated  for  iiTCgular  distress,  273 
for  detaining  cattle  after  tender,  274 
for  distraining  cattle  of  stranger,  275 
fo-r  distraining  wrong  sheep,  278 

DANGEROUS  ANIMALS, 
scie7iter,  155 
savage  boar,  1 55 
savage  dog,  156 
ferocious  bull,  162 
bear  tied  up  by  too  long  chain,  1G4 
depasturing  vicious  horse,  167 

DECOY, 

penalty  for  shooting  near,  385 

DEDICATION, 

of  way  to  pnblic,  91 
valid  dedication  of,  how  made,  91 
evidence  of  user  and  dedication,  101 
of  private  road  to  the  public,  106 

DEED, 

words  of  description  in  deed  may  be  contradicted  by  parol  evidence,  482 
takes  effect  from  the  delivery  and  not  the  date,  482 

DEER, 

in  park  personal  property,  382 

DELAY, 

by  railway  in  forwarding  pigs,  255 

forwarding  cheeses,  257 
by  fall  of  snow,  259 


INDEX.  Gi7 

DELIVERY, 

and  acceptance  of  timber  within  Statute  of  Frauds,  130 

non-delivery  of  goods  sold  by  sheriff,  302 

of  instrument  as  an  escrow,  448 

what  constitutes,  494 

sufficient  to  satisfy  statute,  496 

actual,  not  necessary  in  the  case  of  ponderous  goods,  497 

leading  case  on,  496 

non-delivery  of  thrashing  machine  within  certain  time,  510 

of  goods  of  inferior  quality,  511 

order  for  delivery  on  third  person,  513 

delay  of  delivery  cannot  be  set  up  in  reduction  of  damages  in   breach  of 

warranty,  536 
what  sufficient  to  pass  property,  536 

DEMISE, 

general  demise  of  land  with  timber  trees,  109 

at  yearly  rent,  412 

meaning  of,  424 

of  land  with  power  to  make  bricks,  439 

for  three  years  certain,  463 

DILAPIDATIONS, 

when  action  maintainable  for  by  incumbent,  310 

what  knowledge  necessary  in  valuer  of  ecclesiastical  dilapidations,  333 

action  for  dilapidations  subject  of  compulsory  reference,  431 

of  buildings  built  partly  on  waste,  431 

DISTRESS, 

general  principles  of,  265 

of  sheep  in  highway,  266 

of  things  in  manual  use  illegal,  266 

of  cattle  not  in  locus  in  quo,  266 

escape  of,  267 

duties  of  pound-keeper,  268 

duties  of  hayward,  269 

tender  of  amends  when  not  too  late,  270 

tender  of  rent,  proper  persons  to  receive,  271 

tender  of  rent  sufficient  amends,  272 

detaining  cattle  after  tender  of  rent,  274 

detaining  goods,  274 

of -cattle  of  stranger  for  rent-charge,  275 

of  cattle,  assisting,  275 

authority  by  landlord  to  distrain,  278 

of  wrong  sheep  by  baiUff,  278 

payment  of  rent  under  distress  no  admission  of  title,  278 

trespass  maintainable  after  tender,  279 

for  recovery  uf  rent-charge,  280 

Statute  of  Uses,  280 

not  an  inseparable  incident  to  rent-service,  281 

by  law,  281 


618  INDEX. 

BISTUESS—contimml. 

illegal  at  improper  time,  281 

improper  working  of,  282 

after  death  of  tenant,  282 

open  field  sufficient  pound  for,  283 

fact  of  inventory  being  taken  an  impounding,  283 

time  for  making,  28-1 

fraudulent  removal  of  goods  by  tenant,  284 

duty  of  distrainor  as  to  goods  unsold,  285 

what  goods  may  be  distrained,  285 

of  implements  of  husbandry,  286 

of  beasts  of  plough,  286 

of  sheep  of  third  person.  287 

illegal  after  determination  of  tenancy,  288 

by  joint-tenant  of  reversion,  289 

by  under-lessee,  289 

on  away-going  crop,  290 

Statute  8  Anne,  290 

of  growing  crops,  291 

of  hay  and  corn  in  stacks,  291 

by  grantee  of  rent-charge,  292 

of  crops  under  aji.fa.,  292 

of  growing  crops,  law  as  to,  293 

irregular,  296 

of  privileged  goods,  297 

excessive,  remedy  for,  297 

and  sale  of  farming  stock,  298 

of  hay  and  straw  to  be  consumed  on  the  premises,  298 

unreasonable,  300 

excessive,  301 

second  distress  when  unlawful,  302 

affirmation  of  tenancy,  303 

right  of  sheriff  to  poundage,  304 

no  waiver  of  breaches  of  covenant,  305 

DITCH, 

property  in,  131 

presumption  of  ownership  in,  131 
considered  a  fence  under  Enclosure  Act,  132 
law  as  to  ditches,  132 

DOG, 

scienter  as  to  ferocity,  155 

keeping  savage  dog,  156 

railway  company  not  liable  for  acts  of  stray  dog  on  their  premises,  156 

dog  dangerous  to  owner's  knowledge,  156 

evi°dence  of  dogs  being  wont  to  attack  men  not  sufficient  to  support  scienter  as 

to  sheep,  157 
sheep,  worrying,  158 
what  is  evidence  of  scienter  for  jury,  159 


INDEX.  G19 

DOG — continued. 

caution  from  owner  of  dog,  160 

evidence  of  dog  having  been  bitten  by  mad  dog,  160 

shooting  dog  when  justifiable,  161 

right  to  keep  dogs  loose  for  protection  of  property,  161 

injury  by  dog  chained  up  to  person  legally  on  premises,  133 

keeping  watch-dog  in  walled  garden,  164 

dogs  frightening  horses,  165 

dogs  within  Traffic  Act,  249 

injury  to  valuable  greyhound  on  railway,  254 

inproperly  securing  dog  on  railway.  264 

trespass  by  dog  against  master's  will,  367 

shooting  dog  chasing  deer,  368 

taking  dog  damage  feasant,  368 

deputation  by  Stat.  1  &  2  Will.  IV.  to  seize  dogs,  368 

sending  dog  on  land  an  entering,  369 

laying  traps  for  dogs,  389 

DOG  SPEARS, 

injury  to  dog  from,  390 

DOTARD, 

lessee  may  claim  if  thrown  down  by  tempest,  116 
tenant's  rights  to,  124 

DOUBLE  VALUE, 

action  for,  under  Statute,  449 

DRAIN, 

claim  of  right  to  make  drain  over  another's  land,  70 

verbal  licence  not  sufficient  to  convey  easement  of  drain  over  land  of  another,  74 
difference  between  drain  and  watercourse,  182 
flow  of  water  from  drain  for  agricultural  improvements,  183 
right  to  artificial  watercourse,  184 
nnqualified  right  of  owner  to  drain,  184 
rights  as  to  rain  water,  185 
rights  as  to  surface  water,  186 

action  will  not  lie  against  surveyor  of  highway  for  cutting  tlrains  under  power 
of  Highway  Act,  351 

DRAINAGE, 

compensation  to  out-going  tenant  for,  329 

DRAINING, 

construction  of  draining  covenant,  328 

DRIVING, 

liability  of  master  where  servant  drives  his  own  horse  in  master's  service  214 

two  carts,  214 

servant  killed  by  negligent  driving,  214 

servant  going  indirect  road,  219 

servant  driving  master's  cart  without  leave,  219 


620  INDEX. 

DRIVING—  continued. 

liability  of  master  defined,  220 

general  rule  as  to  negligence,  221 

what  is  negligence  in  driving,  220 

running  over  ass  tethered  in  highway,  221 

person  driving  not  bound  to  keep  on  right  side  of  road,  220 

DROVERS, 

larceny  of  sheep  by  drover,  224 
fraudulent  drovers,  225 
not  general  servants,  225 
may  be  found  guilty  of  embezzlement,  225 

general  drover  not  a  servant  so  as  to  make  owner  of  cattle  liable  for  his  negli- 
gence, 228 
drover  has  no  implied  authority  to  sell,  229 
reasonable  presumption  that  drover  has  authority  to  sell,  229 
drover's  cattle  agisting  for  one  night  not  liable  to  be  distrained,  276 

EASEMENT, 

of  grass  for  a  cow  creates  no  interest  in  land,  67 

definition  of,  70 

presumption  of  grant  of,  how  established,  70 

to  stack  hay,  71 

to  stack  coals,  71 

easement  of  drain  over  land  of  another  cannot  be  conveyed  by  verbal  licence,  74 

unity  of  ownership  destroys  prescriptive  rights,  76 

may  be  claimed  by  custom,  78 

right  of  owner  to  support  of  underground  strata  not  an  easement,  80 

light  to  take  pot  water,  78 

to  water  cattle,  78 

distinction  between  profit  a  prendre  and  a  mere  easement,  79 

claim  of  pi-escription  under  Stat.  2  &  3  Will.  IV.,  c.  71,  81 

claim  of  right  to  easements,  82 

plea  of  forty  years'  user,  82 

continuous  enjoyment  of  easement,  83 

enjoyment  as  of  right,  83 

easement  of  common  of  pasture,  84 

i-ights  of  way,  86 

EJECTMENT, 

may  be  brought  by  lessee  of  2'>''"i^  vesturw  for  injuries  to  his  possessory 

right,  53 
action  of,  against  lessee  for  breaches  of  covenant,  311 
evidence  of  cross-cropping,  when  inadmissible  in  action  of  ejectment,  315 
too  late  after  twenty  years'  adverse  possession,  345 

tenant  estopped  from  denying  title  of  landlord  wh"b  let  him  into  possession,  357 
incumbent  may  sustain  ejectment  against  tenant  during  current  year,  435 
ejectment  from  part  of  premises,  437 
eviction  of  tenant,  when  operating  as  suspension  of  rent,  437 

ELM 

is  timber  when  twenty  years  old,  118 


INDEX.  621 

EMBEZZLEMENT, 
by  servant,  222 
by  drover  of  cattle,  225 

EMBLEMENTS, 

growing  potatoes  come  within  description  of,  51 

value  of,  may  be  recovered  on  account  of  crops  bargained  and  sold,  67 

definition  of,  442 

executor's  right  to,  442 

devisee's  right  to,  442 

part  of  stock  of  farm,  443 

ENCROACHMENTS, 
by  the  sea,  168 

made  by  tenant  are  for  benefit  of  landlord,  1 69 
from  non-navigable  river,  169 

ENTRY, 

by  person  who  has  legal  title  to  the  land,  345 

by  lord  of  manor  when  not  enough  to  bar  tenant's  right,  345 

under  3  &  4  Will.  IV.  c.  27,  346 

to  retake  goods  wrongfully  taken,  347 

on  termination  of  lease,  landlord  cannot  maintain  trespass  before  entry,  367 

permissive  tenant  cannot  sue  claimant  under  owner  for  forcible  entry,  357 

forcible  entry  in  exercise  of  right  of  common  of  pnsture,  358 

unlawful  on  day  when  plaintiff  has  whole  of  day  to  remove  crops,  359 

customary  heir  of  coi:)yhold  tenement  cannot  maintain  trespass  without  entry, 

but  after  entry  may  maintain  action  for  trespasses  committed  prior  to  his 

entry,  357 
times  of  entry  on  farms,  433 

ESCHEAT, 

right  of  way  of  necessity  cannot  exist  where  title  is  by  escheat,  90 
when  escheat  equal  to  grant,  90 

ESCROW, 

execution  of  an  instrument  may  amount  to  an  escrow  without  express  words 
of  delivery,  448 

ESTOPPEL, 

tenancy  created  by  estoppel   between  tenant  and    receiver    appointed    by 

Chancery,  411 
doctrine  of  estoppel  between  landlord  and  tenant,  418 
no  estoppel  between  assignee  and  termor  who  grants  lease  exceeding  his  own 

term,  418 
constructive  eviction  so  as  to  affect  estoppel,  437 
mere  words  of  description  in  a  deed  of  conveyance  not  operating  by  way  of 

estoppel  maybe  contradicted  by  parol,  482 

EST  RAY, 

trespass  lies  for  working  estray,  344 
swan  is  an  estray,  345 


622  INDEX. 

EVICTION, 

action  for  in  Coimty  Court,  437 

of  tenant,  when  operating  as  suspension  of  rent,  437 

of  tenant  from  parcel  of  demised  premises  no  answer  to  action  for  breach  of 

covenant,  437 
constructive  so  as  to  aflPect  estoppel,  437 

EXCHANGE  (BILL  OF) 

given  by  tenant  to  agent,  277 

joint  tenants  of  farm  cannot  bind  each  other  by  bills  of  exchange,  515 

EXPEDITION, 

railway  companies  must  convey  with  reasonable  expedition,  259 

FALSE  PRETENCES, 

obtaining  money  by,  for  cutting  chaff,  224 

FARM, 

contract  to  farm  in  a  husbandlike-manner,  306 

mere  relation  of  landlord  and  tenant,  sufficient  consideration  to  farm  in  a 

husbandlike-manner,  306 
removing  hay  from,  316 
manure  made  on,  definition  of,  339 
refusal  of  entrance  by  lessor  to  new  tenant,  423 
refusal  of  tenant  to  show  farm,  423 
landlord  not  compelled  to  rebuild  farm  buildings,  429 
different  times  of  quitting  farms,  433 
farm  fixtures,  454 

FARMER 

not  within  Sunday  Trading  Act,  563 

FENCES 

in  churchyard,  whose  duty  to  repair,  113 

tenant's  right  to  bushes  and  thorns  for  repair  of  fences,  116 

ditch  considered  a  fence  under  General  Enclosure  Act,  132 

duty  of  occupier  to  repair  fences,  132 

when  no  obligation  to  fence,  133 

when  obligation  to  fence,  134 

escape  of  cattle  for  want  of  fences,  135 

obligation  on  occupier  to  fence  dangerous  places,  1 37 

liability  of  canal  company  to  fence,  138 

injury  to  horse  through  bad  fence,  138 

general  liability  to  maintain  fences,  139 

liability  of  railway  companies  to  fence,  143 

power  of  surveyor  to  take  down  fence,  142 

railway  fences,  144 

obligation  of  company  to  fence,  146 

liability  to  maintain  fence  between  railway  and  highway,  140 

railway  companies  not  bound  to  fence  one  part  of  premises  from  another,  152 

damage  to  fence  by  poacher  not  malicious  injury,  372 


INDEX.  6^3 

FERRY, 

negligence  of  owners  of,  232 

FIERI  FACIAS, 

growing  potatoes  may  be  seized  under,  51 

growing  fruit  cannot  be  seized  under,  54 

com  and  other  industrial  crops  may  be  seized  under,  56 

growing  grass  cannot  be  seized  under.  57 

what  may  be  seized  under,  59 

outer-door  of  out-house  may  be  broken  under,  285 

seizure  of  crops  under,  292 

landlord's  claim  for  rent  under,  4G9 

FIRE, 

injury  to  horses  through  axle  of  caniage  taking  fire,  287 

herbage  set  on  fire  by  sparks  from  engine,  359 

caused  by  sparks  from  railway  engine,  360 

by  spontaneous  ignition  of  hayrick,  360 

by  careless  burning  of  weeds,  360 

destruction  of  farm  premises  by,  429 

liability  to  pay  rent  for  premises  burnt  down,  429 

landlord  not  compelled  to  spend  insurance  money,  429 

farm-house  destroyed  by  fire,  430 

FISH, 

right  of  fishing  passes  by  grant  of  water,  1 70 
trespass  for  entering  fishery,  370 
definition  of  mesh  in  Salmon  Act,  364 

FIXTURES, 

agreement  by  outgoing  tenant  to  leave  fixtures  not  an  interest  in  land,  67 
mortgagee  of  tenants'  fixtures  has  no  interest  in  land,  68 
farm  fixtures,  454 
leading  case  on,  454 
right  to  remove  barn,  455 

stavel  barn,  455 

water-fender,  456 

staddles,  thrashing  machine  and  granary,  457 

barn  on  blocks,  458 

building  where  landlord  finds  part  of  timber,  459 

tenants'  fixtures  after  determination  of  tenancy,  460 

brick  pillars,  460 
trover  by  tenant  for,  461 

removal  of,  by  tenant  after  ejectment  brought,  461 
leaving  fixtures  in  same  condition,  462 
law  of  fixtm-es  under  14  cfc  15  Vict.  c.  25,  462 
steam-engine  and  grindstones  fixtures,  469 

FLAX, 

injunction  to  prevent  the  sowing  of,  309 
penalty  for  sowing,  313 

FODDER, 

price  or  consuming  price.  335 


624     '  INDEX. 

FOLDAGE, 

claim  for,  by  outgoing  tenant,  323 

FOOTPATH, 

obstruction  of,  9-i 

penalty  for  ploughing  up,  94 

erecting  gate  across,  9-1 

FORCIBLE 

entiy  in  common  of  pasture,  358 

FORFEITURE, 

cutting  do-svn  trees  to  work  quarries  docs  not  work  forfeiture,  115 

waiver  of,  by  receipt  of  rent,  288 

re-entry  by  lessor,  as  for  a  forfeiture,  on  finding  premises  out  of  repair,  428 

FOX, 

trespass  lies  for  hunting  over  another's  land,  364 

FRAUD, 

use  and  occupation  will  not  lie  where  agreement  void  by  reason  of,  448 

contract  void  through,  476 

on  lessee  of  market,  519 

by  misrepresentation  in  warranty  of  horse,  553 

principal  liable  for  agent's,  556 

eflEect  of,  on  contract,  557 

FRAUDS  (STATUTE  OF), 

fact  of  auctioneer  signing  purchaser's  name  is  not  a  memorandum  to  satisfy 
.  17th  section,  477 

entry  by  auctioneer's  clerk  not  sufficient  to.  satisfy  19th  section,  477 
written   proposal   signed  by   one   party,  and  orally  agreed  to  by  the  other, 

sufficient,  495 
what  is  part  acceptance  to  satisfy  4th  section,  496 
delivery  to  satisfy  17th  section,  496 
acceptance  by  carrier  not  sufficient,  496 
actual  delivery,  when  not  necessary,  497 
actual  acceptance,  under,  498 

delivery  and  acceptance  of  samples  so  as  to  satisfy  17th  section,  500 
acceptance  and  actual  receipt,  501 
no  acceptance  and  actual  receipt,  unless  vendee  has  opportunities  of  seeing 

goods,  502 
acceptance  within  17th  section,  503 
there  must  be  a  writing,  or  a  part  payment,  or  a  delivery  and  acceptance,  to 

satisfy  17th  section,  505 
extension  of  Statute  by  9  Geo.  IV.  c.  14,  505 
when  note  or  memorandum  sufficient  to  satisfy.  505 
verbal  agreement  to  grow  wheat  not  binding,  507 
name  and  address  of  vendee  written  by  himself  at  bottom  of  list  of  articles 

purchased,  sufficient  to  satisfy  17th  section,  507 
contract  for  sale  of  mining  shares  not  sale  of  land  within  1th  section,  nor  sale 

of  goods  within  17th  section,  50S 


INDEX.  62[: 

FRAUDS  (STATUTE   OF)-conti7med. 

promise  by  a  third  party  to  pay  contingent  damages  within  statute,  561 
what  constitutes  acceptance  within  statute,  579 
satistied  by  half-penny  deposit,  580 
money  must  actually  pass,  582 

feeding  cattle  with  owner's  consent,  not  sufficient  evidence  of  acceptance,  583 
acceptance  after  delivery  to  satisfy  statute,  584 

contract  for  sale  of  horse  not  to  be  performed  within  a  year  within  Ith  section 
585  -  ' 

acceptance  within  statute  by  borrower  of  horse,  586 
extension  of  statute  by  9  Geo.  IV.  c.  U,  587 

FREEHOLD  INTEREST, 

in  right  and  title  to  a  passage  for  water  passes  by  deed  only,  71 

FREE  MINERS, 

their  rights,  80 

FREE  WARREN, 
franchise  of,  384 
birds  of,  385 

FRUCTUS  INDUSTRIALES, 
hops  are,  51 
definition  of,  59 

FRUITS, 

sale  of  growing  fruit  an  interest  in  land,  54 

growing  fruit  passes  to  heir,  54 

cannot  be  taken  by  tenant  for  life.  54 

nor  levied  under  B,fi.fa.,  54 

penalty  for  wilful  damage  to  fruit  trees,  137 

FURNITURE, 

agreement  by  landlord  to  supply  complete  furniture,  must  be  in  writing,  CO 
FURZE, 

planted  for  ornament,  protected  under  term  ornamental  timber,  1 2G 

GALES, 

grants  of,  by  foresters,  80 

GAME, 

no  notice  to  trespassers  in  pursuit  of,  necessary,  303 

right  of  property  in,  367 

taking,  without  certificate,  368 

summary  conviction  for  being  in  pursuit  of,  at  night,  369 

trespass  in  pm-suit  of,  by  shooting  from  highway,  370 

right  to  kill,  exercised  for  seven  years,  370 

right  of  keepers  to  apprehend  persons  in  search  of,  370 

prosecutions  under  1  &  2  Will.  IV.,  s.  32,  must  be  commenced  within  a  year,  370 

law  as  to  apprehension  of  persons  in  pursuit  of  game,  371 

taking  game  on  Sunday  or  Christmas  day,  374 


626  INDEX. 

GAilE — contimiccl. 

reasonable  time  for  keeping  game  after  season,  574 

claim  of  right  to  kill  game,  376 

young  pheasants  under  coops  not  game,  382 

assessment  of  land  %Yithout  game,  383 

reservation  of  game  by  lessor,  384 

trespassing  on  land  where  game  reserYcd  to  lord  of  manor,  38G 

compensation  for  damage  by  game,  389 

action  for  damage  by  dog  hunting  game,  391 

damage  by  game  to  crops,  391- 

pursuit  of  game,  392 

persons  taken  with  game  on  highway,  392 

GAME-DEALER, 

right  to  sell  live  pheasants,  375 

GAMEKEEPER, 

authority  of,  to  seize  dogs,  368 

to  take  game  from  poachers,  370 
rights  of,  to  apprehend  poachers,  370 
forcible  rescue  of  poacher  from  custody  of  gamekeeper,  372 

GATE, 

erecting  gate  across  footpath,  94 

action  by  reversioner  for  fastening  gate,  95 

obligation  of  railway  companies  as  to  gates,  145 

of  occupation  road  across  railway,  150 

neglect  to  fasten  gate  over  railway,  152 

railway  company  bound  to  keep  their  gate  shut,  159 

trespass  for  breaking,  257 

GLANDERS, 

penalty  for  selling  glandered  horse,  598 

GLEAN, 

poor  have  no  legal  right  to,  344 

GLEBE, 

rights  of  incumbent  as  to,  310 

tenancy  of  glebe  lands  under  two  successive  incumbents,  435 

right  of  incumbent  to  immediate  possession  of,  435 

GOGGLES, 

sheep  affected  with,  567 

GRANT, 

privilege  of  washing  sand,  &c.,  from  a  mine  down  natural  stream  subject  of 

grant,  86 
right  to  work  mines  an  incident  to  grant  of  mines.  81 
way  of  necessity  arises  from  presumed  grant,  89 
right  of  way  can  only  arise  by  grant,  90 
of  an  occupation  way,  93 
implied  grant  of  way  of  necessity,  101 


INDEX.  627 

GRAl>iT—contim(cd. 

to  pass  coal  under  fore  shore,  169 

right  of  fishing  passes  by  grant  of  water,  170 

right  of  polluting  stream  suljject  of  grant,  181 

GRASS, 

purchase  of  standing  crop  of,  56 

purchase  of  mowing  grass.  68 

cannot  be  seized  under  a  fi.  fa.,  57 

sowing  grass  seed  does  not  make  permanent  meadow,  ;>08 

GROUSE, 

frightening,  with  fii'e-works,  376 

GROWING  CROPS, 

agreement  for  sale  of,  when  it  confers  an  interest  in  land,  60 

agreement  of  sale  of,  distinct  from  letting  land,  60 

distrain  of,  291 

seizure  of,  under  nji.  fa.,  292 

law  as  to  seizure  of,  293 

unregistered  transfer  of,  good  against  execution  creditor,  303 

GUN, 

taken  away  from  trespasser,  371 

free  liberty  to  hunt  and  hawk,  granted  by  deed  in  1655,  will  not  extend  to 
shooting  with  a  gun,  384 

HARES, 

sending  on  a  dog  to  drive  hares  into  a  net,  369 

property  in,  367 

taking  hares  by  night,  373 

occupier's  right  to  kill  hares,  373 

form  of  authority  to  kill  hares,  374 

HAY, 

distrain  of,  291 

sale  of,  to  be  consumed  on  premises,  298 

custom  of  country  as  to  consumption  of,  299 

removing  hay  from  farm,  316 

covenant  to  consume.  326 

not  to  sell,  327 
penalty  for  carrying  away,  327 
definition  of,  328 
weight  of,  not  to  be  increased  by  water,  523 

HAYSTACK, 

licence  to  stack  hay  on  land,  71 

horse  killed  by  fall  of,  139 

fire  caused  by  spontaneous  ignition  of,  360 

left  on  land  by  outgoing  tenant,  339 

sold  but  burnt  before  paid  for,  494 

HAYWARD, 

duties  of,  269 

s  s  2 


628  INDEX. 

HEDGES, 

property  in,  131 

prima  facie,  belong  to  owner  on  whose  side  ditch  is,  131 

clipping  hedge  by  one  tenant  in  common,  135 

rule  as  to  hedge  cuttings,  136 

powers  of  sm-veyors  to  cut  hedges,  142 

incumbents'  duty  to  maintain,  310 

specific  covenant  to  repair,  310 

cows  poisoned  by  clippings  from  yew  hedge,  604 

HEPJOT, 

definition  of,  443 

not  rateable,  443 

custom  of  copyholders  as  to,  443 

landlord's  right  to,  444 

payment  in  lieu  of,  444 

HIGHWAY, 

evidence  of  existence  of,  101 

use  and  dedication  of,  101 

free  right  of  public  to  enjoyment  of,  102 

right  ofowners  to  enclose  part  of,  102 

right  of  Justices  to  determine,  102 

surveyor  of,  liability  of,  for  accident  through  non-repair  of,  103 

where  close  joins  highway,  half  highway  passes  with  close,  104 

order  of  Justices  to  stop  highway,  105 

mere  tracks  no  proof  of,  106 

liability  to  repair,  134 

obligation  to  fence,  134 

planting  trees  adjacent  to  highway,  141 

cattle  ,straying  on,  144 

liability  of  railways  to  maintain  fence  between  railway  and  highway,  149 

trespass  against  surveyor  of,  351 

negligent  riding  on,  362 

trespass  by  shooting  from,  370 

persons  taken  with  game  on,  392 

HIRING  {sec  Servants). 

HOBBETT, 

sale  of  wheat  by,  522 

HOLDING    OVEE, 

operation  of  Stat.  8  Anne,  c.  14,  294 — 29G 

by  co-tenant,  450 

after  expiration  of  lease,  450 

permissive,  after  notice  to  quit,  451 

must  be  continuous  to  entitle  to  double  value,  470 

HOLIDAYS, 

contract  for  hiring  may  be  qualified  by  proof  of  customary,  199 


INDEX.  629 


HOOF, 

contraction  of,  in  horse  unsoundness,  569 

HOPS, 

sale  of  growing,  50 

sale  of  sulphured,  529 

acceptance  of,  within  Statute  of  Frauds,  534 

HORSES, 

injured  through  Lad  fence,  138 

killed  by  fall  of  haystack,  139 

depasturing  a  vicious  horse,  167 

servant  driving  his  own  horse  in  master's  service  214 

injured  on  railway,  234 

left  in  siding  all  night,  245 

injury  to,  when  saddled  and  bridled,  252 

detention  of,  by  livery  stable  keeper,  253 

race-horse  injured,  damage  limited  to  £50,  254 

frightened  by  traction-engine,  361 

warranty  of,  542,  543,  544 

hirer  of,  to  use  reasonable  care,  549 

warranted  six  years  old,  551 

partnership  in,  559 

riding  horse  without  licence  of  owner,  561 

warranted  "  sound  and  quiet  in  harness,"  661 

good  drawer,  561 
diseases  and  unsoundness  in,  566 — 571 
agreement  to  take  back  within  certain  time,  573 
reasonable  trial  of,  574 
borrowing,  before  actual  delivery,  585 
lien  on  race-horses,  590 
auctioneer's  lien  on,  591 
purchaser's  duty  to  return  unsound,  595 
right  to  return  within  certain  time,  596 
sale  of  stolen,  597 
sale  of  glandered,  598 
injured  at  livery  stables,  601 
slaughtered  at  kennels,  603 

HOESE-DEALER, 

warranty  by  servant  of,  554 

HORSE-DEALING, 

general  rule  of,  553 

HUNTING, 

right  to  follow  fox,  365 
law  as  to  trespass  by,  366 

HUNTSMAN, 

though  hired  at  yearly  wages  a  servant,  201 


G^O  INDEX. 

HUSBANDLIKE    MANNER, 

promise  to  farm  in,  implied,  S06 

mere  relation  of  landlord  and  tenant  insufficient  consideration  for  promise  to 
farm  in,  SOfi 

HUSBANDRY, 
covenants,  306 

IGNITION, 

spontaneous,  of  hayrick,  3G0 

IMPROVEMENTS, 

encouraging,  under  lease  known  to  be  bad,  312 
allowance  for  lasting,  316 

compensation  to  outgoing  tenant  for  drainage,  330 
for  manure,  330 

INCLOSUEE  COMMISIONERS, 

power  of,  to  set  out  private  road,  105 
their  rights  to  enter  land,  34:6 

INCUMBENT, 

may  break  up  ancient  meadow,  309 

cannot  recover  against  previous  incumbent  for  not  cultivating  land  in  husband- 
like manner,  310 
what  knowledge  necessary  in  valuers  between  outgoing  and  incoming,  333 
death  of,  within  thi-ee  months  of  award,  402 
removal  of  hothouse  by  late  incumbent's  executor,  431 
tenancy  of  glebe  lands  under  two  incumbents,  435 
new  incumbent  a  right  to  immediate  possession  of  glebe,  435 

INJUNCTION, 

against  tenant  for  life  for  cutting  underwood  of  insufficient  growth,  121 
to  prevent  the  cutting  down  avenues,  125 

ornamental  timber,  126 
to  prevent  breaking  up  meadow  for  building,  308 
perpetual,  to  restrain  breaking  up  down  lands,  309 
not  granted  to  restrain  turning  rabbit  warren  into  potato  ground,  310 
granted  to  restrain  tenant  from  year  to  year  from  damaging  hedge-rows,  310 
to  prevent  mustard  or  flax  being  sown,  309 
not  granted  to  prevent  incumbent  from  breaking  up  meadow,  310 

INJURY, 

to  trees,  136 

to  vegetables,  137 

to  horse  through  bad  fence,  138 

by  dog  chained  up  to  person  lawfully  on  premises,  163 

to  reversion  by  diverting  stream,  194 

to  stranger  by  negligence  of  fellow-servant,  217 

to  servant  helping  servant,  217 

to  servant  by  negligence  of  fellow-servant,  218 

to  servant  using  machine,  218 


INDEX.  631 

INJURY — continued. 

to  servant  from  unsafe  ladder,  219 

to  horses  on  railway,  234 

to  cattle,  237,  240 

to  horses  in  cattle  truck,  247 

to  cow  on  railway,  252 

to  race-horse,  254 

valuable  greyhound,  254 

INNKEEPER, 

has  no  lien  on  a  horse  for  its  keep,  unless  brought  by  a  guest,  590 

liable  for  loss  of  goods  deposited  in  his  house,  601 

not  liable  for  damage  to  horse  where  due  care  taken,  GOl 

liable  for  horse  being  immoderately  whipped,  602 

liable  for  loss  of  gig  placed  in  open  street  on  market  day,  602 

INSURANCE, 

meaning  of  mortality  in  policy,  231 

landlord  not  compelled  to  spend  money  from  policy,  429 

consequence  of  omission  of  statement  in  policy,  517 

INTERESTS  IN  LAND, 
definition  of,  50 
agreement  for  sale  of,  50 

growing  hops,  50 
potatoes,  51-53 
fruit  and  vegetables,  54 
timber,  55 
underwood,  56 
grass,  56 

crops  when  it  confers  an  interest  in  land,  (iO 
with  landlord  to  accept  new  tenant, '61 
to  surrender,  62 

by  tenant  to  pay  landlord  for  consent  to  assignment  of  term,  C6 
easement  of  "  grass  for  a  cow,"  does  not  create,  67 
mortgagee  of  tenants"  fixtures  has,  68 

IRREGULAR  DISTRESS, 

of  things  in  manual  use,  266 

of  cattle  not  in  locus  in  /juo,  266 

of  wrong  sheep,  278 

after  determination  of  tenancy,  288 

where  actual  damage  resulted,  296 

of  privileged  goods,  297 

IRRIGATION, 

rights  of  riparian  owner  as  to,  187 

diversion  of  water  for,  189 

by  artificial  dam,  191 

ci'Qssing  another's  land  for  purposes  of,  192 

by  artificial  cut.  1 93 


632  INDEX. 

KEEP, 

recovery  of,  in  case  of  horse  returned  for  broken  warranty,  593 
recovery  of,  when  contract  broken,  591 

LABOUKER, 

general  hiring  of  agricultural,  200 
taking  rabbit  by  order  of  farmer,  38| 

LADDER, 

injury  to  servant  from  use  of  unsafe,  219 

EAMINITIS, 

unsoundness  in  horse,  569 

LAND, 

interests  in,  50 — 68 
licence  to  enter  upon,  72 

LANDLORD, 

agreement  with,  to  accept  new  tenant,  61 

by  tenant  to  pay,  for  consent  to  assignment  of  term,  66 

by  to  supply  complete  furniture,  66 
outgoing  tenant  must  give  up  possession  to,  321 
payment  by,  for  manure  and  tillages,  331 
estoppel  of  tenant  from  denying  the  title  of,  357 
estoppel  between  landlord  and  tenant,  418 
not  compelled  to  spend  fire  insurance  money,  429 
not  compelled  to  rebuild  farm-house,  430 
action  in  County  Court  by,  to  evict  tenant,  437 

right  of  occupier  to  recover  property-tax  paid  on  behalf  of  landlord,  440 
his  right  to  heriots,  444 
claim  to  rent  under  Ji.  fa.,  469 
implied  promise  by,  not  to  stop  sale,  276 
authority  by,  to  distrain,  278 

LARCENY, 

by  farming  servants,  223 
by  drover,  225 
by  pig- jobbers,  226 
of  bees  and  swans,  345 
pigeons,  subjects  of,  344 

LEASE, 

operative  words  in,  410 

agreement,  when  operates  as,  410 

contract  for  sale  of  agreement  for  lease  does  not  imply  lessor's  power  to,  411 

instrument  void  as  lease,  good  as  agreement,  413 

parol  agreement  for,  415 

not  giving  possession,  no  breach  under  a  new  agreement  for,  416 

expired,  416 

money  recoverable  from  inability  to  grant,  419 

binding  agreement  for,  420 

holding  over  after  expiration  of,  450 


INDEK.  033 

LEASE — continued. 

lessee  bound  to  deliver  up,  473 

vendor  liable  for  false  representation  of,  538 

LEAVE  AND  LICENCE, 

plea  of  it  by  landlord  to  entering  land  and  cutting  timber,  121 

LIBERUM  TENEMENTUM, 

tenancy  in  common  cannot  be  given  in  evidence  under  plea  of,  136 
plea  of,  352 

LICENCE 

to  stack  hay,  71 

to  stack  coals,  71 

irrevocable,  though  granted  by  parol,  71 

to  enter  upon  land,  72 

definition  as  to,  how  determined,  72 

by  parol  to  put  in  a  light,  cannot  be  recalled,  72 

to  divert  water,  73 

verbal,  not  sufficient  to  convey  easement  of  drain  over  land  of  another,  74 

to  make  reservoir  for  dye -water  and  soke,  75 

LIEN, 

none  in  case  of  agistment,  589 

livery-  stable  keeper  has  no,  589 

innkeeper  has  no  lien,  except  in  case  of  guest,  590 

general  rule  of,  590 

on  race  horses,  590 

auctioneer's,  591 

LIMITATIONS  (STATUTE  OF), 

application  in  cases  of  warranty,  487 

what  sufficient  acknowledgment  to  take  debt  out  of,  508 

LINSEED  CAKE, 
warranty  of,  485 

LIVERY-STABLE  KEEPER 

has  no  lien  on  horses,  589 

LODGINGS, 

hire  of,  at  a  yearly  rent  an  interest  in  land,  04 

LORD  OF  MANOR, 

right  of,  to  fallen  rocks,  110 

entry  by,  345 

his  exclusive  right  to  sport,  382 

not  entitled  to  shoot  over  commons,  383 

his  rights  as  to  pound,  270 

LUMBAR, 

affection  of  nerves  in  lumbar  region,  unsoundness  in  horse,  570 

MALICIOUS  PROSECUTION 
for  sheep  stealing,  600 


634  INDEX. 

MANSLAUGHTER, 

iu  the  owner  of  a  dangerous  animal.  155 
by  keeping  dangerous  bull  at  large,  1(>3 
by  depasturing  a  vicious  horse,  1(17 

MANURE, 

flow  of  liquid  manure  into  neighbour's  field,  ISl 

covenant  to  spend  a  certain  sum  in,  315 

compensation  for.  330 

payment  by  landlord  for,  331 

bringing  value  of  straw  back  in  manure,  33 G 

"  made  on  farm,"  definition  of,  33!) 

assignable  by  the  tenant,  338 

right  of  outgoing  tenant  to  on-stand  for,  331) 

covenant  to  bring  manure  for  hay  sold,  339 

agreement  to  sell  manure,  340 

exempt  from  toll,  340 

selling  manure  not  corresponding  with  warranty,  527 

MARKET, 

pigs  too  late  for,  255 

definition  of  ''  market  value,"  494 

law  of  the,  517 

rights  of  seller  in  public  market,  518 

legally  established,  519 

fraud  on  lessee  of.  519 

o^^^ler  of,  liable  for  nuisances  arising  therefrom,  525 

selling  horses  within  limit  of,  526 

carrier  indictable  for  taking  bad  meat  to,  529 

recovery  of  difference  between  sale  and  market  price,  532 

sale  by  public  auction,  not  sale  in  market  overt,  597 

MASTER.    {Sec  Servant.) 

MEADOW, 

lord  of  manor  cannot  bring  bill  for  meadow  broken  up  by  defendant's  testator. 

307 
injunction  against  breaking  up  meadow  for  building  purposes,  308 
ploughing  up  ancient  meadow,  309 
rights  of  incumVjents  as  to,  310 
permanent  meadow  not  made  by  sowing  clover  and  grass  seed,  308 

31  EAT, 

warranty  of  sound,  489 

selling  bad,  529 

no  implied  warranty  that  meat  fit  for  food,  528 

carrier  indictable  for  taking  bad  meat  to  market,  529 

absence  of  intent  to  sell  bad  meat,  529 

MEDICINE, 

improper  administration  of,  by  vetcrinary's  servant,  218 

giving  medicine  to  hired  horse,  575 

chemist's  liability  for  selling  improper  medicine,  577 


INDEX.  635 

MESH, 

definition  of,  36-1 

MILK-CARRIER'S 
agreement,  223 

MILK-WALK, 

agreement  to  purchase,  with  possession  of  premises,  64 

MILKING 

cows  in  pound,  270 

MINES, 

right  to  work,  is  an  incident  to  grant  of,  81 

privilege  of  washing  sand  dislodged  from  tin-mine,  86 

MODUS, 

proper  farm,  402 
decimandi,  402 

MORTALITY, 

meaning  of,  in  insurance  policy,  231 

MORTMAIN  ACT, 

bequest  of  pure  personalty  to  a  charity  to  purchase  and  restore  to  church  impro- 
priate tithes  void  under,  395 

NAVICULAR 

disease  of  joint  in  horse  unsoundness,  569 

NECESSITY  (WAY   OF), 

cannot  be  pleaded  without  showing  its  character,  8S 

effect  of  unity  of  possession,  88 

law  as  to,  88 

definition,  of,  89 

limited  by  necessity  which  created  it,  89 

arises  from  presumed  grant,  89 

right  of,  can  only  arise  by  grant,  90 

implied  grant  of,  104 

NERVES, 

affection  of,  in  lumbar  region,  570 

NET, 

definition  of  mesh  of,  364 

NIGHT, 

poaching,  369 

entering  land  at,  armed,  369 

taking  or  killing  hares  or  rabbits  by,  373 

definition  of,  373 

NON-DELIVERY 

of  goods  sold  at  sheriff's  sale,  302 


636  INDEX. 

NOX-USER   (OF   WAY), 

supported  by  vrhat  evidence,  82 
immemorial  right  of  way  not  lost  by,  86 
presumption  of  abandonment  not  to  be  made  from,  86 

NOT   GUILTY, 

puts  in  issue  "  scienter,"  165 

effect  of  plea  of,  in  action  for  damage  done  to  plaintiif's  sheei^,  167 
plea  of,  in  action  for  obstructing  flow  of  water,  170 

plea  of,  puts  in  issue  the  fact  that  the  driver  was  not  defendant's  servant  at 
time  of  accident,  21'.) 

NOTICE   TO   QUIT, 

by  one  joint-tenant,  432 

who  may  give,  432 

when  date  of  commencement  of  tenancy  not  known,  433 

insufficient,  434 

two  years,  436 

permission  to  hold  over  after,  451 

may  be  given  by  parol,  432 

given  by  agent's  agent,  432 

NOTICE   TO  TRESPASSERS 
not  necessary,  3G3 

NURSERYMAN, 

rights  of.  to  remove  trees,  122 

trees,  shrubs,  and  plants,  planted  in  a  nursery -ground  subsequent  to   demise 
cannot  be  seized,  292 

OBSTRUCTION 

of  ancient  lights,  77 

of  public  footway,  94 

by  erecting  gate  across  footpath,  94 

OCCUPATION 

road  across  railway,  1 50 

OCCUPIER, 

duty  of,  to  repair  fences,  132 

obligation  on,  to  fence  dangerous  places,  137 

right  of,  to  kill  hares,  373 

liability  of,  to  pay  rates,  438 

power  of,  to  deduct  rates  from  rent,  438 

right  of,  to  recover  property-tax  paid  on  behalf  of  landlord,  440 

ODD  MARK, 

meaning  of,  322 

right  of  tenant  to  remove,  322 

ON  STAND, 

right  of  outgoing  tenant  to,  339 


INDEX.  637 

ORNAMENTAL  TIMBER, 

right  of  devisee  in  fee  to  cut  down,  113 

definition  of,  126 

may  extend  to  furze,  126 

rights  of  tenant  for  life  as  to,  126 

OVERCROPPING, 
not  waste,  315 
not  within  meaning  of  non-cultivation,  315 

OWNER, 

of  savage  animal,  liability  of,  155 

caution  from  owner  of  dog,  160 

obligation  of  owner  of  vicious  animal,  163 

rights  of  riparian,  178 

unqualified  right  of  owner  to  drain,  189 

of  land  need  not  prove  non-permission,  371 

right  of,  to  dig  minerals  on  lands  adjoining  railway,  100 

of  ancient  house  entitled  to  lateral  support  of  neighbour's  land,  100 

rights  of,  to  enclose  part  of  highway,  101 

of  market  liable  for  nuisance  arising  therefrom,  525 

rights  of,  to  support  of  underground  strata,  80 

OWNERSHIP, 

unity  of,  destroys  prescriptive  right,  76 
presumption  of  ownership  of  ditch,  131 
and  tenancy,  prima  facie  evidence  of  contract,  447 

PAROL, 

hiring  by,  204 
agreement  for  lease,  415 

PAROL  EVIDENCE, 

evidence  of  oral  agreement,  464 

when  not  receivable,  480 

admissible  to  exjjlain  trade  terms,  481 

words  of  description  may  be  contradicted  by,  482 

PARTNERSHIP 
in  a  horse,  559 

PASTURE, 

covenant  to  manage,  308 

breaking  up,  308 

sowing  clover  or  grass  does  not  make  permanent,  308 

ploughing  up  ancient,  309 

rights  of  incumbents  to  break  up,  310 

penalties  for  ploughing  up,  312 

PENALTY 

for  ploughing  up  footpath,  106 
for  riding  on  footpath,  141 
for  ploughing  up  pasture,  312 
for  sowing  noxious  plants,  313 


638  INDEX. 

FE'SALTY—cmtimied. 
for  uudeiietting,  314 
for  cross-cropping,  3 14 

PHEASANTS, 

right  to  deal  in  live,  375 

tame,  are  subject  of  larceny,  375 

young  birds  in  coop  under  hens  not  game,  382 

trespass  by  shooting,  from  highway,  37L) 

PIGEONS, 

subjects  of  larceny,  344 

PLOUGH, 

beasts  of,  distrain  of,  286 

PLOUGHING 

up  public  footpath,  94 
up  footpath,  penalty  for,  lOG 
up  ancient  meadow,  309 
right  of  incumbent  to,  310 
up  pasture,  penalty  for,  312 

POACHER, 

cannot  give  evidence  for  himself,  368 
non-entry  of  some  of  poachers  on  land,  369 
right  of  gamekeeper  to  apprehend.  370 
damaging  fence  not  malicious,  372 
forcible  rescue  of,  from  unlaveful  custody,  372 
found  with  rabbits  on  highway,  376 

POACHING, 

with  dogs,  367 

conviction  for,  under  9  Geo.  IV.,  c.  69,  369 

hares  or  rabbits  by  night,  373 

game  on  Sunday  or  Christmas  Day,  374 

in  pursuit  of  game,  392 

apprehension  of  persons,  under  Game  Act,  393 

POISON, 

cows  poisoned  in  pasture,  603 

cattle  poisoned  by  eating  yew  clippings,  604 

acquiescence  of  owner  in  erection  of  poisonous  works,  604 

cattle  poisoned  by  lead  works,  605 

symptoms  of  sulphate  of  lead,  606 

POLES, 

cutting  ash  poles  by  tenant,  124 

POND, 

compensation  to  tenant  for  life  for  loss  of,  198 

POOR  RATE, 

rating  of  saleable  underwoods,  119 
rating  of  coprolites,  120 
assessment  of  tithes  to,  405 


INDEX.  639 

POSSESSION, 

unity  of,  destroys  a  title  by  prescription,  76 

duty  of  outgoing  tenant  to  give  up  possession  to  landlord,  321 

legal  possession  against  trespassers,  345 

not  giving  possession  no  breach  under  a  new  agreement  for  a  lease,  410 

new  incumbent  has  right  to  immediate  possession  of  glebe,  435 

POTATOES, 

sale  of  growing,  51 — 53 
sale  of  "  ware,"  480 

POUND, 

duties  of  keeper  of,  208 

treatment  of  animals  in,  269 

conviction  of  persons  releasing  animals  from,  270 

open  field  a  sufficient,  283 

POUNDAGE, 

sheriff  not  entitled  to,  when  proceedings  set  aside,  304 

PEESCEIPTION, 

unity  of  ownership  destroys  title  by,  76 
claim  of  Stat.  2  &  3  Will.  IV.,  c.  71,  81    . 
right  of  way  by,  for  carriages,  92 
,     right  to  light  for  windows  by,  96 

right  to  three-fourths  of  a  right  of  common  by,  101 

PRESUMPTION 

of  abandonment  not  to  be  made  from  mere  non-user,  80 
of  property  in  piivate  way,  103 
of  ow^lershi2)  of  ditch,  131 
of  right  to  pollute  water,  180 

PRINCIPAL 

responsible  for  agent's  fi-aud,  55G 

PRIVATE, 

distinction  between  private  and  public  way,  103 
presumption  of  property  in  private  way,  103 
appropriation  of  private  way,  105 
dedication  of  private  road  to  public,  100 
warranty  incorporated  into  conditions  of  sale,  551 

PROFIT  A  PRENDRE, 

right  to  take  water  from  a  well  not,  77 
what  is,  78—81 
.  liberty  to  sport  is  a,  384 

PUFFERS 

at  auction  sales,  550 

QUANTUM  MERUIT, 

recovery  of  remuneration  on,  490 

veterinary  surgeon  recovers  on  it,  where  no  contract,  579 


64  0  IXDEX. 

QUITTIXG, 

different  times  of,  433 

BABBITS, 

taking  by  night,  378 

poacher  found  with,  on  highway,  376 

retaking  them  from  poacher,  378 

property  in,  379 

right  of  tenant  to  kill,  380 

laboui-er  taking,  by  order  of  farmer,  381 

liberty  to  kill,  with  ferrets  only,  385 

shooting,  where  exclusive  right  of  shooting  let,  3i)2 

trade  meaning  of  1000  rabbits,  482 

EACE-COURSE, 

claim  of  right  by  custom  to  use,  349 

EACE-HORSE, 

injury  to,  damage  limited  to  £50,  254 

RAILWAYS, 

liability  to  maintain  fences,  140 
obligation  as  to  gates,  145 
obligation  to  fence,  146 
their  liability  as  to  level  crossings,  147 
cattle  straying  on,  through  station  yard,  148 
liability  to  maintain  fence  between  railway  and  highway,  149 
occupation  road  across,  150 

"not  bound  to  fence  one  part  of  premises  from  another,  152 
neglect  to  fasten  gate,  152 
bound  to  leave  their  gates  shut,  152 
sheep  killed  on,  158 

water  escaping  from  cutting  into  mine,  196 
Railway  Clauses  Consolidation  Act,  232 
•  their  liability  at  common  law,  232 
restriction  of  their  liability  by  booking  ticket,  233 
ijijury  to  horses,  234 

cattle,  235 

through  truck  taking  fire,  237 
negligence,  238 
collision,  240 
construction  of  conditions  on  ticket,  241 
Railway  and  Canal  Traffic  Act,  242 
just  and  reasonable  contract  by,  244 
injury  to  horse  left  in  sidmg,  245 

cattle  suffocated  in  van,  246 

horses  placed  in  cattle  truck,  247 

cattle  through  being  crowded,  251 
contract  with  first  railway  does  not  make  second  railway  liable,  251 
must  be  sued  within  County  Court  district  of  principal  place  of  business,  251 
their  conditions  must  be  reasonable,  252 


INDEX.  641 

RAILWAY  S — continued. 
injury  to  cow,  252 

horse  sa'ldlecl  and  bridled,  252 
cattle  dealers  on,  travel  at  their  own  risk,  253 
unreasonable  conditions,  254 
injury  to  racehorse,  254 

valuable  greyhound,  254 
delay  in  forwarding  pigs,  255 
cheese,  257 
by  fall  of  snow,  250 
sack  conditions  of  Great  Northern,  261 

giving  notice  to  consignor  of  consignee's  refusal  to  receive,  2G3 
delivery  of  goods  by,  within  reasonable  time,  264 
injury  to  dog  through  bemg  improperly  secured,  264 
fire  by  sparks  from  locomotive,  360 
horses  frightened  by,  361 

RATES, 

rating  of  saleable  underwoods,  119 

rating  of  coprolites,  120 

assessment  of  tithe  to  poor  rate,  405 

rent-charge  of  district  church  not  rateable,  406 

rent-charge  not  liable  to  sewers  rate,  406 

occupier  of  tithe  rent-charge  may  deduct  curate's  salary  from  rateable  value,  407 

assessment  of  occupier  of  tithe  rent-charge,  409 

occupier's  liability  to  pay  rates,  438 

RENT, 

tender  of,  proper  person  to  receive,  271 

tender  of,  sufficient  amends,  272 

detaining  goods  after  tender  of,  274 

agreement  to  take  interest  on  rent  in  arrear,  277 

authority  by  landlord  to  distrain  for,  278 

payment  of,  under  distress  no  admission  of  title,  278 

action  for,  by  tenants  in  common,  289 

underlessee's  power  to  distrain,  289 

increase  of,  does  not  create  new  tenancy,  290 

where  claim  is  for,  there  can  be  no  interpleader,  303 

distress  for,  an  affirmation  of  tenancy,  303 

receipt  oi,  prima  facie  evidence  of  title,  411 

an  actual  demise  at  yearly  rent,  implies  a  tenancy  from  year  to  year,  412 

new  tenancy  not  created  by  mere  increase  of  rent,  412 

power  to  distrain  for,  mider  Stat.  4  Geo.  IV.,  c.  28,  418 

lessee  must  seek  lessor  to  tender  rent,  426 

eviction  of  tenant  when  operating  as  suspension  of  rent,  437 

occupier's  power  to  deduct  rates  from  rent,  438 

right  of  occupier  to  deduct  property-tax  from  rent,   441 

receiving  rents  from  an  imder-tenant— proof  of  use  and  occupation,  448 

re-entry  on  non-payment  of,  451 

reservation  of,  in  corn,  452 

T   T 


642  INDEX. 

KENT — contimced. 

landlord's  claim  for.  under  fi.  fa.,  4G9 
rights  of  presumptive  heir  to,  iG'J 
receipt  of,  from  third  party,  470 

KENT-CHARGE, 

distraining  cattle  of  stranger  for,  275 

recovery  of,  by  distress,  280 

distress  by  grantee  of,  2'J2 

value  of,  394 

land  only  liable  for  tithe  rent-charge,  S9.5 

apportionment  of,  by  commissioners,  396 

on  hops,  405 

of  district  church,  not  rateable,  406 

not  liable  to  sewers  rate,  406 

grantee  of,  liable  to  income-tax,  406 

outgoings  include  land-tax  and  rent-charge,  407 

occupier  of,  to  deduct  curate's  salary  from  rateable  value,  407 

lessee  of  tithe  rent-charge  not  entitled  to  deduct  cm-ate's  stipend,  408 

assessment  of  occupier  of  tithe  rent-charge,  409 

EEPAIRS, 

liability  of  surveyors  for  neglecting  to  repair  highways,  103 

right  to  repair  fences  in  churchyards,  113 

right  to  cut  timber  for  necessary  repairs,  127 

duty  of  occupier  to  repair  fences,  132 

of  private  road,  133 

liability  to  repair  highway,  134 

covenant  to  repair  hedges,  310 

to  keep  buildings  in  repair,  315 
interest  of  reversioner  in  repair  of  premises,  425 
covenant  to  repair,  426 

to  yield  up  in  good  repair,  427 
rule  as  to  keeping  premises  in  repair,  427 
meaning  of  good  repair,  428 

tenant  from  year  to  year  not  bound  to  do  substantial  repairs,  428 
measure  of  damaiges  for  not  keeping  in  repair,  429 
allowance  by  Court  of  Chancery  for  repairs,  431 
covenant  to  repair,  454 

REPLEVIN 

lies  after  tender  made  of  sufficient  sum  before  distress,  272 

only  remedy  where  exorbitant  demand  made  for  compensation,  273 

lies  for  wrongful  detention  of  goods  after  tender,  279 

when  maintainable,  299 

REPRESENTATION, 

tenant  underletting  by  false,  422 
distinction  between  it  and  warranty,  542 
fraudulent  at  time  of  sale,  553 
must  be  known  to  be  false,  553 
agent's,  that  he  had  power  to  act,  467 


INDEX.  643 

EESCUE 

of  impounded  cattle,  207,  268 

RESERVATION 

of  game  by  lessor,  384 
of  all  royalties,  385 

RESERVOIR. 

licence  to  make,  for  dye-water  and  soke,  7."> 

REVERSION. 

injury  to,  by  blocking  up  ancient  lights,  77 

right  of  reversioner  to  bring  action  for  obstruction  to  easements,  87 

assignees  of,  may  be  sued  by  outgoing  tenant  on  a  contract  or  custom  of  the 

country,  319 
injury  to,  by  diverting  stream,  194 
distress  by  joint-tenants  of,  288 

REVERSIONER, 

cannot  bring  action  for  simple  trespass,  94 

injury  must  be  permanent  to  enable  him  to  bring  action,  95 

action  by,  for  chaining  gate,  95 

discharging  eaves'  water  on  land  of,  107 

legal  possession  of  timber  in,  110 

right  of,  to  bring  action  against  surveyor  of  highways  for  cutdng  fence,  143 

right  of,  to  prevent  waste,  309 

action  by,  for  trespass,  348 

cannot  apprehend  trespasser,  363 

interest  of,  in  repair  of  premises,  425 

RIDING, 

penalty  for  riding  on  foot-path,  141 
horse  without  licence  of  owner,  56 1 

RIPARIAN, 

right  of  riparian  owners  to  water,  171 
rights  of  riparian  owners  generally,  178 
riparian  or  irrigation  right,  187 

RIVER, 

property  in  accretions  from  a  non-navigable,  169 
property  in,  ad  medium  Jilum  aqucc,  170 

ROCKS, 

right  of  lord  of  manor  to  fallen,  110 

ROOKERY, 

action  not  maintainable  for  firing  a  gun  near,  385 

ROOKS, 

feroe  naturce,  and  not  protected  by  either  Common  Law  or  Statute,  3S4 

ROYALTIES, 

reservation  of,  what  included  in,  385 


644  INDEX. 

SACKS, 

hire  of,  260 

conditions  of  Great  Northern  Railway  as  to,  261 

private  sack  companies,  263 

liability  of  consignor  of  grain  as  to  hiring,  263 

liabilities  of  hirers  of,  263 

SALE, 

agreement  for,  of  growing  roots,  hops  and  potatoes,  50 
of  frnit  and  vegetables,  54 
of  growing  timber  and  underwood,  55,  56 
of  growing  crops,  59,  60 
of  tillages,  61 
of  seized  crops  for  fiill  value,  294 
of  farming  stock  taken  in  execution,  298 
of  hay  and  straw  to  be  consumed  on  the  premises,  298 
non-delivery  of  goods  sold  at  sheriffs',  302 
of  a  close  inaccessible  except  by  way  over  another  close,  476 
default  of,  by  purchaser  in  complying  with  conditions  of,  477 
of  reputed  water-meadow,  479 
of  a  fee-farm  rent,  479 
by  sealed  tenders,  479 

printed  particulars  of,  cannot  be  parol  evidence,  479 
of  "  Ware  "  potatoes,  480 
of  turnip  seed,  487 
of  specific  chattel  on  credit,  494 
of  Peruvian  guano,  514 
of  corn  by  sample,  523 

of  bad  meat,  529 

of  bad  cider,  529 

of  sulphured  hops,  529 

of  refuse  cake,  530 

of  sain-foin  seed  adulterated  with  burnet,  530 

recovery  of  difference  between  sale  and  market  price,  532 

inaccurate  particulars  of,  540 

right  of  agent  to  remuneration  when  sale  goes  off,  541 

fraudulent  representation  at  time  of,  533 

by  servant,  555 

on  credit,  579 

of  improper  sheep-wash,  577 

by  public  auction,  not  sale  in  market  overt,  597 

of  stolen  horses,  597 

of  glandered  horses,  598 

conspiracy  to  cheat  by  sale  of  horses,  598 

SALE,  BILL  OF, 

sale  of  tenants'  goods  under,  276 
of  goods  not  a  removal,  295 
when  void  against  creditors,  515 
assignment  of,  as  security  for  debt,  516 
seizure  and  sale  under,  538 


INDEX.  645 

SALESMAN, 

drover  no  implied  authority  to  receive  money  from,  229 
his  book-keeper  liable  for  cattle  sold,  230 

SAMPLE, 

ordinary  rule  of  buying  by,  483 

bulk,  not  equal  to,  484 

article  sold  by,  must  be  rejected  within  reasonable  time,  481 

right  of  purchaser  to  draw  samples  from  bulk  after  purchase,  500 

refusing  to  deliver  to  bankrupt  vendee  after  sample  taken,  499 

right  of  vendee  to  compare  goods  delivered  with  sample,  502 

SCIENTER, 

gist  of  action  for  keeping  dangerous  animals,  155,  156 

evidence  of  dogs  being  wont  to   attack  men  not  sufficient  to  support  scienter 

as  to  sheep,  157 
what  is  evidence  of,  for  jury,  159 
put  in  issue  by  plea  of  not  guilty,  166,  167 

SEA-SHOEE, 

rights  as  to  land  formed  by  alluvion  on,  168 

incidents  of,  168 

no  right  to  take  land  from  another's  close,  which  had  drifted  from  sea-shore,  79 

SEED, 

sowing  clover  or  grass  seed  does  not  make  permanent  pasture,  308 

sale  of  turnip,  487 

acceptance  of,  what  constitutes,  503 

contract  to  furnish  turnip  seed,  507 

warranty  of  seed  barley,  514 

warranty  of,  526 

sale  of  sainfoin  seed  adulterated  with  burnet,  530 

conviction  under  Adulteration  of  Seeds  Act  1869,  681 

contract  for  sale  of  growing  turnip  seed,  536 

SERVANTS, 

hiring  of,  on  Sunday,  199 

temporary  illness  of,  199 

express  or  implied  bargain  for  service.  199 

forfeiture  of  wages  for  misconduct,  200 

general  hiring  of  agriculttiral  labourer,  200 

jurisdiction  of  magistrates  to  discharge,  201 

Master  and  Servants  Act,  conviction  under,  201 

huntsman  a  servant,  201 

dismissal  of,  203 

contract  for  service  for  more  than  a  year,  203 

hiring  by  parol,  204 

right  of  servant  to  quit,  206 

monthly  servants,  206 

gardener,  a  menial  servant,  206 

Truck  Act,  207 


Q4:6  INDEX. 

SEEVAXTS— co«(i»!tcrf. 

master's  liability  for  act  of,  211 

veterinary  surgeon  liable  for  negligence  of,  21." 

master  liable  where  servant  drives  his  own  horse  in  master's  service,  214 

servant  killed  by  negligence  of  another,  214 

no  contract  by  master  not  to  expose  servant  to  risk,  215 

master  liable  for  injury  to  servant,  215 

injury  to  stranger  by  negligence  of,  217 

injury  to  servant  helping  servant,  217 

master  liable  for  wilful  conduct  of,  217 

injury  to  servant  through  negligence  of  fellow-servant,  218 

injury  to  servant  using  machine,  218 

from  unsafe  ladder,  219 
servant  going  indirect  road,  219 
using  master's  cai't  without  leave,  219 
liability  of  master  as  to,  defined,  220 
liability  of  master  for  debts  contracted  by,  222 
larceny  by  farm-servants,  223 
embezzlement  by  servant,  225 
unauthorised  warranty  of  horse  by,  545 
warranty  by  horse-dealers,  554 
general  rule  of  selling  by,  555 

warranty  by  servant  merely  entrusted  to  deliver,  555 

rule  of  master  taking  back  horse  which  will  not  answer  warranty  given  by,  556 
borrowed  horse  must  not  be  used  by,  574 

SETTLEMENT, 

by  hiring  and  service,  208 

SHAPE, 

badness  of,  in  horse  so  as  to  cause  unsoundness,  570 

SHEEP, 

evidence  of  dogs  being  wont  to  attack  men,  not  sufficient  to  support  scienter 

as  to,  157 
dogs  given  to  woirying,  158 
killed  on  railway  through  defective  fences,  1 53 
right  to  shoot  dogs  engaged  in  worrying,  1G2 
of  third  person,  distrain  of,  287 
distrain  of  wrong  sheep  by  bailiff,  278 
sale  of  sheep  affected  with  goggles,  507 
poisoned  by  deleterious  sheep-wash,  577 

SHEEP-STEALING, 

case  of  malicious  prosecution  for,  600 

SHEPHERD, 

breach  of  contract  with,  208 

SHIP, 

injury  of  cattle  on  board,  231 

meaning  of  mortality  in  policy  of  assurance,  231 

death  of  slaves  caused  by  want  of  provisions  on  board,  231 


INDEX.  647 

SHOOTING, 

dog,  when  justifiable,  161 

dog,  chasing  deer.  368 

trespass  by  shooting  from  highway,  370 

hare  in  turnpike  road,  376 

pheasant  on  another's  land,  376 

no  penalty  for  shooting  near  rookery,  38i 

neax  decoy,  385 

sale  of  right  of,  388 

rabbits  where  exclusive  right  of  sporting  let,  392 

SLAUGHTER-HOUSE, 

right  to  slaughter  cattle  elsewhere  than  in  a  public  slaughter-house,  602 

action  for  negligence  in  not  securing  cow  in,  602 

penalty  for  using  horse  sent  to  kennels  to  be  slaughtered,  603 

SNOW, 

delay  on  railway  by  fall  of,  259 

SOU;, 

compensation  for  damage  to  buildings  through  subsidence  of  soil  by  working 

mines,  101 
right  acquired  by  house  after  twenty  years  uninterruptel  enjoyment  to  lateral 

support  of,  101 
right  of  seller  in  market  to  occupy  soil  with  stalls,  &c. ,  518 

SOLO  ALIENO, 

custom  to  take  profit  in,  bad,  79 

SOUND, 

"  this  horse  is  sound,"  a  warranty,  542 
meaning  of  word  as  applied  to  horses,  &c.,  565 

SOUNDNESS, 

warranty  of,  as  to  horses,  542 

SOWING, 

clover  or  grass  seed  does  not  make  permanent  pasture,  308 
injunction  to  prevent  sowing  mustard  seed  or  flax,  309 
penalties  for  sowing  noxious  plants,  313 

SPARKS, 

herbage  burned  by  sparks  from  engine,  359 
fire  caused  by  sparks  from,  360 

SPAVIN, 

definition  of,  549 

SPECIAL  CONTRACT, 

may  be  made  by  railway  companies  with  their  customers,  243 

SPECIFIC  PERFORMANCE, 

enforcing  specific  performance  of  farming  agreement,  471 

SPLINT, 

(in  horses),  571 


648  INDEX. 

SPOKTIXG, 

lord  of  manor's  exclusive  right  of,  3S2 

grant  of  liberty  of,  384 

right  of.  over  cattle  gates,  386 

demise  of,  not  under  seal,  387 

lease  of  exclusive  right  of,  388 

shooting  rabbits  where  exclusive  right  let,  392 

SPEING  GUNS, 

set  in  wood  with  notice,  390 

in  walled  garden,  390 
definition  of,  391 

STACK, 

horse  killed  by  fall  of,  139 
fired  by  sparks  from  railway,  360 
fired  by  spontaneous  ignition,  360 
sold  but  burnt  before  paid  for,  -194 

STALLS, 

law  of  market  as  to  occupation  of,  517,  518 

STAMPS, 

appraisement,  when  sufficient,  332 

on  agreements,  416 

ad  valorem  stamp  duty,  416 

when  not  necessary,  417 

meaning  of  subject  matter  in  "  Stamp  Act,"  417 

agreement  requiring  stamp,  464 

warranty  does  not  require  stamp,  558 

STATUTE  OF  FRAUDS  {see  Frauds). 

STKAW, 

sale  of,  to  be  consumed  on  premises,  298 

custom  of  coimtry  as  to  consumption  of,  299 

covenant  to  consume,  326 

consumption  of,  by  incoming  tenant,  327 

bringing  of  value  of  straw  back  in  manure,  336 

meaning  of  •'  value  "  of,  337 

selling  straw  without  written  licence,  338 

STRAWBERRY-BEDS, 
waste  to  plough  up,  308 

STRINGHALT, 

unsoundness  in  horse,  569 

SUNDAY, 

hire  of  labourers  on,  199 

horse-dealing  on,  legality  of,  562 

mares  covered  on,  563 

farmer  not  within  Sunday  Trading  Act,  563 


INDEX.  649 

SURFACE, 

definition  of  surface  damage,  99 
damage  to  surface  of  land,  100 
surface  water,  186 

SWANS, 

subjects  of  larceny,  345 

SWINE, 

late  for  market  through  delay  on  railway,  257 
kept  so  as  to  be  a  nuisance,  602 

TAXES, 

grantee  of  rent-charge,  liable  to  income-tax,  406 

right  of  tenant  to  deduct  income-tax.  from  rent,  439 

outgoings  include  land-tax,  407 

assessment  for  land-tax,  438 

special  agreement  by  tenant  to  pay  land-tax,  439 

right  of  occupier  to  recover  property-tax  on  behalf  of  landlord,  440 

right  of  occupier  to  deduct  property-tax  from  rent,  441 

TENANT, 

agreement  with  landlord  to  accept  new  tenant,  61 

agreement  to  suSer  another  to  become  tenant  for  residue  of  term,  62 

agreement  by  tenant  to  pay  landlord  for  consent  to  assignment  of  term,  06 

right  to  take  water  from  well,  66 

mortgagee  of  tenant's  fixtures  has  an  interest  in  land,  68 

right  of  tenant  for  life  to  sell  growing  timber.  111 

to  cut  ripe  timber,  111 
for  life,  barred  by  lapse  of  time  from  receiving  proceeds  of  timber  cut  by 

previous  tenant.  111 
for  life,  permissive  waste  by,  112 
tenants  in  common  of  a  tree,  their  rights,  116 
tenant's  right  to  dotards,  124 

has  no  right  to  remove  box  edgings  though  planted  by  himself,  125 
sale  of  tenant's  goods  under  bill  of  sale,  276 
bill  of  exchange  by  tenant  to  agent,  277 
distress  after  death  of,  282 
fraudulent  removal  of  goods  by,  284 
demise  by  a  tenant  from  year  to  year,  289 
increase  of  rent  does  not  necessarily  create  new  tenancy,  290 
distress  an  affirmation  of  tenancy,  303 
right  of  tenant  to  away-going  crop,  319 

to  compensation  for  tillages,  320 
outgoing  tenant  must  give  up  possession  to  landlord,  321 
outgoing  tenant's  corn  may  be  distrained  after  expiration  of  term,  321 
right  of  outgoing  tenant  to  away-going  crop,  321 
assignment  of  tenant-right,  323 
compensation  to  outgoing  tenant,  329 

for  drainage  and  manure,  330 
right  of  outgoing  tenant  to  onstand  for  manure,  339 
estoppel  of  tenant  from  denying  landlord's  title,  357 


650  INDEX. 

lESA'ST— continued. 

rights  of  permissive  tenant,  357 

lessee  for  half-year,  tenant  for  years,  410 

new  tenancy  not  created  by  increase  of  rent,  412 

right  of  tenant  to  specific  perfonnance,  414 

estoppel  between  landlord  and  tenant,  418 

arbitrators  between  outgoing  and  incoming  tenant,  419 

refusal  of  entrance  by  lessor  to  new  tenant,  423 

refusal  of  tenant  to  show  farm,  423 

tenant  from  year  to  year  not  bound  to  do  substantial  repairs,  428 

notice  to  quit  when  date  of  commencement  of  tenancy  imknown,  433 

tenancy  of  glebe  lands  under  two  incumbents,  435 

action  in  County  Court  by  landlord  to  evict  tenant,  437 

eviction  of  tenant  when  operating  as  suspension  of  rent,  437 

from  parcel  of  demised  premises,  no  answer  to  action  for  breach 
of  covenant,  437 
special  agreement  by  tenant,  to  pay  land  tax,  439 
right  of  tenant  to  deduct  income-tax,  439 
ownership  and  tenanc  j,  2}7-im a  facie  evidence  of  contract,  447 
holding  over  by  co-tenant,  450 
tenant's  right  to  remove  barn,  455 

stavel  barn,  455 

water  fender,  456 

staddles,  thrashing-machine  and  granary,  457 

barn  on  blocks,  458 

building  when  landlord  finds  materials,  459 

fixture  after  determination  of  tenancy,  460 

pillars  of  brick,  460 
trover  by  tenant  for  fixtures,  461 
removal  of  buildings,  after  ejectment  brought,  461 
leaving  fixtures  in  same  condition,  462 
contract  for  quiet  enjoyment  by,  463 
not  bound  to  take  house  seriously  defective,  464 
paying  tenant-right  to  false  devisee,  471 
trespass  by  tenants  on  waste,  346 
TENANTS- IX-COMMON, 

rights  of,  as  to  timber,  116 

clipping  edge  by  one,  135 

action  for  rent  by,  289 

action  by,  452 

action  by  one,  against  another,  470 

TENANT-RIGHT,  1 
TENDER, 

of  amends  when  not  too  late,  270 

of  rent,  proper  person  to  receive,  271 

of  sufficient  amends,  272 

detaining  cattle  after,  274 

detaining  goods  after  tender  of  rent,  274 

trespass  maintainable  after,  279 


INDEX.  651 

THATCHER, 

liability  for  letting  out  incompetent,  213 

THRASHING-MACHINES, 

implements  of  husbandry,  341 

exempt  from  toll,  except  liable  by  local  act,  342 

action  for  non-delivery  of,  within  certain  time,  510 

TILLAGES, 

agreement  for  sale  of  crops  and  tillages  an  interest  in  land,  61 
payment  by  landlord  for,  331 
valuation  of,  332 

TIMBER, 

sale  of  growing,  55 

right  of  way  to  cart  away,  92 

general  demise  of  land  with,  109 

property  in,  110 

right  to,  when  severed,  110 

action  of  waste  for  felling,  110 

right  of  tenant  for  life  to  sell  growing  timber.  111 

to  cut  ripe  timber.  111 
definition  of  timber,  112 
taking  timber  for  house-bote,  114 
conversion  of  timber  trees,  114 
custom  of  copy-holders  to  fell,  114 
definition  of  timber  trees,  118 
pollard  willows  not,  123 
ornamental  timber,  126 

proceeds  of  timber,  which  required  felling  on  life  estate,  126 
entry  by  landlord  to  cut,  127 
entire  timber  contract,  127 

delivery  and  acceptance  of,  under  Statute  of  Frauds,  130 
right  of  tenant  to  remove  building  when  landlord  finds  part  of,  459 

TITHES, 

right  of  road  for,  93 

can  only  pass  by  deed,  288 

Acts  relating  to,  394 

20  years'  perception  of,  394 

bequest  of  pure  personalty  to  restore  tithes  void,  395 

land  only  liable  for,  395 

intention  of  Tithe  Commutation  Act,  395 

right  of  vicar  to  small  tithes,  396 

of  beans  and  peas,  396 

distress  under  Tithes  Act,  397 

exemption  from,  398 

award  by  Tithe  Commissioner,  399 

actions  against  Tithe  Commissioners,  401 

action  for  treble  value  of,  403 

expenses  incident  to  apportionment  of,  404 


052  INDEX. 

TlTRES—contiimcd. 

assessment  of  to  poor-rate,  405 

annexation  of  portion  of,  to  district  church,  405 

jurisdiction  of  Commissioner  of,  400 

right  of  occupier  of,  to  deduct  curate's  salary  from  rateable  value  of,  407,  408 

assessment  of  occupier  of,  409 

TITLE-DEEDS, 

largest  purchaser  entitled  to,  478 

TOP, 

covenant  not  to  lop  or  top  trees,  109 
rule  as  to  tops  of  hedges,  136 

TRADE   TERMS, 

parol  evidence,  admissible  to  explain,  481 

TRAPS, 

laying,  for  dogs,  389 

TREES. 

general  property  in,  109 

exception  of,  in  lease,  109 

covenant  not  to  lop  or  top,  109 

right  to,  in  churchyards,  113 

cutting  down  ornamental  trees  by  devisee  in  fee,  113 

claim  of  right  to  enter  a  close  and  cut  down,  113 

cutting  down  trees  in  order  to  work  quarries,  115 

trustees  cannot  bring  trover  for  trees  felled,  115 

lessor  may  bring  trover  for  bark  of  trees  cut,  115 

interest  of  lessor  and  lessee  in,  115 

lessee's  general  property  in  trees  not  timber,  116 

tenants  in  common  of  a  tree,  their  rights,  116 

rule  as  to  property  in,  117 

definition  of  timber  trees,  118 

right  of  nurseryman  to  remove  trees,  122 

definition  of  waste  as  applied  to,  122 

covenant  not  to  grub,  125 

cutting  down  willow  trees  to  the  butt,  1 22 

rule  of  standing  trees,  127 

stealing  or  injuring  trees,  136 

TRESPASS, 

trespasser  cutting  timber  by  collusion  with  tenant,  115 

aggravated  trespass  by  landlord,  measure  of  damages  for,  127 

maintainable  after  tender  of  rent  due.  279 

trespassers  ab  initio  in  the  matter  of  a  distress,  304 

right  to  bring,  343 

possessory  right  sufficient  to  maintain,  343 

right  of  churchwardens  and  overseers  to  maintain,  343 

plea  of  not  guilty  to,  344 

for  working  an  estray,  344 

for  breaking  a  dovecote,  344 


INDEX.  653 

TRESPASS— contained. 

possession,  legal  possession  against  trespassers,  345 

maintainable  by  purchaser  of  growing  crops,  317 

on  subsoil,  347 

does  not  lie  for  entering  a  close  to  retake  goods  wrongfully  brought  there,  347 

action  by  reversioner  for,  348 

de  bonis  asportatis  by  auctioneer,  348 

plea  of  leave  and  licence  in,  349 

for  horse-racing,  349 

trespasser's  right  of  action  for  injury,  349 

against  surveyor  of  highways,  351 

for  continuing  building  on  land,  353 

after  notice,  353 

certificate  of  costs  in  action  for,  354 

by  breaking  locks  and  chains,  357 

construction  of  malicious  trespass,  358 

damages  for,  359 

no  notice  necessary  to  trespassers,  363 

provisions  against  trespassers  do  not  apply  to  fresh  pursuit  of  game,  3G3 

reversioner  cannot  apprehend  trespasser.  3(33 

law  as  to  hunting  trespass,  3G5 

inciting  friends  to  commit,  ?,6Q 

in  defiance  of  notice,  366 

no  action  lies  for  involuntary  trespass,  367 

by  dog  against  master's  will,  367 

by  shooting  from  highway,  370 

right  to  apprehend  trespasser,  371 

for  entering  fishery,  375 

conviction  for  trespass,  377 

trespassing  on  land  where  game  reserved  to  lord  of  the  manor,  386 

TRIAL, 

of  horse,  what  is  reasonable,  574 

TRUCK  ACT,  207 

TURBARY. 

trespass  does  not  lie  for  mere  right  of  common  of,  344 

TURNIP  SEED, 
sale  of,  487 

warranty  of  Skirving's  swedes,  488 
contract  to  furnish,  507 
contract  for  sale  of,  536 

TURNPIKES. 

construction  of  "  other  thing  "  in  Turnpike  Roads  Act,  107 
exemptions  from  toll,  340,  341,  342 

TURVES. 

right  to  dig,  an  interest  in  land,  66 

right  to  dig  them  a  profit  aprendre,  78 

exclusive  right  to  dig,  gives  right  to  bring  trespass,  344 


G54  INDEX. 

UXDEKGEOUXD. 

right  of  owner  of  snrfnco  to  uiiilergronml  strata,  81 

CJNDEK-LESSEE, 

power  of,  to  distrain,  289 

rNDEELETTING, 
penalty  for.  314 

not  excluded  by  words  "  use  and  occupation,"  449 
covenant  not  to  underlet,  453 

UXDEEWOOD, 

sale  of  growing,  an  interest  in  land,  HO 
meaning  of  "woods  and  underwoods,"  109 
larch  not  saleable  underwoods,  119 
rating  of  saleable  underwoods,  119 

injunction  granted  against  tenant  for  life  cutting  underwood  of  insufficient 
growth,  121 

UNITY  OF  OWNERSHIP, 

destroys  prescriptive  right,  76 
destroys  obligation  to  repair  fences,  135 

UNITY  OF  POSSESSION. 

suspends  title  by  prescription,  7G 

defeats  easement,  83 

effect  of,  on  way  of  necessity,  88 

UNSOUNDNESS, 

positive  proof  of,  when  necessary,  5G3 

what  constitutes,  564 

permanent  cough,  568 

roaring,  568 

stringhalt,  569 

laminitis,  569 

contraction  of  hoof,  569 

navicular  joint -disease,  569 

chest-foundered,  570 

cataract,  570 

affection  of  nerves  in  lumbar  region,  570 

badness  of  shape  not,  570 

curby-hocks,  570 

thin  soles,  571 

splint,  571 

purchaser's  duty  to  return  unsound  horse,  593 

purchaser's  duty  when  warranted  horse  proves  unsound,  595 

USE  AND  OCCUPATION, 
action  for,  445 

implied  agreement  to  pay  for,  446 
when  it  will  lie.  446 

may  lie  where  action  for  rent  not  maintainable,  446 
will  not  lie  when  title  in  dispute,  446 
docs  not  include  underletting.  449 


INDEX.  G5i 

USER. 

plea  of  40  years',  82 

immemorial  right  of  way  not  lost  by  non-user,  Sfi 

presumption  of  abandonment  not  to  be  made  from  mere  non-user,  86 

proof  of  user  of  right  of  common  of  pasture,  84 

of  way  for  agricultural  puposes,  91 

VALUATION, 

of  tillages,  332 

what  stamp  sufficient  for,  332 

fair  valuation  or  consuming  price,  334 

of  rent-charge,  394 

agreement,  465 

agreement  to  bring  value  of  straw  back  in  manure,  335 

meaning  of  "  value  of  straw,"  336 

right  of  outgoing  tenant  for  onstand  for  manure  sold  at  a  valuation,  339 

VALUER, 

of  ecclesiastical  property,  amount  of  knowledge  required  in,  333 

duties  of,  333 

disqualification  of,  by  interest,  404 

VEGETABLES, 

agreement  for  sale  of,  an  interest  in  land,  54 

VENDEE, 

right  of  way  of,  to  lands  purchased,  90 

refusal  of,  to  complete  purchase  for  want  of  way  to  land  purchased,  90 

right  of,  to  insist  on  vendor's  personal  receipt  of  money,  475 

right  of,  to  recover  preliminary  expenses,  475 

VENDOR, 

annexation  by,  of  rights  connected  with  land,  87 

right  of,  to  rescind  contract,  474 

right  of  vendee  to  insist  on  vendor's  personal  receipt  of  money,  475 

right  of  vendor,  to  recover  preliminary  expenses,  475 

refusal  of,  to  show  in  bulk,  482 

cannot  recover  price  of  part  of  contract,  491 

rights  of,  in  public  market,  518 

liable  for  false  representation  of  lease,  538 

VETERINARY 

surgeon  liable  for  negligence  of  his  servant,  213 
warranty  by  veterinary  surgeon  as  agent,  557 
livery-stable  keeper  no  lien  for  veterinary  charges,  576 
claim  by  veterinary  surgeon,  579 

WAGES, 

forfeiture  of,  by  misconduct,  200 
presumptive  evidence  of  payment  of,  1 99 
claim  for,  during  temporary  illness,  199 

WAIVER, 

filling  up  bond  by  purchaser  before  payment  no  waiver  of  title,  124 


656  INDEX. 

WAT^RAXTY, 

by  skilled  person  that  he  possesses  skill  requisite  to  perform  the  task  which 

he  undertakes,  203 
sale  of  seed  not  corresponding  with,  480 
notice  necessary  that  article  does  not  correspond  with,  487 
application  of  Statute  of  Limitations  in  such  cases,  487 
of  Skirving's  swedes,  488 

seed  wheat,  488 

sound  meat,  489 

seed  barley,  514 

seed,  526 
where  not  implied,  527 
not  implied,  that  meat  fit  for  food,  528 
of  soundness  in  horse,  542 

distinction  between  warranty  and  representation,  542 
"  this  horse  is  sound,"  a  warranty,  542 
general  rule  as  to,  543 
of  horse  being  clever  hack,  544 
unauthorised  warranty  by  servant,  545 

horse  warranted  6  years  old,  but  actually  12,  may  be  returned,  551 
private  warranty  incorporated  into  conditions  of  sale,  551 
written  warranty,  552 
general  rule  as  to,  553 
by  servant  of  horse-dealer,  554 
by  stranger,  555 

by  servant,  merely  entrusted  to  deliver,  555 
rule  of  master  taking  back  horse  which  will  not  stand  to  warranty  given  by 

servant,  556 
by  veterinary  surgeon  as  agent,  557 
plea  of  breach  of  warranty,  558 
stamp  on  warranty,  558 
that  horse  "  sound  and  quiet  in  harness,"  561 

"  good  drawer,"  561 
when  continuing,  563 

recovery  of  keep  when  warranty  broken,  593 
purchaser's  duty  when  warranted  horse  proves  unsound,  595 

WAEREN, 

breaking  up  rabbit  warren,  when  not  waste  at  common  law,  310 
penalty  for  taking  rabbits  by  night  in,  373 
franchise  of  free  warren,  384 

WATER, 

right  of  way  of  passage  of,  70 
licence  to  divert,  73 
claim  to  spring  of,  74 
right  to  use  running,  77 
right  to  take  from  well,  78 
right  to  take  pot  water,  78 
right  to  water  cattle,  78 


INDEX.  657 

WAT'El'R—co7iti7itied. 

discharging  eaves'  water  on  reversioner's  land,  107 

right  of  fishing  passes  by  grant  of,  170 

right  of  riparian  owners  to,  171 

flowing  in  a  stream  is  puhlici  juris,  172 

appropriation  of  running  water,  173 

right  to  water  not  in  a  flowing  stream,  174 

law  of  right  to  a  spring  of  water,  175 

law  as  to  flowing  water,  176 

abstraction  of  subterranean  water,  177 

law  as  to  artificial  water  courses,  180 

flow  of  water  from  and  into  collieries,  180 

right  of  polluting  water,  subject  of  grant,  181 

presumptive  right  to  pollute,  180 

difference  between  drain  and  water-course,  182 

flow  of,  fi'om  drain  for  agricultural  improvements,  183 

right  to  artificial  water-course,  181 

rights  as  to  rain  water,  185 

surface  water,  186 

diversion  of,  for  irrigation,  189 

escaping  from  railway  cuttings  into  mine,  196 

working  mines  under  water-course,  196 

supplying  horses  with,  from  public  fountain,  197 

compensation  to  tenant  for  life  for  loss  of,  198. 

WASTE, 

action  of,  for  felling  timber,  110 

right  of  tenant  for  life  to  sell  severed  timber  without  impeachment  of,  111 

permissive,  by  tenant  for  life,  112 

when  action  for,  will  not  lie  by  one  tenant  in  common  against  another,  116 

acts  of,  307 

by  ploughing  up  ancient  meadow,  308 

by  breaking  up  rabbit  warren,  310 

right  of  lessor  to  sue  for,  309 

right  of  reversioner  to  prevent,  309 

by  ploughing  up  pasture,  312 

by  sowing  noxious  plants,  313 

overcropping  not,  315 

inclosure  of,  by  churchwardens  and  overseers,  343 

encroachments  by  tenants  on,  presumably  for  benefit  of  landlord,  346 

claim  to  waste  land,  by  lord  of  manor,  346 

dilapidations  of  buildings  built  on,  431 

property  in  waste  laud  adjoining  road,  143 

WAY, 

right  of,  definition  of,  70 

plea  of  40  years'  user  of,  82 

continuous  enjoyment  of  right  of,  83 

plea  of  one  year's  enjoyment  of  way  under  stat.  2  &  3  Will.  IV.,  c.  71,  s.  2,  84 

immemorial  right  of  way  not  lost  by  non-user,  86 


658  INDEX. 

WAY — contin  ucd. 

presumption  of  abandonment  not  to  be  made  from  non-user,  86 

parol  agreement  for  substitution  of  new  way  no  evidence  of  abandonment,  87 

of  necessity,  87 

cannot  be  pleaded  without  showing  its  character,  88 

effect  of  unity  of  possession  of,  88 

law  as  to,  88 
definition  of,  88 

limited  by  necessity  which  created  it,  89 
arises  from  presumed  grant,  89 

right  of,  can  only  arise  by  grant,  90 
limited  dedication  of  way  to  the  public,  91 
valid  dedication  of.  to  the  public,  how  made,  91 
right  of,  for  agricultural  purposes,  91 

to  cart  away  timber,  92 
prescriptive  right  of,  for  carriages,  92 
claim  of,  for  cattle  and  carts,  how  proved,  93 
plea  of  right  of,  for  horses,  waggons,  &c.,  93 
right  of,  for  farming  purposes  does  not  include  all  purposes,  93 

for  tithes,  93 

grantee  of  an  occupation  way,  93 
obstruction  of  public  footway,  94 
distinction  between  private  and  public  way,  103 
presumption  of  property  in  private  way,  103 
right  of,  appurtenant  to  plot,  104 
implied  grant  of  way  of  necessity,  104 

power  of  Inclosure  Commissioners  to  set  out  private  road,  105 
appropriation  of  private  way,  105 
right  of  way  under  deed  of  partition,  105 
dedication  of  private  road  to  public,  106 
selling  one  part  of  settled  estate  to  pay  for  making  roads  through  another  part, 

106 
excavation  near  footway,  350 
reasonable  use  of  right  of  way,  357 

WEIGHTS  AND  MEASURES 
in  different  markets,  521 
abolition  of  local  measures,  522 
sale  by  the  hobbett,  522 

WELL, 

right  to  take  water  from,  78 

claim  to  spring  of  water,  74 

right  to  take  water  from  a  well  not  a  profit  a  jJi'endre,  79 

law  of  right  to  a  spring,  175 

right  to  sink  wells,  177 

right  to  cut  off  spring  at  source,  179 

aVjstraction  of  subterranean  water  by  sinking  well,  177 

WILD-FOWL, 

penalty  for  shooting,  near  decoy,  385 


INDEX.  659 


WINCHESTER  BUSHEL 
an  illegal  measiire,  521 


WINDOWS, 

stopping  \\\),2)rlmd  faeie  abandonment,  77 

obstmction  of  ancient,  77 

prescriptive  right  to  light  for,  96 

twenty  years'  enjoyment  of  light,  97 

ancient  lights  may  be  altered,  not  enlarged,  97 

new  lights  not  corresponding  with  old,  98 

WOODS, 

meaning  of,  109 
rating  of,  119 

WOODWARDS, 

their  right  to  grant  licences  to  free  miners,  80 

WORRYING 

of  sheep  by  dogs,  157,  158 


THE    END. 


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"Wharton's  Articled  Clerk's  Manual.— A  Manual 
for  Articled  Clerks  :  being  a  comprehensive  Guide  to  their  successful 
Examination,  Admission,  and  Practice  as  Attorneys  and  Solicitors 
of  the  Superior  Courts.  Ninth  Edition.  Greatly  enlarged.  By 
C.  H.  ANDERSON.     Royal  12mo.     1864.  18s. 

♦  -  *  AU  standard  Law  Works  are  kept  in  Stock,  in  law  calj  and  other  bindings. 


119,  CHANCERY  LANE,  LONDON,  W.C, 


ARTICLES  OF  ASSOCIATION.— Palmer.— Fide  "Conveyancing." 
ATTORNEYS.— Cordery.—FiJe"  Solicitors," 

PuUing's  Lavs/-  of  Attorneys,  General  and  Special, 
Attorneys-at-Law,  Solicitors,  Notaries,  Proctors,  Conveyancers, 
Scriveners,  Land  Agents,  House  Agents,  &c.,  and  the  Offices  and 
Appointments  usually  held  by  them,  &c.  By  ALEXANDEli 
PULLING,  Serjeant-at-Law.  Third  Edition.  8vo.  1862.  18s. 
"  It  is  a  laborious  work,  a  careful  work,  the  work  of  a  laivj-er,  and,  beyoud  comparison 
the  best  that  has  ever  been  produced  upon  this  subject." — Law  Times. 

Smith. — The  Lawyer  and  his  Profession, — A 
Series  of  Letters  to  a  Solicitor  commencing  Business.  By  J. 
OETON  SMITH.     12mo.     1860.  45. 

AVERAGE.— Hopkins'  Hand-Book  on  Average.— Third 

Edition.     8vo.     1868,  18s. 

Lowndes'   Law  of  General  Average. — English  and 

Foreign.      Third  Edition.      By  RICHARD    LOWNDES,  Author 

of  "  The  Admiralty  Law  of  Collisions  at  Sea."  Royal  8 vo.   1878.    21s. 

BALLOT. — FitzGerald's  Ballot  Act. — With  an  Introduction, 

Forming  a  Guide  to  the  Procediire  at  Parliamentary  and  Municipal 

Elections.    Second  Edition.    Enlarged,  and  containing  the  Municipal 

Elections  Act,  1875,  and  the  Parliamentary  Elections  (Returninor 

Officers)  Act,  1875.     By  GERALD  A,  R.  FITZGERALD,  M,  A.,  o1 

Lincoln's  Inn,  Esq.,  Barrister-at-Law,     Fcap,  8vo,     1876.      5s.  6d 

"A  useful  guide  to  all  concerned  in  Parliamentary  and  Municipal  Elections." — Lavj 

Magazine. 

"  We  should  strongly  advise  any  person  connected  with  elections,  whether  acting  as 
candidate,  agent,  or  in  any  other  capacity,  to  become  possessed  of  this  manual." 

BANKING. — "Walker's  Treatise  on  Banking  Law.  In- 
cluding the  Crossed  Checks  Act,  1876,  with  dissertations  thereon,  also 
references  to  some  American  Cases,  and  full  Index.  By  J.  DOUGLAS 
WALKER,  Esq. ,  Barrister-at-Law.     Demy  8vo.     1877.  14s. 

"The  work  has  been  carefully  written,  and  will  supply  the  want  of  a  compact  sum- 
mary of  Banking  Law." — Solicitors'  Journal. 

'•  Persons  who  are  interested  in  banking  law  may  be  guided  out  of  many  a  difficulty 
by  consulting  Mr.  Walker's  volume." — Law  Times. 

BANKRUPTCY.— Bedford's  Final  Examination  Guide 
to  Bankraptcy.—Third  Edition.     12mo.     1877.  6s. 

Haynes. —  Vide  "Leading  Cases." 

Lynch's  Tabular   Analysis   of    Proceedings   in 

Bankruptcy,  for  the  use  of  Students  for  the  Incorporated  Law 

Society's  Examinations.     Second  Edition.     8vo.     1874.  Net,  Is. 

Scott's  Costs  in  Bankruptcy. —  Ficfe"  Costs." 

Smith's  Manual  of  Bankruptcy. — A  Manual  relating 

to  Bankruptcy,  Insolvency,  and  Imprisonment  for  Debt ;  comprising 

the  New  Statute  Law  verbatim,  in  a  consolidated  and  readable  form. 

With  the  Rules,  a  Copious  Index,  and  a  Supplement  of  Decisions. 

By  JOSIAHW.  SMITH,  B.C.L.,  Q.C.    12mo.     1873.  10s. 

*,*  The  Supplement  may  be  had  separately,  net,  2s.  6d. 

Williams'   Law  and    Practice  in    Bankruptcy; 

comprising  the  Bankruptcy  Act,  the  Debtors  Act,  and  the  Bankruptcy 

Repeal  and  Insolvent  Court  Act  of  1869,  and  the  Rules  and  Forms 

made  under  those  Acts.  Second  Edition.  By  ROLAND  VAUGHAN 

WILLIAMS,  of  Lincoln's  Inn,  Esq. ,  and  WALTER  VAUGHAN 

WILLIAMS,  of    the   Inner   Temple,  Esq.,  assisted   by   Feancis 

Hallett  Haedcastle,  of  the  Inner  Temple,  Esq.,  Barristers-at- 

Law.     8vo.     1876.  11.  8s. 

" '  Williams  on  Bankruptcy'  is  quite  satisfactory."— Xaj«  Magazine. 

• '  It  would  be  difficult  to  speak  in  terms  of  undue  praise  of  the  present  work." 

*.  *  All  standard  Laio  Works  are  Jcept  in  Stock,  in  law  calf  and  other  bindings. 

A  2 


.1  STEVENS   AND   SONS'  LAW   PUBLICATIONS. 


BAR,  GUIDE  TO  THE.— Shearwood. —  Firfe  "  Examination  Guides." 

BILLS  OF  EXCHANGE.— Chalniers'   Digest  of  the  Law 

of  Bills  of  Excliange,  Promissory  Notes,  and 

Clieques.     By  M.  D.  CHALMERS,  of  the  Inner  Temple,  Esq. 

Barrister-at-Law.     Demy  Svo.     1878.  12s.  6c?. 

•»*This  work  is  in  tlie  form  of  the  Indian  Codes,  besides  the  English  Cases  it  is  noted 
up  with  reference  to  the  Frencli  Law  and  the  German  Code,  and  on  doubtful  points  to 
the  more  recent  .-Iniericau  Decisions ;  it  also  contains  a  table  of  overruled  or  doubted  cases. 

"Mr.  Chalmers  has  doao  wisely  in  cistiucr  his  book  into  its  present  form,  and  tho 
plan,  tliiis  well  conceived,  has  been  most  eifectually  carried  out.  As  a  handy  book  of 
refer'once  on  a  difficult  and  important  branch  of  the  law,  it  is  most  valuable,  and  it  is 
perfectly  plain  that  no  pains  have  been  spared  to  render  it  complete  in  every  respect. 
The  index  is  copious  and  well  arranged." — Saturday  Ri'vieir. 

"  The  book  is  not  only  well  jilauned,  but  well  executed for  the  risinpr  genera- 
tions and  formeu  of  business  this  digest  will  be  a  gift  of  no  small  value."  —Pall  Mai 
Gazette. 

Chitty  on  Bills  of  Exchange  and  Promissory 
Notes,  -with  references  to  the  law  of  Scotland, 
Fraiice  and  Annerica. — Eleventh  Edition.  By  JOHN  A. 
KUSSELL,Esq.,LL.B.,  one  of  Her  Majesty's  Counsel,  and  Judge 
of  County  Courts.     Demy  Svo.     1878.  V.  8s. 

Eddis' Rule  of  Ex  parte  Waring.    By  A.  C.  EDDIS, 
B.A.,  of  Lincoln's  Inn,  Barrister-at-Law.    Post  Svo.    1876.  Net,2s,Qd. 
BILLS  OF  SALE — Cavanagh.— T7f?e  "  Money  Securities." 

Millar's  Bills  of  Sale. — A  Treatise  on  Bills  of  Sale,  with  an 

Appendix  contamin^  the  Acts  for  the  Registration  of  Bills  of  Sale 

Precedents,  &c.  (being  the  Fourth  Edition  of  Millar  and  Collier's 

Treatise  on  Bills  of  Sale).     By  E.  C.  J.  MILLAR,  of  the  Inner 

Temple,  Esq.,  Barrister-at-Law.     12mo.     1877.  12s 

"  The  original  work  is  brought  down  to  date,  and  the  latest  cases  are  referred  to  and 

considered.      Tho  value  of  the  work  is   enhanced  throughout  by  careful  annotation." 

— Law  Magazine. 

BOOK-KEEPING.— Bedford's  Intermediate  Exannina- 
tion  Guide  to  Book-keeping. — Second  Edition.  12mo. 
1875.  Net,  2s.  Qd. 

CANAL  TRAFFIC  ACT.— Lely's  Rail>Aray  and  Canal  Traf- 
fic Act,  1873. — And  other  Railway  and  Canal  Statutes  ;  with 
the  General  Orders,  Forms,  and  Table  of  Fees.     Post  Svo.     1873.     8*. 

CARRIERS. — Browne  on  Carriers.— A  Treatise  on  the  Law  of 
Carriers  of  Goods  and  Passengers  by  Land  and  Water.  With 
References  to  the  mo.st  recent  American  Decisions.  By  J.  H. 
BALFOUR  BROWNE,  of  the  I\liddle  Temple,  Esq.,  Barrister-at- 
Law,  Registrar  to  the  Railway  Commission.    Svo,    1873.  ISs. 

CHANCERY,  and  Vide  "  EQUITY.'' 

Daniell's  Chancery  Practice. —  Sixth  Edition,  by 
LEONARD  FIELD  and  EDWARD  CLENNELL  DUNN, 
Barristers-at-Law;  assisted  by  W.  H.  UPJOHN,  Student  and 
Holt  Scholar  cf  Gray's  Inn,  &c.,  &c.,  Editor  of  "  Daniell's  Forms, 
Third  Edition."     2  vols.     Svo.  (In  i>rcparatton.) 

Daniell's  Forms  and  Precedents  of  Proceed- 
ings in  the  Chancery  Division  of  the  High 
Court  of  Justice  and  on  Appeal  therefrom; 
with  Di.ssertations  and  Notes,  forming  a  complete  guide  to  the  prac- 
tice of  the  Chancery  Division  of  the  High  Court  and  of  the  Courts 
of  Appeal.  Being  the  Third  Edition  of  "Daniell's  Chancery  Forms." 
By  WILLIAM  HENRY  UPJOHN,  Esq.,  Student  and  Holt 
Scholar  of  Gray's  Inn,  Exhibitioner  in  .lurisprudence  and  Roman 
* ^*  All.  atandurJ.  Law  Works  are  kept  in  Stock,  in  law  calf  and  other  bindings. 


119,  CHANCEBY  LANE,  LONDON,  W.G.  5 

CHANCERY. -Continued. 

Law  in  the  University  of  London,  Holder  of  the  First  Senior  Stu- 
dentship in  Jurisprudence,  Roman  Law  and  International  Law 
awarded  by  the  Council  of  Legal  Education  in  Hilary  Term,  1879. 
In  one  thick  vol.     Demy  8vo.     1879.  21.  2s. 

"  Mr.  Ujijolm  has  restored  tlie  volume  of  Chancery  Forms  to  the  place  it  held  before 
the  recent  changes,  as  a  trustworthy  and  comijletc  collection  of  precedents.  It  has 
all  the  old  merits  ;  nothing  is  omitted  as  too  trivial  or  commonjilacc  ;  the  solicitor's 
clerk  finds  how  to  indorse  a  brief,  and  how,  when  necessary,  to  give  notice  of  action  ; 
and  the  index  to  the  forms  is  full  and  perspicuous."—  Solicitors'  Journal. 

"  It  will  be  as  useful  a  work  to  practitioners  at  Westminster  as  it  will  be  to  those  in 
Lincoln's  Inn." — Law  Times. 

Haynes'    Chancery    Practice. — The   Practice   of 

the  Chancery  Division  of  the  High  Court  of 

Justice  and  oii  Appeal  therefronn,  for  the  use 

of    Practitioners    and    Students.  —  By   JOHN    F. 

HAYNES,  LL.D.     Author  of  the  "  Student's  Leading  Cases,"  &c. 

Demy  Svo.     1879.  1^.  5s. 

"Materials  for  enabling  the  practitioner  himself  to  obtain  the  information  he  may 

require  are  placed  before  him  in  a  convenient  and  accessible  foim.     The  arrangement  of 

Hie  work  appears  t>  be  good." — Laro  Magazine  and  Review,  February,  1880. 

Morgan's  Chancery  Acts  and  Orders. — The  Statutes, 
General  Orders,  and  Rules  of  Court  relating  to  the  Practice, 
Pleading,  and  Jurisdiction  of  the  Supreme  Court  of  Judicature, 
particularly  with  reference  to  the  Chancery  Division,  and  the 
Actions  assigned  thereto.  With  copious  Notes.  Fifth  Edition. 
Carefully  revised  and  adapted  to  the  new  Practice  by  GEORGE 
OSBORNE  MORGAN,  M.P.,  one  of  Her  Majesty's  Counsel,  and 
CHALONER  W.  CHUTE,  of  Lincoln's  Inn.  Barrister- at-Law,  and 
late  Fellow  of  Magdalen  College,  Oxford.  Demy  Svo.  1876.  1^.105. 
"This  edition  of  Mr.  Morgan's  treatise  must,  we  believe,  be  the  most  popular  with  the 
profession." — Lewi  Times. 

Morgan  and  Davey's  Chancery  Costs. — Vide"Costs." 

Peel's   Chancery  Actions. — A    Concise   Treatise 

on   the  Practice  and  Procedure  in  Chancery 

Actions.— By  SYDNEY  PEEL,  of  the  Middle  Temple,  Esq., 

Barrister- at-Law.     Demy  8vo.    1878.  7s.  6d. 

"To  Chancery  practitioners  of  both  branches  the  volume  will  doubtless  prove  very 

useful." — Law  Times. 

CHANCERY  PALATINE  OF  LANCASTER.— Snow  and  V/in- 
staiiley's  Chancery  Practice. — The  Statutes,  Consoli- 
dated and  General  Orders  and  Rules  of  Cotu't  relating  to  the  Practice, 
Pleading  and  Jurisdiction  of  the  Court  of  Chancery,  of  the  County 
Palatine  of  Lancaster.  With  Copious  Notes  of  all  practice  cases  to 
the  end  of  the  year  1879,  Time  Table  and  Tables  of  Costs  and  Forms. 
By  THOMAS  SNOW,  M.A.,  and  HERBERT  WINSTANLEY, 
Esqrs.,  Barristers-at-Law.     Royal  8vo.      1880.  [Nearhi  ready.) 

CIVIL  LAW. — Bo^A^yer's  Commentaries  on  the  Modern 
Civil  Law.— By  Sir  GEORGE  BOWYER,  D.C.L.,  Royal 
Svo.     1848.  18s. 

Bowyer's  Introduction  to  the  Study  and  Use 
of  the  Civil  Law.— By  Sir  GEOBGE  BOWYER,  D.C.L. 
Royal  Svo.     1874.  5s. 

Cumin's  Manual  of  Civil  Law,  containing  a  Translation 
of,  and  Commentary  on,  the  Fragments  of  the  XII.  Tables,  and 
the  Institutes  of  Justinian  ;  the  Text  of  the  Institutes  of  Gains  and 
Justinian  arranged  in  parallel  columns  ;  and  the  Text  of  the  Frag- 
ments of  Ulpian,  &c.  By  P.  CUMIN,  M.A.,  Barrister-at-Law. 
Second  Edition.     Medium  Svo.     1865.  _       18s. 

*»*  A II  standard  Law  Worlds  are  kept  in  Stock,  in  law  calf  and  other  Undings, 


6  STEVENS  AND   SONS'    LAW  PUBLICATIONS. 

CIVIL  LAYt -Continued. 

Voet  Conimentarius  ad  Pandectas,  Translated 
into  English.— Part  I.  The  Contract  of  Sale.  (Book  xviii.) 
By  SIR  KOLAND  KNYVET  WILSON,  Bart.,  of  Lincoln's  Inn, 
Barrister-at-Law.     Royal  Svo.     1876.  Net  11  Is. 

COLLISIONS.— Lowndes' Admiralty  Lav^  of  Collisions 
at  Sea.— 8vo.    1867.  7s.  ed. 

Marsden  on  Maritime  Collisioii.— A  Treatise  on  the 
Law  relating  to  Collisions  between  Ships,  Compulsory  Pilotage,  and 
the  Rnle  of  the  Road  at  Sea.  With  a  Summary  of  English  and 
American  Decisions  thereon,  references  to  Foreign  Law,  and  an 
Appendix  containing  the  International  Regulations  (of  1863  and  1880) 
for  preventing  Collisions  at  Sea  ;  the  Thames,  Mersey,  and  other  local 
Rules  of  Na^•i■4ation  ;  and  Extracts  from  the  Merchant  Shipping 
Acts.     By  REGINALD  G.  MARSDEN,  Esq.,  Barrister-at-Law. 

(In  the  jjress.) 

COLONIAL  LAW. —Clark's  Colonial  Law.— A  Summary  of 
Colonial  Law  and  Practice  of  Appeals  from  the  Plantations.  Svo. 
1S34.  1^-  4s. 

COMMENTARIES  ON  THE  LAWS  OF  ENGLAND.— Bedford.— 
Vide  "Examination  Guides." 
Broom  and  Hadley's  Conimentaries  on  the 
Laws  of  England.— By  HERBERT  BROOM,  LL.I).,  of 
the  Inner  Temple,  Barrister-at-Law  ;  and  EDWARD  A.  HAD- 
LEY,  M.A.,  of  Lincoln's  Inn,  Barrister-at-Law  ;  late  Fellow  of 
Trinity  CoU.,  Cambridge.     4  vols.     Svo.      1869.  SI.  2s. 

"  Messrs.  Broom  and  Hadley  bave  been  unsparing  iu  their  editorial  labours.    There 

are  abundant  reference  notes,  so  that  the  diligent  student  can  consult  the  authorities 

if  he  is  so  disposed.     Nothing  that  could  be  done  to  make  the  work  useful  and  handy 

has  been  left  undone. "—iaw  Journal. 

Dickson's  Analysis  of  Blackstone's  Coi-nnien- 
taries.— In  Charts  for  the  use  of  Students.  By  FRP^DEUICK 
S.  DICKSON.     4to.  lO.s.  Qd. 

COMMERCIAL  LAW.— Levi.— F/r?c  "  International  Lav/." 
COMMON  LAW,— Archbold's  Practice  of  the  Queen's 
Bench,  Comnion  Pleas  and  Exchequer  Divi- 
sions of  the  High  Court  of  Ji.istice  in  Actions, 
etc.,  in  which  they  have  a  common  jurisdic- 
tion.—Thirteenth  Edition.      By  SAMUEL   PRENTICE,  Esq., 
one  of  Her  Majesty's  Counsel.     2  vols.     Demy  Svo.     1879.     3/.  3s. 
Archibald. —  Vide  "Judges'  Chambers  Practice." 
Chitty. —  Vide  "Forms."  Foulkes. —  Vide  "Action." 

Fisher. —  FuZc  "  Digests."  Prentice. —  Vide  "Action." 
Smith's  Manual  of  Common  Law. — For  Practitioners 
and  Students.  A  Manual  of  Common  Law,  comprising  the  funda- 
mental principles  and  the  points  most  usually  occurring  in  daily 
life  and  practice.  By  JOSIAH  W.  SMITH,  B.C.L.,  Q.C. 
Eighth  Edition.     12mo.     1878.  14s. 

COMMONS  AND  INCLOSURES.— Chambers'  Digest  of  the 
Law  relating  to  Conimons  and  Open  Spaces, 
including  Public  Parl<s  and  Recreation  (Grounds,  with  various  official 
documents  ;  precedents  of  by-laws  and  regulations.  The  Statutes  in 
full  and  brief  notes  of  leading  cases.  By  GEORGE  F.  CHAM- 
BERS, of  the  Inner  Temple,  Esq.,  Barrister-at-Law,  Imperial 
Svo.     1877.  6s.  &d. 

Cooke  on  Inclosures.— With  Forms  as  settled  by  the 
Inclosure  Commissioners.  By  G.  WINGROVE  COOKE,  Esq., 
Barrister-at-Law.     Fourth  Edition.     12mo.     1864.  16s, 

♦fc*  All  standard  Law  Worlcs  are  kept  in  Stock,  in  law  calf  and  other  lindings. 


119,  CHANCERY  LANE,  LONDON,  W.C. 


COMPANY  LAW.— Finlason's  Report  of  the  Case  of 
Twycross  v.  Grant.     8vo.     1877.  Net,2s.  6d. 

Palmer. —  Vide  " Conveyancing." 

Palmer's  Shareholders'  and  Directors'  Com- 
panion.— A  Manual  of  every-day  Law  and  Practice  for  Pro- 
moters, Shareholders,  Directoi-s,  Secretaries,  Creditors  and  Solicitors 
of  Companies,  under  the  Companies'  Acts,  18G2,  1SG7,  and  1877. 
Second  Edition.  By  FEANC^IS  B.  PALMER,  Esq.,  Barrister-at- 
Law,  Author  of  "Company  Precedents."  12mo.  1880.  Net,  2s.  6d. 
Thring.— Fz'rfe  "Joint  Stocks." 
CONTINGENT  REMAINDERS.— An  Epitome  of  Fearne  on 
Contingent  Remainders  and  Executory  De- 
vises. Intended  for  the  Use  of  Students.  By  W.  M.  C.  Post 
8vo.     1878.  6s.  6d. 

"An  acqu.ain(auce  with  Fearne  is  indispensable  to  a  student  who  desires  to  he 
thoroughly  grounded  in  the  common  law  relating  to  real  property.  Such  student  will 
find  a  perusal  of  this  epitome  of  great  value  to  him." — Law  Journal. 

CONSTITUTIONAL   LAW.— BoAA^yer's  Cominentaries  on 
the    Constitutional    Law    of   England. — By    Sir 
GEO.  BOWYER,  D.C.L.  Second  Edition.  Pioyal  8vo.  1846.    11.  2s. 
Haynes. —  Vide  "Leading  Cases." 

CONTRACTS. — Addison  on  Contracts. — Being  a  Treatise  on 
the  Law  of  Contracts.  By  C.  G-.  ADDISON,  Esq.,  Author  of 
the  "  Law  of  Torts."  Seventh  Edition.  By  L.  W.  CAVE,  Esq.,  one 
of  Her  Majesty's  Counsel,  Recorder  of  Lincoln.  Royal  8vo. 
1875.  11. 18s. 

"At  present  this  is  by  far  the  best  book  upon  the  La%7  of  Contract  possessed  by  the 

Profession,  and  it  is  a  tlioroughly  practical  book." — Law  Times, 

Leake  on  Contracts. — An  Elementary  Digest  of  the  Law 

of  Contracts  (being  a  new  edition  of  "The  Elements  of  the  Law  of 

Contracts").      By  STEPHEN    MARTIN   LEAKE,  Barrister-at- 

Law.     1  vol.     Demy  Svo.     1878,  11.  18s. 

Pollock's    Principles    of    Contract    at  Law  and    in 

Equity  ;  being  a  Treatise  on  the  General  Principles  relating  to  the 

Validity  of  Agreements,  with  a  special  view  to  the  comparison  of 

Law  and  Equity,  and  with  references  to  the   Indian  Contract  Act, 

and  occasionally  to  American  and  Foreign  Law.     Second  Edition. 

By  FREDERICK  POLLOCK,  of  Lincoln's  Inn,  Esq..  Barrister-at- 

Law.     Demy  8vo.     1878.  1?.  6s. 

The  Lord  Chief  Justice  in  his  judgment  in  Metropolitan  Raihtay  Comparty  v.  Brog- 

den  and   ot/iers,  said,  "The  Law  is  well  put  by  Mr.  Frederick  Pollock  in  his 

very  able  and  learned  work  on  Contracts."— 77ie  Times. 

"For  the  purposes  of  the  student  there  is  no   book  equal  to  Mr.  Pollock's." — The 

Economist. 

"  He  has  succeeded  in  writing  a  book  on  Contracts  which  the  working  lawyer  will  find 
as  useful  for  reference  as  any  of  its  predecessors,  and  which  at  the  same  time  will  giye 
the  siudent  what  he  will  seek  for  in  vain  elsewhere,  a  complete  rationale  of  the  law,  — 
Law  Magazine  and  Review. 

"  We  see  nothing  to  qualify  in  the  praise  we  bestowed  on  the  first  edition.  The  chapters 
on  unlawful  and  impossible  agreements  are  models  of  full  and  clear  treatment."— iSWicito)*' 
Journal. 

Smith's  La^AT  of  Contracts.— By  the  late  J.  W.SMITH, 
Esq.,  Author  of  "  Leading  Cases,"  &c.  Seventh  Edition.  By 
VINCENT  T.  THOMPSON,  Esq.,  Barrister-at-Law.     Demy  8vo. 

1878.  1^.  Is. 

"  We  know  of  few  books  equally  likely  to  benefit  the  student,  or  marked  by  such  dis- 
tinguished qualities  ol  lucidity,  order,  and  accuracy  as  tlie  work  before  us." — Solicitors' 
Jovrnal,  December  28, 1878. 

*^*  All  standard  Law  Works  are  kept  in  Stock,  in  law  calf  and  other  bindings. 


8  STEVENS   AND   SONS'    LAW   PUBLICATIONS. 

CONVICTIONS.— Paley's  Law  and  Practice  of  Sum- 
mary Convictions  under  the  Summary  Juris- 
diction Acts,  1848  and  1879;  iududiug  Proceeding.s 
prdiminary  and  subsenueiit  to  Cdnvictimis,  and  the  responsibility 
uf  convicting  ^^agistl■atl■s  and  their  OHicers,  with  Forms.  Sixth 
Edition.  By  W.  II.  MACNAMAKA,  Esq.,  Barrister  at- Law. 
Demy  8vo.     1879.  1'.  4.s. 

Stone. —  Vide  "  Petty  Sessions." 
Teinpler. —  Vide  "  Snmmary  Convictions." 
Wigrain.  —  Vide  "Justice  of  the  Peace." 
CONVEYANCING.— Dart.—  r/Je  "Vendors  and  Purchasers." 

Greenwood's  Manual  of  Convey  ancing.—AManual 

of   the   Practice   of    Conveyancing,    show-ing    the   present    Practice 

relating  to  the  daily  routine  of  Conveyancing  in  Solicitors'  Offices. 

To  winch  are  added  Concise  Common  Forms   and  Precedents  in 

Conveyancing ;    Conditions   of    Sale,   Conveyances,   and    all    other 

Assurances    in  constant  use.     Fifth  Edition.     By  H.  N.'CAPEL, 

B.A.,  LL.B.,  Solidtor.     Demy  8vo.     1877.  ISs. 

"  A  careiul  study  of  these  p.-iges  would  probably  arm  a  diligent  clerk  with  as  much 

useful  kncwledce  as  he  might  otherwise  take  years  of  desultory  questioning  and  observing 

to  acquire."— So/ici7("i' /o'/maZ. 

The  young  solicitor  will  find  this  work  almost  invaluable,  while  the  members  of  the 
higher  branch  of  the  profession  may  refer  to  it  with  advantage.  We  have  not  met  with 
any  book  that  furnishes  so  simple  a  guide  to  the  management  of  business  entrusted  to 
articled  clerk.i." 

Haynes. —  Vide  "  Leading  Cases." 

Martin's  Student's  Conveyancer. — A  Manual  on  the 
Principles  of  ]\Iodern  Conveyancing,  illustrated  and  enforced  by  a 
Collection  of  Precedents,  accompanied  by  detailed  Kemarks.  Part  I. 
Purchase  Deeds.  By  THOMAS  FUEDERIC  MARTIN,  Solidtor. 
Demy  8vo.     1877.  5s.  6d. 

"  It  should  be  placed  in  the  hands  of  every  student." 

Palmer's    Company    Precedents. — Conveyancing  and 

other   Forms    and  I'recedents  relating  to   Companies'   incorporated 

under  the  Companies'  Acts,  1862  .and  1867.     Ai-ranged  as  follows^ : — 

Agreements,    Memoranda    of    Association,   Articles  of  Association, 

Kesolutions,   Notices,  Certificates,   Provisional  Orders  of  Board  of 

Trade,  Debentures,  Peconstruction,  Amalgamation,  Petitions,  Orders. 

With  Copious  Notes.     By  FRANCIS  BEAUFORT  PALMER,  of 

the  Inner  Temple,  Esq.,  Barrister-at-Law.  Demy  8vo.  1877.    1/.  5s. 

"  There  had  never,  to  our  knowledge,  been  any  attempt  to  cnlltct  and  edit  a  body  of 

Forms  and  Precedents  exclusively  relating  to  the  foi-raation,  working  and  wmding-up  of 

companies.     This  task  Mr.  Palmer  has  taken  in  hand,  and  we  are  giad  to  say  with  much 

huccess  ....     The  information  contained  in  the  6511  pages  iif  the  volume  is  renderwl 

easily  ac'cesflible  by  a  good  and  full  in^ex.     Tne  author  has  evidently  not  been  sparing  of 

lalx)ur,  and  ihe  fruits  of  his  exertions  are  now  before  the  legal  profet.siuu  in  a  work  of  great 

practical  utility." — l-aw  Magazine. 

"To  those  concerned  in  getting  up  companies,  the  assistance  given  by  Mr.  Palmer 
must  be  very  valuable,  because  he  does  not  confine  himself  to  bare  precedents,  but  by 
intelligent  and  learuv;d  commentary  lights  up,  as  it  were,  each  step  tliat  he  takes.  The 
volume  beforeus  i.s  1  ct,  therefore  a  book  of  i)receilents  merely,  but,  in  a  greater  or  less 
degree,  a  treatise  on  certain  portions  of  the  Companies'  Acts  of  isti'i  and  1867.  There  is  an 
elaborate  index,  and  the  work  is  one  which  must  commend  itself  to  the  profession." — 
Law  Tiiiiis. 

"The  precedents  a>-e  a.s  a  rule  exceedingly  well  drafted,  and  adapted  to  companies  for 
almo.st  every  conceivable  object.  So  especially  are  the  forms  of  memoranda  and  articles 
o I  association  ;  and  these  will  be  found  extremely  serviceable  to  the  conveyancer.  .  .  . 
All  the  notes  have  been  elabonated  with  a  thoroughly  scientific  knowledge  of  the 
principles  of  company  law,  as  well  as  with  copious  references  to  the  cases  substantiating 
the  principles.  .  .  We  venture  to  predict  that  his  not(s  will  be  found  of  great  utility 
iu  guiding  opinions  on  many  complicated  questions  of  law  and  practice."  -Laic  Journal. 

**  AH  standard  Law  Works  are  Iccpt  in  Stud;  in  Imocalf  and  other  UikVuujs. 


119,  CHANCEEY  LANE,  LONDON,  W.C. 


CONVEYANCING  -Continued. 

Prideaux's  Precedents  in   Conveyancing. With 

Dissertations    on    its   Law    and   Practice.      Ninth   Edition        By 

FREDERICK  PRIDEAUX,  late  Prof essor  of  the  Law  of  Real  and 

Personal  Property  to  the  Inns  of  Court,  and  .JOHN  WHITCOMBE, 

Esqrs.,Barristers-at-Law.     2  vols.     Royal  8vo.     1879.  3?.  10s.' 

"  Wo  liave  been  always  accustomed  to  view  'Prideaux'  as  the  most  useful  work 

out  on  conveyancing.    It  combines  conciseness  and  clearness  in  its  precedents 

witli  aptness  and  ccjuiprehensiveness  in  its  dissertations  and  notes,  to  a  degree  superior 

to  toat  of  any  other  work  of  its  kind."— Z,a!<i  Jonrnal,  February  8,  1870. 

"i'rideaux  tias  become  an  indispensable  part  of  the  Couvevancer's  library 

The  new  edition  has  been  edited  with  a  care  and  accuracy  o'f  which  we  can  hardly'speak 

too  highly The  caie  and  completeness  with  which  the  dissertation  has 

been  revised  leaves  us  hardly  any  room  lor  criticism."— So/jcito/-*'  Journal. 

"Tae  volumes  are  now  somethius;  more  than  a  mere  collection  of  precedents;  they 
contain  most  valuable  dissertations  on  the  law  and  practice  with  reference  to  conveyancing 
These  dissertations  are  followed  by  the  precedents  on  each  subject  dealt  with,  and  are  in 
theraseWescondensedtreatises.embodyiugall  the  latest  case  and  statute  law  .'.  .  Havin" 
regard  to  the  wide  general  knowledge  required  of  all  lawyers  in  the  present  day  such  a 
work  as  this  must  prove  highly  acceptable  to  the  whole  Profession."— £ai(j  Times! 

COPYRIG+HT.-Phillips'  Law  of  Copyright.— The  Law  of 
Copyright  in  Works  of  Literature  and  Art,  and  in  the  Appli- 
cation of  Designs.  With  the  Statutes  relating  thereto.  By 
CHARLES  PALMER  PHILLIPS,  of  Lincoln's  Inn,  Esq., 
Barnster-at-Law.     8vo.     1863.  12s. 

CORONERS.— Jervis  on  the  Office  and  Duties  of 
Coroners. — With  Forms  and  Precedents.     Fourth  Edition. 

{In  preparation.) 

COSTS.— Morgan  and  Davey's  Treatise  on  Costs  in 
Chancery.— By  GEORGE  OSBORNE  MORGAN,  M.P., 
one  of  Her  Majesty's  Counsel,  late  Stowell  Fellow  of  University 
College,  Oxford,  and  Eldon  Scholar  ;  and  HORACE  DAVEY 
M.A.,  one  of  Her  Majesty's  Counsel,  late  FeUow  of  University 
College,  Oxford,  and  Eldon  Scholar.  With  an  Appendix,  containing 
Forms  and  Precedents  of  Bills  of  Costs.     8vo.     1865.  1^.  Is'. 

Scott's    Costs     in    the    High    Court    of    Justice 
and  other  Courts.     Fourth  Edition.     By  JOHN  SCOTT, 
of  the  Inner  Temple,  Esq.,  Barrister-at-Law,  Reporter  of  the  Com- 
mon Pleas  Division.     Demy  8vo.     1880.  \l,  gg, 
"Mr.  Scott's  introductory  notes  are  very  useful,  and  the  work  is  now  a  compendium 

on  the  law  and  practice  regarding  costs,  as  well  as  a  bock  of  precedents  "—Law  Times 

January  3,  18S0  ' 

Scott's  Costs  in  Bankruptcy  and  Liquidation 
under  the  Bankruptcy  Act,  1869.  Royal  12mo. 
1873.  net  3s. 

Summerhays  and  Toogood's  Precedents  of 
Bills  of  Costs  in  the  Chancery,  Queen's 
Bench,  Common  Pleas,  Exchequer,  Probate 
and  Divorce  Divisions  of  the  High  Court  of 
Justice,  in  Conveyancing,  Bankruptcy,  the  Crown  Office,  Lunacy, 
Arbitration  under  the  Lands  Clauses  Consolidation  Act,  the  Mayor's 
Court,  London ;  the  County  Courts,  the  Privy  C!ouncil,  and  on 
Passing  Residuary  and  Succession  Accounts  ;  with  Scales  of  Allow- 
ances and  Court  Fees,  the  Law  Society's  Scale  of  Commission  in 
Conveyancing  ;  Forms  of  Affidavits  of  Increase,  and  Objections  to 
Taxation.  By  Wm.  FRANK  SUMMERHAYS,  Solicitor,  and 
THORNTON  TOOGOOD.  Third  Edition,  Enlarged.  Royal  8vo 
1879.  H.  1^; 

"  lu  the  volume  before  us  we  have  a  very  complete  manual  of  taxation.    The  work  is 

beautifully  printed    and  arranged,  and  each  item  catches  the  eye  instantly."— /«!« 

Journal. 

*:f*  All  Standard  Law  Worhs  are  Jcept  in  StocJc,  in  laiv  calf  and  other  bindings. 

3  A 


10  STEVENS  AND   SONS'   LAW  PUBLICATIONS, 

COSTS.— Conitnuerf. 

Webster's  Parliamentary  Costs.  — Private  Bills 
Election  Petitions,  Appeals,  House  of  Lords.  By  EDWARD 
WEBSTER,  Esq.,  of  tbc  Taxing  and  Examiners'  Office.  Third 
Edition.     Post  Svo.     1S67.  20s. 

COUNTY  COURTS.— The  Consolidated  County  Court 
Orders  and  Rules,  187S,  AArlth  Fornis  and 
Scales  of  Costs  and  Fees,  as  issued  by  the  Lord 
Chancellor  and  Committee  of  County  Court  Judges.  Authorised 
Edition.     Super-royal  Svo.     1875.  Xct,  3s. 

Pitt-Lewis'   County   Court   Practice. — A_  Complete 
Practice     of     the      County     Courts,     including      Admiralty    and 
Isankruptcy,     embodying    the     Act,     Rules,     Porms     and    Costs, 
with   Table   of   Cases   and   Pull  Index.      By   G.    PITT-LEWIS, 
of  the  Middle  Temple  and  Western  Circuit,  Esq.,  Barrister-at-Law, 
sometime  Holder  of  the  Studentships  of  the  Pour  Inns  of  Court, 
assisted  by  H.  A.  DE  COLYAR,  of  the  Middle  Temple,  Esq., 
Barrister-at-Ijaw,  Author  of  "  A  Treatise  on  the  Law  of  Guaran- 
tees." (I7i  the  pi'ess.) 
CRIMINAL  LAW.— Archbold's  Pleading  and  Evidence 
in    Criminal    Cases. — With    the    Statutes,   Precedents    of 
Indictments,  &c.,  and  the  Evidence  necessary  to  support  them.     By 
JOHN  JERVIS,  Esq.  (late  Lord  Chief  Justice  of  Her  Majesty's 
Court    of    Common    Pleas).       Nineteenth  Edition,    including   the 
Practice  in  Criminal  Proceedings  by  Indictment.     By  WILLIAM 
BRUCE,    of    the    Middle    Temple,    Esq.,    Barrister-at-Law,    and 
Stipendiary  Magistrate  for  the  Borough  of  Leeds.      Royal   12mo. 
1878.  1^-  lis-  6(^. 
Cole  on  Criminal  Informations  and  Quo  War- 
ranto.—By  W.R.COLE,  Esq.,  Barrister-at-Law.  12mo.  1843.  12s. 
Greaves'    "Criniinal     Law     Consolidation     and 
Amendment  Acts  of  the   24   &  25  Vict.— With 
Notes.  Observations,   and    Forms  for  Summary   Proceedings.      By 
CHARLES  SPRENGEL  GREAVES,  Esq.,  one  of  Her  Majesty's 
Counsel,  who  prepared  the  BiUs  and  attended  the  Select  Committees 
of   both    Houses  of  Parliament  to  which  the  Bills  were  referred. 
Second  Edition.     Post  Svo.     1S62.  16s. 
Haynes. —  Vide  "  Leading  Cases." 

Roscoe's  Digest  of  the  Law  of  Evidence  in 
Criminal  Cases.— Ninth  Edition.  By  HORACE  SMITH, 
Esq.,  Barrister-at-Law.  Royal  12mo.    1878.  ll.lls.6d. 

Russell's  Treatise  on  Crimes   and   Misdemea- 
nors.—Fifth  Edition.     By  SAMUEL  PRENTICE,  Esq.,  one  of 
Her  Majesty's  Counsel.     3  vols.     Royal  Svo.       1877.       51.  15s.  6d. 
TbLs  treatise  is  so  much  more  copious  than  any  other  upon  all  the  subjects  contained 
in  it  that  it  affords  bv  far  the  best  means  of  acquiring  a  knowledge  of  the  Criminal  Law 
in  general,  or  of  any  offence  in  particular  ;  so  that  it  will  be  found  peculiarly  useful  as 
well  to  those  who  wish  to  obtain  a  complete  knowledge  of  tliat  law,  as  to  those  who 
desire  to  be  informed  on  any  portion  of  it  as  occasion  may  require. 

"  What  better  Digest  of  Criminal  Law  could  we  possibly  hope  for  than  'Kussell  on 
Crimes?  '  " — Sir  James  Fitzjames  Stephen's  Speech  on  Codification. 

"No  more  trustworthy  authority,  or  more  exhaustive  expositor  than  'Russell'  can  be 
Cor\fivl*.ed."—Law  Md'jazine  and  lieview.  ,,,.„,. 

"Alterations  have  been  made  in  the  arrangement  of  the  work  which  without  mterfenng 
•with  the  genera!  plan  are  sufficient  to  show  that  great  care  and  thought  have  been 

bestowed Wo  are  amazed  at  the  patience,  indu^-try  ar.d  skill  which  are  exhibited 

in  thp  collection  and  arrangemen*  of  all  this  mass  of  learning." — The  Times. 
CROSSED   CHEQUES    ACT — Cavanagh.— Fic^c   "Money  Securi- 
ties." 
Walker. —  r/cZe  "  Banking." 
♦  *  AH  standard  Laiv  Works  arc  kept  in  Slock,  in  law  calf  and  other  bindings. 


_^  119,  CHANCERY  LANE,  LONDON,  W.C.  11 

DECREES.— Seton.—  ric^e  "  Equity." 

DIARY.— Lawyer's  Companion  (The),  Did^y,  and  Law 
Directory  for  1880.— For  the  use  of  the  Legal  Profession 
Public  Companies,  Justices,  Merchants,  Estate  Agents,  Auctioneers' 
&c.,  &c.  Edited  by  JOHN  THOMPSON,  of  the  Inner  Temple' 
Esq.,  Barrister-at-Law;  and  contains  a  Digest  of  Kecent  Cases  on 
Costs  ;  Monthly  Diary  of  County,  Local  Government,  and  Parish 
Business;  Oaths  in  Supreme  Court;  Summary  of  Legislation  of 
1878;  Alphabetical  Index  to  the  Practical  Statutes;  a  Copious 
Table  of  Stamp  Duties;  Legal  Time,  Interest,  Discount,  Income 
Wages  and  other  Tables;  Probf.te,  Legacy  and  Succession  Duties  ; 
and  a  variety  of  matters  of  practical  utility.  Published  Annually' 
Thirty-fom-th  Issue.  ( ,Vojy  ready') 

The  work  also  contains  the  most  complete  List  published  of  Town  and 

Country  Solicitors,  with  date  of  admission  and  appointments,  and  is  issued 

in  the  following  forms,  octavo  size,  strongly  bound  in  cloth  : s.    d. 

1.  Two  days  on  a  page,  plain 5     0 

2.  The  above,  interleaved  for  Attendances  .        .        .'      7    0 

3.  Two  days  on  a  page,  ruled,  with  or  without  money  col'umn.s       5     6 

4.  The  above,  interleaved  for  ATTEND^iNCES  .         .         .         .80 

5.  Whole  page  for  each  day,  plain !       7     6 

6.  The  above,  interleaved  for  Attendances  .        .        !      9     6 

7.  Whole  page  for  each  day,  ruled,  with  or  without  money 

columns  ........  86 

8.  The  above,  interleaved  for  Attendances         .        .        !     10    6 

9.  Three  days  on  a  page,  ruled  blue  lines,  \vithout    money 

columns  .         .  5     0 

The  Diarij  contains  memoranda  of  Legal  Business  throughout  the  Year. 

"  An  excellent  work." — Tlie  Times. 

"  A  publication  which  has  long  ago  secured  to  itself  the  favour  of  the  profession  and 
which,  as  heretofore,  justifies  by  its  contents  the  title  assumed  by  it  "—Laio  Jouiilal 
_    "  Contains  all  the  information  whicli  could  be  looked  lor  in  such  a  work  and  eives  it 
in  a  Eiost  convenient  forni  and  very  completely.    We  may  unhesitatingly  recommend  the 
wort  to  our  readers.  '—Solicitors  Journal. 

•'  The  '  Lawyer's  Companion  and  Diary '  is  a  book  that  ought  to  be  in  the  possession  of 
every  lawyer,  and  of  every  man  of  business."  ci,oiuu  ui 

"The' Lawyer's  Corapauion'  is,  indeed,  what  it  is  called,  for  it  combines  everything 
required  for  reference  m  the  lawyer  s  oSi(ie."—Law  Times.  ^ 

"  It  is  a  book  without  which  no  lawyer's  library  or  office  can  be  complete  "—Iru'h 
LoM  Times.  ' 

"This  work  has  attained  to  a  completeness  which  is  beyond  uU  ivMsc."—Morm7ig 

DICTIONARY.— Wharton's  Law  Lexicon.— A  Dictionary  of 

Jurisprudence,  explaining  the  Teehnical  Words  and  Phrases  employed 

in  the  several  Departments  of  English  Law  ;  including  the  various 

Legal  Terms  u.sed  in  Commercial  Transactions.     Together  with  an 

Explanatory  as  well  as    Literal  Translation  of  the  Latin  Maxima 

contained  in  the  Writings  of  the  Ancient  and  Modern  Commentators, 

Sixth    Edition.      Enlarged    and    revised    in    accordance  with    the 

Judicature  Acts,  by  J.   SHIEESS  WILL,  of  the  Middle  Temple 

Esq. ,  Barrister-at-Law.     Super  royal  8vo.     1876.  2/.  2s'. 

"As  a  work  of  reference  for  (he  library,  the  handsome  and  elaborate  edition  of 

•  \\  harton  s  law  Lexicon '  which  Mr.  Shiress  Will  has  producKd,  must  supersede  all  Jurmer 

issues  ot  that  well-known  work."— iaic  Magazine,  and  Review. 

"No  law  library  is  complete  without  a  "law  dictionary  or  law  lexicon.  To  the  practi- 
tioner It  IS  always  useful  to  have  at  hand  a  book  where,  in  a  small  compass  he  can  find 
an  explanation  of  terns  of  intrequenf  occurrence,  or  obtain  a  reference  to  statutes  on 
most  subjects,  or  to  books  wherein  particular  subjects  are  treated  of  at  full  leneth  To  the 
student  it  is  almost  indispensable."— iaw  Timu. 

*»*  All  Standard  Law  Works  are  Jeep  I  in  Stock,  in  law  calf  and  other  bindings. 

A  i 


12  STEVENS  AND   SONS'    LAW   PUBLICATlUNS. 


DIGESTS.— Bedford.— Fzrfe  "  Examination  Guides." 
Chamber's— "T^iiie  "  Public  He.altli." 

Chitty's  Equity  Index.— Chitty's  Index  to  all  the  Reported 
Cases,  and  Statutes,  in  or  relating  to  the  Principles,  Pleading,  and 
Practice  of  Equity  and  Bankruptcy,  in  the  several  Courts  of  Equity 
in  England  and  Ireland,  the  Privy  Council,  and  the  House  of  Lords, 
from  1;he  earliest  period.  Third  Edition.  By  J.  MACAULAY, 
Esq.,  Barrister-at-Law.     4  vols.     Poyal  Svo.     1853.  H-  7s. 

Fisher's  Digest  of  the  Reported  Cases  deter- 
mined in  the  House  of  Lords  and  Privy  Council,  and  in  the 
Courts  of  Common  Law,  Divorce,  Probate,  Admiralty  and  Bank- 
rujitcy.  from  Michaelmas  Term,  1756,  to  Hilary  Term,  1870  ; 
with  "Peferences  to  the  Statutes  .and  Pules  of  Court.  Founded  on 
the  Analytical  Digest  by  Harrison,  and  adapted  to  the  present 
practice  of  the  Law.  By  P.  A.  FISHER,  Esq.,  Judge  of  the 
County  Courts  of  Bristol  and  of  WcUs.  Five  large  volumes,  royal 
Svo.     1870.  12Z.  12s. 

(Continued  Annually.) 
"  >Ir.  Fisher's  Digest  is  a  wouderful  work.      It  is  a  miracle  of  human  industry."— 3/?-. 
Justice  ]i'illes.  ,,      „.,,,„  t 

"I  tliiiilc  it   would  be  very   difficult   to  improve   upon   Mr.   Fishers   'Common  Law 

Digest.' " Sir  James  Fitzjames  Stephen,  ore  Codification. 

Leake. —  Vide  "Real  Property"  and  "Contracts." 

Notanda  Digest  in  Law,   Equity,    Bankruptcy, 

Admiralty,    Divorce,  and   Probate   Cases.— By 

H.    TUDOR   BODDAM,    of   the    Inner   Temple,    and    HARRY 

GREENWOOD,  of  Lincoln's  Inn,  Esqrs.,  Barristers-at-Law.     The 

Notanda   Digest,  from   the    commencement,    October,    1862,   to 

December,  1876.     In  2  volumes,  half-bound.  Net,  M.  10s 

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feature  in  this  series. 
Pollock. —  Vide  "  Partnership. " 
Roscoe's. —  Vide  "  Criminal  Law  "  and  "  Nisi  Prius." 

DISCOVERY.— Hare's    Treatise    on    the    Discovery  of 
Evidence.— Second  Edition.     Adapted  to  the  Procedure  in  the 
High  Court  of  Justice,  with  Addenda,  containing  all  the  Reported 
Cases  to  the  end  of  1876.     By  SHERLOCK  HARE,  Barrister-at- 
Law,     Post  Svo.     1877.  12s. 
"The  boolt  is  a  useful  contribution  to  our  text-books  on  practice." — Solicitors'  Journal. 
"  We  have  read  his  work  with  cimsiderable  attention  aril  interest,  and  we  can  speak  in 
terms  of  cordiil  praise  of  the  manner  iu  which  the  new  procedure  has  been  worked  into 
the  old  material,      ...     All  the  sections  and  orders  of  the  new  legislation  are  referred 
to  in  the  text,  a  synopsis  of  recent  cases  is  given,  and  a  good  index  completes  the 
volume." — Law  Tliiies. 

Seton. —  Vide  "Equity." 
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119,  CHANCEllY  LANE,  LONDON,  W.C.  13 

DISTRICT  REGISTRIES.-Arehibald.— FwZe  "Judges'  Chambera 
Practice." 

DIVORCE.— Browne's  Treatise  on  the  Principles 
and  Practice  of  the  Court  for  Divorce  and 
Matrimonial  Causes  :— With  the  Statutes,  Rules.  Fees 
and  Forms  relating  thereto.  Fourth  Edition.  By  GEORGE 
BROWNE,  Esq.,  B.A.,  of  the  Inner  Temple,  Barrister-at-Law, 
Recorder  of  Ludlow.  {NearJij  readij.) 

Haynes.— Fw^e  "Leading  Cases." 

DOMICIL. — Dicey  on  the  Law  of  Doniicil  as  a  branch 
of  the  Law  of  England,  stated  in  the  form  of 
Rules.— By  A.  V.  DICEY,  B.C.L.,  Barristerat-Law.  Author 
of  "  Rules  for  the  Selection  of  Parties  to  an  Action."  Demy  8vo. 
1879.  18s. 

"  The  practitioner  will  find  the  book  a  t!lOl•ou^'hly  exact  and  trustworthy  summary 

of  the  present  state  of  the  law."— 77!e  Spectator,  August  'JLii,  1879. 

Phillimore's(SirR.)  Law  of  Domicil.— 8vo.  1847.     9s. 

DUTCH  LAW. — Vanderlinden's  Institutes  of  the  Laws 

of  Holland.— 8vo.     1828.  1/.  18s, 

EASEMENTS.— Goddard's    Treatise    on    the    Law    of 

Easements.— By  JOHN  LEYBOURN  GODDARD,  of  the 

Middle  Temple,  Esq.,  Barrister-at-Law.     Second  Edition.     Demy 

8vo.     1877.  16s. 

"The  book  is  invaluable:  where  tlie  cases  are  silent  the  author  hag  taken  pains  to 

ascertain  whatthe  law  would  be  if  brought  into  question."— Zaw  Journal. 

"Nowhere  lias  the  subject  been  treated  so  exhaustively,  and,  we  may  add.  so  scientifi- 
cally, as  by  Mr.  Goddard.  We  recommend  it  to  the  most  careful  study  of  the  law  student 
as  well  as  to  the  library  of  the  practitioner." — Law  Tvius. 

ECCLESIASTICAL.  —  Finlason's       Folkestone       Ritual 

Case. — The  Judgment  of  the  Judicial  Committee  in  the  Folkestone 
Ritual  Case,  with  an  Historical  Introduction  and  brief  Notes.  By 
W.  F.  FINLASON,  of  the  Middle  Temple,  Esq.,  Barrister-at-Law, 
8vo.     1877.  Net,  2s.  M. 

Philliniore's  (Sir  R.)  Ecclesiastical  Law.— The 
Ecclesiastical  Law  of  the  Church  of  England.  With  Supplement, 
containing  the  Statutes  and  Decisions  to  end  of  1875.  By  Sir 
ROBERT  PHILLIMORE,  D.C.L.,  Official  Principal  of  the  Arches 
Court  of  Canterbury  ;  Member  of  Her  Majesty's  Most  Honourable 
Privy  Coimcil.     2  vols.     8vo.     1873-76.  3/.  7s.  6d. 

*,*  The  SuiJi^lement  may  be  had  separately,  price  4s.  &d.,  sewed, 
ELECTIONS- — Browne  (G.  Lathom.) — Ficfe  "  Registration." 

FitzGerald.— Fic^e  "Ballot." 

Rogers  on  Elections,  Registration,  and  Election 
Agency. — With  an  Appendix  of  Statutes  and  Forms.  Twelfth 
Edition.  By  F.  S.  P.  WOLFERSTAN,  of  the  Inner  Temple,  Esq., 
Barrister-at-Law.     12mo.     1876.  11.  10s. 

"The  book  maintains  its  reputation  as  a  well  an'anged  magazine  of  all  the  authorities  on 
the  subject. " — Law  Journal. 

"Mr.  Wolferstan  has  added  a  new  chapter  on  Election  Agency,  which  contaius  a  care- 
ful and  valuable  digest  of  the  decisions  and  dicta  on  this  thorny  s\\h)f.cl."  —  Solicitors' 
Journal. 

ENGLAND,  LAWS  OF,— Bowyer.— Ftcie  "  Constitutional  Law." 

Broom  and  Hadley.—  Firfc  "  Commentaries." 

Syms'  Code    of  English    Law  (Principles   and  Practice) 

for  handy  reference  in  a  Solicitor's  office.   By  F.  R.  SYMS,  Solicitor. 

12mo.     1870.  ■  16s. 

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14  STEVENS  AND   SONS'  LAW    PUBLICATIONS. 


EQUITY,  and  Vide  CHANCERY. 

Seton's  Forms  of  Decrees,  Judgments,  «nd 
Orders  in  the  High  Court  of  Justice  andCourts 
of  Appeal,  having  especial  reference  to  the  Chancery  Division, 
with  Practical  Notes.  Fourth  Edition.  By  E.  H.  LEACH,  Esq., 
Senior  Registrar  of  the  Chancery  Division  ;  F.  G.  A.  WILLIAMS, 
of  the  Inner  Temple,  Esq.  ;  and  the  late  H.  W.  MAY,  Esq. ;  suc- 
ceeded by  JAMES  EAST  WICK,  of  Lincoln's  Inn,  Esq.,  Barristers- 
at-Law.     2  vols,  in  3  parts.     Royal  8vo.     1877—79.  U.  10s. 

*»*  Vol.  II.,  Parts  1  and  2,  may  be  had  separately,  to  complete 
sets,  price  each  11.  10s. 
"  Of  all  the  editions  of  '  Setou '  this  is  the  best. — Solicitors'  Journal. 
"  We  can  hardly  speak  too  highly  of  the  industry  and  inteUigeuce  which  have  been 
bestowRd  on  the  preparation  of  t}\e  notes." — Solicilnrs'  Journal. 

"  Xow  the  book  is  before  us  complete  ;  and  we  advisedly  say  complete,  because  it 
has  scarcely  ever  been  our  fortune  to  see  a  more  complete  law  book  than  this.  Exten- 
sive in  sijhere,  and  exhaustive  in  treatise,  comprehensive  in  matter,  yet  apposite  in 
details,  it  presents  all  the  features  of  an  excellent  work  .  .  .  The  index,  extend- 
ing over  278  pages,  i.s  a  model  of  comprehensiveness  and  accuracy." — Law  Journal 

Sinith's  Manual  of  Equity  Jurisprudence. — 
A  Manual  of  Equity  Jurisprudence  for  Practitioners  and  Sludents, 
founded  on  the  Works  of  Story,  Spence,  and  other  writers,  and  on 
more  than  a  thousand  subsequent  cases,  comprising  the  Fundamental 
Principles  and  the  points  of  Equity  usually  occurring  in  General 
Practice.  By  JOSIAH  W.  SMITH,  B.C.L.,  Q.C.  Twelfth  Edition. 
12mo.     1878.  12s.  %d. 

"There  is  no  disguising  the  truth  ;  the  propsr  mode  to  use  this  book  is  to  learn  its  pages 
by  heart." — Law  Magazine  and  Review. 

"  It  will  be  found  as  useful  to  the  pi'aetitioner  as  to  the  iinHirai.'' — Solicitors'  Journal. 

EXAMINATION  GUIDES— Bedford's  Guide  to  the  Preli- 
minary Examination  for  Solicitors. — Fourth 
Edition.  12mo.  1874.  Net,  3s. 

Bedford's  Preliminary. — Containing  the  Questions  and 
Answers  of  the  Preliminary  Examinations.  Edited  by  E.  H. 
BEDFORD,  SoUcitor  (No.  15,  May,  1871,  to  No.  48,  July,  1879). 
{Discontinued).  Seiccd,  net,  each,  Is. 

Bedford's  Digest  of  the  Preliminary  Examina- 
tion Questions  on  English  and  Latin,  Grammar,  Geogi-aphy, 
History,  French  Grammar,  and  Arithmetic,  with  the  Answers. 
8vo.     1875.  18s. 

Bedford's  Preliminary  Guide  to  Latin  Gram- 
mar.—12mo.  1872.  Akt,  3s. 
Bedford's  Intermediate  Examination  Guide  to 
Bookkeeping.— Second  Edition.  12mo.  1875.  Net,2s.6d. 
Bedford's  Intermediate. — Containing  the  Questions  and 
Answers  at  the  Intermediate  Examinations.  Edited  by  E.  H. 
BEDFORD.  Nos.  1  (Hilary,  1869)  to  34  (Hilary,  1877).  6d  each. 
Nos.  35  (Easter,  1S77)  to  43  (Trinity,  1879).     (Discontinued). 

ls.ea,c\i,Net. 
Bedford's    Student's  Guide  to   Steplien's   New- 
Commentaries     on    the    Laws    of    England. 
Demy  8vo.     1879.  12s. 

"  Here  is  a  book  which  will  be  of  the  greatest  service  to  students.  It  reduces  the 
'  Commentaries '  to  the  form  of  question  and  answer  .  .  .  We  must  also  give 
the  author  credit,  not  only  for  Ins  selection  of  questions,  but  for  his  answers  thereto. 
These  are  models  of  fulness  and  conciseness,  and  lucky  will  be  the  candidate  who  can 
hand  in  a  jjaper  of  answers  bearing  a  close  resemblance  to  those  in  the  work  before 
us." — Law  Journal. 

Bedford's    Student's   Guide  to   Smith    on  Con- 
tracts.    Demy  8vo.     1879.  3s.  Gd. 
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119,  CHANCERY  LANE,  LONDON,  W.O.  15 

EXAMINATION  Q[J\DES—Contimted. 

Bedford's  Final.— Containing  the  Questions  and  Answers  at 

the  Final  Examinations.     Edited  by  E.  H.  BEDFORD.     Nos.  1 

(Easter,  1869)  to  33  (Easter,]  1877).    6d.   each.    Nos.    34   (Trinity, 

1877)    to  42  (Trinity,  1879).     Is.  each,  Net.  (Discontinued.) 

Bedford's  Final  Examination  Digest  :  containing  a 

Digest  of  the  Final  Examination  Questions  in  matters  of  Law  and 

Procedure  determined  by  the  Chancery,  Queen's  Bench,  Common 

Pleas,  and  Exchequer  Divisions  of  the  High  Court  of  Justice,  and 

on  the  Law  of  Real  and  Personal  Property  and  the  Practice  of 

Conveyancing.     In  1  vol.     8vo.     1879.  16s. 

"  Will  fiu-nisli  students  with  a  large  armoury  of  weapons  witli  which  to  meet  tlie 

attacks  of  the  esamincrs  of  the  Incorporated  Law  Society."— /,a!o  Times,  Nov.  S,  1879. 

Bedford's  Final  Examination  Guide  to  Bank- 
ruptcy.—Third  Edition.     12mo.     1877.  6s. 

Bedford's  Outline  of  an  Action  in  the  Chan- 
cery Division.     12mo.     1878.  Net,  2s.  6d. 

Butlin.— FJcZe  "Articled  Clerks." 

Dickson's  Analysis  of  Blackstone's  Commen- 
taries.—In  Charts  for  the  use  of  Students.  By  FREDERICK 
S.  DICKSON.     4to.  10s.  6d. 

Haynes. —  Vide  "Leading  Cases." 

Rubinstein  and  Ward.— FZt^e  "Articled  Clerks." 

Shearwood's   Student's   Guide   to  the  Bar,  the 

Solicitor's   Interixiediate  and    Final   and    the 

Universities  Law  Examinations.— With  Suggestions 

as  to  the  books  usually  read,  and  the  passages  therein  to  which 

attention  should  be  paid.     By  JOSEPH  A.  SHEARWOOD,  B.A., 

Esq.,  Barrister-at-law,   Author  of    "  A    Concise  Abridgment  of  the 

Law  of  Real  Property,"  &c.     Demy  8vo.     1879.  5s.  6d. 

"A  work  which  wilt  be  very  acceptable  to  candidates  for  the  various  examinations, 

any  student  of  average  intelligence  who  couscieutiously  follows  the  path  and  obeys  the 

instructions  given  him  by  the  author,  need  not  fear  to  present  himself  as  a  candidate 

for  any  of  the  examinations  to  which  this  book  is  intended  as  a  guide."— iaw  Journal. 

EXECUTORS.— Williams'  Law  of  Executors  and  Ad- 
ministrators.—By  the  Rt.  Hon.  Sir  EDWARD  VAUGHAN 
WILLIAMS,  late  one  of  the  Judges  of  Her  Majesty's  Court  of 
Common  Pleas.  Eighth  Edition.  By  WALTER  VAUG-HAN 
WILLIAMS  and  ROLAND  VAUGHAN  AVILLIAMS,  Esqrs., 
Barristers-at-Law.     2  vols.     Royal  8vo.     1879.  SI.  16s. 

"A  treatise  which  occupies  a  unique  position  and  which  is  recognised  by  the 

Bench  and  the  profession  as  having  paramount  authority  In  the  domain  of  law  with. 

which  it  deals. " — Law  Journal. 

EXECUTORY  DEVISES.— Fearne.-FzVfc  "Contingent Remainders." 
FACTORY  ACTS.— Notcutt's  Law  relating  to  Factories 
and  Workshops,  with   Introduction  and  Ex- 
planatory Notes.    Second  Edition.    Comprising  the  Factory 
and  Workshop  Act,  1878,  and  the  Orders  of  the  Secretary  of  State 
made  thereunder.  By  GEO.  JAR  VIS  NOTCUTT,  Solicitor,  formerly 
of  the  Middle  Temple,  E.sq.,  Barrister-at-Law.     12mo.     1879.       95. 
"The  task  of  elucidating  the  provisions  of  the  statute  is  done  in  a  manner  that 
leaves  nothing  to  be  desired."— Bir7mngham  Daily  Gazette. 

FARM,  LAW  OF.— Addison  ;   Cooke.— FwZe  "Agricultural  Law." 

Dixon's  Law  of  the  Farm  —A  Digest  of  Cases  connected 

with  the  Law  of  the  Farm,  and  including  the  Agricultural  Customs  of 

England  and  Wales.   Fourth  Echtion.   By  HENRY  PERKINS,  Esq., 

Barrister-at-Law  and  Midland  Circuit.     Demy  8vo.     1879.       11.  6s 

"  It  is  impossible  not  to  be  struck  with  the  extraordinary  research  that  must  have  been 

used  in  the  compilation  of  such  a  book  as  this."— Xaw  Journal. 

*^*  All  standard  Lavi  Works  are  kevt  in  Stock,  in  law  calf  and  other  I'mdings. 


16  STEVENS   AND   SONS'   LAW    PUBLICATIONS. 


FINAL  EXAMINATION  DIGEST.-Bedford.— Ftrfe  "Examination 
G^iides." 

FIXTURES. -Amos  and  Ferard  on  Fixture?.-- Second 
Edition.     Koyal  8vo.     1847.  IQs. 

FOREIGN  JUDGMENTS.— Piggott's  Foreign  Judgments, 
their  effect  in  the  English  Courts,  the  English 
Doctrine.  Defences,  Judgments  in  Rem, 
Status.— Ly  F.  T.  PIGGOTT,  M.A.,  LL.M.,  of  the  Middle 
Eoyal  8vo.     1879.  15s. 

"  A  useful  and  well-timed  volume." 

"Mr.  Piggott  writes  under  strong  conviction,  but  he  is  always  caiefnl  to  rest  liia 
nrpunients  on  authority,  and  thereby  adds  considerably  to  the  value  of  his  handy  volume." 
Law  Muimziae  and  Revietc,  August  and  November  numbers,  1S79. 

"  Jl.  Pigsott  donne  ti  I'ctude  de  I'uue  des  questions  Its  plus  complexes  du  droit  inter- 
national pnve  une  forme  tout  nouvelle  :  il  applique  dans  toute  sa  riirueur  la  metboiie 
des  sciences  exactes,  etue  recule  pas  devant  I'emploi  des  formules  alRcbriiiuPs.  C'dtait 
l!i  une  tentative  perilleuse  dont  le  suceiis  pouvait,  sembler  douieux  ;  niai.s  il  suttit 
d'indiquer  la  marche  snivie  et  les  rfeultats  obtenus  par  Tauteur  pour  cumpreudre  I'impor- 
tance  et  le  uierite  de  cette  publication."' — Journal  du  Droit  Inlei-natiotutl  Prive,  1S79. 

FORMS.— Archibald. —  Vide  "Judges'  Chambers  Practice." 

Chitty's  Fornis  of  Practical  Proceedings  in 
the  Queeii's  Bench,  Common  Pleas  and  Ex- 
chequer Divisions  of  the  High  Court  of  Jus- 
tice: with  Notes  containing  the  Stututes,  Rules  and  Practice 
relating  thereto.  Eleventh  Edition.  By  THOS.  WILLES 
CHITTY,  Esqr.     Demy  8vo.     1879.  \h  18s. 

Daniell's  Forms  and  Precedents  of  Proceed- 
ings in  the  Chancery  Division  of  the  High 
Court  of  Justice  and  on  Appeal  therefrom  ; 
■with  Dissertations  and  Notes,  forming  a  complete  guide  to  the 
Practice  of  the  Chancery  Division  of  the  High  Court  and  of  the 
Courts  of  Appeal.  Being  the  Third  Edition  of  "  Daniell's  Chancery 
Forms."  By  WILLIAM  HENRY  UPJOHN,  Esq.,  Student  and 
Holt  Scholar  of  Gray's  Inn,  Exhibitioner  in  Jurisprudence  and 
Roman  Law  in  the  University  of  London,  Holder  of  the  First 
Senior  Studentship  in  Jurisprudence,  Roman  Law  and  International 
Law,  awarded  by  the  Council  of  Legal  Education  in  Hilary  Term 
1879.     In  one  thick  voL     Demy  8vo.     1879.  '11.  2s. 

"  Mr.  Upjohn  has  restored  the  volume  of  ciiancery  Forms  to  the  place  it  held  before 
the  recent  changes,  as  a  trustworthy  and  complete  collection  of  precedents." — Solicitors' 
Journal. 

"  We  Lave  had  this  work  in  practical  use  for  some  weeks,  and  so  careful  is  the  noting 
up  of  the  authorities,  so  clearly  and  concisely  are  the  notes  expressed,  that  we  have  found 
jt  of  iis  much  value  as  the  ordinary  text  books  on  the  .Judicature  Acts  ...  It  will  be  as 
useful  a  work  to  practitioners  at  Westminster  as  it  will  be  to  those  in  Lincoln  sinii.  The 
labour  entailed  in  the  compilation  must  have  been  severe,  and  we  venture  to  predict  a 
complete  success  fur  this  new  edition  of  an  old  friend." — Laiv  Times. 

GAS  WORKS.— Palmer.—  Vide  "  Conveyandng." 

HIGHWAYS.-Baker's  Law  of  Highways.  By  THOMAS 
BAKER,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law.  (In  thej^ress.) 
Chambers'  Law  relating  to  Highways  and 
Bridges,  being  the  Statutes  in  full  and  brief  Notes  of  700 
I^eading  Cases;  to  which  is  added  the  Law  relating  to  the 
Lighting  of  Rural  Parishes  under  the  Lighting  Act,  1833.  By 
GEO.  F.  CHAMBERS,  Esq.,  Barrister-at-Law.  Imperial  8vo. 
1878.  18s. 

Shelford's  Law  of  Highways. — The  Law  of 
Highways  ;  including  the  General  Highway  Acts  for  England  and 
Wales,  and  other  Statutes,  with  copious  Notes  of  the  Decisions 
thereon  ;  with  Forms.  Third  Edition.  With  Supplement  by 
C.  MANLEY  SMITH,  Esq.,  one  of  the  Masters  of  the  Queen's 
Bench.     12mo.     1865.  15s. 

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119,  CHANCERY  LANE,  LONDON,  W.C.  17 

INCLOSURES.— 7icZe  "Commons." 

INDIAN  LAW.— Norton's  Leading  Cases  on  the  Hindu 
La-w  of  Inheritance.— 2  vols.    Eoyal  8vo.    1870-71. 

Net  2L  10s 

INJUNCTIONS.— Seton.—  Ficie  "  Equity." 

INSURANCE. — Arnould  on  the  Law  of  Marine  Insu- 
rance.—Fifth  Edition.  By  DAVID  MACLACHLAN,  Esq., 
Barrister-at-Law.     2  vols.     Eoyal  8vo.     1877.  3L 

"  As  a  text  book,  '  Arnould '  is  now  all  the  practitioner  can  want,  and  we  congratulate 

the  editor  upon  the  skill  with  which  he  has  incorporated  the  new  decisious." — Law  Times. 

Hopkins'    Manual    of   Marine    Insurance.— 8vo. 

1867.  18s. 

INTERNATIONAL  LAW — Amos'  Lectures  on  Inter- 
national Law. — Delivered  in  the  Middle  Temple  Hall  to  the 
Students  of  the  Inns  of  Court,  by  SHELDON  AMOS,  M.A.,  Pro- 
fessor of  Jurisprudence  (including  International  Law)  to  the  Inns 
of  Court,  &c.     Royal  8vo.     1874.  10s.  6d 

Dicey. —  Vide  "Domicil." 

Kent's     International     La^w.  —  Kent's   Commentary  on 

International  Law.      Edited  by  J.  T.  ABDY,  LL.D.,  Judge   of 

County  Courts.     Second  Edition.     Revised  and  brought  down  to 

the  present  time.     Crown  Svo.     1878.  10s.  6d. 

"Altogether  Dr.  Abdy  has  performed  his  task  in  a  manner  worthy  of  his  reputation. 

His  book  will  be  useful  not  only  to  Lawyers  and  Law  Students,  for  whom  it  was  primarily 

intended,  but  also  for  laymen.    It  is  well  worth  the  study  of  every  member  of  an  enlightened 

and  civilized  community." — Solicitors'  Journal. 

Levi's  International  Commercial  Law. — Being  the 
Principles  of  Mercantile  Law  of  the  following  and  other  Countries 
— viz.  :  England,  Ireland,  Scotland,  British  India,  British  Colonies, 
Austria,  Belgium,  Brazil,  Buenos  Ayres,  Denmark,  France,  Germany, 
Greece,  Hans  Towns,  Italy,  Netherlands,  Norway,  Portugal,  Prussia, 
Rixssia,  Spain,  Sweden,  Switzerland,  United  States,  and  Wtirtemberg. 
By  LEONE  LEVI,  Esq.,  F.S.A.,  F.S.S.,  Barrister-at-Law,  &c. 
Second  Edition.     2  vols.     Royal  Svo.     1863.  II.  15s. 

Vattel's  Law  of  Nations.— By  JOSEPH  CHITTY,  Esq. 
Royal   8vo.     1834.  II.  Is. 

Wheaton's    Elements    of  International    La^A^; 

Second  English  Edition.  Edited  with  Notes  and  Appendix  of 
Statutes  and  Treaties,  bringing  the  work  down  to  the  present  time. 
By  A.  C.  BOYD,  Esq.,  LL.B.,  J.P.,  Barrister-at-Law.  Author  of 
"  The  Merchant  Shipping  Laws."     Demy  Svo.  1880.  1^.  10s. 

"Mr.  Boyd,  the  latest  editor,  has  added  many  useful  notes;  he  has  inserted  in  th» 
Appendix  public  documents  of  permanent  value,  and  there  is  ihe  prospect  that,  as  edited 

by  Air.  Boyd,  Mr  Wheaton's  volume  will  enter  on  a  new  lease  of  life It  is  all  the 

more  important  that  their  works  (A'cnt  and  IF/i«(ioii)  should  be  edited  by  intelligent  and 
impartial  Englishmen,  such  as  Dr.  Abdy,  the  editor  of  Kent,  and  Mr.  Boyd."— T/ie  Tinies. 
"  Both  the  plan  and  execution  of  the  work  before  us  deserves  commendation.  Mr. 
Boyd  gives  prominence  to  the  labours  of  others.  The  text  of  Wheaton  is  presented 
without  alteration,  and  Mr.  Dana's  numbering  of  the  sections  is  preserved.  Mr.  Boyd's 
notes,  which  are  numerous,  original,  and  copious,  are  conveniently  interspersed  through- 
out the  text ;  but  they  are  in  a  distinct  type,  and  tlierefore  the  reader  always  knows 
whether  he  is  reading  Wheaton  or  Boyd.  The  Index,  which  could  not  have  been  com- 
piled without  much  thought  and  labour  makes  the  book  handy  for  reference,  and, 
consequently,  valuable  to  public  writers,  who  in  these  days  have  frequently  to  refer  to 
International  Law." — Law  Journal. 

"  Students  who  require  a  knowledge  of  Wheaton's  text  will  find  Mr.  Boyd's  volume 
very  convenient." — Law  Magazine. 

Wildman's   International    Law. — Institutes  of  Inter- 
national Law,  in  Time  of  Peace  and  Time  of  War.     By  RICHARD 
WILDMAN,  Barrister-at-Law.   2  vols,    Svo.     1849-50.      11.  2s.  6d. 
JOINT  OWNERSHIP.-Foster.— FifZc  "Real  Estate." 
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JOINT  STOCKS. — Palmer. —  Vide  "Conveyancing"  and  "Company 

Law." 
Thring's  (SirH.)  Joint  Stock  Companies'  Law.— 
The  Law  and  Practice  of  Joint  Stock  and  other  Public  Companies,  in- 
cluding the  Statutes,  -with  Notes,  a  Collection  of  Precedents  of 
jMemoranda  and  Articles  of  Association,  and  all  the  other  Forms 
required  in  iMakin£j,  Administering,  and  Winding-up  a  Company. 
Bv  Sir  HENRY  '^THIIING,  K.C.B.,  The  Parliamentary  Counsel. 
Third  EtUtion.  Bv  G.  A.  R.  FITZGERALD,  Esq.,  Barrister-at- 
Law.  and  Fellow  o'f  St.  John's  College,  Oxford.  12mo.  1875.  11. 
"This,  .IS  the  work  of  the  original  draughtsman  of  the  Companies' Act  of  1862,  and 

well-knoHn  Parliamentary  counsel.  Sir  Henry  Thrin^  is  naturally  the  highest  authority 

on  the  subject." — TVie  7\mes. 

Jordan's  Joint  Stock  Companies. — A  Handy  Book  of 
Practical  Instructions  for  the  Formation  and  Management  of  Joint 
Stock  Companies.     Sixth  Edition.     12mo.     1878.  Net,  2s.  6d. 

JUDGES'  CHAMBERS  PRACTICE.— Archibald's  Forms  of 
Suminonses  and  Orders,  with  Notes  for  use  at  Judges' 
Chambers  and  in  the  District  Registries.  By  W.  F.  A.  ARCHI- 
BALD, M.A.,  of  the  Inner  Temple,  Barrister-at-Law.  Royal  12mo. 
1879.  12s.  6d. 

"  The  work  is  done  most  thoroughly  and  yet  concisely.  The  practitioner  will  find 
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action,  interpleader,  attachment  of  debts,  mandamus,  injunction — indeed,  the  whole 
jurisdiction  of  the  common  law  divisions,  in  the  district  registries,  and  at  Judges' 
chambers." — Law  Times,  J\Uy  26,  1ST9. 

"  A  clear  and  well-digested  vade  mecum,  which  will  no  doubt  be  widely  used  by  the 
profession.'' — Law  Ma<jazii\e,  November,  1879. 
JUDGMENTS.— Piggott. —  Vide  "Foreign  Judgments." 

Walker's    Practice    on    Signing   Judgment   in 

the  High  Court  of  Justice.    With  Forms.    By  H.  H. 

WALKER,  Esc|.,  of  the  Judgment  Department,  Exchequer  Division. 

Cro^vn  8vo.     1879.  4s.  M. 

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every  branch  of  practice." 

"  We  think  that  sulicitors  and  their  clerks  will  find  it  extremely  useful."— Zajt-  Journal. 

JUDICATURE  ACTS.— Leys'  Complete  Time-Table  to 
the  Rules  under  the  Supreme  Court  of  Judi- 
cature Act,  187S.  Showing  all  the  periods  fixed  by  the  Rules 
within  or  after  which  any  proceedings  may  be  taken.  By  JOHN 
KIRKWOOD  LEYS,  M.  A,  of  the  Middle  Temple,  Esq.,  Barrister- 
at-Law.     Royal  8vo.     1875.  Net,  Is.  Qd. 

Lynch  and  Smith's  Introduction  to  the  Final 
Examination. — Being  a  collection  of  the  questions  set  by  the 
Incorporated  Law  Society,  with  the  answers  adapted  to  meet  the 
recent  extensive  alterations  made  by  the  JUDICATURE  ACT, 
1873.  By  H.  FOULKS  LYNCH,  SoUcitor,  and  ERNEST 
AUGUSTUS  SMITH,  Solicitor,  Clifford's  Inn,  Prizeman  ;  Senior 
Prizeman  of  the  Incorporated  Law  Society,  and  Brodrip  Gold  Medalist, 
1872.     Vol.  I.  The  Principles  of  the  Law.     Post  8vo.     1874.      12s. 

Lynch's  Epitome  of  Practice  in  tlie  Supreme 
Court  of  Judicature  in  England.  With  References 
to  Acts,  Rules,  and  Orders.  For  the  Use  of  Students.  Fourth 
Edition.     Royal  8vo.     1878.  Net,  Is. 

M  O  rg  an. —  Vide  "  Chancery.' ' 

Stephen's  Judicature  Acts  1873, 1874,  and  187S, 

consolidated.     With  Notes  and  an  Index.     By  Sir  JAMES 

FITZJAMES  STEPHEN,  one  of  Her  Majesty's  Judges.    12mo. 

1875.  4s.  6d, 

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JUDICATURE  ACTS— Continued. 

Wilson's  Supreme  Court  of  Judicature  Acts, 
Appellate  Jurisdiction  Act,  1876,  Rules  of 
Court  and  Forms.  With  other  Acts,  Orders,  Pailes  and 
Eegulations  relating  to  the  Supreme  Court  of  Justice.  With 
Practical  Notes  and  a  Copious  Index,  forming  a  Complete  Guide 
TO  THE  New  Practice.  Second  Edition.  By  ARTHUR  WIL- 
SON, of  the  Inner  Temple,  Barrister-at-Law .  (Assisted  by 
HARRY  GREENWOOD,  of  Lincoln's  Inn,  Barrister-at-Law, 
and  JOHN  BIDDLE,  of  the  Master  of  the  Rolls  Chambers.) 
Royal  12mo.     1878.     (pp.  726.)  18s. 

(In  limp  leather  for  the  pochet,  22s.  6d. ) 
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187S.  (In  limp  Leather  or  calf,  30s.)  1^.  5s. 

Rules  of   the  Supreine   Court,  Nov.,  1878,  and 
March,  1879.      (Forming  a  Supplement  to  the  above.)     Each  3d. 
"As  regards  Mr.  Wilson's  uotes,  we  can  only  say  that  they  are  indispensable  to  the 
proper  understamliug  of  the  new  systoin  of  procedui-e.     They  treat  the  principles  unon 
which  the  alterations  are  based  with  a  clearness  and  breadth  ot  view  which  have  never 
been  equalled  or  eveu  approached  by  any  other  commentator.  "—Soiu-i<or«'  Journal. 

"Mr.  Wilson  has  bestowed  upon  this  edition  au  amount  of  industry  and  caro  which 

the  Bench  and  the  Profession  will,  we  are  sure,  gratefully  acknowledge A 

conspicuous  and  important  feature  in  this  second  edition  is  a  table  of  cases  prepared  by 
Mr.  Biddle,  iu  which  not  only  are  cases  given  with  references  to  two  or  three  reports,  but 

every  place  in  which  the  cases  are  reported Wilson's  'Judicature  Acts,' 

is  now  the  latest,  and  we  think  it  is  the  most  convenient  of  the  works  of  the  same  class. 
The  practitioner  will  find  tliat  it  supplies  all  his  wants." — Law  Times. 

JURISPRUDENCE.— Amos,  Law  as  a  Science  and  as 
an  Art. — An  Introductory  Lecture  delivered  at  University 
College  at  the  commencement  of  the  session  1874-5.  By  SHELDON 
AMOS,  Esq.,  M.A,  Barrister-at-Law.     8vo.     1874.        Net,  Is.  6d. 

Philliinore's  (J.  G.)  Jurisprudence. — An  Inaugural 
Lecture  on  Jurisprudence,  and  a  Lecture  on  Canon  Law,  delivered 
at  the  Hall  of  the  Inner  Temple,  Hii;iry  Term,  1851.  By  J.  G. 
PHILLIMORE,  Esq.,  Q.C.    8vo.     1851.     Sewed.  3s.  Qd. 

Piggott. —  Vide  "Foreign  Judgments." 

JUSTINIAN,  INSTITUTES  OF.-Cumin.— Fic^e  "CivH  Law." 
Greene. —  Vide  "Roman  Law." 

Mears. —  Vide  "Roman  Law." 

Ruegg's  Student's  "  Auxilium"  to  the  Institutes 

of  Justinian. — Being  a  complete  synopsis  thereof  in  the  form 

of  Question  and  Answer.     By  ALFRED  HENRY  RUEGG,  of  the 

Middle  Temple,  Barrister-at-Law.     Post  8vo.     1879.  6s. 

"  The  student  will  be  greatly  assisted  in  clearing  and  arranging  his  knowledge  by  a 

work  of  this  kind." — Law  Journal. 

JUSTICE  OF  THE  PEACE.— Burn's  Justice  of  the  Peace 
and  Parish  Officer.— Edited  by  the  following  Barristers, 
under  the  General  Superintendence  of  JOHN  BLOSSETT 
MAULE,  Esq.,  Q.C.  The  Thirtieth  Edition.  Vol.  I.  containing  titles 
"Abatement"  to  "Dwellings  for  Artisans;"  by  THOS.  S.  PRIT- 
CHARD,  Esq.,  Recorder  of  Wenlock.  Vol.  II.  containing  titles 
"  Easter  Offering "  to  "Hundred;"  by  SAME.  B.  BRISTOWE, 
Esq.,  Q.C,  M.P.  Vol.  III.  containing  titles  "  Indictment"  to  "Pro- 
missory Notes  ;"  by  L.  W.  CAVE,  Esq.,  Q.C,  Recorder  of  Lincoln. 
Vol.  IV.  containing  the  whole  title  "  Poor  ;"  by  J.  E.  DAVIS, 
Esq.,  Stipendiary  Magistrate  for  Stoke-upon-Trent.  Vol.  V.  con- 
taining titles  "Quo  Warranto"  to  "Wreck;"  by  J.  B.  MAULE,  Esq., 
Q.C,  Recorder  of  Leeds.     Five  vols.  8vo.     1869.  71.  7s. 

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20  STEVENS   AND   SONS'   LAW   PUBLICATIONS. 


JUSTICE  OF  THE  PEACE -Coitm«ed. 
Paley. —  Vide  "Convictions." 
Stone's  Practice  for  Justices  of  the  Peace,  Justices' 

Clerks  and  Solicitoi-s  at  Petty  and  Special  Sessions,  in  Summary 
Matters  and  Indictable  Ofi'ences,  with  a  List  of  Summary  Convic- 
tions and  of  INIatters  not  Criminal.  With  Forms.  Ei^chth  Edition. 
By  THOMAS  SIKKELL  PRITCHARD,  Esq.,  Barrister-at-Law, 
Recorder  of  Wenlock.     Demy  8vo.     1877.  11.  10s. 

Wiqrani'sThe  Justices' Note  Book.  By  W.  KNOX 
WIGUAjM,  Esq.,  Barrister-at-Law,  J.P.  Middlesex.  Royal  12mo., 
ISSO.  10s.  Gd. 

Tn  the  first  portion,  or  'Treliminary  Notes,'  the  constitution  of  courts  of  Summary 
Jiu-isdicMon,  together  with  the  whole  course  of  ordinary  procedure,  as  modified  by 
the  recent  Act,  are  explained  in  a  series  of  short  chapters,  under  the  following  heads:— 
I.  Justices— Jurisdiction — Divisions — Petty  and  Special  Sessions.  II.  Summary 
Jurisdiction  upon  Information — Prehminary  Proceedings.  III.  Summaiy  Jurisdic- 
tion upon  Information — the  Hearing  and  Punishment.  IV.  Indictable"  Offences — 
Committal  for  Trial.  V.  Summary  Jurisdiction  as  regards  Indictable  Offences; 
(children -young  persons —and  adults).  VI.  Summary  Jurisdiction  upon  Complaint. 
VII.  Quarter  Sessions  and  Appeal.  VIII.  Note  on  the  .Summary  Jurisdiction  Act,  1879. 
In  the  second  part,  entitled  '  Kotes  of  Matters  and  Offences  alphabetically  arranged.' 
will  be  found  an  account  of  most  subjects  which  from  time  to  time  occupy  the 
attention  of  Justices,  either  in  Petty  or  Special  Se.s.sions. 

'  We  have  nothiug  but  praise  for  the  book,  which  is  a  justices'  royal  road  to  knowledge, 
and  ought  to  lead  them  to  a  more  accurate  acquaintance  with  their  duties  than  many  of 
them  have  hitherto  possessed."— So?ic«o?-s'  Journal. 

"This  is  altogether  a  capital  book.  Mr.  Wigram  is  a  good  lawyer  and  a  good 
justices'  lawyer."— ZfH''  Journal. 

'■  We  can  thoroughly  recommend  the  volume  to  magistrates."— Xaw  Times. 

LAND  TAX — Bourdin's  Land  Tax.— An  Exposition  of  the 
Land  Tax  ;  its  Assessment  and  Collection,  with  a  statement  of  the 
rights  conferred  by  the  Redemption  Acts.  By  MARK  A.  BOUR- 
DIN,  of  the  Inland  Revenue  Office,  Somerset  House  (late  Registrar 
of  Land  Tax).     Second  Edition.     Crown  8vo.     1870.  4s, 

LANDLORD  AND  TENANT.— Woodfall's  Law  of  Landlord 
and  Tenant. — A  Practical  Treatise  on  the  Law  of  Landlord 
and  Tenant,  with  a  full  Collection  of  Precedents  and  Forms  of 
Procedure.  Eleventh  Edition.  Containing  an  Abstract  of  Leading 
Propositions,  and  Tables  of  certain  Customs  of  the  Country.  By 
J.  M.  LELY,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law.  Royal 
8vo.     1877.  1^.  16s. 

"The  editor  has  expended  elabor.ate  industry  and  systematic  ability  in  making  the 

Work  us  perfect  as  possihle  ;  and  we  doubt  not  that  this  eleventh  edition  will  be  a  greater 

success  than  any  of  its  predecessors." — Solicilo7-s'  Jonrnul. 

LAW  LIST.— Law  List  (The). — Comprising  the  Judges  and  Officers 
of  the  different  Court.s  of  Justice,  Counsel,  Special  Pleaders, 
Draftsmen,  Conveyancers,  Solicitors,  Notaries,  &c.,  in  England 
and  Wales  ;  the  Circuits,  Judges,  Treasurers,  Registrars,  and  High 
Bailiffs  of  the  County  Courts,  District  Registries  and  Registrars 
under  the  Probate  Act,  Lords  Lieutenant  of  Counties,  Recorders, 
Clerks  of  the  Peace,  Town  Clerks,  Coroners,  Colonial  Judges, 
and  Colonial  Lawyers  having  English  Agents,  IMetropolitan  and 
Stipendiary  Magistrates,  Law  Agents,  Law  and  Public  Officers, 
Circuits  of  the  Judges  and  Counsel  attending  Circuit  and  Sessions, 
List  of  Sheriffs  and  Agents,  London  Commissioners  to  Administer 
(>aths  in  the  Supreme  Court  of  Judicature  in  England,  Conveyan- 
cers Practising  in  England  under  Certificates  obtained  in  Scotland, 
&c.,  &c.,  and  a  variety  of  other  useful  matters  so  far  as  relates  to 
Special  Pleaders,  Draftsmen,  Conveyancers,  Solicitors,  Proctors  and 
Notaries.  Compiled  by  WILLIAM  HENRY  COUSINS,  of  the 
Inland  Revenue  Office,  Somerset  House,  Registrar  of  Stamped  Cer- 
tificates, and  of  Joint  Stock  Companies.  Published  annually.  By 
Authority.    1880.  {Net  cash  2s.)      lOs.Gd. 

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LAW  REPORTS. — A  large  Stock  of   second-hand  Reports,     Estimates 

on  application. 
LAWYER'S  COMPANION.— r«/e  "Diary." 

LEADING  CASES.— Hayiies'    Student's  Leading  Cases. 

Being  some  of  the  Piiucipal  Decisions  of  the  Courts  in  Constitutional 

Law,  Common  Law,  Conveyancinf,'  and  Ei^uity,  Probate,    Divorce, 

Bankruptcy,  and  Criminal  Law.    With  Notes  for  the  use  of  Students. 

By  JOHN  F.  HAYNES,  LL.D.,  Author  of  "  The  Practice  of  the 

Chancery  Division  of  the  High  Court  of  .Justice,"  "The  Student's 

Statutes,"  &c.     Demy  8vo.     1878.  16s. 

"  We  consider  Mr.  Haynes'  book  to  be  one  of  a  very  praiseworthy  class ;  and  we  may 

say  also  that  its  editor  appears  to  be  a  competent  man.     He  can  express  himself  with 

clearness,  precision,  and  terseness." — Solicitors'  Journal. 

"  VViil  prove  of  great  utility,  not  only  to  Students,  but  Practitioners.     The  Kotes  are 
clear,  iioiated  and  concise.'' — Law  limes. 

"  We  think  that  this  book  will  supply  a  want       ....     the  book  is  singularly  well 
arranged  for  reference." — Laio  Journal. 

'  The  statements  of  the  various  cases  are  fairly  full  and  clear,  and  many  of  the  notes 
are  good."—  Law  Muijnziiie. 

Shirley's  Leading  Cases  in  Coninnon  La^A^  naade 
Easy.  By  W.  SHIRLEY  SHIRLEY,  M.A.,  Esq.,  Barrister-at- 
Law,  North-Eastern  Circuit.  (In  the  press.) 

LEXICON. —  Vide  "  Dictionary." 

LIBRARIES  AND  MUSEUMS.— Chanibers'  Public  Libraries 

and    Museums    and    Literary   and    Scientific 

Institutions  generally,  a   Digest  of  the   LaNAr 

relating  to.     Second  Edition.     By  G.  F.  CHAMBERS,  of  the 

Inner  Temple,  Barrister-at-Law.     Imperial  8vo.     1879.  Ss.  Qd. 

LICENSING.— Lely    and     Foulkes'     Licensing     Acts, 

1828,  1869,  1872,  and  1874;  Containins:  the  Law  of  the 

Sale  of  Liquors  by  Retail  and  the  Management  of  Licensed  Houses  ; 

with  Notes  to  the  Acts,  a  Summary  of  the  Law,  and  an  Ai3pendix 

of  Forms.     Second  Edition.      By   J.    M.    LELY   and   W.  D.    I. 

FOULKES,  Esqrs.,  Bamsters-^t-Law.     Royal  12mo.     1874.         8s. 

"  Messrs.  Lely  and   Foulkes'  plan  is  to  print  in  full  the  principal  Acts,  and  to  inter- 

p.)l.ats  between  the  sections  of  each  of  these  st.-itutes  all  subsidiary  enactments,  distin- 

gnishmg  them  by  brackets  and   marginal  notes These  notes  are  usually 

sensible  and  to  the  point   and  give  evidence  both  of  care  and  knowledge  of  the  subject." 
— Solicitors'  Journal. 

LIENS.— Cavanagh. —  Vide  "Money  Securities." 
LIFE  ASSURANCE.— Scratchleys  Decisions  in  Life  As- 
surance La^Ar,  collated  alphabetically  according  to  the  point 
involved  ;    with  the  Statutes.      Revised  Edition.      By  ARTHUR 
SCRATCHLEY,  M.A..  Barrister-at-Law.     Demy  8vo.     1878.     5s. 
LIGHTS. — Woolrych's  Practical  Treatise  on  the  Law 
of  Window   Lights. — Second  Edition.     12mo.     1864.       6s. 
LOCKE  KING'S  ACTS.— Cavanagh.— Firfe  "Money  Securities." 
LORD    MAYOR'S   COURT    PRACTICE.— Candy.— ^'^■rfe   "Mayor's 

Court  Practice." 
LUNACY. — Elmer's  Practice  in  Lunacy.— The  Practice  in 
Lunacy  under  Commissions  and  Inquisitions,  ■with  Notes  of  Cases 
and  Recent  Decisions,  the  Statutes  and  General  Orders,  Forms  and 
Costs  of  Proceedings  in  Lunacy,  an  Index  and  Schedule  of  Cases. 
Sixth  Edition.  By  JOSEPH'  ELMER,  of  the  Office  of  the 
Masters  in  Lunacy.     Svo.     1877.  2l5. 

MAGISTERIAL  LAW.— Burn.— Fz(Ze  "  Justice  of  the  Peace." 
Leeniing  and  Cross.— Fide  "  Quarter  Sessions." 
Pritchard. —  Vide  "  Quarter  Sessions." 
Stone. —  Vide  "  Petty  Sessions." 
Wigram. —  Vide  "Justice  of  the  Peace." 

*  ^'  A II  standard  Law  Worhs  are  I'cpt  in  Stoch,  in  law  calf  and  other  bindings. 


22  STEVENS  AND   SONS'   LAW  PUBLICATIONS. 


MANDAMUS.  — Tapping    on    Mandamus.  — The  Law  and 

Practice  of  the  High  Prerogative  Writ  of  Mandamus  as  it  obtains, 
both  in  Ensjland  and  Ireland.     Koyal  8vo.     1848.  Net,  II.  Is. 

MARITI  ME  COLLISION.— Lowndes.— Marsden.—  T7(/e  "Col- 
lision.'' 
MAYOR'S  COURT  PRACTICE.  — Candy's  Mayor's  Court 
Practi  ce.— The  Jm-isdiction,  Process, Practice,  and  Mode  of  Plead- 
in"-  in  Ordinary  Actions  in  the  Mayor's  Court,  London  (commonly  called 
the  " Lord  Mayor's  Comt " ).  Founded  on  Brandon.  By  GEORGE 
CANDY,  Esq.,  Barrister-at-Law.     Demy  8vo.     1879.  14s. 

"Thp  'ordinary'  practice  of  the  Court  is  dealt  with  in  its  natural  order,  and   is 
Biinply  and  clearly  stated."— iaw  Journal. 

MERCANTILE  LAW.— Boyd.— FzcZe  "Shipping." 
Russell.— Tide  "Agency." 

Smith's  Compendiunm  of  Mercantile  La-w.—Nrnth 

Edition.     By  G.  M.  DOWDESWELL,  of  the  Inner  Temple,  Esq., 

one  of  Her  Majesty's  Counsel.     Royal  8vo.     1877.  V.  18s. 

"We  can  safely  say  that,  to  the  practising  Solicitor,  few  books  -will  be  found  more 

useful  than  the  ninth  edition  of  '  Smith's  Mercantile  La.w.'"— Law  Marjazine. 

Tudor's  Selection  of  Leading  Cases  on  Mercan- 
tile and  Maritinie  LavsA.— With  Notes.  ByO.D.  TUDOR, 
Esq.,  Barrister-at-Law.  Second  Edition.  Royal  8vo.  1868.  1^.  18s. 
METROPOLIS  BUILDING  ACTS-— Woolrych's  Metropolis 
Building  Acts,  with  Notes,  Explanatory  of  the  Sections  and 
of  the  Architectural  Terms  contained  therein.  Second  Edition.  By 
N^OEL   H.   PATERSON,   M.A.,   Esq.,   Barrister-at-Law.     12mo. 

1877.  S*'  ^^' 

MINES.— Rogers'  La^^r  relating  to  Mines,  Minerals, 

and  Quarries  in   Great   Britain  and  Ireland; 

with  a  Summary  of  the  Laws  of  Foreign  States  and  Practical 
Directions  for  obtaining  Government  Grants  to  work  Foreign  Mines. 
Second  Edition  Enlarged.  By  ARUNDEL  ROGERS,  Esq., 
Judsje  of  County  Courts.     8vo.     1876.  IZ.  lis.  6a!. 

•'  The  voluine  will  prove  invaluable  as  a  work  of  legal  reference."— T/iC  JSIining  Jomnal. 

MONEY  SECURITIES.— Cavanagh's  Law  of  Money  Secu- 

joj^ies. In  Three  Books.     I.  Personal  Securities.     II.  Securities 

on  Property.     III.  Miscellaneous;  with  an  Appendix  containing  the 

Crossed  Cheques  Act,  1876,  The  Factors  Acts,  1823  to  1877.  Locke 

Kind's  and  its  Amending  Acts,  and  the  Bills  of  Sale  Act,  1878.  By 

CJHRISTOPHER  CAVANAGH,B.A.,LL.B.  (Lond.),  of  the  Middle 

Temple,  Esq.,  Barrister-at-Law.     In  1  vol.     Demy  8vo.    1879.   21s. 

"We  know  of  no  work  which  embraces  so  much  that  is  of  overy-day  importance,  nor 

do  we  know  of  anv  author  who  shows  more  familiarity  with  his  subject.     The  book  is 

one  which  we  thall  certainly  keep  near  at  hard,  and  we  believe  that  it  will  prove  a 

decided  acquisition  to  tne  practitioner."- /-aw  7'imf.'!.  ^       a     t-      a  4. 

"The  -iLithor  has  the  gift  of  a  pleasant  style;    there  are  abundant  and  correct 

references  to  decisions  <jf  a  recent  dute  :  and.  in  the  matter  of  newly-enacted  .statutes ; 

■ittemnts  are  made,  and,  as  we  think,  not  without  .success,  to  grapple  with  points  of 

r,racticc'and  intcnjrctation  which  as  yet  remain  judicially  unsolved      An  appendix, 

in  which  is  embodied  the  full  text  of  several  important  statutes,  adds  to  the  utility 

.f  the  work  as  a  book  of  reference ;  and  there  is  a  good  mAeJi." —Sohcitorn'  Journal. 

"In  the  second  book  bills  of  sale  extend  over  some  sixty-three  pages;  and  the 

treatise  on  them  seems  on  the  whole  well  written,  especially  with  reference  to  the 

alterations  tnade  by  41  &  J2  Vict.  c.  31."-/,c<w  ./owv,«/.  ,.„,,■■, 

"  May  be  the  means  of  saving  enormous  labour  to  thousandsof  readers.  —BuUtonut. 

MORTGAGE.- Coote's  Treatise  on  the  La>A^  of  Mort- 
gage.—Third  Edition.     Royal  8vo.     1850.  Net,  11. 
MORTMAIN.— Ra^A'linson's  Notes   on  the    Mortmain 

Acts  •  shewing  their  operation  on  Gifts,  Devises  and  Bequests  for 

Charitable  Uses.  By  JAMES  RAWLINSON,  SoUcitor.  Demy  8vo. 

1877.    Interleaved.  ^^^'  2«-  ^<^' 

*   *  All  standard  Law  Worlsare  kepi  in  Siod;  in  law  calf  and  other  bindings. 


119,  CHANCERYj:.ANE,  LONDON,  W.C.  jj 


NAVY -Thring's  Criminal  Law^fUie  Na^^^T^^^mTTn 

thtr'^tTf  "^^'^f "  -  the  Early  state  and  Bifoii^i^ZI ll^fj^ 

the  Eules  of  Evidence    and  an  Appendix  comprising    the   NaS 

Discipline    Act    and     Practical     Forms.      Second     EdlHnn        S^ 

THEODORE  THRING,  of  the  Middle  Tern;  eLriSr-ai-Law^ 

late  Commissioner  of  Bankruptcy  at  Liverpool,  ind  C.  E  (llFFORD 

Assistant-Paymaster,  Royal  Navy.     12mo      1877  lo    «;' 

'  A  full  series  of  forms  of  warrants,  minutes  chars-PS    b'f    nnri  M '„•„  j  t  ^         -i^s.  Oct. 

the  utUity  of  a  work  which  shoiUd  be  ia  the  bauds  of  all  tT,'.  .?,   «  ,^  f  ^""^^^''  °°n^P'ete 

latiu?  and  governing  of  the  Flee6/'-i"J  i/aSf    ^  ^^^  ^*^^  *"  '^"^^1  ^''^  the  regu. 

"In  the  new  editiou,  the  procedure,  naval  regulations    fornix    ai,ri  oii 
nected  with  the  practical  administration  of  the  llw  h  we  been  cSssin^f  ^  ,  ^^"^"  .'"k"" 
Mr.  GiiTord,  so  that  the  work  is  in  every  wav  iispfni;.L,ni»ffi        f^.  arranged  by 
and  MUilarv  Gazette  ^     ^  "^""''  co^P'ste,  and  up  to  dat6."_iVat;a; 

NISI  PRIUS.-Roscoe's  Digest  of  the  Law  of  Evidence 
on  the  Trial  of  Actions  at  Nisi  Priu^     T^n„.t     .? 

/p       /^f^^^^^f^.fOWELL,Barrister-at-Law.     Royal  12mo     1879    2/ 
V:^^^!:^!^^:^^:^:^J^^l^^^o..  re^uirin,  n.uch 

Selwyn's     Abridgment    of    the    Law    of    Nisi 
PriUS.-Thirteenth     Edition.       By    DAVID     KFANF     OP 
Recorder  of  Bedford,  and  CHARLES^.  SMITH,  M  A    on^  o?th; 
Judges  of  the  Supreme  Court  of  the  Cape  of  Good  Hop!       2  voL, 

NOTANOA.—  FicZe"  Digests."  I'^et,  U. 

NOTARY.-Brooke's  Treatise  on  the  Office  and  Prar 
tice  of  a  Notary  of  England.-With  a  fuH  collect  o?  of 
Precedents      Fourth   Edition.     By   LEON]^  LEVI,  Esq     F  S  A 

M..ioAK,i'i"°°^^  ^''°'  ^'^^■"«ter-at-Law.     8vo.     18/6  fii': 

SaTHS^^  R-^l'^^^^^^^-^''^^^  "  P'^blic  Health."  '''  ''• 

oTt^.h^'^^^'''^^'^  O^^^^  in  "^«  Supreme  Court 
25riS?te?0  tl^'^T.'^f""""'^."^  *^^  "^«  of'commission?r^^o 
Parrrco^ti^  '"  the  Supreme  Court  of  Judicature  in  England! 
i^tlf  -^  •  f'''^  P^^^t'c^l  information  respecting  their  Appoint 
ment  Designation,  Jurisdiction,  and  Powers  ;  Part  II  comprh  W. 
col  ection  of  officially  recognised  Forms  of  Jurats  and  Zh\lh 
Explanatory  Observations.  By  T  W  BRATTHWATTir  *  ^^ 
Record  and  Writ  Clerks'  Office^    Fcap.'  8vo      187^  '  t  ff 

;;Spec,ally  useful  to  Commissioners."-ia..J/.^«.F„.  ^^^  ^''  ^'^• 

adm;i;L'te7oaL""^5:Lt"-Vrr;„''^'""''    "^°  recognised  guide  of  commissioners  to 

pJKISJcuTJT'^?.^®^— ^^'^^  "I^eal  Estate." 
PARTNERSHIP.-Pollock's  Digest  of  the  Law  of  Part 
Esn    B^?;      E/.^P^EDERICK    POLLOCK,  olTin^ohi^^Inn' 

fniin^S"'"  D:ruy  ^^i:  '''-^- ''  ^—  -  i" 

of  *pr.7^%°-''^f  *  °/  v"'  ^T'^'  ^'  ^'^  S:ive  the  substance  of  the  Law 

"Of  th  f.«on 'jtif,t^le?"^P'"t^^  ?  "  '^""^^^^  '^'^'^  '^'^fi'^it^  f--" 
IJtnguage  is  simp  rconcise  and  cta^  an!  'fh^'''''^  '"  """"  °^-  '^^  ^^'^'^-^'^t  P'-'^i^^.  The 
witi  th'oso  of  Sir  J  ame"  Stephen  "'-ik^^'ll^jl^T      i^™P°«"'«"^« '"^y  l-ear  comparison 

ind^l^'^iSji^^.-r^i^t^'iii'S^::;^ 
perhtprre3ett:^rb°cri;T^iLrt:rrf'^-?^^^^^ 

t^o  study  than  it  is  at  VcLZt^^m^/^:^^^,^''^^''^'  '^'^  "  P'^asanter  and  easierUbject 
•     A II  standard  Law  Wo^-ks  arc  kept  in  Stock,  in  law  calf  and  other  bindings 


24  STEPHENS  AND   SONS'    LAW   PUBLICATIONS. 

PATENTS. — Hindmarch's  Treatise  on  the  Law  rela- 
ting to  Patents.— 8vo.  1846.  11.  Is. 
Johnson's  Patentees' Manual ;  being  a  Treatise 
on  the  Law  and  Practice  of  Letters  Patent, 
especially  intended  for  the  use  of  Patentees 
and  Inventors.— By  JAMES  JOHNSON,  Barrister-at-LaM% 
and  J.  H.  JOHNSON,  Solicitor  and  Patent  Agent.  Eourth  Edition. 
Thorousbly  revised  and  much  enlarged.  Demy  Svo.  1879.  10s.  6d. 
"  A  very  excellent  manual."— Zair  Timeg,  February  S,  1879. 

"  Tlie  author.s  have  uot  only  a  kiiowledfjeof  the  law,  but  of  the  working  of  the  law.  Be- 
sides the  table  of  cases  there  is  a  copious  index  to  subjects,,' — Law  Journal,  March  1,  IS79. 

Thompson's  Handbook  of  Pateiit  Law  of  all 
Countries.— Third  Edition,  revised.  By  WM.  P.  THOMPSON, 
CE.,  Head  of  the  International  Patent  Office,  Liverpool.  12mo. 
1S7S.  Net  2s.  M. 

PERSONAL  PROPERTY.— Smith.— FiV?e  «  Real  Property." 

PETITIONS.— Palmer. —  Vide  "  Conveyancing." 

PETTY  SESSIONS.— Stone's  Practice  for  Justices  of 
the  Peace,  Justices'  Clerks  and  Solicitors  at  Petty  and  Special 
Sessions,  in  Summary  Matters  and  Indictable  Offences,  with  a  List 
of  Summary  Convictions  and  of  Matters  not  Criminal.  With  Forms. 
Eighth  Edition.  By  THOMAS  SIRRELL  PRITCHARD,  of 
the  Inner  Temple,  Esq.,  Barrister-at-Law,  Recorder  of  Wenlock. 
In  1  vol.     Demy  Svo.     1877.  1?.  10s. 

"The book,  as  a  whole,  is  thorougUy  satiBiactory,  and,  having  gone  carefully  through  it, 

we  can  recommend  it  with  confidence  to  the  numerous  liody  of  our  readers  who  are  daily 

interested  in  the  subjects  to  which  it  relates." — Solicitors'  Journal. 

POOR  LAW. — Davis' Treatise  on  the  Poor  Laws. — Being 
Vol.  IV.  of  Burns' Justice  of  the  Peace.  Svo.  1869.  U.  lis.  6d. 

POWERS. — Farwell     on     Powers. — A    Concise    Treatise    on 

Powers.     By  GEORGE  FARWELL,  B.A.,  of  Lincohi's  Inn,  Esq., 

Barrister-at-Law.     8vo.     1874.  II.  Is. 

"  We  recorumend  Mr.  Farwell's  book  as  containing  within  a  small  compass  what  would 

otherwise  have  to  be  soucbt  out  iu  the  pages  of  hundreds  of  confusing  reports." — The  Law. 

PRECEDENTS. —  Vide  "  Conveyancing." 

PRINCIPAL  AND  AGENT. -Petgrave's  Principal  and 
Agent.— A  Manual  of  the  Law  of  Principal  and  Agent.  By 
E.  C.  PETGRAVE,  Solicitor.     12mo.     1857.  7s.  6d. 

Petgrave's  Code  of  the  Law  of  Principal  and 
Agent,  with  a  Preface.  By  E.  C.  PETGRAVE,  Solicitor. 
Demy  12mo.     1876.  Net,  sewed,  2s, 

PRIVY  COUNCIL.  —  Finlason's  History,  Constitution, 
atTd  Character  of  the  Judicial  Committee  of 
the  Privy  Council,  considered  as  a  Judicial  Tribunal, 
especially  in  Ecclesiastical  Cases,  with  special  reference  to  the  right 
and  duty  of  its  members  to  declare  their  opinions.  By  W.  F. 
FINLASON,  Barrister-at-Law.     Demy  Svo.     1878.  4s.  6d. 

Lattey's  Handy  Book  on  the  Practice  and  Pro- 
cedure before  the  Privy  Council.— By  ROBERT 
THOMAS  1.ATTEY,  Attorney  of  the  Court  of  Queen's  Bench, 
and  of  the  High  Court  of  Bengal.     12mo.     1869.  6s. 

PROBATE. — Browne's  Probate  Practice  :  a  Treatise  on  the 
Principles  and  Practice  of  the  Court  of  Probate,  in  Contentious  and 
Non-Contentious  Business,  with  the  Statutes,  Rules,  Fees,  and 
Forms  relating  thereto.  By  GEORGE  BROWNE,  Esq.,  Barrister- 
at-Law,  Recorder  of  Ludlow.  Svo.  1873.  11.  Is. 
"  A  Cursory  glance  through  Mr.  Browne's  work  Bhows  that  it  has  been  compiled  with 

muie  than  ordinary  care  and  intelligence.     Wo  siiould  consult  it  with  every  confidence." 

— Law  Times. 

Haynes. —  Vide  "  Leading  Cases." 

*^*  All  standard  Law  Works  are  kept  in  Slock,  in  law  calf  and  other  bindings. 


119,  CHAJJCERY  LANE,  LONDON,  W.C.  25 

PUBLIC  HEALTH.— Chambers'  Digest  of  the  Law  re- 
lating to  Pubhc  Health  and  Local  Govern- 
nnent.— With  Notes  of  1073  leading  Cases.  Various  official 
documents  ;  precedents  of  By-laws  and  Regulations.  The  Statutes 
in  full.  A  Table  of  Offences  and  Punishments,  and  a  Copious 
Index.  Seventh  Edition,  enlarged  and  revised,  with  Supplement 
containing  new  Local  Government  Board  By-Laws  in  full.  Imperial 
8vo.     1875-7.  l/_  3^,_ 

*»*  The  Supplement  may  be  had  separately,  price  9s. 
FitzGerald's  Public  Health  and  Rivers  Pol- 
lution Prevention  Acts.— The  Law  relating  to  Public 
Health  and  Local  Government,  as  contained  in  the  Public  Health 
Act,  1875,  with  Introduction  and  Notes,  showing  all  the  alterations  in 
the  ExistingLaw,  with  reference  to  the  Cases,  &c.;  together  with  a  Sup- 
plement containing  "The  Rivers  Pollution  Prevention  Act,  1876." 
With  Explanatory  Introduction,  Notes,  Cases,  and  Index  By 
G.  A.  R.  FITZGERALD,  Esq.,  Barrister-at-Law.  Royal  8vo. 
IS''^-  II.  Is. 

"  A  copious  and  well-executed  aualytical  index  completes  the  work  which  we  can 
confiilently  recommend  to  the  officers  and  members  of  sanitary  authorities  and  all 
interested  in  the  subject  matter  of  the  new  Act."— Law  Magazine  and  Ileview.  ' 

"Mr.  FitzGerald  comes  forward  with  a  special  qualification  for  the  task  for  he  was 
employed  by  the  (ioverninent  in  the  preparation  of  the  Act  of  1875;  and,  as  he  himself 
says,  has  necessarily,  for  some  time  past,  devoted  attention  to  the  law  relating  to  nublic 
health  and  local  government." — Law  Journal. 

PUBLIC  MEETINGS— Chambers'  Handbook  for  Public 
Meetings,  including  Hints  as  to  the  Summoning  and  Manao-e- 
ment  of  them ;  and  as  to  the  Duties  of  Chairmen,  Clerks,  Secretarilis 
and  other  Officials;  Rules  of  Debate,  &c.,  to  which  is  added  a  Dioest 
of  Reported  Cases.  By  GEORGE  F.  CHAMBERS,  Esq.,  Bar- 
rister-at-Law.    lilmo.     1878.  JSfet   2s.  6d. 

QUARTER  SESSIONS.— Leeming&  Cross's  General  and 
Quarter  Sessions  of  the  Peace.— Their  Jurisdiction 
and  Practice  m  other  than  Criminal  matters.  Second  Edition  By 
HORATIO  LLOYD,  Esq.,  Recorder  of  Chester,  Judge  of  County 
Courts,  and  Deputy-Chairman  of  Quarter  Sessions,  and  H.  F 
THURLOW,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law.   '  8vo' 


1876. 


11.  Is. 


••  The  present  editors  appear  to  have  taken  the  utmost  pains  to  make  the  volume  com'- 
plete,  and,  from  our  examini,tiou  of  it,  we  can  thoroughly  recommend  it  to  all  interested 
in  the  practice  of  quarter  sessions."— Inw  Times  »"«>."  mierLsiea 

Pritchard's  Quarter  Sessions.— The  Jurisdiction,  Prac- 
tice and  Procedure  of  the  Quarter  Sessions  in  Criminal,  Civil  and 
Appellate  Matters.  By  THOS.  SIRRELL  PRITCHARD,  of  the 
Inner  Temple,  Esq.,  Barrister-at-Law,  Recorder  of  Wenlock.  8vo. 
1875.  ()j  t)^ 

';  ^e  can  confidently  say  that  it  is  written  throughout  with  clearness  and  intellhrence' 
and  tnat  both  in  legislation  and  in  case  law  it  is  carefully  brought  down  to  the  nir«f 
recent  date.  — SoHcitors'  Journal. 

RAILWAYS.— Browne  and  Theobald's  Law  of  Rail- 
ways. By  J.  H.  BALFOUR  BROWNE,  of  the  Middle  Temple, 
Registrar  of  the  Railway  Commissioners,  and  H.  S.  THEOBALD* 
of  the  Inner  Temple,  Esqrs.,  Barristers-at-Law.  {In  prejxirafion.) 
Lely's  Railway  and  Canal  Traffic  Act,  1873.— 
And  other  Railway  and  Canal  Statutes ;  with  the  General  Orders 
Forms,  and  Table  of  Fees.  By  J.  M.  LELY,Esq.  Post  8vo.  1873.    8s.' 

*«*  A/l  standard  Law  Works  are  kept  in  Stock,  in  laio  calf  and  other  binding 


STEVENS  AND   SONS'  LAW   PUBLICATIONS. 


RATES   AND    RATING.— Castle's  Practical  Treatise  on 

the  Law  of  Rating.    By  EDWARD  JAMES  CASTLE,  of 

the  Inner  Temple,  Barrister-at-Law.     Demy  8vo.     1879.  II.  Is. 

"Mr.  C:istlo's  book  is  a  correct,  exlKUistivc,  cloav  uiul  concise  view  of  the  law."— 

Zd.'  Times.  ,       ,  ,         ,     ,  r       „     T        T  , 

•'The  book  is  a  useful  assistant  m  a  perpleied  brancli  of  Law.  —Lan-  Journal. 

Chaniber's  La^A^  relating  to  Ratesand  Rating; 
witli  especial  reference  to  the  Powers  and  Duties  of  llate-levying 
Local  Authorities,  and  their  Officers.  Being  the  Statutes  in  full 
and' brief  Notes  of  550  Cases.  By  G.  F.  CHAMBERS,  Esq., 
Ban-ister-at-Law.     Imp.  8vo.     1878.  12s. 

REAL  ESTATE.— Foster's  Law  of  Joint  Ow^nersliip 
and  Partition  of  Real  Estate.  By  EDWARD  JOHN 
POSTER.   M.A.,  late   of    Lincoln's    Inn,   Barrister-at-Law.       8vo. 

1878.        '  ^^^-  ^'^■ 

"Mr  Foster  may  be  congratulated  on  having  produced  a  vciy  satisfactory  rade 
meetim  on  the  Law  of  Joint  Ownership  and  Partition.  He  has  taken  considerable 
pains  to  make  his  treatise  practically  useful,  and  has  combined  within  the  fifteen 
chapters  into  which  the  book  is  divided,  brevity  of  statement  vdfh  completeness  of 
treatment.  "—Law  Magazine. 

REAL  PROPERTY.—  Greenwood's  Recent  Real  Pro- 
perty Statutes.  Comprising  those  passed  during  the  years 
1874-1877  inclusive.  Consolidated  with  the  Earlier  Statutes  thereby 
Amended.  With  Copious  Notes,  and  a  Supplement  containing  the 
Orders  under  the  Settled  Estates  Act,  1878.  By  HARRY 
GREENWOOD,  M.A.,  Esq.,  Barrister-at-Law.  8vo.  1878.  10s. 
"To  students  particularly  this  collection,  with  the  careful  rotes  and  references  to 

previous  legislation,  will  be  of  considerable  value."— iaw  Times. 
'•The  author  has  .added  notes  which,  especially  on  the  Vendor  and  Purchaser  Act, 

and  the  Settled  Estates  Act,  are  likely  to  be  useful  to  the  practitioner    ...    so  far 

■IS  we  have  tested  them,  the  st>.tements  appear  to  be  generally  accurate  and  careful, 

and  the  work  will  be  found  exceedingly  handy  for  reference.'-  SoHcitors'  Jnvrnal. 
"Mr  Greenwood's  hook  gives  such  ot  the  provisions  of  the  amended  statutes  as  are 

(■till  in  force,  as  well  as  tlie  provisions  of  the  new  statutes,  iu  oider  to  show  more  clearly 

the  effect  of  the  recent  legislation."— /.'lic  Jnurnal. 

Leake's  Elementary  Digest  of  the  Law  of  Pro- 
perty in  Land. — Containing  :  Introduction.  Part  I.  The 
Sources  of  the  Law.— Part  II.  Estates  in  Land.  By  STEPHEN 
MARTIN  LEAIO:,  Barrister-at-Law.    8vo.     1874.  \l.  2s. 

•  ♦  Tlic  above  forms  a  complete  Introduction  to  the  Study  of  the  Law  of  Real  Property. 

Shear>A^ood's  Real    Property.— A  Concise  Al3ridgment 

of  the  Law  of  Real  Property  and  an  Introduction  to  Conveyancing. 

Desjo-ned   to    facilitate    the    subject    for    Students    preparing   for 

Examination.     By  JOSEPH  A.  SHEARWOOD,  of  Lincoln's  Inn, 

Esq.,  Barrister-at-Law.     Demy  8vo.     1878.  6s.  6c^. 

"The  present  law  is  expounded  paragraphically,  fo  that  it  could  be  KciwaWy  Ifcmud 

without  understanding  the  origin  from  which  it  has  Bpruug,  or  the  principles  ou  which  it 

is  based."— Z<aiii  Journal. 

Shelford's  Real  Property  Statutes. — Eighth  Edition. 
Bv  T.  H.  CARSON,  Esq.,  Barrister-at-Law.    8vo.     1874.     1/.  10s. 

Sniith's  Real  arid  Personal  Property.— A  Com- 
pendium  of  the  Law  of  Real  and  Personal  Property,  primarily 
connected  with  Conveyancing.  Designed  as  a  second  book  for 
Students,  and  as  a  digest  of  the  most  useful  learning  for  Practi- 
tioners. ByJOSIAH  W.SMITH,  B.C.L.,  Q.C.  Fifth  Edition. 
2  vols.    DemySvo.      1877.  2/.  2s. 

"  He  has  given  to  the  student  a  hook  which  he  may  read  over  and  over  again  with  profit 
and  pleasure."— iaw  Timet. 

>'  The  work  before  us  Mill,  we  think,  be  found  of  very  great  service  to  the  practitioner.' 
—Solicitor^  Journal 
'^*AU  standard  Law  Works  are  l-ept  in  StocJc,  in  law  calf  and  other  Undinrjs. 


119,  CHANCERY  LANE,  LONDON,  W.C.  27 


REGISTRATION.— Browne's(G.L.athom)Parliamentary 

and  Municipal  Registration  Act,  1878  (41  &  42 

Vict.    cai3.    26)  ;    witli    an    Introduction,    Notes,    and    Additional 

Foi-ms.     By  G.  LATHOM  BROWNE,  of  the  Middle  Temple,  Esq., 

Barrister-at-Law.     12mo.     1878.  5s.  6d. 

REGISTRATION     CASES.— Hopwood       and      Coltnian's 

Registration  Cases.— Vol.  1.(1808-1872).  Net,2LlSs.  Calf, 

Vol.  II.  (1873-1878).     Net,  21  10s.  Calf. 

RIVERS    POLLUTION  PREVENTION.— FitzGerald's    Rivers 

Pollution   Prevention  Act,  1875.— With  Explanatory 

Introduction,  Notes,  Cases,  and  Index.     Royal  8vo.  1876.       3s.  6cL 

ROP/iAN   LAW.— Cumin.— Fic^e  "Civil." 

Greene's  Outlines  of  Ronian  Law.— Consisting  cliiefliy 

of   an  Analysis  and  Summary  of    the  Institutes.     For  the  use  of 

Students.     By  T.  WHITCOMBE  GREENE,  B.C.L.,  of  Lincoln's 

Inn,  Barrister-at-Law.    Third  Edition.  Foolscap  8 vo.  1875.       7s.  6d. 

Mears'  Student's  Ortolan.^An  Analysis  of  M.  Ortolan's 

Institutes     of     Justinian,    including    the    History    and 

Generalization   of   Roman   Law.      By  T.    LAMBERT    MEARS, 

M.A.,    LL.D.    Lond.,   of    the    Inner    Temple,    Barrister-at-Law. 

Puhlishedhy permission  of  thelateBl. Ortolan.  PostSvo.  1876.  12s. 6c?. 

Ruegg. —  Vide  "  Justinian." 

SAUNDERS'  REPORTS.— Williams'  (Sir  E.  V.)  Notes  to 

Saunders'  Reports. — By  the  late  Serjeant  WILLIAMS. 

Continued  to  the  present  time  bj-  the  Right  Hon.   Sir  EDWARD 

VAUGHAN  WILLIAMS.     2  vols.     Royal  8vo.     1871.      21  10s. 

SETTLED  ESTATES.— Middleton's  Settled   Estates  Act, 

1877,  and  the   Settled  Estates  Act  Orders,  1878, 

with    Introduction,    Notes    and    Forms,    and    Summary    of    Practice. 

Second  Edition.     By  JAMES  W.  MIDDLETON,  B.A.,  of  Lincoln's 

Inn,  Barrister-at-Law.     12mo.     1879.  4s.  6fZ. 

"  A  complete  work  as  a  practical  edition  of  the  Settled  Estates  Act,  1S77,  aud  will  be 

found  exceedingly  useful  to  legal  practitioners." — Law  Journal. 

"The  book  is  a  well-timed  and  useful  manual  of  the  Act."—  Solicitors'  Jotirnal. 
"  The  book  is  excellently  arranged,  particularly  iu  the  summary  of  practice." — Saturday 
Reviejc. 

SHERIFF   LAW Churchill's     Law   of  the   Office   and 

Duties  of  the  Sheriff,  with  the  Writs  and  Forms  relatino- 
to  the  Office.  By  CAMERON  CHURCHILL,  B.A.,  of  the  Inner 
Temple,  Barrister-at-Law,  assisted  by  A.  CARMICHAEL  BRUCE, 
B.A.,  of  Lincoln's  Inn,  Barrister-at-Law.  Demy  8vo.  1879.  18s. 
"This  is  a  work  upon  a  subject  of  large  practical  importance,  and  seems  to  have  been 

compiled  with  exceptional  care There  is  an  appendix  of  forms  which,  will  be 

found  useful." — Law  Times. 

"  Under-Sherifls,  and  lawyers  generally,  will  find   this  a  useful  book  to  have  by  them, 

both  for  perusal  and  reference." — Law  Magazine. 

SHIPPING,  and  vide  "  Admiralty." 

Boyd's  Merchant  Shipping  Laws;  being  a  Consolida- 
tion  of  aU  the  Merchant  Shipping  and  Passenger  Acts  from  1854  to 
1876,  inclusive ;  with  Notes  of  aU  the  leading  English  and  American 
Cases  on  the  subjects  affected  by  Legislation,  and  an  Appendix 
containing  the  New  Rules  issued  in  October,  1876  ;  forming  a  com- 
plete Treatise  on  Maritime  Law.  By  A.  C.  BOYD,  LLB.,  of  the 
Inner  Temple,  Esq.,  Barrister-at-LaAv,  and  Midland  Circuit.  Svo. 
1876.  i;.  5s. 

"  We  can  recommend  the  work  as  a  very  useful  compendium  of  shipping  law." — Law 

Times. 

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SOLICITORS.— Cordery's    La-w  relating  to  Solicitors 

of  the  Supreme  Court  of  Judicature.— With  an 

Appeiulix  of  Statutes  and  Ftules.     By  A.  CORDERY,  of  the  Inner 

Temple,  Esq.,  Barrister-at-La\v.     Demy  Svo.     1878.  14s. 

"  Mr.  Cordery  writes  tersley  aud  clearly,  and  disjilays  iu  general  great  industry  and 

care  iu  the  collection  of  cmes."—  SulicUors'  Journal. 
"  The  chapters  on  liability  of  solicitors  ;md  on  lien  may  be  selected  as  two  of  the  best 

iu  the  book."'    Law  Jourinil. 

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STAMP  LAWS Tilsley's      Treatise     on     the      Stamp 

Laws. — Being  an  Analytical  Digest  of  all  the  Statutes  and 
Cases  relating  to  Stamp  Duties,  with  practical  remarks  thereon. 
Third  Edition.  With  Tables  of  all  the  Stamp  Duties  payable  in 
the  United  Kingdom  after  the  1st  January,  1871,  and  of  Former 
Duties,  &c.,  &c.  By  E.  H.  TILSLEY,  of  the  Inland  Revenue 
Office.    8vo.    1871.  18«. 

STATUTES,  a.nd  vide  "  Acts  of  Parliament." 

Biddle's  Table  of  Statutes. — A  Table  of  References  to 
unrepealed  Public  General  Acts,  arranged  in  the  Alphabetical  Order 
of  their  Short  or  Popular  Titles.  Second  Edition,  including  Refer- 
ences to  all  the  Acts  in  Chitty's  Collection  of  Statutes.  Royal  Svo. 
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ments, to  1878. — A  Collection  of  Statutesof  Practical  Utility  ; 
with  Notes  thereon.  The  Thu'd  Edition,  containing  all  the  Statutes 
of  Practical  Utility  in  the  Civil  and  Criminal  Administration  of 
Justice  to  the  Present  Time.  By  W.  N.  WELSBY  and  EDWARD 
BEAVAN,  Esqrs.,  Barristers-at-Law.  In  4  very  thick  vols.  Royal 
Svo.     1865.     {Published  at  121.  12s.)  Reduced  to,  net,  61.  6s. 

Supplements  to  the  above.  By  HORATIO  LLOYD,  Esq., 
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and  no  statutes  were  ever  referred  to  V)y  the  Bar  which  be  could  not  find  in  it." 

*The  Revised  Edition  of  the  Statutes,  a.d.  123S- 
1868,  prepared  under  the  direction  of  the  Statute  Law  Committee, 
published  by  the  authority  of  Her  Majesty's  Government.  In  15 
vols.     Imperial  Svo.     1870-1878.  19^.  9s. 

Vol  1.— Henry  III.  to  James  IL,  1235-1685.    11.  Is.  Od. 

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"    3— 11  Geo.  III.  to  41  Geo.  Ill  ,  1770-1800    .    0  17     0 

'     4._4l  Geo.  IIL  to  51  Geo.  IIL,  1801-1811    .0  18     0 

r    5.-52  Geo.  III.  to  4  Geo.  IV.,  1812-1823    .15     0 

C.— 5  Geo.  IV.  to  1  ct  2  Will.  IV.,  1824-1831    .16     0 

7  —2  &  3  Will.  IV.  to  6  &  7  Will.  IV.,  1831-1836  ,._  110  0 
"  8  —7  Will.  IV.  &  1  Vict,  to  5  &  6  Vict.,  1837-1842  .112  6 
"    9  _6  &  7  Vict,  to  9  &  10  Vict.,  184.3-1846    .    1   11     C 

",  10.— 10  &  11  Vict,  to  13  &  14  Vict.,  1847-1850    .17     6 

11.-14  &  15  Vict,  to  16  &  17  Vict.,  1851-1853    .14     0 

'   12.-17  &  18  Vict,  to  19  &  20  Vict.,  1854-1856    .16     0 

13.-20  Vict,  to  24  &  25  Vict.,  1857-1861    .    1   10     0 

,,  14.-25  &  2G  Vict,  to  28  &  29  Vict.,  1862-1865    .    1   10     0 

„  15.— 29  &  30  Vict,  to  31  &  32  Vict.,  and  >   i86(5_i867-8    110     6 
Sujiplenient,  5 

*  *  The  above  Work  is  now  completed. 
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119,   CHANCEllY   LANE,   LONDON,   W.C.  29 


ST  AT  yjTES.— Continued. 

'Chronological  Table  of  and  Index  to  the  Statutes 

to  the  ead  of  the   Session   of  1878.     Fifth  Edition,  imperial  8vo. 

1879.  lis. 

*Public  General    Statutes,  royal  8vo,  issued  in  parts  and  in 

complete  volumes,  and  supplied  immediately  on  publication. 
*  Printed  by  Her  Majesty's  Printers,  and  Sold  by  Stevens  &  Sons. 
Head's  Statutes  by  Heart;  being  a  System  of  Memoria 
Technica,  applied  to  Statutes,  and  embracing  Common  Law,  Chan- 
cery, Bankruptcy,  Criminal  Law,  Probate  and  Divorce,  and  Convey- 
ancing. By  FREDERICK  WILLIAM  HEAD,  of  the  Inner 
Temple,  Student-at-Law.     Demy  8vo.     1877.  Net,  Is.  6d. 

SUMMARY  CONVICTIONS.— Paley's  Law  and  Practice 
of  Summary  Convictions  under  the  Sum- 
nnary  Jurisdiction  Acts,  1848  and  1879  ;  including 
Proceedings  preliminary  and  subsequent  to  Convictions,  and  the 
responsibility  of  convicting  Magistrates  and  their  Officers,  with 
Forms.  Sixth  Edition.  By  W.  H.  MACNAMARA,  Esq.,  Bar- 
rister-at-Law.     Demy  8vo.     1879.  11.  4s. 

"  \Vc  gladly  welcome  this  good  edition  of  a  good  book." — SoUdlor.'i'  Journal. 

Tenipler's  Summary  Jurisdiction  Act,  1879. — 
Rules  and  Schedules  of  Forms.  Witli  Notes.  By  FREDERIC 
GORDON  TEMPLER,  of  the  Inner  Templer,  Esq.,  Barrister-at- 
Law.     Demy  Svo.     1880.  5s. 

"  We  think  this  edition  everything  that  could  be  desired." — Sheffield  Post,  Feb.  7,  1S80. 
Wigrani. —  Vide  "Justice  of  the  Peace." 
SUMMONSES  AND  ORDERS.— Archibald.— T7c?c  "  Judges' Cham- 
bers Practice." 

TORTS. — Addison  on  Wrongs  and  their  Remedies.— 
Being  a  Treatise  on  the  Law  of  Torts.  By  C.  G.  ADDISON,  Esq., 
Author  of  "  The  Law  of  Contracts."  Fifth  Edition.  Re-written. 
By  L.  W.  CAVE,  Esq.,  M.A.,  one  of  Her  Majesty's  Counsel, 
Recorder  of  Lincoln.     Royal  Svo.     1879.  1/.  ISs. 

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cature Acts,  great  changes  have  been  effected  in  practice  and  pleading.  ...  In 
tlie  ijresent  edition  the  nature  of  the  right  infringed  has  been  taken  a.s  the  basis  of 
the  arrangement  throughout.  .  .  .  Every  effort  has  been  made,  while  assimilating 
tliis  edition  in  form  to  the  companion  treatise  On  Contracts,  to  maintain  the  reputa- 
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"  As  now  presented,  this  va'uable  treatise  must  prove  highly  acctptable  to  judges  and 
the  profession." — Law  Times,  February  7th,  1880. 

•'  Cave's  'Addison  on  Torts  '  will  bo  recognized  as  an  indispensable  addition  to  every 
lawyer's  lihrary.  ' — Law  Magazine  and  Revieio,  February,  1880. 

TRADE  MARKS— Rules  under  the  Trade  Marks'  Re- 
gistration Act,  187S  (by  Authority).  Sewed.  Net, Is. 
Sebastian  on  the  Law  of  Trade  Marks.— The  Law 
of  Trade  Marks  and  their  Registration,  and  matters  connected  there- 
with, including  a  chapter  on  Goodwill.  Together  with  Appendices 
containing  Precedents  of  Injunctions,  &c. ;  The  Trade  Marks  Regis- 
tration Acts,  1875 — 7,  the  Rules  and  Instructions  thereunder; 
The  Merchandise  Marks  Act.  1862,  and  other  Statutory  enact- 
ments; and  The  United  States  Statute,  1870  and  1875,  and  the 
Treaty  with  the  United  States,  1877  ;  and  the  New  Rules  and 
Instructions  issued  in  February,  1878.  With  a  copious  Index. 
By  LEWIS  BOYD  SEBASTIAN,  B.C.L.,  M.A.,  of  Lincoln's 
Inn,  Esq.,  Barrister-at-Law.     8vo.     1878.  14s, 

"  The  book  cannot  fail  to  be  of  service  to  a  large  class  o(  lawyers." — Solicitors'  Journal. 
"  Mr.  Sebastian  has   written   the  fullfst  and  most  methodical  book  on  trade  marks 
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Acts."— 7',-a(Zc  Marks. 

"  Viewed  as  a  compilation,  the  book  leaves  httle  to  be  desired.     Viewed  as  a  treatise  on 
a  subject  of  growing  inipc  rtaace,  it  a  s )  strikes  us  as  being  well,  and  at  any  rate  carefully 
executed." — Law  Journal. 

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30  STEVENS  AND  SONS'  LAW  PUBLICATIONS. 


TRADE   MARKS.-Conttnm?. 

Sebastian's  Digest  of  Cases  of  Trade  Mark, 
Trade  Name,  Trade  Secret,  Goodwill,  &c.,  de- 
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the  United  States  of  America.  By  LEWIS  BOYD  SEBASTIAN, 
B.C.L.,  M.A.,  of  Lincoln's  Inn,  Esq.,  Barrister-at-Law,  Author  of 
"The  Law  of  Trade  Marks."     Demy  Svo.     1879.  1^.  Is. 

•'  A  digest  wliicli  will  lie  of  very  greiit  value  to  all  prastitiouers  who  have  to  advise 
on  matters  connected  with  trade  murks." — Solicitors'  Journal,  July  20,  1S79. 

Trade  Marks'  JournaL — 4to.  Sewed.   {Issued  fortnvjhUy.) 

Nos.  1  to  ISG  arc  noio  ready.  Net,  each  Is. 

Index  to  Vol.  I.  (No.s.  1—47.)  Net,  3s. 

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Ditto,  „  Vol.  III.  (Nos.  98—123.)  Net,  3s. 

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"Wood's  La'W  of  Trade  Marks. — Containing  the  Mer- 
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1875  ;  with  the  Bules  thereunder,  and  Practical  Directions  for  ob- 
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J.  BIGLAND  WOOD,  Esq.,  Barrister-at-Law.    12mo.    1876.     5s. 

TRAMWAYS. — Palmer. —  Vide  "  Conveyancing." 

Sutton's  Tram^A/■ay  Acts. — The  Tramway  Acts  of  the 
United  Kingdom,  with  Notes  on  the  Lav/  and  Practice,  and  an 
Appendix  containing  the  Standing  Orders  of  Parliament,  Bules 
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Referees  with  respect  to  Locus  Standi.  By  HENRY  SUTTON, 
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TRUSTS  AND  TRUSTEES —Godefroi's  Digest  of  the 
Principles  of  the  Law  of  Trusts  and  Trus- 
tees.—By  HENRY  GODEFROL  of  Lincohi's  Inn,  Esq., 
Barrister-at-Law.  Joint  Author  of  "  Godefroi  and  Shortt's  Law  of 
Railway  Companies."     Demy  Svo.     1879.  1^.  Is. 

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"  As  a  digest  of  the  law,  Mr.  Godefroi's  work  merits  commendation,  for  the  author's 
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authorities.  In  the  table  of  cases  the  references  to  the  several  contemporaneous 
reports  are  given,  and  there  is  a  very  copious  index  to  subjects." — Law  Joimial. 

USES.— Jones  (W.  Hanbury)  on  Uses.— 8vo.    1862.        7s. 

VENDORS  AND  PURCHASERS.— Dart's  Vendors  and  Pur- 
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dors and  Purchasers  of  Real  Estate.  By  J.  HENRY  DART,  of 
Lincoln's  Inn,  Esq..  one  of  the  Six  Conveyancing  Counsel  of  the 
High  Court  of  Justice,  Chancery  Division.  Fifth  Edition.  By 
the  AUTHOR  and  WILLIAM  BARBER,  of  Lincobi's  Inn,  Esq., 
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WATERS. — Woolrych  on  the  'L.b.^'jv  of  "Waters. — Including 

Rights  in  the  Sea,  Rivers,  Canals,  <fec.    Second  Edition.    8vo.    1851. 

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WATERWORKS— Palmer.— FicJc  "Conveyancing." 

WILLS.— Rav/linson's  Guide  to  Solicitors  on  takh^g 
Instructions  for  Wills.— 8vo.    1874.  48 


STEVENS  &  SONS,  119,  CHANCERY  LANE,  LONDON,  W.C. 


STEVENS  AND  SONS'  LAW  PUBLICATIONS.  31 

WILLS.— C^onimited. 

Theobald's  Concise  Treatise  on  the  Construc- 
tion of  "Wills.— With  Table  of  Cases  and  Full  Index.  By 
H.  S.  THEOBALD,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law, 
and  Fellow  of  Wadham  College,  Oxford.     8vo.     1876.  U. 

"Mr.  Theobald  has  certainly  given  evidence  of  extensive  investigation,  conscientious 
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NEW  WORKS  AID  NEW  EDITIONS, 

Archibald's  Handbook  of  the  Practice  in  the  Coni- 
nion  Law  Divisions  of  the  High  Court  of 
J  UStice ;  with  Forms  for  the  use  of  Country  Solicitors.  By  IF.  F.  A. 
ArchihaldjEsq.,  Bai'rister-at-Law,  Author  of  "  Forms  of  Summonses 
and  Orders,  with  Notes  for  use  at  Judges'  C'hambers,  &c. 

Baker's  Law  of  Highways.  By  Thomas  Baler,  oi  the  Inner 
Teuii^le,  Fsq.,  Barrister-at-Law  [In  the  press.) 

Ball's  Principles  of  Torts  and  Contracts. — A  short 
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Addison,  with  Illustrative  Cases,  for  the  iise  of  Students.  By  W. 
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Law  and  Midland  Circuit.  (In  the  press.) 

Browne  and  Theobald's  Law  of  Railways.  By 
/.  JI.  Balfour  Broirne,  of  the  Middle  Temple,  Esq.,  Barrister-at-Law, 
Eegistrar  to  the  Eaihvay  Commissioners,  and  //.  <S'.  Theobald,  of  the 
Inner  Temple,  Esq.,  Barrister-at-Law. 

BuUen  and  Leake's  Precedents  of  Pleading.  Fourth 
Edition.  By  T.  J.  Bidlen,  Esq.,  Special  Pleader,  and  Oi/ril  Dodd,  of 
the  Inner  Temple,  Esq  ,  Barrister-at-Law.  {In  the  press.) 

Daniell's  Chancery  Practice.— Sixth  Edition. — By  L.  Field 
and  E.  C.  Dunn,  Esqrs.,  Barristers-at-Law.  Assisted  by  W.  II.  Upjohn, 
Esq.,  Student  and  Holt  Scholar  of  Gray's  Inn,  &c.,  Editor  of  the  Third 
Edition  of  "Daniell's  Forms." 

Marsden  on  Maritinie  Collision.^A  Treatise  on  the  Law 
relating  to  Collisions  between  Ships,  Compulsory  Pilotage,  and  the 
Eule  of  the  Eoad  at  Sea.  With  a  Summary  of  English  and  Ameri- 
can Decisions  thereon,  references  to  Foreign  Law,  and  an  Appendix 
containing  the  International  Regulations  (of  1863  and  1880)  for  pre- 
venting Collisions  at  Sea ;  the  Thames,  Mersey,  and  other  Local  Rules 
of  Navigation  ;  and  Extracts  from  the  Merchant  Shipping  Acts.  By 
Rc'jinald  G.  Marsden,  Esq.,  Barrister-at-Law.  {In  the  press.) 

Pitt  -  Lewis'  County  Court  Practice.  —  A  complete 
Practice  of  the  County  Courts,  including  Admiralty  and  Bank- 
rujitcy,  embodying  the  Act,  Rules,  Forms,  and  Costs,  with  Table  of 
Cases  and  full  Index.  By  G.  Pitt-Lewis,  of  the  Middle  Temple  and 
Western  Circuit,  Esq.,  Barrister-at-Law,  sometime  Holder  of  the 
Studentships  of  the  Four  Inns  of  Court,  assisted  by  7/.  A.  de  Colyar,  of 
the  Middle  Temple,  Esc[.,  Barrister-at-Law,  Author  of  "  A  Treatise 
or  the  Law  of  Guarantees."  (Nearly  read i/.) 

Prentice's  Proceedings  in  an  Action  in  the 
Queen's  Bench,  Coinmon  Pleas,  and  Exche- 
quer Divisions  of  the  High  Court  of  Justice. 
Second  Edition.  By  Samuel  Prentice,  Esq.,  one  of  Her  Majesty's 
Counsel.  (In  the  j)rcss.) 

Shirley's   Leading  Cases  in  Common  Law  made 

Easy.  By  W.  Shirley  Shirley,  M.A.,  Esq.,  Barrister-at-LaM-,  North 
Eastern  Circuit.  (In  the  p>rcss.) 

Smith's  Treatise  on  the  Law  of  Negligence.  By 
Horace  Smith,  of  the  Inner  Temple,  Esq.,  Barrister-at-Law,  Author  of 
"  The  Law  of  Landlord  and  Tenant,"  Editor  of  Roscoe's  "  Criminal 
Evidence."  {Nearly  ready.) 

Stone's  Practice  for  Justices  of  the  Peace,  Justices' 
Clerks,  and  Solicitors  at  Petty  and  Special 
Sessions,  &C.  Ninth  Edition.  By  F.  G.  Tcmpjler,  of  the  Inner 
Temple,  Esq.,  Barrister-at-Law,  Editor  of  "The  Summary  Jurisdiction 
Act,  1879." 

"sTEVENS  AND  SONS,  U9,  CHANCERY  LANE,  LONDON,  V/.C, 


-:^ 


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STEVENS  AND  SONS,  119,  CHANCERY  LANE,  W.C. 

Bedford's  Guide  to  Stephen's  New  Commentaries  on  the 

Laws  of  Englaml.     By  QUESTION  AND  ANSWER.     Svo.     18/9.     Price  12s.  cloth. 
"  Hero  is  a  book  which  will  be  of  the  greatest  service  to  students." — Lazv  Journal. 

Bedford's  Final  Examination  Digest. — Containing  a  Digest 

of  the  Final  Examination  Questions  in  matters  of  Law  and  Procedure  determined  by 
the  Chancery,  Queen's  Bench,  Common  Pleas,  and  Exchequer  Divisions  of  the  High 
Court  of  Justice  ;  and  on  the  Law  of  Real  and  Personal  Property  ;  and  the  Practice 
of  Conveyancing.  By  EDWARD  HENSLOWE  BEDFORD,  SoUcitor.  Author  of 
"  The  Guide  to  Stephen's  Commentaries,"  kc.     8i'o.     1879,     Price  16s.  cloth. 

Haynes'    Student's   Leading   Cases.— Being  some  of  the 

Principal  Decisions  of  the  Couits  in  Constitutional  Law,  Common  Law,  Conveyancing 
and  Equity,  Probate  and  Divorce,  Bankruptcy,  and  Criminal  Law.  Vyith  Notes  for  the 
use  of  Students.  By  JOHN  F.  HAYNES,  LL.D.  DemySvo.  1878,.  Price  16s.  cloth. 
"Will  proTe  of  great  utility,  not  only  to  Students,  but  Practitioners.  The  Notes  are  clear, 
pointed  and  concise." — law  Times. 

Foulkes'   Elementary  View   of  the   Proceedings   in    an 

Action  in  the  Supreme  Court. — Founded  on  "  Smith's  Action  at  Law."  By 
V.  D.  I.  FOULKES,  Esq.     Second  Edition.    12nio.    18/9,    Price  10s.  6d.  cloth. 

Greenwood's  Manual  of  Conveyancing. — A  Manual  of  the 

Practice  of  Conveyancing,  showing  the  present  Practice  relating  to  the  daily  routine 
of  Conveyancing  in  Solicitors'  Offices.  To  which  are  added  Concise  Common  Forms 
and  Precedents  in  Conveyancing,  Conditions  of  Sale,  Conveyances,  and  all  other 
Assurances  in  constant  use.  Fifth  Edition.  By  H.  N.  CAPEL,  B.A.,  LL.B,, 
Solicitor.     Demy  Svo.     1877.     Price  15s.  cloth. 

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probably  arm  a  diligent  clerk  with  as  much  useful  knowledije  as  he  might  otherwise  take  yean 
of  desultory  questioning  and  observing  to  acquire.' — Solicitors'  Journal. 

Smith's  Real  and  Personal  Property. — A  Compendium  of 

the  Law  of  Real  and  Personal  Property,  primarily  connected  with  Conveya,ncing, 
Designed  as  a  second  book  for  Students,  and  as  a  digest  of  the  most  useful  learning  for 
Practitioners.  By  JOSIAH  W.  SMITH,  B.C.L.,  Q.C,  Fifth  Edition.  2  vols. 
Bejny  Svo.    1877.     Price  21.  2s.  cloth. 

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pleasure." — Laio  Times. 

Greenwood's  Recent  Real  Property  Statutes.— Comprising 

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Statutes  thereby  Amended,  and  a  Supplement  containing  the  Orders  under  the  Settled 
Estates  Act,  1878.  With  Copious  Notes.  By  HARRY  GREENWOOD,  M.A.,  of 
Lincoln's  Inn,  Esq.,  Ban-ister-at-Law.     Demy  Svo.     1878.     Price  10s.  cloth. 

"  To  Students  particularly  this  collection,  with  the  careful  notes  and  references  to  previous  Legisla- 
tion, will  be  of  considerable  value     The  cases  are  fully  noted  up,  and  the  Index  ha» 

evidently  been  prepared  with  much  care." — Law  Times. 

Pollock's  Principles  of  Contract  at  Law  and  in  Equity- 
Being  a  Treatise  on  the  General  Principles  concerning  the  Validity  of  Agreements, 
with  a  special  view  to  the  comparison  of  Law  and  Equity  ;  and  with  references  to  the 
Indian  Contract  Act,  and  occasionally  to  Pi,ouian,  American,  and  Continental  Law. 
Second  Edition.  By  FREiJERICK  POLLOCK,  of  Lincoln's  Inn,  Esq.,  Barrioter-at- 
Law.     Demy  Svo.     1878.     Price  11.  6s.  cloth. 

Wharton's  Law  Lexicon,  or  Dictionary  of  Jurisprudence, 

Explaining  the  Technical  Words  and  Phrases  employed  in  the  several  Departments 
of  English  Law;  including  the  various  Legal  Terms  used  in  Coiumercial  Business; 
with  an  Explanatoi-y  as  well  as  Literal  translation  of  the  l^atin  Maxims  contained  in 
the  Writings  of  the  Ancient  and  Modern  Commentators.  SiMh  Edition.  Revised 
in  accordance  with  the  Judicature  Acts,  by  J.  SHIRESS  WILL,  of  the  Middle 
Temple,  Esq.,  Barrister-at-Law.     Super-royal  8w.     1876.     Price  21.  2s.  cloth. 

"  As  a  work  of  reference  for  the  library,  the  hanilsom"  an.i  elaborate  edition  of  '  Wharton's 
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known  wi.rk." — Laic  Moyazinf.  and  Recitir. 

"Wheaton's    Elements    of    International    Law. —  Second 

English  Edition.  Edited  with  Notes  and  Appendix  of  Statutes  and  Treaties,  bringing 
the  work  down  to  the  present  time.  By  A.  C.  BOYD,  Esq.,  LL.B.,  J. P.,  Barrister- 
at-Law.  Author  of  "The  Merchant  Shipping  Laws."  Demy  8(;o.  1880.  Pnce 
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STEVENS  AND  SONS,  119,  CHAN  f^f^     QOO  802  1 55     2 


urchiirs  Law  of  the  Office  and  Duties  of  the  Sheriff, 

with  (the  Writs  and  Forms  relating  to  the  Office.  By  CAMERON  CHUllCHILL, 
of  th^  Inner  Temple,  assisted  by  A.  CARMICHAEL  BRUCE,  of  Lincoln's  Inn, 
Esqrs.,  Barristers-at-Law.     Demy  8vo.     187^J.     Price  18s.  cloth. 

"  This  is  a  work  upon  a  subject  of  large  practical  importance,  and  seems  to  have  been  compiled 
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Dicey's  Law  of  Domicil  as  a  Branch  of  the  Law  of  England. 

—Stated  in  the  Form  of  Rules.  By  A.  V.  DICEY,  B.C.L.,  Barrister-at-Law,  and 
formerly  Fellow  of  Trinity  College,  Oxford,  one  of  the  Junior  Counsel  to  the  Inland 
Revenue.  Author  of  "  Rules  for  the  Selections  of  Parties  to  an  Action,"  Demy  8vo. 
1879.    Price  18s.  cloth. 

"  The  practitioner  will  find  the  book  a  thoroughly  exact  and  trustworthy  summary  of  the 
present  state  of  the  Law." — The  Spectator. 

Chitty  on  Bills  of  Exchange  and  Promissory  Notes,  with 

references  to  the  Law  of  Scotland,  France  and  America.  Eleventh  Edition.  By 
JOHN  A.  RUSSELL,  Esq.,  LL.B.,  one  of  Her  Majesty's  Counsel  and  a  Judge  of 
County  Courts.    Demy  8vo.    1878.    Price  28s.  cloth. 

Archbold's  Pleading  and  Evidence  in  Criminal  Cases.— 

With  the  Statutes,  Precedents  of  Indictments,  &c.,  and  the  Evidence  necessary  to 
support  them.  Nineteenth  Edition,  including  the  Practice  in  Criminal  Proceedings 
by  Indictment.  By  WILLIAM  BRUCE,  Esq.,  Barrister-at-Law,  and  Stipendiary 
Magistrate  for  the  Borough  of  Leeds.     Royal  12mo.     1878.     Price  11.  lis.  6d.  cloth. 

Sebastian's  Digest  of  Cases  of  Trade  Mark,  Trade  Name, 

Trade  Secret,  Goodwill,  &c.,  decided  in  the  Courts  of  ths  United  Kingdom,  India,  the 
Colonies,  and  the  United  States  of  America.  By  LEWIS  BOYD  SEBASTIAN, 
B.C.L.,  M.A.,  of  Lincoln's  Inn,  Esq.,  Barrister-at-Law,  Author  of  "The  Law  of  Trade 
Marks."    Demy  8vo.     1879.    P7-ice  11.  Is.  cloth, 

"A  digest  which  will  be  of  very  great  value  to  all  practitioners  who  hare  to  advise  on  matters 
connected  with  trade  marks." — Solicitors' yournal. 

Eoscoe's  Digest  of  the  Law  of  Evidence  in  Criminal  Cases. 

—Ninth  Edition.  By  HORACE  SMITH,  of  the  Inner  Temple,  Esq.,  Barrister-at- 
Law.    Royal  12mo.    1878,    Price  11.  lis.  6d.  cloth. 

Goddard's  Treatise   on  the  Law  of  Easements. — Second 

Edition.  By  JOHN  LEYBOURN  GODDARD,  of  the  Middle  Temple,  Esq.,  Bar- 
rister-at-Law.    Demy  8vo.    1877.    Price  16s.  cloth. 

"Nowhere  has  the  subject  been  treated  so  exhauRtively,  and  wo  may  add,  so  scientifically,  as 
by  Mr.  Goddard.  We  recommend  it  to  the  most  careful  study  of  the  law  student,  as  well  as  to  the 
library  of  the  Practitioner." — law  Times. 

Pollock's     Digest     of    the    Law    of    Partnership. — By 

FREDERICK  POLLOCK,  of   Lincoln's  Inn,   Esq.,   Barrister-at-Law.     Author  of 
"  Principles  of  Contract  at  Law  and  in  Equity."    Demy  8vo.  1877.    Price8s.  M.  cloth. 
"  Mr.    Pollock's  work   appears  eminently   satisfactory      .     .     ,      the  book  is  praiseworthy  in 
design,  scholarly  and  complete  in  execution." — Saturday  Review. 

Eoscoe's  Admiralty  Practice. — A  Treatise  on  the  Jurisdic- 
tion and  Practice  of  the  Admiralty  Division  of  the  High  Court  of  Justice,  and  on 
Appeals  therefrom,  &c.  With  an  Appendix  containing  Statutes,  Rules  as  to  Fees  and 
Costs,  Forms,  Precedents  of  Pleadings  and  Bills  of  Costs.  By  E.  S.  ROSCOE,  Esq., 
Barrister-at-Law,  and  Northern  Circuit.  Demy  8vo.  1878.  Price  11.  cloth. 
"Mr.  Roscoe  has  performed  his  task  well,  supplying  in  the  most  convenient  shape  a  clear  dige»k 
of  the  law  and  practice  of  the  Admiralty  Courts." — Liverpool  Courier. 

Smith's  Mercantile  Law. — A    Compendium    of  Mercantile 

Law.  By  the  late  JOHN  WILLIAM  SMITH,  Esq.  Ninth  Edition.  By  G.  M. 
DO  WDESWELL,  of  the  Inner  Temple,  Esq.,  one  of  Her  Majesty's  Counsel.  Royal 
8vo.    1877.    Price  11.  18s.  cloth. 

Eussell's  Treatise  on  the  Duty  and  Power  of  an  Arbitrator, 

and  the  Law  of  Submissions  and  Awards ;  with  an  Appendix  of  Forms  and  of  the  Sta- 
tutes relating  to  Arbitration.  By  FRANCIS  RUSSELL,  Esq.,  Barrister  at-Law. 
Fifth  Edition.    Royal  8vo.     1878.    Price  11.  16s.  cloth. 

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