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is  £1  5s.,  clotli,  net;    or  £1  8s.,  half  brown  calf,  net. 


ivised   Reports. 


A     REPUBLIC  A  TION 


REPORTS  OF  CASES  IN  THE  ENGLISH  COURTS  OF 
COMMON    LAAV    AND    EQUITY. 


FROM     THE     YEAR     1785. 


TABLE    OF   COMPARATIVE   REFERENCE 

FOR    THE 

OLD  REPORTS  and  the  REVISED  REPORTS. 


MMVOJiTS. 

CASES    FKOM 

Anstruther 

Svols.    .      . 


JiEVISED 
lii:  POUTS, 

CITED    AS    R.  K. 

ride  R.  R.  vols. 
3  &  4 


Ball  &  Beatty 

2  vols 


Blaekstone,  H. 

2  vols 


Bosanquet  &  Puller 

0  vols 

Campbell 

4  vols 


Cooper,  G. 
Cox 

2  vols.   .     . 


Dow 

Vols.  1  to  .5     .     .     . 

Durnford  &  East 

8  vols 

East 

16  vols 


Espinasse 

6  vols.  .     . 


Forrest 
Holt  .    . 


12 
2  &  3 

4  to  9 

10  to  16 
14 

1&  2 
14  to  16 

1  to  5 
5  to  14 

5,6,8,9 
5 

17 


ox» 
itE  fours. 

CASE.S     FROM 

Maddoek 

Vols.  1  cV:  2 

Marshall 

2  vols.  .     .     , 


UEVISEJ) 
JtEPOUTS, 

CITED    AS   R.  R. 

villa  B.  R.  vols. 
„    15  to  17 


Maule  &  Selwyn 

Vols,  i  to  .)     .     .     . 

Merlvale 

a  vols ; 


Peake 

2  vols.  .     . 

Price 

Vols.  1  to  3 


Russell  &  Ryan  .    . 
Sehoales  &  Lefroy 

2  vols 


Smith 

3  vols.  . 

Taunton 

Vols.  1  to 

Vesey,  Jr, 

1'.)  vols. 


Vesey  &  Beames 

3  vols 


Wightwiek 


15  &  17 


14  to  17 


15  to  17 


3&4 


15  ct  17 
15 


7&8 

9  to  17 

ltol3 

12  &  13 
12 


A'^ow  Ready. 


AN   INDEX  of  ALL   CASES    REPORTED 

in  the  ENGLISH  COURTS  during  the  Period  covered  by 
the  REVISED  REPORTS,  Vols.  I.  to  XV.,  shewing  the  Cases 
Eetained  and  Omitted  therefrom.     1785  to  1S16.     Price  7s.  Qd.  net,  cloth. 


J^AMV     SOOKS 

PUBLISHED    BY 


January,  1895. 


SWEET  &  MAXWELL,  Limited, 

5,    CHANCERY    LANE,    LONDON. 


Admiralty.— Williams  and  Biiuce's 
Jurisdiction  and  Practice  of  the  English 
Courts  in  Admiralty  Actions  and  Appeals. 
2nd  Edition.  By  Gainsfokd  Bruce,  a.c.,' 
and  C.  F.  Jemmeit,  n.c.L.     Sos.       1886. 

Annual  Practice,  1895.— By  T.  Snow, 

Ji.A.,  Barrister-at-La\v,  Charles  Bur- 
NEY,  B.A.,  a  Chief  Clerk  to  Mr.  Justice 
Chitty,  and  F.  A.  Stringer,  of  the  Central 
Otfice,^Royal  Courts  of  Justice.     2os. 

Arbitration  and  Award.— Russell's 

(F.)  Treatise  on  Power  and  Duty  of  an 
Arbitrator ;  with  Forms  and  Statutes. 
7th  Edit.     30s.  1891. 

Auctions. — Bateman's  Auctioneer's 
Guide,  containing  a  practical  Treatiseon  the 
I-aw  of  Auctions  ;  with  Forms  and  Prece- 
dents.    Seventh  Edition.        In  the  press. 

Bankrupt  Law.— Williams'  Law  and 
Practice  in  Bankruptcy.  6th  VA\i.  By 
E.  W.  Hansell.    lloyal  Svo.    2bs.    1894. 

Yate-Lee  and  Wage.  A  Treatise  on  the 
Law  and  Practice  of  Bankruptcy,  and  on 
the  Bills  of  Sale  Acts,  1878  and  1882.  3rd 
Edit.  With  a  Supplement  containing  the 
Bankruptcy  Act,  1890,  with  the  Hules  and 
Forms  thereunder.     36.s.  1891. 

Beports  of  Cases  in  Bankruptcy  vinder  the 
Bankruptcy  Act,  1883-1890.  Decided  in 
the  Higli  Court  of  Jiistice  and  the  Court  of 
Appeal.  By  C.  F.  Morrell.  Complete 
in  10  vols.,  18.«.  each,  cloth.  1884-93. 
Continued  by  Manson's  Bankruptcy  and 
Company  (Winditig-up)  Reports.  By 
Edward  Manson.  At  an  Annual  Pre- 
paid Subscription  of  17s.  &d. 

Bills  of  Exchange.— Byles  on  Bills  of 

Exchange,  loth  Ed.  By  M.  li.  Byles  and 
A.  K.  LoYD.     26.S.  1891. 

Building"  Societies.— Davis's (H.F.  A.) 

Law  of  Building  and  Freehold  Land 
Societies  in  England,  Scotland  and  Ireland, 
&c.     3rd  Edition.     24s.  1884. 

Macoun's  (J.  E.)  Building  Societies  Acts, 
1836  to  1894,  containing  a  full  E.xposition 
of  the  Law.     os.  1894. 

Church  &  Clergy.— Cripps(H.  W.,  q.c.) 

on  Law  relating  to  the  Church  and  Clergy. 
6th  Ed.  By  the  Author  and  C.  A.  Cripps, 
Svo.     28s.  1886. 

Common  Law.— Chitty's  Archbold's 
Practice  of  the  Queen's  Bench  Division  of 
the  High  Court  of  Justice.  14th  Edit.  By 
T.  "Willes  Chitty%  assisted  by  J.  St.  L. 
Leslie.  2  vols.  Price  3/.  13s.  6(i?., reduced 
to  30s.  1885. 

Chitty's  Forms  of  Practical  Proceedings  in 
the  Queen's  Bench  Division  of  the  High 
Court  of  Justice.  12th  Edit.  By  T.  W. 
Chitty.    Price  38s.,  reduced  to  20s.    1883. 

Broom's  CommentariesontheCommon  Law. 
8th  Edit.  By  W.  F.  A.  Archibald  and 
H.  W.  Greene.    2.5s.  1888. 


Companies. — Lindley.  a  Treatise  on 
the  Law  and  Practice  of  Joint  Stock  and 
other  Companies.  With  a  Supplement  con- 
taining the  Companies  Acts,  1890.  By 
the  Right  Hon.  Sir  N.  Lindley,  Knt.,  one 
of  the  Lords  Justices  of  H.  M.  Court  of 
Appeal.  5th  Edit.  In  1  vol.  2/.  10s.  1891. 
Chadwyck  Healey's  Company  Law.  3rd 
Edit.     2/.  1894. 

Constitutional    Law.  —  Broom,    Dr. 

Viewed  in  relation  to  Common  Law  and 
exemplified  by  Cases.  2nd  Edit.  By  G.  L. 
Denman.     \L  lis.  &d.  1885. 

Contracts.— Chitty's  (J.,  juu.)  Treatise 
on  the  Law  of  Contracts.  12thEd.  ByJ.  M. 
Lely  and  N.  Geary.     30s.  1890. 

Conveyancing.  — Bythewood  and  Jar- 
man's  Precedents  in  Conveyancing.  4th 
Edition.  By  L.  G.  G.  Hobbins.  Now 
completed  in  7  vols.  Royal  8vo.  Reduced 
to  6*;.  6s.  net.  1885-90. 

*j^*  Some  of  the  Vols,  may  be  had  separately. 
A  Supplement  to  the  above  by  the  Editor 
and  A.  T.  Murray.     21s.  1893. 

Davidson's  Concise  Precedents  in  Convey- 
ancing. 16th  Edit.  By  M.  G.  Davidson. 
21s.  1894. 

Practical  Introduction  to  Conveyancing.  By 
Sir  H.  W.  Elphinstone.  4th  Edit. 
14s.  1894. 

Key  and  Elphinstone' s  Precedents  and 
Forms  in  Conveyancing,  thoroughly  re- 
vised, with  large  additions  both  to  the  Pre- 
cedents and  Notes.    4th  Ed.   4/.  4s.    1894. 

Student's  Precedents  in.  By  James  W. 
Clark,  M.A.     4s.  Qd.  1893. 

Convictions. — Paley's  Law  and  Practice 
of  Summary  Convictions  by  Justices  of  the 
Peace.  7th  Ed.  By  W.  H.  Macnamara. 
24s.  1893. 

Coroner.— Jerv IS  (Sir  John)  on  the 
Office  and  Duty  of  Coroner;  with  an  Appen- 
dix of  Forms  and  Precedents.  SthEdit.  By 
E.E.  Melsheimer.  10s.  6^^.  1888. 

County  Courts.— Tlie  Annual  County 
Courts  Practice,  1894;  containingthe  Juris- 
diction and  Practice  under  the  Countv 
Courts  Act,  the  Bills  of  Exchange  Act,  and 
the  Employers'  Liability  Act,  and  the 
Statutes,  Rules  of  Practice,  Forms  and 
Tables  of  Fees  and  Costs.  By  His  Honour 
Judge  Heywood.     2  vols.     25s.        1894. 

Criminal    Law.— Archbold's   (J.  F.) 

Pleading  and  Evidence  in  Criminal  Cases, 
with  the  Statutes  and  Precedents  of  In- 
dictments, bv  Sir  J.  Jervis.  21st  Ed. 
By  W.  Bruce.     U.  lis.  Qd.  1893. 

Russell  (Sir  W.  0.)  on  Crimes  and  Misde- 
meanours.    6th  Edit.       1)1  Preparation. 

Roscoe's  (H.)  Digestof  the  Law  of  Evidence 
in  Criminal  Cases.  11th  Edit.  By  Horace 
Smith  &GilbertGeorge  Kennedy,  Me- 
tropoL  Police  Magistrates,  1/.  lis,  M.  1890. 


JOHNA.SEAVERNS 


OLIPHANT'S 

LAW   OF   HORSES. 


^^ 


THE 


LAW  OF  HOESES, 


INCLtTDIXa   THE   LAW   OF 


|triiIvW|rtrs,  Merirai'g  ^itrgmts,  4c., 


HUNTING,  RACING,  WAGERS  &  GAMING. 


BY 

GEORG-E    HENRY   HEWITT    OLIPHANT, 

0/ Trinity  College,  Cambridge,  S.A.,  and  Liner  Temple,  Esq.,  Barrister-at-Law. 


dFourtfi  iEtrttiott, 
By  CLEMENT  ELPHINSTONE  LLOYD,  B.A.,  Oxoii., 


OF  THE   INXEK  TEMPLE,   ESQ.,  BARRISTEK-AT-L.4.W. 


"Thou  that  mayst  fortune  to  be  of  myne  opinion  and  condytion  to  love  horses,  take 
hede  that  thou  be  not  beguiled  as  I  have  been  a  hundred  tymes  and  more." — Bohe  of 
Husbandry,  by  Sir  A.  Fitzherbert,  Justice. of  the  Court  of  Common  Fleas. 


LONDON : 

HENRY  SWEET,  3,  CHANCERY  LANE, 

MEEEDITH,  RAY  &  LITTLER,  IIANCHESTER. 
J.  C.  JUTA,  CAPE  TOWN.  C.  F.  MAX^VELL,  IVIELBOURNE. 


1882 


"  Caveat  emptor." — Lee/.  Mao:. 

"Equi  donati  dentes  non  iuspiciuntur." — D.  Uicron.  in  rroccm.  Eplst.  ad 
Ephcs. 

' '  Primus  Erictlionius  currus  et  quatuor  ausus 
Jungere  equos." — Virg.  Georg. 

"  Tu  qui  caeteris  cavere  didicisti,  in  Britannia  ue  ab  essedariis  decipiaris 
caveto." — Cic.  Ej).  Lib.  7,  Ej).  6. 

"  Seu  quis,  Olympiacas  miratus  prtcmia  palmae, 

Pascit  equos 

Corpora  prtccipue  matrum  Icgat." — Tirg.  Gcorg. 


PREFACE 


TO    THE    FOURTH    EDITION. 


Since  the  publication  of  the  last  Edition  of  this 
\York  the  changes  which  have  taken  place  in  the 
law  on  the  subjectKS  embraced  within  its  somewhat 
extensive  scope  have  been  very  considerable. 
While  strictly  adhering  to  the  plan  of  the  original 
Work,  the  present  Editor  has  taken  great  pains 
to  eradicate  all  obsolete  matter,  and  at  the  same 
time  to  combine  with  the  text  the  additions  and 
alterations  rendered  necessary  by  the  above 
changes.  The  most  important  alterations  are 
probably  those  necessitated  by  the  passing  of  the 
Regulation  of  Railways  Acts,  1868  and  1871,  the 
Judicature  Acts,  and  the  Innkeepers  Act,  1878; 
whilst  at  the  same  time  the  reported  decisions 
during  the  last  seventeen  years  have  affected 
every  branch  of  the  subject. 

The  Index  has   been  thoroughly  revised  and 
considerably  enlarged,  •  and  care  has  been  taken 


VI  PREFACE  TO  THE  FOURTH  EDITION. 

to  make  the  references  to  tlie  new  cases  as 
numerous  as  possible,  and  to  notice  any  conflict 
that  may  exist  between  the  decisions  in  this 
country  and  those  in  the  United  States. 

CLEMENT  E.  LLOYD. 


4,  Ivixa's  Bench  Walk,  Temple, 
Jiaie,  1882. 


PREFACE 

TO    THE    THIRD    EDITION. 


In  preparing  a  new  Edition  of  Mr.  Oliphant's  valuable 
Treatise  on  tlie  Law  of  Horses,  it  has  been  the  endeavour 
of  the  present  Editor  to  amalgamate  with  the  text  of  the 
preceding  Edition  such  new  matter  as  the  growth  of  legal 
science  during  a  period  of  eleven  years  has  supplied,  with- 
out disturbing  the  symmetry  or  impairing  the  method  of 
the  original  Work. 

It  has  been  found  necessary  indeed  to  make  considerable 
additions  to  the  text,  for  there  are  few  subjects  upon 
which  the  law  is  long  silent.  But  the  alterations  have  been 
few,  inasmuch  as  the  opinions  expressed  by  Mr.  Oliphant 
have,  in  almost  every  instance,  been  confirmed  by  sub- 
sequent decisions  ;  those,  therefore,  which  have  been  made, 
have  been  rendered  necessary,  for  the  most  part,  by  legis- 
lative enactment,  as,  for  instance,  by  the  Common  Law 
Procedui'e  Acts  of  185i  and  1860,  by  the  Railway  and 
Canal  Traffic  Act  of  1854,  and  by  the  Act  for  the  Sup- 
pression of  Graming  Houses  of  the  same  year. 

The  present  Editor  has  had  access  to  the  notes  and 
references  made  by  the  Author  during  the  earlier  part  of 
the  period  which  has  elapsed  since  the  publication  of .  the 
Second  Edition,  and  must  make  due  acknowledgment  for 
the  assistance  thence  derived. 


Vlll  PREFACE  TO  THE  THIRD  EDITION. 

lie  ventures  to  express  his  hope  that  this  Edition  will 
not  prove  unworthy  of  the  reputation  which  this  Book  has 
hitherto  enjoyed,  and  that  his  aim  to  preserve  its  character 
as  a  complete  Manual  upon  the  various  points  of  contact 
between  the  Horse  and  the  Law,  and  upon  the  subjects 
kindred  to  them,  has  not  been  altogether  unsuccessful. 


G.  R.  EYDER. 


10,  King's  Bench  Walk,  Temple, 
Mdi/,  18G5. 


PREFACE 

TO    THE    SECOND    EDITION. 


The  ease  of  the  Sale  of  a  Horse  Is  often  chosen  by  our 
Judges  as  a  favourite  and  popular  mode  of  illustrating 
their  views  in  numerous  cases  coming  before  them  with 
respect  to  the  Bargain  and  Sale  of  Chattels.  It  is  here 
intended  that  the  Law  relating  to  Horses  should  be  used 
for  a  similar  purpose  ;  because  nearly  the  same  incidents 
which  affect  the  Bargain  and  Sale  of  Horses  also  affect 
the  Bargain  and  Sale  of  other  Chattels,  including  manu- 
factured Goods,  Carriages,  Pictures  and  Works  of  Art, 

An  attempt  has  been  made  to  arrange,  in  a  logical  and 
concise  manner,  the  subjects  hereafter  discussed,  and  to 
reduce  to  a  regular  System  the  various  principles  which 
are  found  to  be  involved. 

Grreat  care  has  been  taken  to  keep  out  all  matter  which 
might  tend  to  encumber  the  Book,  but  the  most  ample 
references  are  given. 

During  the  last  few  years  there  have  been  numerous 
decisions  with  respect  to  the  Bargain  and  Sale  of  Chattels, 
and  the  other  subjects  here  treated  of.  It  will  also  bo 
seen  that  great  changes  have  recently  been  made  in  the 
Law  of  Pleading  and  Evidence;  and  that  the  Law  of 
Wagers  has  been  most  materially  affected  by  the  "  Act  for 
the  suppression  of  Betting  Houses." 

a.  H.  H.  0. 

1,  New  Court,  Temple, 
Dec.  20111,  1853. 


PREFACE 

TO    THE    FIRST    EDITION. 


The  object  of  tlie  present  Treatise  is  to  lay  before  the 
profession  and  the  public,  in  as  short  and  convenient  a 
form  as  possible,  the  Law  of  Contracts  concerning  Horses, 
whether  it  be  in  buying,  selling,  hii-ing,  or  in  any  other 
manner  dealing  with  them ;  to  ascertain  the  liabilities  in- 
curred by  parties  either  on  "the  road,"  through  negligent 
driving,  or  in  "  the  field,"  by  riding  over  the  lands  of 
another ;  also  to  explain  the  present  state  of  the  law  with 
regard  to  Racing,  Wagers,  and  Gaming,  in  connection 
with  the  recent  alterations  effected  by  the  Act  of  Victoria. 
The  Appendix  contains  some  very  late  cases,  a  few  im- 
portant Statutes,  and  other  information  which  may  be 
found  useful  for  general  reference.  An  attempt  has  been 
made,  by  a  judicious  division  of  the  subject,  and  the 
introduction  of  marginal  notes,  to  make  the  text  as  acces- 
sible as  possible. 

G.  H.  H.  0. 

Temple,  May  Ihih,  1847. 


TABLE  OF  CONTENTS. 


Paet  I. 

CONTRACTS    CONCERNING    HORSES,     &c. 


CHAPTEE  I. 

BITYIXG,    SELLING    AND    EXCHANGING  ;     THE   REQUISITES    OF    THE   STATUTE   OF 
FRAUDS  ;    DELIVERY  AND  PAYMENT,  AND  THE  LAW  AS  TO  SUNDAY  DEALING. 

Bargaix,  Sale  and  Exchange.  page 

Bargain    3 

Sale  and  Exchange    id. 

Bargain  and  Sale  id. 

Transfer  of  Property  by  Gift id. 

Executed  and  Executory  Contract . .  id. 

Entire  Contract id. 

Severable  Contract     id. 

Verbal  Contract     id. 

Written  Contract  id. 

Right  of  Rescission   4 

Right  of  Trial    id. 

Buying  a  Horse  under  10^ id. 

Where  neither  Party  can  be  off  ... .      5 

Striking  a  Bargain id. 

Contract  not  to  be  performed  within 

a  Year id. 

Statute  of  Frauds,  s.  4 id. 

Requisites  under  s.  4     id. 

Buying  a  Horse  at  10/.  or  upwards       6 

Statute  of  Frauds,  s.  17    id. 

Extended  by  9  Geo.  4,  c.  14    id. 

Effect  of  Extension   id. 

Requisites  under  s.  1 7 7 


The  Acceptance  and  Receipt. 

In  what  they  consist 7 

General  Rule id. 

Acceptance  before  Delivery 8 

When  Vendor  may  disaffirm  Sale  . .  id. 

Where  an  Article  is  selected    id. 

Question  for  Jiuy 9 

Seller  may  become  Agent  of  Buyer .  10 
Constructive  Possession  of  Buyer  . .  id. 
What  has  been  held  sufficient  as  an 

Acceptance  and  Receipt    id. 

What  has  been  held  insufficient ....    11 

Various  Acts  of  Ownership)      12 

A  Ready-Money  Transaction ,  id. 


The  Acceptance  and  Receipt — con.  page 
Criterion  for   detennming  whether 

Goods  accepted  or  not 13 

Where  Buyer  offers  to  resell    id. 

Where  Goods  are  agi-eed  to  be  resold  id. 
Goods  bought  out  of  a  larger  Bulk . .  id. 

Vendee  disposing  of  Goods 14 

Goods  sold  by  Sample   id. 

More  Articles  sent  than  ordered ....  id. 
Acceptance  must  be  unequivocal  . .  15 
Delivery  Order   id. 

The  Earnest  and  Pabt-Payment. 

Two  Kinds  of  Earnest 15 

Symbolical 16 

Pecuniary    id. 

Pecuniary  Earnest  is  Part-payment  id. 
Should  be  retained  by  Vendor     ....  id. 

The  Old  Rule id'. 

Effect  of  Earnest  under  Statute  of 

Frauds 17 

Effect  of  Part-payment    id. 

Part-payment  in  Contract  not  within 

Statute  of  Frauds id. 

The  Note  or  Memorandum  in  Writ- 
ing. 

Written  Agreement 17 

No  particular  Form  required id. 

Names  of  the  Contracting  Parties  . .  18 
Terms  of  the  Contract  must  be  stated  id. 
May  be  collected  from  more  than  one 

Document    id. 

The  Stamp  Act id. 

Catalogue  at  a  Sale    id. 

Price  where  agreed  upon 19 

Where  no  Price  is  agreed  upon  ....   20 

Contract  by  Letter     id. 

Sufficient  between  the  Parties id. 


Xll 


TABLE  OF  CONTENTS. 


The  Note  or  Memorandum  in  "Writ- 
ing— continued.  PAGE 
Must  express  all  the  Terms  of  the 

Agreement ■    20 

Mutual  Assent    21 

Where  the  Contract  is  complete ....  23 
Tenns  cannot  be  varied  by  Parol    . .  id. 

But  may  be  explained 24 

Evidence  that  Goods  are  supi^ied  on 

Credit  id. 

Matters  antecedent  to  the  Writing . .  id. 

Condition  Precedent id. 

When  admissible    id. 

Memorandum  made  after  Action  . .  25 
A  foreign  Contract    id. 

The  Signature    by   the    Party  to    be 

CHARGED. 

What  is  necessary      25 

As  to  Initials id. 

Where  a  Man  prints  his  Name  ....  id. 
Names  of  Parties,  how  to  be  shown . .  26 
Signature  for  other  Purpose    id. 

The  Signature  by  an  Agent. 

What  is  necessary      26 

Who  may  be  an  Agent 27 

How  constituted     id. 

Need  not  be  authorized  in  Writing . .  id. 

Auctioneer id. 

Auctioneer's  Clei-k     id. 

Clear  Recognition  of  Contract  by 
Parties  sufficient     id. 

Delivery  and  Payment. 

Eights  of  Property  and  Possession . .   28 

Executed  and  Executory  Contracts    id. 

Property  may  pass  without  Delivery  id. 

What  immediately  passes  the  Pro- 
perty      id. 

Condition  as  to  Price  ascertainable . .  id. 

Effect  where  not  ascertainable    ....    29 

Unreasonable,  but  not  therefore  to  be 
rejected    id. 

Risk  after  Sale    id. 

Goods  to  be  made  to  Order 30 

Goods  to  be  delivered  on  a  future  Day  id. 


Delivery  and  Payment — contd.  page 

Delivery   and   Payment    contempo- 
raneous Acts   30 

Time  not  the  Essence  of  a  Contract    id. 

Where  nothmg  is  said  about  the  Time 
of  Delivery 31 

Relative  Position  of  the  Parties ....  id. 

Seller's  Lien  for  the  Price    id. 

Lien  in  Case  of  an  Exchange id. 

Conditional  Possession id. 

Buyer's  Right  of  Possession  where 
Goods  are  sold  on  Credit 32 

How  it  may  be  defeated id. 

Seller's  Lien  during  Possession  ....  id. 

His  Right  of  Stoppage  in  transitu. .  id. 

When   Goods    are    held    to    be    in 
transitu     id. 

Wlien  anything  remains  to  be  done 
by  Seller id. 

Effect  of  Stoppage  in  transitu 33 

Goods  to  be  delivered  before  Pay- 
ment   id. 

When  Tune  of  Delivery  is  not  fixed 
to  a  Day id. 

Goods  to  be  paid  for  before  Delivery  id. 

Renunciation  of  Contract id. 

Price  directed  to  be  sent  by  Post ....    34 

Post  Office  Order   id. 

Forged  Bank  Note     id. 

Dishonoured  Bill    id. 

Halves  of  Bank  Notes •. .  id. 

Writing   off    Debt   by   Agent   to 
Agent   id. 

Banker's  Cheque    id. 

Bill  of  Exchange   35 

Debt  paid  to  a  Third  Party id. 

Sunday  Dealing. 

Law  of  King  Athelstan    35 

Statute  of  CUiarles  2 id. 

Farmer  not  within  the  Statute    ....   36 

Sale  by  a  Horsedealer  ^  id. 

By  an  ordinary  Person      id. 

A  subsequent  Ratification    id. 

Breach  of  a  Warranty  given  on  a 
Sunday     37 


CHAPTER  II. 

HORSEDEALERS,    REPOSITORIES  AXD   AUCTIONS. 


Horsedealer. 

Definition  of  a  Horsedealer 38 

A  Seller  on  Commission    id. 

The  Proprietor  of  Aldridge's 39 

No  Duty  payable  by  a  Horsedealer  .  id. 
Horsedealer  when  a  Trader  within 
Bankruptcy  Act id. 


Repositories  and  Auctions. 

An  Auctioneer    , 39 

Liable  to  an  Action  for  Negligence.  40 

Or  for  Conversion id. 

Selling  Horse  comprised  in  Bill  of 

Sale 41 

Horse  sent  to  a  Repository id. 


TAULE  OF  CONTENTS. 


XIU 


Repositories  axd  Auctions— cc/y^W.    page 

Auctioneer's  Possession    41 

An  Auctioneer  can  set  up  Jus  tertii.  42 

Interpleader  by  Auctioneer id. 

Goods  privileged  from  Distress  ....  id. 
His  Right  to  remain  on  the  Premises  43 
Auctioneer  or  Clerk  Agent  of  both 

Parties id. 

Purchaser's  Name  signed  to  a  Cata- 
logue     id. 

Printed  Particulars  of  Sale 44 

An  incorrect  Catalogue     id. 

A  limited  Warranty id. 

Where  it  applies  only  to  Soundness .  45 
Trial  of  a  Horse  warranted  quiet  in 

Harness   46 

Notice  of  the  Conditions  of  Sale ....  id. 

Notice  of  Particulars     47 

Where  a  Bidder  may  retract   id. 

Sale  "  without  reserve"    id. 

Effect  of  Advertisement   48 

Warranty  of  Ownership   id. 

Auctioneer  not  disclosing  his  Prin- 
cipal        49 


Repositories  and  AvcTWKS—contd.    page 

Liability  for  Non-Delivery 49 

PufiBng     id. 

Person  employed  to  bid    50 

Effect  of  previous  Private  Warranty  51 
Agreement  not  to  bid  against  each 

other     id. 

Mock  Auctions   id. 

Purchaser  may  transfer  his  Bargain  id. 
Where  Party  refuses  to  take  Goods .  id. 
Goods  resold  without  communicating 

with  Purchaser 52 

Auctioneer  proper  Party  to  receive 

the  Price id. 

Has  no  Authority  to  receive  a  Bill 

of  Exchange    id. 

He  is  Stakeholder  for  both  Parties. .  id. 

Effect  of  this  Attribute     id. 

As  to  Interest     53 

Auctioneer's  Lien id. 

When  the  Price  vests  in  the  Vendor  id. 
Price  obtained  by  Principal's  Fraud  id. 
Agent  not  declaring  himself  to  be  so  54 
Auctioneer's  Commission id. 


CHAPTEE  III. 

FAIRS  AND  MARKETS  OVERT  ;    UORSE  STEALING,  AND  THE  RECOVERY  OF  STOLEN 

HORSES. 


Fairs  and  Markets  overt. 

Sales  at  Fairs  and  Markets  overt    . .   55 

The  General  Rule  of  Law    5G 

When  Market  overt  is  held id. 

Where  Market  overt  is  held id. 

What  held  to  be  Market  overt  with- 
out the  City  of  London     id. 

What  held  to  be  Market  overt  within 
the  City  of  London    id. 

Horse  "  an  Article"  within  10  &  11 
Vict.  c.  14   57 

Fearon  v.  Mitchell id. 

Where  a  Horse  at  a  Fair  is  exempt 
from  Distress 59 

Sale  of  Diseased  Animals  in    id. 

Horse  Stealing. 

Statute  of  24  &  25  Vict.  c.  9G 59 

Description  in  an  Indictment id. 

When  the  Offence  is  complete     ....    GO 

Property  given  up id. 

Delivery  of  a  Horse  to  a  Stranger  . .  id. 

Delivery  on  Trial Gl 

Goods  taken  without  Consent id. 

id. 

id. 

62 

id. 

id. 

id. 

id. 


Appropriation  of  a  hired  Horse  . . 
Larceny  without  Proof  of  Sale  . . 
Taking  with  an  Intent  to  use  .... 
Possession  Six  Months  after  Loss 

Killing  or  Maiming  Horses 

Other  Animals    

Pouring  Acid  into  a  Mare's  Ear . . 


Horse  Stealing — continued. 

"  Maiming  and  Wounding"  62 

Use  of  Instrument  need  not  be  proved  63 

MaHco id. 

Drugging  of  Animals  Act   id. 

Recovery  of  Stolen  Horses. 

Sale  in  Market  overt 63 

Statutory  Regulations 64 

Recovery  when  sold  under  these  re- 
gulations   id. 

Owner  must  prove  the  Horse  was 
stolen    .' id. 

Sale  out  of  Market  overt id. 

Recovery  when  not  sold  under  these 
Regulations     id. 

Proof  of  Compliance  with  Statute  , .   65 

Rule  that  Owner  must  first  endea- 
vour to  bring  the  Thief  to  Justice  id. 

To  be  taken  with  Modifications id. 

Where  the  Action  is  against  a  Thii-d 
Party    66 

Evidence  of  Conversion     id. 

Order  for  Restitution    id. 

Or  Action  of  Trover  id. 

Order  of  Police  Magistrate 67 

Where  no  Special  Damages  can  be 
awarded id. 

Rcjjievin  for  unlawful  Taking 68 

Wrongful  Sale  by  Agent  of  Horse 
entrusted  to  him id. 


XIV 


TABLE  OF  CONTENTS. 


CHAPTEE  IV. 


WHAT  DISEASES  OR  BAD  HABITS  CONSTITUTE  UXSOUXDXESS  OR  VICE. 


Unsoxtndness  and  Vice.  page 

Present  State  of  the  Law   70 

Definition  of  Soundness 71 

A  Sound  Horse    id. 

Rule  as  to  Unsoundness id. 

The  Term  "  Natural  usefulness"  .  72 
Important  Decision  as  to  Unsound- 
ness       id. 

Temporary  Diseases    73 

Acute  Diseases 74 

Rule  as  to  Vice     id. 

How  Unsoundness  or  Vice  should 

be  left  to  a  Jury id. 

Diseases,   Defects,   or  Alteeations  in 

Stkuctuee,  and  Bad  Habits. 

Backing  and  Gibbing 75 

Biting     id. 

Blindness   id. 

Cataract     id. 

Remittent  Inflammation    76 

Opacity  of  the  Lens  held  to  be  an 

Unsoundness     id. 

Blood  and  Bog-Spa\'in   77 

Bone- Spavin id. 

Held  to  be  an  L^nsoundness  ....  id. 

Broken-backed 78 

Broken-down    id. 

Broken-knees    id. 

Broken-wind     id. 

Bronchitis 79 

Canker id. 

Capped  Hocks id. 

Cataract     id. 

Chestfounder    id. 

Chinked  in  the  Chine 80 

CHcking id. 

Cloudiness id. 

Contraction   id. 

"When  held  to  be  an  Unsound- 
ness       81 

Corns id. 

Cough    82 

Held  to  be  an  Unsoundness  when 

temporary id. 

Confirmed  by  a  later  Decision  ....  83 

Crib-bituig    84 

When  not  an  Unsoundness    ....  id. 

Held  to  be  a  Vice    85 

Curb    id. 

Curby  Hocks  not  an  Unsound- 
ness       86 

Cutting 87 

Held  not  to  be  an  Unsoundness  .  id. 

Dropsy  of  the  Skin id. 

Dropsy  of  the  Heart   id. 


Diseases,  Defects,  oe  Alteeations  in 

Steuctuee,  etc. — continued.         page 

Enlarged  Glands 88 

Enlarged  Hock     id. 

Ewe  Neck id. 

Ealse  Quarter   id. 

Farcy id. 

Water  Farcy     89 

Founder id. 

Gibbing id. 

Glanders    id. 

Infectious  to  Mankind    id. 

The  Contagious  Diseases   (Ani- 
mals) Act  90 

Glaucoma id. 

Grease    id. 

Grogginess    id. 

Grunting    91 

Gutta  Serena    id. 

Hereditary  Disease id. 

Kicking 92 

Kidney-di'opping id. 

Lameness id. 

Temporary    Lameness    an    Un- 
soundness    id. 

Laminitis 93 

Lampas 94 

Liver  Disease    id. 

Lungs  hepatized id. 

Mallenders  and  Sallenders id. 

Mange   id. 

Navicular  Joint  Disease id. 

Nerved  Horse   id. 

Held  to  be  L^nsovmd    95 

Nose,  Chronic  Discharge    id. 

Not  lying  do-rni    96 

Opacity  of  the  Lens    id. 

Ossification  of  the  Cartilages     ....  id. 

Overreach id. 

Parotid  Gland  ulcerated     97 

Poll-evil     id. 

Pumiced  Feet   id. 

Qmdding   id. 

Quittor id. 

Rat-tails    98 

Rearing id. 

Rheumatism id. 

Ring-bone     id. 

Roaring 99 

Decisions  on  the  Subject    id. 

Rolling 100 

Running  away id. 

Saddle-galls id. 

Pimple  on  a  Horse's  Skin 101 

Question  for  the  Jiuy     id. 

Sallenders id. 


TABLE  OF  CONTENTS, 


XV 


Diseases,  Defects,  oe  Alterations  in 
Steucttjee,  etc. — contimied.         page 

Sandcrack 101 

Scab    102 

Statute  of  Hen.  8     id. 

Shivering id. 

Shying   id. 

Shying  a  result  of  short-sighted- 
ness          id. 

Sidebones 103 

Slipping  the  Collar id. 

Spavin    id. 

Speedy-cut    id. 

Splint id. 

Decision  on  the  Subject 104 

Sprain  and  Thickening  of  the  Back 
Sinews     id. 

Star-gazer     105 

Ewe-necked id. 

Strangles   id. 

Stringhalt id. 

Held  to  be  an  Unsoundness  ....     id. 

Thickenrng  of  the  Back  Sinews    . .  107 


Diseases,  Defects,  oe  Alteeations  in 
Steucttjee,  etc. — continued.         page 

Thick-wind  107 

Thinness  of  Sole id. 

Held  not  an  Unsoundness id. 

Thoroughpin     108 

Thrush   id. 

Tripping    id. 

Vicious  to  clean    109 

Vicious  to  shoe     id. 

Wall-eyed id. 

Warbles     id. 

Warts     id. 

Water-farcy id. 

Weak-foot     id. 

Weaving    110 

Wheezing id. 

Whistling id. 

Wilremhaunch id. 

Wind-gaUs    id. 

Wind  -sucking Ill 

Wolf's  tooth id. 

YeUows id. 


CHAPTER  V. 


WARRANTY  ;    SALE  ^VND  WAKRAXTY  BY  AX  AGENT  ;   AKD  PATENT  DEFECTS. 


WaeeAnty. 


biiyinc 


Warranty  requii'ed 

Horse 

Warranty  of  Title    

Not  implied  by  Law  of  England  . , 

How  it  may  be  inferred 

Rule  of  Law 

Where  the  Consideration  fails  .... 

Mode  of  trying  a  disputed  Title  . . 

Reason  for  requiring  a  Warranty  . 

Buyer  should  protect  himself  by  one 

What  constitutes  a  WaiTanty  .... 

Article  named  in  a  Sold  Note    .... 

Buyer  entitled  to  Article  commer- 
cially known  by  the  Name 

A  Sound  Price  not  tantamount  to  a 
Warranty 

A  General  Warranty 

A  Qualified  Warranty    

A  Limited  Warranty 

A  Special  Warranty    

A  Written  Warranty 

A  Special  Agreement 

Form  of  Warranty 

Effect  of  a  Written  Warranty  .... 

Warranty  may  be  gathered  from 
Letters   

The  Parties  are  bound  by  it  alone  . 

It  cannot  be  extended  by  Implica- 
tion   


113 

id. 

id. 

id. 
114 

id. 

id. 
115 
116 

id. 

id. 

id. 

117 

id. 
id. 
id. 
118 
id. 
id. 
id. 


119 

id. 


id. 


Waeeanty — con  tinned. 

A  Warranty  is  several  though  the 

Contract  be  entire    119 

A  Warranty  applies  to  the  Time  of 

Sale     id. 

Warranting  a  future  Event 120 

Buying  for  a  particular  Purpose  . .  id. 
Must  be  reasonably  fit  for  the  Pur- 
pose      id. 

A  Carriage  Horse    121 

Latent  undiscoverable  Defects  ....  id. 

Quiet  iu  Harness id. 

Unfitness  must  be  clearly  proved. .  122 

General  Rule    id. 

Warrantor's  Liability 123 

Sale  avoided  by  Eraud    id. 

Sale  and  Waeeanty  by  an  Agent. 

An  Agent  cannot  delegate  his 
Authority 123 

Nor  exceed  it    124 

Agency  determines  by  Principal's 
Death id. 

Difference  between  a  remunerated 
and  an  unremunerated  Agent   . .     id. 

Agent  acting  without  proper  Au- 
thority         id. 

His  Personal  Responsibility id. 

Where  he  cannot  be  sued  on  the 
Contract     id. 


XVI 


TABLE  OF  CONTENTS. 


Sale  and  Waeeanxy  by  an  Agent— 

continued.  tage 

But  is  liable  in  Damages   125 

Principal  answerable  for  his  Fraud  id. 
Misrepresentation  collateral  to  tlie 

Contract     id. 

Damage  caused  by  his  Negligence .    id. 

Undisclosed  Principal id. 

Person  described  as  Agent  may  be 

proved  to  be  Principal    126 

Principal  cannot  be  proved  to  be  an 

Agent     127 

Their  respective  Rights  of  Action 

on  a  Contract    id. 

Warranty  by  a  Servant  as  Special 

Agent     id. 

Warranty  by  a  Servant  as  General 

Agent     128 

Evidence  of  Usage  not  to  warrant .  130 
Warranty  by  a  Servant  after  Sale  .  id. 
Warranty  by  a  Servant  forbid  to 

give  one id. 

WaiTanty  by  a  Stranger  forbid  to 

ffive  one 131 


Sale  and  Waeeanty  by  an  Agent — 

continued.  PAGE 

Master  unwilling  to  stand  by  his 

Servant's  Warranty    131 

Rule  as  to  a  Servant  binding  his 

Master   132 

Warranty  by  a  Person  entmsted  to 

deliver    id. 

Agent  employed  to  take  a  Warranty  id. 
Action  against  a  pretended  Agent .    id. 

Patent  Defects. 

Not  covei-cd  by  a  Warranty 133 

In  what  they  consist   id. 

How  far  the  loss  of  an  Eye  is  patent    id. 

"Bright  Eye" 134 

Convexity  of  Eye id. 

Where  the  Buyer  knows  the  Defect    id. 

Where  Defects  are  discussed id. 

Conclusion  to  be  drawn  from  the 

Cases 136 

Suspected  Defects    137 

Piu-chase  without  Inspection     ....     id. 


CHAPTEE  VI. 


■SVARR^iJ^TY  DISTINGUISHED  FEOM  EEPEESENTATION. 


Representation  intended  as  a  War- 
ranty      138 

Recommendation  of  the  Seller  ....     id. 

Affirmation  as  to  Value id. 

Distinction  between  a  Warranty 
and  a  Representation  , id. 

Wliero  a  Representation  amounts 
to  a  Warranty 139 

Question  to  be  put  to  the  Jury ....    140 

Rule  as  to  Warranty  and  Repre- 
sentation        141 


Mere  Expression  of  Opinion 141 

Selling  according  to  Pedigree    ....  id. 

Partly  a  Warranty  and  partly   a 

Representation id. 

The  Jiuy  must  decide  between   a 

Warranty  and  Representation  . .  142 

rercival  v.  Oldacre    143 

Judgment  in  Behn  v.  Btirncss    ....  id. 

Counterfeit  Trade  Marks   ,  14-3 


CHAPTER  VII. 


FRAUDULENT  CONTRACTS. 


Where  the  Law  does  not  interfere   . .   146 

Where  several  Persons  combine  to 
cheat 1;17 

Conspiracy  to  cheat  Indictable id. 

There  must  be  Evidence  of  Concert . .     id. 

What  Evidence  has  been  held  Insuffi- 
cient         id- 

Conspiring  to  obtain  Money  by  False 
Pretences 148 


Conspiring  to  induce  a  Creditor  to 
forego  his  Claim 148 

Where  only  one  Person  cheats,  an 
Action  lies id, 

ChancMor  v.  Lopus    id. 

Remarks  on  that  Case     149 

Form  of  Action     id. 

Foundation  of  the  Action 150 

In  what  Fraud  consists id. 


TABLE  OF  CONTENTS. 


XVU 


PAGE 

There  must  bo  moral  Fraud 150 

EjGfect  of  Fraud    id. 

How  the  Question  of  Fraud  is  to  be 

decided id. 

Falsehood  must  be  followed  by  Da- 
mage    id. 

A  naked  Lie  no  cause  of  Action   ....  151 

Presumption  that  Person  defrauded 
was  influenced  by  the  Misrepresen- 
tation    id. 

Due  Caution  must  always  be  observed  id. 

Not  Fraud  to  suppress  what  there  is 

no  Duty  to  communicate    id. 

Requisites  to  an  Action  for  False  Re- 
presentation    152 

Or  on  Breach  of  Warranty id. 

Caveat  I^inptor    id. 

A  visible  Defect  and  a  nude  Assertion  id. 

Dealing  Talk     id. 

Collateral  Fraud   does    not   avoid   a 

Contract     153 

A  Foolish  Bargain id. 

Representation  known  to  be  untrue . .  id. 

Made  before  a  Sale  by  Auction     ....  id. 

Made  by  a  Bidder  at  an  Auction  ....  154 

Representation  not  known  to  be  true.  id. 

A  well-grounded  Belief id. 

Delusion  affecting  the  Contract    ....  id. 

Representation  to  prevent  Inquiries . .  id. 

Representation  through  a  Third  Party  1 5  5 

Representation  by  a  Thml  Party ....  id. 

A  hona  fide  Representation id. 

Representation  as  to  Credit   id. 


PAGE 

Sale  of  Goods  "  with  all  Faults"  ex- 
cludes latent  Defects   156 

Unless  there  be  an  express  Warranty    id. 

Or  Fraud  is  used  to  conceal  them ....     id. 

Plugging,  &c 158 

Ward  V.  Uobbs id. 

Contract  made  voidable  by  Fraud    . .     id. 

Where  Fraud  is  practised  upon  the 
Buyer 159 

Except  where  it  works  Injustice  ....     id. 

Where  he  continues  to  deal  with  the 
Article    id. 

Where  Fraud  is  practised  upon  the 
Seller id. 

Resale  by  the  Buyer  to  an  innocent 
Vendee   id. 

Contract  with  intent  to  cheat  the 
SeUer 160 

Preconceived  Design  of  not  Paying 
for  Goods  id. 

Question  for  the  Jury id. 

Resale  at  a  reduced  Price  id. 

Unstamped  Agreement  admissible  to 
prove  Fraud id. 

Payment  by  a  Cheque  which  is  dis- 
honoured        161 

Fraud  of  an  Infant id. 

Of  a  Married  Woman id. 

Where  a  Contracting  Party  is  Weak- 
minded   162 

Drunkenness  of  a  Contracting  Party .     id. 

Goods  kept  by  the  Party  when  sober .    id. 


CHAPTEE  VIII. 

BREACH    OF   WARRANTY. 


Beeach  of  Waeeanty. 

Buyer  neither  bound  to  tender  the 

Horse  nor  give  Notice     163 

Seller  not  bound  to  take  back  the 

Horse id. 

Unless  the  Contract  was  executory  ]  64 

Street  v.  Blaij     id. 

Judgment  of  the  Court  of  King's 

Bench id. 

Lord  Eldon's  Opinion  discussed.   165 
Evidence  in  Mitigation  of   Da- 
mages         166 

Unfitness  for  a  particular  Pur- 
pose          id. 

An  intermediate  Profit    id. 

Acts  of   Ownership  inconsistent 

with  Trial 167 

Confirmed  by  a  later  Case id. 

Goods  are  retiu-nable  where  there 

is  Fraud     168 

But    not  for    Non-correspondence 

with  Sample id. 

O. 


Beeach  of  Waeeakty — continued. 

Agreement  that  a  Horse  is  to  be 
returned  if  Unsound    

Head  v.  Tattersall     

Or  unsuitable    

Or  unfit  for  a  particular  Purpose . . 

Verbal  Offer  after  Sale  to  take  back 
the  Horse 

Where  Goods  should  be  returned 
immediately 

Or  the  Contract  becomes  complete . 

Where  Buyer  should  tender  the  Horse 

Sale  after  Tender 

Notice  instead  of  Tender    

Length  of  Time  before  Notice  .... 

Seller  should  have  the  Horse  ex- 
amined    

Breach  of  AVarranty  no  Defence  to 
an  Action  on  a  Bill  of  Exchange 

Unless  there  be  a  total  Failure  of 
Consideration    

Sale  by  Order  of  Coui't   

b 


168 
169 

id. 
170 

id. 

id. 
id. 
id. 
171 
id. 


172 

id. 


id. 
id. 


XVlll 


TABLE  OF  CONTENTS. 


CHAPTER  IX. 


PLEADING,    EVIDENCE   AND    DAMAGES. 


Pleading    and    Evidence    foe    the 

Plaintiff.  page 

Executory  and  executed  Contracts.  174 

Action  for  Price  of  Horse 175 

Action  for  not  accepting     id. 

Resale  of  the  Goods     id. 

Action  for  Detention  of  Goods  ....  id. 

Delivery  of  specific  Goods 176 

Action  for  not  delivering    id. 

Goods  sold  and  delivered  for  Pay- 
ment of  the  Price 177 

Action  maintainable  on  Rescission 

of  Contract  by  one  of  the  Parties  id. 

Horse  sold  and  delivered    id. 

Money  had  and  received  for  Repay- 
ment of  the  Price 178 

Under  a  Mistake id. 

Money  had  and  received  for  Repay- 
ment of  Part  of  the  Price   id. 

Money  had  and  received  for  Price 

of  Horse  ■wTongfully  sold   179 

Money  received  subject  to  certain 

Conditions "^• 

Action  on  a  Breach  of  Warranty. .  id. 

Action  for  a  False  Warranty     ....  id. 

Liability  of  an  Infant id. 

Action  for  Fraudulent  Representa- 
tion    180 

Statement  of  Facts  in  an  Action  for 

Breach  of  Contract id. 

Statement  of  Facts  in  an  Action  for 

Deceit     id. 

Statement  of  the  Consideration     . .  id. 

If  the  Horse  turn  out  lucky  ....  181 

Words  used  in  the  Statement    . .  id. 

Statement  of  the  Promise  or  War- 
ranty   .' 182 

Condition  annexed  to  the  Promise 

or  Warranty id. 

Qualification  of  the  Promise  or 

Warranty id. 

The  Purchase  and  the  Payment .  id. 

Statement  of  the  False  Warranty 

or  Fraudulent  Representation  ..  183 

Statement  of  the  Breach     id. 

Statement  of  the  Damage 184 

Proof  in  Goods  bargained  and  sold  id. 

Proof  in  an  Action  for  not  accepting  id. 

Meaning  of   Readiness   and   Wil- 
lingness    id. 

Proof  in  an  Action  for  not  deliver- 
ing    185 

Proof  in  Goods  sold  and  delivered. .  id. 

Proof  in  Money  had  and  received.  .  id. 

Proof  of  an  Account  stated    186 


Pleading    and    Evidence    fob   the 

Plaintiff — continued.  page 

Proof  in  an  Action  for  Breach  of 

Warranty 186 

Proof    in    an  Action  for   a  False 

WaiTanty id. 

Where  it  is  doubtful  whether  False 

Warranty  is  proA^eable    id. 

Proof  in  an  Action  for  Fraudulent 

Representation 187 

Proof  of  the  Bargain  and  Sale  ....  id. 

Proof  of  the  Consideration id. 

Proof  of  Payment  of  the  Price  ....  id. 
Appropriation  of  the  Money  ten- 
dered    188 

Ilardiiu/ham  v.  Allen    id. 

Proof  of  the  Promise  or  Warranty .  id. 

A  AVarranty  not  contained  in  the 

Receipt 189 

Warranty  in  a  Receipt  not  always 

conclusive id. 

Written   Warranty  requires   no 

Agreement  Stamp id. 

Where  Authority  to  warrant  need 

not  be  proved    190 

Where  Authority  to  warrant  must 

be  proved id. 

Proof  of  Power  to  rescind id. 

Proof  of  Fraudulent  Representation  id. 

Proof  of  the  Breach  of  Warranty. .  191 

Notice  of  the  Nature  of  the  Un- 
soundness   id. 

Evidence  as  to  Unsoundness  ....  id. 

Matter  of  Fact  alone    id. 

Either  Fact  or  Veterinary  Opinion  id. 

Both  Fact  and  Veterinary  Opinion  id. 

Veterinary  Opinion  alone   192 

Evidence  as  to  Vice id. 

Evidence  as  to  Unfitness,  &c.    . .  id. 

Proof  of  Rescission id. 

Proof  of  Tender    id. 

Pleading  and  Evidence  for  the  De- 
fendant. 

Admissions  by  Pleading 192 

What  must  be  specially  pleaded  . .  id. 

Specific  Denials  must  be  made  ....  193 

Denial  of  Contract  id. 

Allegation  of  Malice,  &c id. 

Defence  for  Detention  of  Goods    , .  id. 

Defence  for  Goods  bargained  and 

sold,  and  for  not  accepting     ....  id. 

Defence  in  an  Action  for  not  de- 
livering    194 


TABLE  OF  CONTENTS. 


XIX 


Pleading  and  Evidence  foe  The  De- 
fendant— continited.  page 
Where  Evidence  of  Usage  of  Trade 

is  not  admissible 194 

Defence  for  Goods  sold  and  deli- 
vered       id. 

Defence  to  Action  on  a  Cheque  for 

the  Price    id. 

E\ddence  in   Reduction  of   Da- 
mages          id. 

Defence  for  Residue  of  the  Price  195 
Defence  for  Money  had  and  received  id. 
Defence  to  an  Action  on  a  Breach 

of  Warranty id. 

A  surreptitious  Warranty id. 

Condition  annexed  to  a  Warranty  196 
Evidence  in   Reduction   of   Da- 
mages         197 

Defence  to  an  Action  for  Fraudu- 
lent Representation id. 

Disputing  the  Warranty    id. 

Disputing  the  Unsoundness,  &c.  . .     id. 

Subsequent  Recovery 198 

Competency  of  Witnesses id. 

Damages. 

General  Damages     198 

Special  Damages id. 

Legal  and  natural  Consequences  of 
Breach  of  Contract id. 

Judges  to  direct  Juries  as  to  Rules 
of  Damages  199 

Damages  arising  from  special  Cir- 
cumstances         id. 

Effect  of  Notice    200 

Damages  for  "wrongful  Conversion.  201 

Damages  in  tort    id. 

In  Actions  for  a  Sum  certain     , . , .     id. 

Interest 202 


Damages — continued.  page 

17  &  18  Vict.  c.  90 202 

In  Actions  vrhich  sound  in  Damages  id. 

A  foolish  Bargain    203 

An  impossible  Contract id. 

Cannot  be  higher  than  the  Amount 

laid 204 

In  Goods  bargained  and  sold     ....  id. 

In  an  Action  for  not  accepting ....  id. 

In  an  Action  for  not  delivering    . .  id. 

Nominal  Damages   205 

lu  Goods  sold  and  delivered id. 

In  Money  had  and  received   id. 

On  Breach  of  WaiTanty id. 

General  Rule     id. 

Where  the  Horse  has  been  re- 
turned       id. 

Where  the  Horse  has  not  been 

returned 206 

Where  the  Horse  has  been  ten- 
dered    id. 

Expense  of  Keep id. 

Seller  liable  for  reasonable  Keep.  207 

What  is  reasonable id. 

Keeping  the  Horse  till  a  Fair   . ,  208 
Expense  consequent  on  the  War- 
ranty    id. 

Expense  in  Selling 209 

Expense  in  advancing  the  Horse's 

Value id. 

Plorse  tendered,  and  then  sold  by 

Auction id. 

Expense  of  Veterinary  Certiiicato 

and  Counsel's  Opinion    id. 

Travelling  Expenses    210 

Loss  of  a  good  Bargain id. 

Re-selling  with  a  Warranty  . , . ,  id. 

Damages  for  Misrepresentation    . .  id. 

Where  the  Damages  are  very  small  212 


CHAPTER  X. 


INNKEEPEKS,    VETERINAEY   SURGEONS,    EAKRIERS,    HORSE-BREAKERS, 
TRAINERS,    ETC. 


Innkeeper. 

His  Business     214 

Definition  of  an  Inn    id. 

Derivation  of  Hostler id. 

Who  is  a  Guest    id. 

What  an  Innkeeper  undertakes    . .  id. 

Hours  of  Closing id. 

Travellers  and  Lodgers 216 

Innkeeper  compellable  to  receive  a 

Traveller    id. 

May  be  indicted  for  refusing     ....  217 

What  has  been  held  to  be  no  De- 
fence     id. 


Innkeepee — continued. 

Sickness,  Drunlienness,  &c 217 

Action  for  Compensation    id. 

Not  liable  for  refusing  to  supply 
Post-Horses id. 

Traveller  not  entitled  to  select  jiar- 
ticular  Apartments id. 

Liability  of  Innkeeper  limited  by 
26  &  27  Vi>3t.  c.  41 id. 

Salaried  Manager  not  liable  as  Inn- 
keeper        218 

Goods  to  ■which  his  Liability  ex- 
tends       id. 

hi 


XX 


TABLE  OF  CONTENTS. 


Innkeeper — continued.  page 

How  ousted 219 

Where  a  Guest's  Horse  is  stolen  . .   220 
Where  another  Person's  Horse  is 

stolen id. 

Principle  upon  which  Liability  de- 
pends       id. 

Horse  out  at  Grass  by  the  Guest's 

desire id. 

Horse   out   at  Grass   without   the 

Guest's  desii'e   221 

Where  a  Guest's  Horse  is  injured. .     id. 

Presumption  of  Negligence  against 
the  Innkeeper   id. 

Not  rebutted  by  Stables  being 

out  of  his  Control     222 

A  Guest's  Goods  not  distrainable  .  223 

Even  where  he  is  accommodated 
out  of  the  Inn id: 

Or  uses  a  Stable  iDrovided  for  the 

Occasion     id. 

Innkeeper's  Lien id. 

Innkeeper  has  a  Lien  on  a  Horse 

for  its  Keep id. 

Cannot  detain  a  Guest  for  his  BiU  .  224 

But  may  detain  his  Horse id. 

His  Right  of  Lien    id. 

Horses  and  Carriages  sent  to  Livery 

at  an  Inn    id. 

Cannot  sell  one  Horse  for  the  Keep 

of  others     id. 

Has  a  Lien  on  a  Horse  left  by  a 

Wrong-doer 225 

But  not  if  he  knew  it  at  the  Time 

it  was  left id. 

A  Horse  left  by  the  Police id. 

Giving  a  Guest  credit id. 

A  Thii'd  Party  when  answerable  . .     id. 
Horse  removed  to  defeat  the  Lien.,    id. 

Keep  during  Detention 226 

He  cannot  use  a  Horse  he  detains.,    id. 


Innkeeper — continued.  page 

He  could  not  formerly  sell  a  Horse 

he  detained    226 

But  may  now  do  so  after  Six  weeks  227 
Provisions  of  41  &  42  Vict.  c.  38  . .  id. 
Distrainor  may  seU  a  Horse  for  his 

Keep 228 

Veterinaet  Surgeon  and  Farrier. 

No    Law    peculiar    to   Veterinary 
Surgeons    228 

Farrier   cannot   refuse    to   shoe    a 
Hor.se      ; .     id. 

When  brought  at  a  reasonable  Time  229 

Answerable  for  Ids  own  Want  of 
Skill    id. 

Where  a  Third  Person  is  affected . .     id. 

When  answerable  for  his  Servant. .     id. 

Action  against  a  Farrier  for  prick- 
ing a  Horse  when  shoeing  liim . ,     id. 

Collins  V.  Rodway id. 

Rule  as  to  Farriers 230 

No  Insurance  against  Injury ....    231 
Peculiar  Difficulties    should    be 

mentioned id. 

Coming  at  an  L'nseasonable  Hour    id. 

FaiTying,  &c.,  in  the  Street 232 

Horses  standing  to  be  shod  not  dis- 
trainable          id. 

Horse    may  be   detained  for    the 

Price  of  his  Shoeing    id. 

Such  Lien  is  favoured  by  Law . .     id. 
Extends  only  to  each  particular 

Time   id. 

Liability  to  feed  a  Hoi se  detained  233 

Horsebreaker,  Trainer,  &c. 

Horsebreaker  liable  for  Damage  . .  233 

Horsebreaker' s  Lien    id. 

Trainer' s  Lien id. 

Stallion -master  has  a  Lien     234 

For  Work  done  on  a  Sunday     . .  235 


CHAPTEE  XI. 


LIVERY-STABLE  KEEPERS,  AGISTERS,  AND  THE  HIRING  AND  BORROWING 

HORSES. 


Liveet-Stable  Keeper. 

Has  no  Privilege 237 

Liable  where  the  Horse  is  lost  ....     id. 

Horse  at  Livery  distrainable id. 

But  not  where  he  is  merely  to  be 

cleaned  and  fed     id. 

Distinction  taken  vcLTamonsx.  Gin- 
<jcU 238 


LrvERT- Stable  Keeper — continued. - 
Livery-Stable  Keeper  has  no  Lien 

for  Keep     238 

May  have  a  Lien  by  Agreement .     id. 
Horse  removed   to    defeat   such 

Lien    id. 

Livery -Stable  Keeper  has  no  Lien 
for  Money  expended  on  Horse  . .     id. 


TABLE  OF  CONTENTS. 


Liveey-Stable  Keepers — continued,  page 
Wliat  cannot  bo  set  off  in  an  Action 

for  Keep     239 

He  must  take  reasonable  care  of  tlie 

Horse id. 

An  Action  for  not  taking  due  care 

of  a  Horse  founded  on  Contract .  240 
Agister. 

His  Possession 240 

Does  not  insure  a  Horse's  Safety. .  id. 

He  is  answerable  for  Negligence  . .  id. 

If  he  leaves  his  Gates  open    241 

Fences  out  of  Order,  &c id. 

Injury  by  another  Horse    id. 

The  Horse's  Condition    242 

Eatage  let  for  a  certain  Time    ....  id. 

Agister  has  no  Lien     id. 

May  have  a  Lien  by  Agreement  . .  243 
Horses  and  Cattle  being  agisted  are 

distrainable    244 

But  not  when  taken  in  to  rest  for 

a  Night id. 

Decision  of  the  Irish   Court   of 

Queen's  Bench id. 

Distinction  where  Cattle  enter  by 

breaking  Fences  /(/. 

Hieing  Hoeses. 

Letting  for  Hire 244 

Warranty  of  Fitness  for  a  Journey    id. 

Hyiuan  v.  Nt/e 245 

Where  a  particular  Horse  is  selected  247 
But  a  Horse  should  not  be  used  for 

a   piu'pose   other  than   that  for 

which  it  was  hired   id. 

What  Care  is  required id. 

Infancy  good  Defence  to  an  Action 

on  Contract   id. 

Secus,  where  Action  founded  in  Tort  248 
Where  Hirer  is  answerable  at  all 

Events    id. 

Unnecessary  Deviation   id. 

Where  Negligence  must  be  proved,    id. 

Where  the  Horse  falls  Lame id. 

Where  the  Horse  is  exhausted  ....  id. 
Where  the  Horse  refuses  its  Feed  .  249 
Where  the   Horse  is  returned  in 

worse  Condition    id. 

Expenses  of  Curing  Sick  Horse  . .  id. 
Where   the    Horse    is    improperly 

doctored id. 

Who  must  pay  for  Shoeing    id. 

Bailment  determined  by  selling  the 

Goods id. 

Where  the  Horse  is  stolen  from  the 

Hirer 250 

Where  the  Horse  is  stolen  by  the 

Hirer id. 

Must  have  been   originally  taken 

with    a    Felonious    Intention   at 

Common  Law   251 


Hieing  Horses — continued.  page 

Now  Bailee  indictable  for  Larceny 

under  24  &  25  Vict.  c.  96,  s.  3.  251 

Horse  hired  by  a  Servant id. 

Owner'sLiabilityincase  of  Accident    id. 

Horses  driven  by  the  Owner's  Ser- 
vants     252 

Horses  driven  by  the  Owner's  Ser- 
vants to  a  certain  Place id. 

Travelling  post id. 

Horses  driven  about  Town  by  the 
Owner's  Servants id. 

Laugher  v.  Fainter    id. 

Owner  held  liable  in   Quarman  v. 

Burnett   253 

Wearing  the  Hirer's  Livery  ....     id. 

A  Job-Master's  Agreement  254 

Where  the  Hirer  is  liable  for  Damage  id. 

Hirer  liable  through  his  own  Conduct  id. 

Hirer  liable  where  he  might  have 
controlled  his  Servant id. 

M' Liiughlin  v.  Frijor    255 

Opinion  of  the  Coui't  of  Common 

Pleas id. 

The  General  Pi,ule    256 

Wliere  the  Hirer  would  not  be 

liable id. 

Hirer  sitting  outside  liable     ....     id. 

The  Jury  must  decide  whether  the 
Servant  is  acting  for  the  Hirer  or 
Owner    257 

A  Hirer's  Agreement id. 

BoEEOwiNG  Hoeses. 

Lending  for  Use '. , . .  258 

Duties  of  Borrower  and  Lender    . .  id. 

Lender  of  a  Horse   id. 

Must  not  conceal  Defects   id. 

What  Care  is  required 258 

As  much  as  the  Borrower  is  capable 

of  bestowing 259 

Showing  a  Horse  for  Sale id. 

A  gratuitous  Bailee 260 

Neg'ligence  of  a  Bailee    id. 

Rule  as  to  Negligence  of  gratuitous 

Bailee id. 

Use  strictly  personal    id. 

Cannot  be  used  by  a  Servant ....  261 
Must  be  used  according  to  theLend- 

inj? id. 

Or  else  the  Borrower  is  answer- 
able       id. 

Where  no  Time  is  fixed  for  Beturn  id. 

Redelivery  on  Request    id. 

Borrower  bound  to  feed  the  Horse .  id. 

Wliere  the  Horse  is  exhausted  ....  262 

Where  the  Horse  is  killed id. 

Where  the  Horse  dies  from  Disease  id. 
Wliere  Borrower  is  answerable  for 

Damage id. 

Bailment  ended  by  Misuser   id. 


XXll 


TABLE  OF  CONTENTS. 


CHAPTEE    XII. 


CAEEYING  nOESES. 


PAGE 

A  Common  Carrier 264 

Railway  Companies  Common  Carriers    id. 

Duty  of  Common  Carriers id. 

Inherent  Vice  in  Animal    265 

Proof  of 266 

Rule  applies  to  Common  Carriers  by 

Sea 267 

When  Carrier  may  refiise  to   carry 

Animals 268 

Onus  of  Proof  of  Non-liability id. 

Must  carry  for  reasonable  Charges  . .     id. 

Defects  in  Carriages id. 

A  special  Contract  to  carry    id. 

Binding  at  Common  Law 269 

Hardship  thus  occasioned id. 

Remedy  17  &  18  Vict.  c.  31  id. 

Sections  1 — 6     id. 

Section  7    id. 

Application  of  Section  7     270 

Construction  of  Section  7    271 

Feck  V.  Xorfh  Staffordshire  Eailwaij  Co.    id. 

General  Notices  invalid 272 

Condition  limiting  Liabihty id. 

"Condition"    and     "Special    Con- 
tract ' '  s3Tionymous  Terms     id. 

Special  Contract  binding  on  Company 

without  Signature   273 

Effect  of  Signature  by  Agent    id. 

As  to  reasonableness  Court  to  decide .  id. 
General  Effect  of  these  Decisions  . .  274 
What  Conditions  just  and  reasonable 

and  what  not    id. 

"  To  be  free  from  all  Risks  "—Cattle 

suffocated id. 

"  To  be  free  from  all  Risks  of  Con- 
veyance ' ' — Unsound  Truck  275 

Owner's  Risk  at  lower  Rate 276 

Condition  as  to  Time  within  which 
Loss  should  be  declared  to  create 

Claim id. 

Condition  as  to  Special  Rate id. 

As  to  Package  insufficiently  packed    id. 
As    to    Non-liability  for  Loss   of 

Market  as  to  Eish    id. 

As  to  Cheese id. 


Condition  as  to  Special  Rate —  page 

As  to  Loss  of  Market  coupled  with 

"  Injury  "  to  Cattle 277 

As  to  Value  coupled  with  unreason- 
able Rate  278 

Where  Value  untruly  declared 279 

Condition  as  to  General  Non-liability    id. 
As   to  Non-liability  beyond  their 

own  Limits    280 

If  Part  of  Special  Contract  is  reason- 
able, such  Part  may  be  relied  on  . .   281 

Alternative  Rates    id. 

What  is  Wilful  Misconduct 282 

Onus  of  Proof 283 

General  Effect  of  the  Decisions  as  to 

Conditions id. 

Dehvcry  by  Carrier id. 

Notice  of  Consignee's  Refusal  to  Con- 
signor          id. 

Eft'ect  of  Consignee's  Refusal   id. 

Compensation  paid  in  Error  to  Con- 
signor no  Answer    to   Action  by 

Consignee 284 

Liability  of  Company  when  Accident 
happens  to  Horse  in  their  Yard    . .     id. 

Opinion  of  Cockbui'n,  C.J id. 

Of  Mellor,  J 285 

Of  Blackburn,  J id. 

Declaration  of  Value  under  17  &  18 

Vict.  c.  31,  8.  7     id. 

Non-compliance  with   a  Rule  as  to 

Receipt id. 

Through  Carriage  on  Railways,  what 

Company  liable     id. 

Gill  v.  Manchester,  %c.  Rail.  Co 286 

ContheY.  London  andSoiith  Western  R.  Co.  287 
Through  Carriage  by  Rail  and  Sea  . .  id. 
Regulation  of  Railways  Act.  1868  . .  id. 
Regulation  of  Railways  Act^  1871  . .   288 

Boolan  V.  Midland  Rail.  Co 289 

Steamboat  and  Railway  Companies  to 

disinfect  Carriages,  Boats,  &c 290 

' '  Reasonable  Time  " id. 

A  Eerryman 291 

Damages    292 

Injury  must  not  be  too  remote  id. 


TABLE  OF  CONTENTS. 


XXIU 


Part  II. 

NEGLIGENCE  IN  THE  USE  OF  HORSES,   &c. 


CHAPTEE  I. 

THE  CRIMINAL  AND  CIVIL  LIABILITIES  OF  PARTIES  FOR  INJURIES  INFLICTED  OR 
INCURRED  IN  DRIVING,  ALSO  THE  RULE  OF  THE  ROAD,  AND  NEGLIGENT 
DRIVING  BY  A  SERVANT, 


Negligent  Deiving.  page 

Definition  of  Negligence    296 

Negligent  Driving id. 

Where  killing  a  Person  is  held  to  be 

Murder id. 

Where  killing  a  Person  is  held  to  be 

Manslaughter   297 

Burthen  of  Proof id. 

Furious  Driving  id. 

Carriages  racing id. 

Driver  unable  to  pull  up     id. 

Causing  Death  of  Passenger 298 

Defence    of    Contributory    Negli- 
gence    id. 

Where  killing  a  Person  is  held  to  be 

Accidental  Death     id. 

And  the  Driver  is  not  liable  ....  299 

Trotting  a  Waggon  along  a  Road.  id. 

Trotting  a  Waggon  along  a  Street  id. 
Remarks   in  East's  Pleas   of    the 

Crown     id. 

Where      Streets      are      unusually 

crowded id. 

Where  Driver  is  indictable  under 

24  &  25  Vict.  c.  100,  s.  35 300 

Furious  Drivinginthe  Metropolitan 

Police  District id. 

Power  of  Police  Constables    id. 

Conviction   no    Bar  to   Action   of 

Trespass id. 

Where  Party  injured  by  negligent 

Driver  may  maintain  an  Action  .  id. 
Duty   of    Drivers    of    public    and 

private  Vehicles    id. 

Action  lies  for  Negligence  in  the 

care  of  vicious  Horses,  «S:c 301 

Where   another    Person   strikes    a 

Horse id. 

Damages  recovered  in  Trespass ....  id. 

Driving  furiously  round  a  Corner  .  id. 
.Mail    Cart  rapidly   entering  Post 

Office  Yard    id. 


Negligent  Deivino — eontimied.  page 

Frightening  a   Horse  by  a  Fire- 

basket     301 

By  Van  left  on  Roadside    302 

Judgment  in  Harris  v.  Mobhs    . ,    303 
By  blowing  off  Steam     305 

Rules  as  to  civil  Liability id. 

Negligence  on  one  Side  only id. 

Passenger  thrown  from  an  Omnibus  306 

Horse  and  Cart  left  standing  in  the 
Street id. 

Damage  from  Tackle  breaking. . . .    307 
Or  from  Defect  in  the  Carriage  .    id. 

Negligence  on  both  Sides id. 

Where  the  Negligence  of  the  in- 
jured Party  did  not  contribute  to 
the  Accident 308 

Where  such  Negligence  occasioned 
Part  of  the  Mischief    id. 

A  Wrongdoer  not  without  the  Pale 
of  the  Law    id. 

Driving  against  an  Ass  fettered  on 
the  Road    id. 

Question  of  ordinary  Care  on  the 

Pai-t  of  the  Plaintiff    309 

On  the  Part  of  the  Defendant  . .     id. 

Circumstances  of  the  Case  must  be 
left  to  the  Jury    id. 

Horse  injured  in  being  led  out  of 
the  Stable id. 

Horse  and  Cart  left  in  the  Sti-cet.  .  310 

Judgment  of  the  Court  of  Queen's 
Bench id. 

Where  no  Negligence  on  the  Part 
of  the  Defendant 314 

Law  deducible  from  these  Cases  . .     id. 

Abbott  V.  Macjie    id. 

A  Heap  left  on  a  Highway   315 

Opportimity  of  seeing  the  Obstruc- 
tion          id. 

Running  over  Stones  at  Night ....     id. 

Leaving  the  Highway   id. 


XXIV 


TABLE  OF  CONTENTS. 


Negligent  Driving — continued. 

Excavation  a  public  Nuisance  ....    31G 

Trespasser  may  maintain  an  Action    id. 

True  Test  of  legal  Liability id. 

Owners  of  private  "Ways  may  be 
liable  for  Negligence id. 

Even  where  Injury  caused  by  in- 
tervening act  of  third  Party ....    317 

Liability  of  a  Contractor    id. 

Where  there  are  several  "ways  of 
doing  a  Thing 318 

Liability  of  an  Employer   id. 

What  is  the  Question  in  such  Cases    id. 

Drain  repaired  by  an  ordinary  but 
skilful  Labourer id. 

Stones  left  by  a  SixU- Contractor  ..    319 

Statutory  Duty — Surveyor  of  High- 
ways       id. 

Peformance  of  anordinaryDomestic 
Duty id. 

Manure  left  on  a  Road  320 

With  regard  to  Works  executed 
under  Local  Acts     , id. 

Both  Parties  to  hlamc    id. 

Identification  of  Child  with  Person 
in  charg-e  of  it 321 

Identification  of  Passenger  with 
Driver    id. 

Remarks  in  Smith's  Leading  Cases    id. 

Power  of  Selection 322 

Altogether  an  Acridod id. 

Running  over  a  Person  at  Night . .     id. 

Where  it  is  the  Result  of  the  sudden 
Fright  of  the  Plorse    323 

Hammack  v.   White id. 

Manzoni  v.  Douglas 324 

Horse  running  away    id. 

Qualification  of  Ride 325 

Proof  of  Negligence  must  be 
affimiative     id. 

Where  Evidence  is  equally  con- 
sistent with  Negligence  and  no 
Negligence    326 

Where  a  Horse  straying  in  a  High- 
way kicked  a  Child 327 

Horse  kicldug  at  Sale id. 

Accident  itself  sometimes  affirma- 
tive Proof  of  Negligence     id. 

Evidence  identical  with  that  re- 
quii-ed  for  Manslaughter    328 

As  to  Demand  of  Particulars  in 
Actions  for  Negligent  Driving. .     id. 

Rule  of  the  Road. 

Right  Side  of  the  Road 328 

Driving  on  the  wrong  Side  in  the 

Dark id. 

Seeing   a    Person    coming    on    his 

wrong  Side    id. 

Does  not  justify  a  wanton  Injury  329 


Rtjle  of  the  Road — continued.  page 

Rule  of  the  Road  not  inflexible    . .  329 

Light  Load  meeting  Heavy id. 

Parties  meeting  on  a  sudden id. 

Rule  of  the  Road  applies  to  Saddle 

Horses    330 

Ordinary  Vehicles  meeting  Street 

or  Tram  Cars    id. 

Foot  Passengers   id. 

Rule  of  the  Road  does  not  apply  . .  331 

Going"  over  a  Crossing    id. 

Nuisance  on  Public  Highway  ....  id. 

Horse  and  Carriage  before  Trades- 
man's Door   id. 

Negligent  Deiving  by  a  Servant. 

When  the  Master  was  liable  ac- 
cording to  former  Decisions  ....  33 

Liability  now  more  extensive    ....  332 

Liinpus  V.  General  Omnibus  Co id. 

Acts  done  within  Employment  and 

for  Master's  Interest id. 

If  Servant  vindictively  strikes  Horse 

with  his  Whip 333 

Instructions  of  Master,  if  disre- 
garded, immaterial , id. 

Master  liable,  if  Acts  are  done  for 

his  Benefit id. 

Unless  done  out  of  the  Course  of 

the  Servant's  Emploj^ment    . .  33i 

Liability  of  Cab  Proprietor    id. 

Master  and  Servant  driving  together  335 

Servant  entrusting  the  Reins  to  a 

Stranger     id. 

Servant  striking  the  Horse  of  ano- 
ther       336 

Servant  striking  Passenger    id. 

Guard   of    Omnibus  using   undue 

Violence  to  Passenger     id. 

Servant  removing  an  Obstruction . .  337 

Servant  acting  improperly id. 

Making  a  Detoiu-  for  his  own  Pur- 
poses    id. 

Servant  acting  contrary  to  his  Trust  338 

Taking  his  Master's  Horse  without 

Leave id. 

Re-enteriDg  on  Duty 339 

Taking  the  Hoi'se  of  another id. 

No    express  Authority  of  Master 

necessary  340 

Question  for  the  Jury id. 

Master's  Name  on  the  Cart  id. 

Giving  an  Address id. 

Action  for  bodily  Hurt id. 

Liabihty   of   Master  and  Servant 

respectively 311 

Negligence  of  Fellow -Servant  ....  id. 

Master  bound  to  use  due  Care  in 

Selection  of  Servants id. 

Liability  of  Cab  Proprietor  to  Driver    id. 


TABLE  OF  CONTENTS. 


XXV 


rAGE 
Negligent  Deiying  by  a  Servant — con. 

Action  by  Representatives  of  a  Per- 
son killecl  342 

By  Persons  beneficially  interested  .    id. 

Construction  to  be   put   upon  the 
Condition  in  9  &  10  Vict.  c.  93. .     id. 

Plan  of  the  Locality    343 

Conviction  for  furious  Driving  a  Bar 
to  subsequent  Action id. 

Damages 344 

Responsibility    for     ' '  all    possible 
Consequences "     id. 


PAGE 

Negligent  Driving  by  a  Servant — con. 

Damage  too  Remote   ', .   344 

Inj  ury  done  to  a  Carriage 345 

Measure-of  Damages  where  a  Horse 
has  been  injured id. 

Damages  where  a  Person  has  been 
killed id. 

How  limited id. 

Cannot  be  given  for  Funeral  Ex- 
penses         316 

Damages  not  given  to  a  Class,  but 
to  Individuals id. 


CHAPTEE  II. 


FEROCIOUS    A^^D    VICIOUS    ANIMALS. 


Wild  and  Tame  Animals    347 

As    to   Animals  Fcra   Naturcc   only, 

Scienter  unnecessary     348 

What  ought  to  be  the  Liability  of  the 

Person  keeping  them id. 

The  Athenian  and  Roman  Laws  ....  id. 

The  French  Code 319 

Argument  in  Mason  v.  Keeling id. 

Decision  in  Scotland    id. 

Reversed  in  House  of  Lords id. 

In  England  a  Scienter  is  held  neces- 
sary       350 

Where  a  Dog  bites  a  Person id. 

Kot  enough  to   show  that  the  Dog 

was  of  a  fierce  Disposition id. 

Report  that  Dog  had  been  bitten  by 

a  Mad  Dog    id. 

Where  Dog  had  bitten  a  Child id. 

Not  necessarj'  to  show  that  Dog  has 

bitten  another  Man 351 

Stray  Dog  on  Defendant's  premises ..  id. 

Evidence  of  Scienter     id. 

Damage    done    by   Dog    to    Game, 

ground  of  Action id. 

Horse  frightened  by  Dogs,  and  there- 
by damaged id. 

WTiere  a  Dog  worries  Sheep 352 

Dictimi  of  Mr.  Justice  Maule    id. 


E\adence  of  mischievous  Propensity 
unnecessary  under  28  &  2yVict.  c.  60  352 

' '  Cattle ' '  includes  Horses  and  Mares    id. 

Proof  of  Ownership id. 

Scienter  maybe  proved  against  a  Cor- 
poration       id. 

The  Dogs  Act,  1871     ...'.    353 

Where  a  Horse  bit  some  other  Horses  354 

Breaking  Horses  in  a  Public  Place  . .     id. 

Where  a  Mad  Bull  wounds  a  Person  .    id. 

Where  a  Bull  singled  out  a  Person 
wearing  Red     id. 

Where  a  Ram  injured  a  Person    ....     id. 

Where  a  vicious  Beast  kills  a  Person .    id. 

Owner  bound  to  secure  a  vicious 
Anmial  at  all  events    355 

He  is  liable  to  an  Action  for  Damage    id. 

The  Grist  of  the  Action    id. 

Not  necessary  to  prove  Negligence  . .     id. 

An  unruly  Horse  escaping  from  a 
Stable id. 

Turning  a  dangerous  Animal  loose, 
Manslaughter   id. 

Turning  a  vicious  Horse  out  on  a 
Common     id. 

Injury  occasioned  by  a  vicious  Bull. .     id. 

Shooting  a  Dog  for  worrying  Sheep  .     id. 

Shooting  a  Dog  for  worrying  Fowls  .  356 


CHAPTEE  III. 


THE  LIABILITIES  OF  PARTIES  IIUKTIXG  OR  TRESPASSING  UPON  THE  LANDS  OF 

ANOTHER. 


Fresh  Pursuit  over  another's  Land  . .  357 

Pursuing  Vermin id. 

No  unnecessary  Damage    358 

Digging  for  a  Fox,  &c id. 


Hunting  for  Amusement    3.58 

Earl  of  Esse.T  v.  Capel id. 

Huntsman  liable  for  Damage  done  by 
the  Field    359 


XXVI 


TABLE  OF  CONTENTS. 


PAGE 

Master  of  Hounds,  when  responsible 

for  the  Field 359 

Hunting  a  Hare  on  another's  Land. .  360 

Taking  a  Stag  on  another's  Land    . .  id. 

Hunting  a  stray  Deer     id. 

Dead  Game  Property  of  Owner    ....  id. 

He  has  a  Right  to  have  his  Game 

imdistiirbed  id. 

Cattlegate  Owners  have  not  the  Eight 

of  Shooting    id. 

Reservation   of  flights   of  Lords  of 

Manors  under  Enclosure  Acts   ....  id. 
Who  may  kill  Hares  without  a  Game 

Certificate 361 

Ground  Game  Act,  1880 id. 

Anjr  person  may  hiuit  Hares id. 

Continued  Ti'cspass id. 

Two  Persons  engaged  in  a  common 

Purpose 362 

Trespass  in  Search  of  Game id. 

Hunting  with  Hounds  or  Greyhounds  id. 

Jurisdiction  of  Justices  ousted id. 

Persons  em^^loycd  to  kiU  Rabbits  by 

Tenant    363 


PAGE 

Trespass  from  the  Highway 363 

From  his   own  Land  to   pick  up 

Game id. 

Under  25  &  26  Vict.  0.  114    id. 

Laying  Hands  on  a  Trespasser id. 

Opposing  Force  to  Force    364 

Defence  to  an  Action id. 

Horse  with  a  Rider  cannot  be  dis- 
trained         id. 

Action  of  Trespass  lies  for  riding  over 

Land id. 

But  not  where  a  Dog  jimips  into  a 
Field  id. 

Notice  imder  3  &  4  WiU.  4,  c.  24,  s.  3    id. 

Notice  transmitted  by  Post    id. 

Maintenance  of  Fences   365 

Gate  of  a  Field  left  open    id. 

Gate  of  a  Railway  Crossing  left  open 
where  there  is  a  statutable  Obhga- 
tion id. 

Gate  of  Station  left  open  where  there 
is  no  statutable  Obligation     366 

Fence  within  Station  Yard     367 


PART   III. 

RACING,    WAGERS,    AND    GAMING. 
CHAPTER  I. 

THEIR  HISTORY,  RISE,  AXD  PROGRESS  IN  THIS  COUNTRY. 


PAGE 

The  Time  of  the  Pharaohs 368 

Horses  used  mostly  for  Warlike  Piu-- 

poses  in  Early  Times   id. 

The  Time  of  Julius  Caesar 369 

Reign  of  Athelstan id. 

Reign  of  William  the  Conqueror  ....  id. 

Reign  of  Henry  the  First id. 

Reign  of  Henry  the  Second   id. 

Reign  of  Richard  the  First    370 

Reign  of  John id. 

Reign  of  Edward  the  Second     id. 

Reign  of  Edward  the  Thii-d id. 

Reign  of  Richard  the  Second     id. 

Reign  of  Henry  the  Fourth  id. 

Reign  of  Henry  the  Seventh id. 

Reign  of  Henry  the  Eighth 371 

Reign  of  Edward  the  Sixth   374 


PAGE 

Reign  of  Philip  and  Mary 374 

Reign  of  Queen  Elizabeth id. 

Reign  of  James  the  Fii-st   375 

Reign  of  Charles  the  First 376 

Reign  of  Charles  the  Second id. 

Reign  of  William  the  Thii-d 377 

Reign  of  Queen  Anne id. 

Reign  of  George  the  First 378 

Reign  of  George  the  Second 379 

Reign  of  George  the  Third    381 

Reign  of  George  the  Fourth id. 

Reign  of  William  the  Fourth    382 

Reign  of  Queen  Victoria    id. 

Repeal  of  Duty  on  Racehorses    . .  385 

16  &  17  Vict.  c.  119 386 

37  &  38  Vict.  c.  15     id. 

Racecourses  Licensing  Act,  1879  .  387 


TABLE  OF  CONTENTS. 


XXYll 


CHAPTEE  II. 


RACING,    STAKEHOLDERS,    AND    STEWARDS. 


Eacing.  page 

The  Law  as  to  Racing    389 

Eights  of  Part-owners    id. 

Custom  to  Eace    id. 

To  resort  to  Eaces   td. 

But  though  a  good  Custom,  not  an 
Easement  within  the  Prescription 
Act      390 

Stakeholdees. 

Sweepstakes 390 

Matches id. 

The  Act  for  the  Suppression  of 
Betting  Houses    id. 

Entry  for  a  Eace 391 

Eace  not  to  be  run  within  a  Year . .    id. 

' '  Scratching ' '  a  Eace  Horse     ....     id. 

Clerk  of  the  Course  usually  Stake- 
holder         392 

Has  no  Eight  to  the  Stakes id. 

Ground  of  Action  against  Stake- 
holder          id. 

Position  of  Stakeholder  towards  the 
Parties,  if  the  Eace  is  not  to  be, 
or  cannot  be,  run     id. 

Cannot  set  off  an  unpaid  Stake     . .   393 

Where  he  may  cash  a  Cheque  ....     id. 

Stake  must  abide  the  Event  of  a 
legal  Contract id. 

A  Foot  Eace id. 

Batty  V.  Marriott  oven-uled  by 
Diggle  v.  Higgs     394 

Jiidgment  of  Lord  Cairns,  L.  C.  . .     id. 

Eecovery  of  Money  paid  on  an 

illegal  Contract    396 

What  the  Party  should  do     id. 

Demand  before  the  Money  is  paid 
over     id. 

Bringing  an  Action  not  sufficient ..   397 

Where  the  Money  is  paid  over  with- 
out Dispute  id. 

Where  a  Horse  is  disqualified  ....     id. 

Where  Owner  knows  the  Disquali- 
fication      398 

Proper  Party  to  receive  the  Stakes    id. 

Under  what  Circumstances  Winner 
may  maintain  an  Action    id. 

A  Cricket  Match 399 

A  Wrestlina:  Match     id. 


Stakeholders — continued.  page 

A  Dog  Fight    399 

Loser  may  recover  his  Stake  where 

there  has  been  Fraud id. 

How  he  may  waive  his  Claim   ....   400 
Where  a  Stakeholder  may  recover 

from  the  Winner id. 

Money  in  the  hands  of  a  Stake- 
holder does  not  pass  as  ' '  his 
Moneys' '  under  D  epositor '  s  Will .    id. 

Stewards. 

Their  Duties     401 

Disputes  to  be  settled  by  them ....     id. 

Award  should  be  made  by  all    ....     id. 

Custody  of  the  Stakes  in  the  mean- 
time       402 

Legal  Position  of  Stewards    id. 

Decision  not  necessarily  invalidated 
by  one  of  them  being  interested    id. 

Decision  of  two  out  of  three  Stew- 
ards held  binding     id. 

Stewards  differ  from  legal  Arbitra- 
tors        403 

Judge's  Powers  do  not  accrue  if 
Eace  is  invalid id. 

Steward's  Decision  maintained  by 
the  Court  of  Exchequer id. 

Keiccomen  v.  Lynch 404 

Provisional  Decision id. 

Appointment  of  a  Judge    405 

Negligence  in  not  appointing  one . .  406 

Decision  of  the  Umpire  or  Com- 
mittee          id. 

When  Jurisdiction  has  not  attached    id. 

Terms  of  a  Eace 408 

Eules  of  a  Eegatta id. 

Stewards,  &c.  cannot  waive  any 
Condition  of  a  Eace     409 

Eules  of  the  Jockey  Club 410 

Arbitration  of  the  Jockey  Club     . .     id. 

Sj)orting  Phraseology     id. 

A  " Selling"  Eace 411 

A  professional  Jockey id. 

Horse  regularly  hunted  with 
Hounds id. 

Match  for  a  particular  Meeting    . ,     id. 

Ordering  off  the  Grand  Stand  ....   412 

Ordering  Goods    413 


xxvm 


TABLE  OF  CONTENTS. 


CHAPTER  III. 


WAGERS. 


PAGE 

Wagers  at  Common  Law   411 

Wager  on  the  Life  of  Napoleon  ....  415 
Wager  on  the  Result  of  an  Election.,    id. 

Betting  on  a  Race    id. 

Bets  not  recoverable    id. 

Deposit  recoverable  before  the  Event,  id. 
Decision  of    the   Court   of   Common 

Pleas 416 

What  is  a  Wagering  Contract 417 

Money  advanced  with  Stipulation  . .  id. 
Price  of  Mare  to  be  increased,  if  she 

won,  by  her  Winnings    418 

Billiard  Match id. 

Rotundity  of  Earth id. 

Trotting  against  Time    id. 

Agreement  with  Tipster     id. 

Walking  Match    419 

Contribution   to   Person    nominating 

the  Winner  not  within  Proviso ....  id. 
Second  Horse  may  receive  Part  of  the 

Stakes  within  the  Proviso 420 

Effect  of  Wagers  being  void  on  Note 

given  in  Payment     id. 

Wagering  Contracts  by  Brokers  void 

biit  not  illegal 421 

Contracts  may  be  illegal,  which  are 

not  void id. 

Money  paid  on  void  Contract    id. 


PAGE 

Decision  in  Equity 422 

Money  paid  on  illegal  Game  not  re- 

co\'erable    id. 

The  Act  for  the  Suppression  of  Betting 

Houses    id. 

The  Stock  Jobbing  Act 423 

Gaming  on  the  Stock  Exchange   ....  id. 

As  in  a  Time  Bargain id. 

Question  to  be  left  to  the  Jury id. 

Statute  only  affects  Contract  which 

makes  Wager    id. 

Statute  against  Wagering  Policies  . .  424 

What  held  to  be  such  a  Policy id. 

Wager  as  to  a  Declaration  of  War  . .  id. 

What  was   held  not    to   be   such   a 

Policy id. 

Paying  a  Bet      425 

Giving  a  Security     id. 

Where  a  Note  or  Bill  is  a  Gift id. 

Taking  a  stolen  Bank  Note  in  Pay- 
ment     426 

Taking  a  stopped  Note  in  Payment . .  id. 

What  invalidates  the  Holder's  Right  id. 

Mala  Jides  must  be  distinctly  proved . .  id. 

Money  borrowed  to  pay  Bets    427 

A  Betting  Agent id. 

A  Betting  Partner   id. 

Cheating  Wager 428 


CHAPTER  IV. 


GAMING. 


Gaming  not  unlawful     

Where  a  London  Apprentice  "  fre- 
quents ' '  Gaming 

Where  a  Clergyman  plays  at  un- 
lawful Games    

Unfair  or  excessive  Gaming 

Using  false  Dice 

Winning  exorbitant  Sums 

Losses  by  a  Bankrupt 

Cheating  in  a  Game  or  at  Play .... 

The  Fraud  or  unlawful  Device .... 

Conspiracy  to  cheat  at  Skittles .... 

Conspiracy  to  cheat  at  Cards     .... 

Where  a  Criminal  Information  was 
refused  

Contracts  for  Gaming 

Money  deposited  for  Gaming    .... 

French  Law  as  to  Games 


429 
430 

id. 

id. 

id. 

id. 
431 

id. 

id. 
432 

id. 

id. 

id. 

id. 

433 


English  Law  as  to  Games 433 

The  word  Game   id. 

Lawful  Games,  &c id. 

La-«-ful  Gaming  or  Play 434 

"  Game  "  under  the  Highway  Act  id. 

Unlawful  Games id. 

Lotteries 435 

Lotteries  declared  Nuisances id. 

Penalty  for  keeping  a  Lottery  ....  id. 

Penalty  for  drawing  at  a  Lottery  .  id. 

Littlegoes  declared  Nuisances  ....  id. 
Penalty  for  keeping  a  Place  for  a 

Lottery  or  Littlego id. 

Penalty  for  suffering  any  Lottery 

to  be  drawn 436 

Justices  have  Summary  Jurisdiction  id. 
5  Geo.  4,  c.  83,  s.  4,  "  Instnunents 

of  Gaming  " id. 


TABLE  OF  CONTENTS. 


XXIX 


PAGE 

36  &  37  Vict.  c.  38,  s.  3 430 

Racing-  Sweeps . . .  .■ 437 

Sale  of  Property  by  Lot id. 

Attempt  to  evade  the  Law    438 

Art  Unions    id. 

A  Lottery  of  Houses id. 

Ballot  in  Land  Societies 439 

Allotment  or  Partition  by  Lots     . .     id. 

Choice  of  Allotments id. 

The  Conservative  Land  Society    . .     id. 

Periodical  Drawings   440 

Repayment  of  Money id. 

Cock-fig-hting',  Bull-baiting,  &c.  . .  id. 
Keeper  of  a  Place  for  this  purpose    id. 

Within  the  Metropolitan  District  441 

Gaming  in  a  Public  House    id. 

Where  Money  is  staked id. 

Where  Money  is  not  staked 442 

Money  lent  for  Gaming id. 

Money  lent  for  the  Stakes  of  a  Prize 

Fight id. 


PAGE 

Test  where  the  Transaction  is  illegal  442 

Securities     for     Money    lent     for 

Gaming 443 

Action  on  a  Promissory  Note    , , . .  id. 

Identification  of  Promissory  Note  .  id. 

An  I  0  U id. 

Money  lost  at  Play id. 

Secimties  for  Money  so  lost 444 

General  Effect  of  5  &  G  Will.  4,  c.  4 1  id. 

Action  against  Acceptor  of  Bill  of 

Exchange 446 

Action  by  Acceptor  of  Bill  of  Ex- 
change     447 

Recovery  of  Principal  and  Interest  id. 

Evidence  of    Owner  of   a  Gaming 

House     id. 

Summons  to  set  aside  a  Warrant  of 

Attorney    id. 

A  Fost  Obit  Security  held  good ....  id. 

Deed  substituted  for   one   tainted 

with  Illegality id. 


CI 

BETTIXG  HOUS 

Betting  Houses. 

A  Common  Betting  House 

Act  for  the  Suppression  of  Betting 

Houses   

' '  Using ' '  under  this  Act   

"  Place  "  within  this  Act   

Moveable  Desk 

lAP 

3ES  A 

448 

449 

id. 

id. 
450 

id. 

id. 
451 

id. 
452 

id. 

453 

id. 

id. 

id. 
id. 

454 
id. 
455 

id. 
id. 

id. 

id. 

456 

id. 

PEE  y. 

YD  GAMING  HOUSES. 

Gaming  Houses. 

A  Common  Gaming  House    

Indictment  for  keeping  one   

Charge  in  the  Indictment 

Any  Person  may  go  on  with  it ... . 
Statutory  Provisions    for    an    In- 
dictment      

456 
457 

id. 

id. 

id 

Cricket  Ground     

Notice  by  two  Inhabitants 

Binding  over  the  Party  accused    . . 
Duty  of  Overseers  of  the  Poor  .... 
Penalty  where  Constable  neglects 

his  Duty     

Setting  up  or  playing  at  Hazard, 

&c 

id 

Pigeon  Shooting 

id 

Race  Course,  Umbrella   

Moveable  Box  within  Ring    . , 

Betting  at  a  Club     

Purposes    for    which     Houses     or 
Places  are  not  to  be  used    

458 
id. 

id 

Penalty  for  using   them  for  such 
Pur[30ses     

Evidence    that    Hazard   has    been 
played     

id 

Penalty  for  receiving  Money,  &c. 
on  certain  Conditions 

Rent  of  a  Gaming  House    

A  Subscription  Club    

What  is  a  Common  Gaming  House 

under  8  &  9  Vict.  c.  109     

Power  of  Justices     

id. 
id 

Money,  &c.  so  received  may  be  re- 
covered from  the  Plolder     

Act  does  not  extend  to  Stakes  in  a 

459 

id 

Race,  &c 

In  the  Metropolitan  PoKce  Dis- 
trict      

Penalty  for  advertising,  &c 

Pro\-isions  of  Betting  Act,  1874,  as 

to  adveriising    

Power  to  search  susj^ected  Houses 
Power  of  Commissioners  of  Police  . 

460 

Penalties  on  Gaming  House  Keepers 

under  8  &  9  Vict.  c.  109 

Penalty  for  Playing     

id. 
461 

Evidence  of  Gaming    

id 

The     Levy     and    Application     of 
Penalties    

Difficulty  of  obtaining  Evidence  . . 
17  &  18  Vict.  c.  38   

id. 
id 

Where  Party  neglects  to  prosecute 
No  Objection  allowed  on  Matter  of 

Form 

No  Appeal  from  High  Court     .... 

The  remaining  Provisions 

Extension  to  Scotland 

Persons     summarily    convicted    of 
obstructing  Officers 

Persons    giving    false    Names    or 
Addresses  

id. 
46'' 

Owner  or  Occupier  may  be  fined 
500/.,  or  imprisoned    

id. 

XXX 


TABLE  OF  CONTENTS. 


Gaming  HotrsES — continued.  page 

Persons  apprehended  may  be  made 

Witnesses    462 

Penalties  and  Costs id. 

On  neglect   to   proseciite,   another 

Person  may  be  authorized  to  do  so  463 

Remaining  Provisions id. 

Billiards,  Bagatelle,  &c id. 


Gaming  Houses — cont'mued.  page 

Regulations  regarding  Billiard  Li- 
cences     463 

Non-compliance  with  these  Regu- 
lations          id. 

Offences  against  the  Tenor  of  the 
Licence  464 

When  Billiard playingisnot  allowed    id. 

Constables  may  visit  licensed  Houses    id. 


APPENDIX. 


PAET  I. 
UNREPOHTED   CASES. 


Pettingall  v.  Pettingall. — Annuity  be- 
queathed to  keep  a  Favourite  Mare  465 
Alexander    and   Another   r.  Laidley 
and  Others. — Rule  of  the  Road    . .   467 

Simpson  v.  Potts. — Sidebones    id. 

Hall  V.  Roger  son. — Laminitis    468 

Regina  r.  Cook. — Furioiis  Riding    ..   471 
Matthews  v.  Parker. — Navicular  Dis- 
ease          id. 

Atkinson  v.  Horridge. — Thick-wind  .  472 
Croekford    v.    Lord    Maidstone. — A 
Common  Gaming  House    473 


PAGE 

Smart  v .  Allison .  — Alteration  of  Struc  - 
ture  in  the  Feet    474 

Hyde  v.  Davis. — Disease  of  the 
Lungs     477 

Buckingham  v.  Rogers. — Disease  of 
the  Lungs 479 

Elvin  V.  Chapman. — Negligent  Driv- 
ing in  the  Dark    id. 

Bowden  v.  Sherman. — Negligent 
Driving  at  a  Crossing     480 

Hadland  r. Price.— A  "SelUngRace"  481 

Percivali'.  Dudgeon. — Horse  damaged 
by  Negligent  Driving 483 


PAET  II. 
STATUTES. 


33  Henry  8,  c.  9 484 

2  &  3  Philip  &  Mary,  c.  7 486 

31  Eliz.,  c.  12   

2  Geo.  2,  c.  28 

12  Geo.  2,  c.  28    

13  Geo.  2,  c.  19    

18  Geo.  2,  c.  34    

5  Geo.  4,  c.  83 

3  &  4  Will.  4,  c.  42 

5  &  6  Will.  4,  c.  41 


488 
491 
492 
497 
498 
501 
502 
504 


508 

520 

521 

530 

531 

537 

539 

26  &  27  Vict.  c.  41 544 

42  &  43  Vict.  c.  18 540 


8  &  9  Vict.  c.  109     . 

9  &  10  Vict.  c.  48  . 
16  &  17  Vict.  c.  33  . 
16  &  17  Vict.  c.  127 

16  &  17  Vict.  c.  119 
37  Vict.  c.  15    

17  &  18  Vict.  c.  38  . 


PAET  III. 
MISCELLANEOUS. 


Queen's  Plate  Articles    548 

The  Rides  of  Racing 551 

Rules  of  the  Jockey  Club  572 

Post  Horses 578 


Slaughtering  Horses  

Conditions  of  Sale  at  Aldridge's  . 
Conditions  of  Sale  at  Tattersall's. 


579 
id. 
581 


INDEX .■ 583 


TABLE  OF  CASES. 


A. 

PAGE 

Abbot  v.  Macfie,  33  L.  J.,  Ex.  177  . .  314 
Abbott  v.  Freeman,  35  L.  T.,  N.  S. 

783— C.  A 327 

Acebal  v.  Levy,  10  Bing.  378    27 

Adam  V.Richards,  2  H.  Bla.  573. .  168,  178 
Adams  v.  Grave,  1  Cr.  &  M.  380  ... .     42 

r. Masters,  24  L.  T., N.  S.  502 . .   363 

Addison  v.  Gandaseqiii,  4Taunt.  574 . .  126 
Ainsley  v.  Brown,  N.  P.  1845  ....  74,  101 
Aldi'idge  v.  Great  Western  Rail.  Co., 

33  L.  J.,  C.  P.  161  ....    281 

V.  Johnson,  26  L.  J.,  Q.  B. 

296 14 

Alebury  r.  Walby,  1  Stra.  231 183 

Alexander  v.  Gibson,  2  Camp.  555  . .    52, 

129,  190 

V.  Laidley,  Appendix     ....    328 

Allday  v.  Great  Western  Rail.   Co., 

34  L.  J.,  Q.  B.  5  276,  277 

Allen  V.  Bennett,  3  Taunt.  169 26 

V.  Denstone,  8  C.  &  P.  760   ....    130 

V.  Hearn,  1  T.  R.  56   415,  424 

i;.  Lake,  18  Q.  B.  560    116 

V.  Pink,  4  M.  &  W.  140    ....  17,  189 

V.  Sharpe,  2  Ex.  352    38,  39 

—  V.  Smith,9Jur.,N.S.  230, 1284..  224 
AUport  V.  Nutt,  1  C.  B.  889  . . .  .435,  437 
Andrewsi;.Belfield,2C.B.,N.S.779..  29,170 

Anon.,  3  Salk.  157  3 

Anthony  v.  Halstead,  37  L.  T.,  N.  S. 

433  119,  122,  142 

Applebee  v.  Percy,  L.  R.,  9  C.  P.  647 ; 

43  L.  J.,  C.  P.  365;  30  L.  T.,  N.  S. 

785;  22  W.  R.  704 351 

Applebyv.Johnson,L.R.,9C.P.  158. .  23 
Applegarth  v.   CoUey,    10  M.  &  W. 

728  376,  383,  44  5 

Arboin  v.  Anderson,  1  Q.  B.  498 ....  426 
Arbon  v.  Eussell,  3  F.  &  F.  152    ....   251 

Archer  v.  Baynes,  5  Ex.  629 202 

Amiisteadr. White,  20  L.  J., Q. B.  524 . . 219 
Armstrong  v.  Stokes,  L.  R.,  7  Q.  B. 

598  ;  41  L.  J.,  Q.  B.  253;  26  L.  T., 

N.  S.  872 126 

Armsworth  v.   South  Eastern   Rail. 

Co,  11  Jur.  758     346 

Ashby  V.  White,  1  Sm.  L.  C.  125  . .  364 
Ashcroft  V.  Mon-in,  1  M.  &  G.  450  . .      19 


PAGE 

Ashendon  v.  London,   Brighton  and 

South  Coast  Rail.  Co.,  L.  R.,  5  Ex. 

D.  190;  42  L.  T.,  N.  S.  586 279 

Ash  worth  r.  Heyworth,  L.  R.,  4  Q.  B. 

316;  38  L.  J.,  M.  C.  91 57 

Atldnson  v.  Bell,  8  B.  &  C.  277    ....    175 

—  V.  Horridge,  Appendix 107 

Atterbury  v.   Fairmanner,  8  Moore, 

32 80,  191 

Attorney- General   v.    Hollingworth, 

27  L.  J.,  Ex.  102     447 

Attwoodv.Emery,  26L.  J.,C.P.  73..     33 

V.  Small,  6  C.  &  F.  232 ....    152 

Austin  V.  Manchester,  Sheffield  and 

Lincolnshire  Rail.   Co.,   21   L.  J., 

C.  P.  179;   IOC.  B.  454     ....  260,  269 


B. 

Bachv.  Owen,  5  T.  R.  409. .  17,  175,  177, 

194 
Baglehole  v.  Walters,  3  Camp.  156. .  157 
Bagueley  v.  Hawley,  L.  R.,  2  C.  P. 

625;  36  L.  J.,  C.  P.  328    114 

Bailey  v.  Forrest,  2  C.  &  K.  131 108 

V.  Merrell,  3  Bulst.  95. .  133,  150,  152 

V.  Sweeting,  9  W.  R.  273     . .  20,  21 

Baird  r.  Graham,  14  Court  of  Sess. 

615  (Sco.)  89,  125 

Baker  v.  Berkley,  3  C.  &  P.  32     360 

V. Firminger,  28L.  J.,Ex.  130..    184 

Baldey  v.  Parker,  2  B.  &  C.  44     7 

Baldway  v.  Ouster,  1  Ventr.  71    ....   227 
Baldwin  v.  Casella,  L.  R.,  7  Ex.  325  ; 
41  L.  J.,  Ex.  167;  26L.  T., 
N.  S.  707;  21W.  R.  16  ..  351 

v.  Dixon,  1  M.  &  Rob.  59. .    198 

Balfe  v.West,  22  L.  J.,  C.  P.  175, 176 . .  124, 

406 
Bannerman  v.  White,  10  C.  B.,  N.  S. 

844 145 

Bardell  v.  Spinks,  2  C.  &  K.  646 151 

Barker  v.  Pott,  4  H.  &  N.  759 178 

V.  Windle,  6  El  &  B.  675,  680 . .  144 

Barley  v.  Walford,  9  Q.  B.  197..  150,  180 
Barnard  r.  How,  1  C.  &  P.  366.  .237,  238 

Barnes  v.  Ward,  9  C.  B.  392 316 

Barnet  v.  Ravenshaw,  21  L.  T.  63  . .  447 


XX  xn 


TABLE  OF  CASES. 


PAGE 

Barringlon  i\  Turner,  3  Lev.  28 360 

Barry  v.  Croskey,  2  J.  ^*c  H.  21 . .  IhQ,  423 
Bartholomew  v.  Freeman,   L.   E.,   3 
C.  P.  D.  316  ;  38  L.  T.,  N.  S.  8U; 

26  W.  K.  743    172 

Bartholomew  v.  Markwick,  33  L.  J., 

C.  P.  145    177,  185 

. T.  Sherwood,  1  T.  K.  573 . .  39 

Bartlett  r.  Wills,  31  L.  J.,  Q.  B.  57. .   161 
Barwick  v.  Euo-lisli  Joint  Stock  Bank, 

L.  R,  2Ex.'259,  265    125 

Bassett  v.  Collis,  2  Camp.  552 100 

Bather  v.  Day,  8  L.  T.,  N.  S.  205 . .  221, 223 
Batson  r.  Newman,  L.  E,.,  1  C.  P.  D. 

573 ;  25  W.  R.  85     390,  395,  418 

Batty  V.  Marriott,  5  C.  B.  831 . .  390,  394, 
395,  419,  433,  434,  445 
Baxendale  v.  Great  Eastern  Rail.  Co., 
L.  R.,4Q.  B.,244;  38L.  J.,Q.B. 

137 273 

Bayley  v.  Gouldsmitli,  Peake,  56. .  . .    177 

V.  Merrell,  Cro.  EUz.  38    ....    133 

Baylis  v.  Lawrence,  1 1  Ad.  &  E.  92G . .     74 

Bayntine  v.  Sharp,  1  Liitw.  90 354 

Beach  v.  Parmeter,  23  Penn.  St.  196. .   329 

Beal  V.  White,  12  A.  &  E.  670 184 

V.  Soutli  Devon  Rail.  Co.,  5  H. 

&N.  875     260,  276,  278 

Beamon  v.  Ellice,  4  C.  &  P.  586 . .  340,  343 
Beaumont  v.  Brcngcri,  5  C.  B.  301. .      10 

Beck  V.  Dyson,  4  Camp.  198 350 

Beeston  r.  Beeston,  L.  R.,   1  Ex.  D. 
13  ;  45  L.  J.,   Ex.  230  ;  33  L.  T., 

N.  S.  700 ;  24  W.  R.  96     427 

Behn  t'.Bm-ness,  32 L.  J.,  Q.  B.  204. .   143 

V.  Kemble,  7  C.  B.,  N.  S.  260. .    151 

BeU  r.  Young,  24  L.  J.,  C.  P.  66  . . . .  39 
Benbow  r.  Jones,  14  M.  &  W.  193  . .  404 
Benliam  v.  United  Guarantee  Co.,  7 

Ex.  753 138 

Benjamin  v.  Storr,  L.  R.,  9  C.  P.  400; 
43L.  J.,C.  P.  162;  30L.  T.,  N.  S. 

362;  22  AV.  R.  631 316 

Bennett  v.  Hall,  N.  P.  1853 423 

i\  Henderson,  2  Stark.  650  . .  185, 

187 

-y.Mellor,  5  T.  R.  273     220 

Bentall  v.  Burn,  3  B.  &  C.  423 15 

Bentinck  v.  Connop,  5  Q.  B.  693  ... .    301 

Bentley  v.  Dawes,  9  Ex.  666 175 

Bernasconi  2'.  Anderson, M.  &  M.  183 . .  185 
Bertelr.Neveux,  39  L.T.,  N.S.  257. .  21 
Besozzi  V.  Harris,  1  F.  &  F.  92  . .  348,  355 
Bessant  v.  Great  Western  Rail.   Co., 

8  C.  B.,  N.  S.  308    292 

Best  V.  Haves,  32  L.  J.,  Ex.  129  ....     42 

V.  Osborne,  R.  &  M.  296.  .71,  95,  117, 

131 
Bevan  r.  Waters,  3  C.  &  P.  520.  .231,  243 


TAGE 

Bew  r.  Harton,  L.  R.,  3  Q.  B.  D.  454  ; 
39  L.  T.,  N.  S.  233 ;  26  W.  R.  915. .   442 

Bexwell  v.  Christie,  Cowp.  396 49,  50 

Beyer  v.  Adams,  26  L.  J.,  Ch.  841  . .  422 
Bianchi  «>.  Nash,  1  M.  &  W.  545  ....  177 
Biddle  v.  Bond,  Q.  B.,  Banc.  1865    . .     42 

Bidmead  v.  Gale,  4  Burr.  2432 381 

Bigge  V.  Parkinson,  31 L.  J.,  Ex.  301 . .    123 

Bill  V.  Bament,  9  M.  &  AY.  36 25 

Binns  v.  Pigot,  9  C.  &  P.  208    225 

Bird  V.  Boulton,  4  B.  &  Ad.  443     . .  27,  43 

V.  Holbrook,  4  Bing.  628  . . .  .312,  313 

V.  Sharp,-  N.  P.  18o3 323 

Birnie  r. Mar.shall,  35L.T.,N.S.  373. .  363 
Biss  V.  Mountain,  1  M.  &  Rob.  302  . .  198 
Bissil  V.  New  Tork  Central  Railroad 

Co.,  25  New  York,  ^42    265 

Bize  T.  Dickason,  1  T.  R.  285     178 

Black  V.  Baxendale,  1  Ex.  410 292 

Blackman  v.  Simmons,  3  C.  &  P.  138 . .  355 
Blackmore  i\  Bristol  and  Exeter  Rail. 

Co.,  27L.  J.,  Q.  B.  167 258 

Blades  v.  Higgs,  9  Jui-.,  N.  S.  1040. .  360, 

364 
Blake  v.  Beech,  L.  R.,  1  Ex.  D.  320  ; 
45L.  J.,M.  C.  Ill;  34L.T., 

N.  S.  764 455,  456 

V.  Beech,  L.  R.,  2  Ex.  D.  335  ; 

36  L.  T.,  N.  S.  723    456 

V.  Midland  Rail.  Co.,  21  L.  J., 

Q,.  B.  233     345 

V.  Thirst,  2  H.  &  C.  20 . .  316, 318,  319 

Blakemore  v.  Lancasliire  and  York- 
shire Rail.  Co.,  1  F.  &  F.  76  291 

Blaxton  r.  Pye,  1  Wils.  309   378 

Blenkinsop  V.  Claj'ton,  7 Taunt.  597. .  13, 16 

Bliss  V.  Snow,  N.  P.  1853 196 

Blofield  V.  Payne,  4  B.  &  Ad.  410    . .    145 
Blower  r.  Great  Western  Rail.  Co.,  L. 
R.,  7  C.  P.  655;  41  L.  J.,  C.  P.  268; 

27  L.  T.,  N.  S.  883 265,  267 

Bloxam  v.  Sanders,  4  B.  &  C.  941  .  .31,  32 
Bloxsome  f. Williams,  1  Taunt.  135. .  36 
Blyth  V.  Bamptou,  3  Bing.  472 29 

V.  Biimingham Waterworks  Co., 

2  Jur.,  N.  S.  333 296 

Bolden  v.  Brogden,  2  M.  &  R.  113  . .    72, 

74,  82,  84 
Bone  V.  Ekless,  5  H.  &  N.  925  .  .396,  397 
Boorman  v.  Brown,  3  Q.  B.  11 ISO 

V.  Nash,   9  B.   &   C.    145, 

152  184,  198,  204 

Booth  V.  Mister,  7  C.  &  P.  66   336 

Bordenave  v.  Gregory,  6  East,  111.. 175, 177 
Bomes  v.  Hutchinson,  1 3  W.  R.  386 . .    204 
Bosley  v.  Davies,  L.  R.,  1  Q.  B.  D. 
84;  45  L.  J.,  M.  C.  27;  33  L.  T., 

N.  S.  528;  24  W.  R.  140   442 

Boss  r.  Litton,  5  C.  &  P.  407     330 


TABLE  OF  CASES. 


XXXUl 


PAGE 

Bostock  p.  North  Staffordshire  Rail. 

Co..  4  E.  &  B.  798 433 

Boulton  V.  Coghhin,  1  Bing.  N.  C.  640 .  .446 

Bowdell  V.  Parsons,  10  East,  359 177 

Bowden  r.  Sherman,  App 301,  331 

Bower  v.  Peat,  L.  E.,  1  Q.  B.  D.  321 ; 
45  L.  J.,  Q.  B.  416  ;    35  L.  T.,  N. 

S.  321 318 

Bowes  V.  Feuwick,  L.  R.,  9  C.  P.  339 ; 
43L.  J.,M.  C.  107;  30L.T., 
N.  S.  524;  22  W.  R.  804   . .   451 

V.  Shand,  L.  R.,  2  App.  Cas. 

455;  46  L.  J.,  Q.  B.  561    116 

Bowyer  v.  Cook,  4  C.  B.  236 364 

Boydell  v.  Driimmond,  1 1  East,  142 . .      18 
Bradley  v.  Bardsley,  14  M.  &  W.  873 . .  194 

■ i'.  Lee,  14  Allen,  20    211 

Bradshaw's  case,  cited  Cowp.  397    . .     49 

Brady  v.  Giles,  1  M.  &  R.  496 257 

V.   Oastler,  3  H.   &  C.  112;    33 

L.  J.,  Ex.  300 205 

V.  Todd,  9  C.  B.,  N.  S.  604  . .  128, 

131 
Brayr.  Mayne,  1  Cow,  1  ..248,  249,  262 
Brickhead    v.    Archbishop   of    York, 

Hob.  198,  233   183 

Briddon  r.  Great  Northern  Rail.  Co., 

28  L.  J.,  Ex.  51     269,  290 

Bridge  v.  Grand  Junction  Rail.  Co., 

3  M.  &  W.  244  . .  307,  308,  321,  331 

r.  Parsons,  32  L.  J.,  M.  C.  95.  .440 

Briggs  V.  Baker,  N.  P.  1845 76 

V.  Crick,  5  Esp.  99 198 

Bringloe  i\  Morice,  1  Mod.  210     261 

Bristol  (Earl  of)  r.  Wilmore,  1  B.  &  C 

521    160,  161 

Bristow  V.  Halford,  N.  P.  1853     ....      18 
British  and  American  Telegraph  Co. 
V.  Colsou,  L.  R.,  6  Ex.  108;  40  L. 
J.,  Ex.  97  ;  23  L.  T.,  N.  S.  808  . .     23 
British  Empire  Shipping  Co.  v.  Somes, 

28  L.  J.,  Q.  B.  220 226,  233 

Broadwater  v.  Blot,  Holt's  Rep.  547 . .  240, 

241 
Bjoadwood  v.  Granara,  10  Ex.  417. .  219, 

223 
Broennenburgh  r.    Haycock,    Holt's 

Rep.  630     84 

Broomfield  r.  Smith,  1  M.  &  W.  542. .  194 
Brotherton  v.  Wood,  6  Moore,  34  . .  180 
Brown  r.  Arundell,  10  C.  B.  54    ....      43 

V.  Boonnan,  11  CI.  &  Fin.  1 . .    247 

V.  Elkington,  8 M.  &  W.  132. .  87, 

96,  107 

r.  Giles,  1  C.  &  P.  119 301 

V.  Hare,  27  L.  J.,  Ex.  372   . .      15 

• v.  Muller,  L.   R.,  7  Ex.  319  ; 

41  L.  J.,  Ex.  214  ;  27  L.  T.,  N.  S. 

272 204 

o. 


Brown  v.   Overbury,   25  L.   J.,   Ex. 

1G9 392,  393,  401 

r.  Turner,  13  C.  B.,N.  S.  485.. ^63 

Browne  v.  Frye,  cited  2  Camp.  407  . .  182, 

190 
Brownlow  v.  Metropolitan  Board  of 

Works,  2  F.  &  F.  604 308 

Bryant  v.  Wardell,  2  Ex.  482    262 

Bubb  V.  Yelverton,  Ker,  In  re,  24  L. 
T.,  N.  S.  822 ;  19  W.  R.  739.  .422,  425, 

427 
Buchanan?). Parnshaw,  2  T.  R.  746. .  46 
Buckingham  v.  Reeve,  N.  P.  1857  .  .  122, 

192, 198 

V.  Rogers,  Appendix  ....     94 

Budd  V.  Fairmanner,  5  C.  &  P.  78  . .  141, 

142 
Buddie  V.  Green,  27  L.  J.,  Ex.  33  . .  28 
Burgess  v.  Clements,  4  M.  &  S.  306. .  217 
Burnett  v.  Allen,  4  Jur.,  N.  S.  488  . .  431 
Burns  v.  Poulson,  L.  R,,  8  C.  P.  663  ; 

42  L.  J.,  C.  P.  302 337 

Burrough  v.  Skinner,  5  Buit.  2639  . .  392 
Bushell  V.  Wheeler,  15  Q.  B.  442  . .  9 
Butler  V.  Hunter,  7  H.  &  N.  826  . .    316, 

318,  319 
Butterfield  v.  Burroughs,  1  Salk.211.  .133 

r.  Forrester,  1 1  East,  60  . .  307,^ 

312,  315 
Buttermere  r.  Hayes,  5  M.  &  W.  456 . .  193, 

194 
Buxton  V.  North  Eastern  Rail.  Co., 
L.R.,3Q.B.  549;  37L.J., 
Q.  B.  258;  18  L.  T.,N.S. 
795;  16  W.  R.  1194     ....    365 

V.  Rust,  L.  R.,  7  Ex.  1  ;  41 

L.  J.,  Ex.  1  ;  25  L.  T.,  N.  S.  502, 
affirmed  L.  R.,  7  Ex.  279  . .   21,  24,  26 
Byrne  r.  Boadle,  33  L.  J.,  Ex.  13   . .    328 
Bywater  r.   Richardson,   1  A.   &  E. 
508 45,  94,  117 


C. 


Caddick  r.  Skidmore,  27  L.  J.,  Ch.  153 . .  18 
Calder  v.  Dobell,  L.  R.,  6  C.  P.  (Ex. 

Ch.)  486  ;  40  L.  J.,  C.  P.  224    ....    126 

Calye's  case,  8  Coke,  32  b 214,  221 

Camoys  (Lord)  r.  Scurr,  9  C.  &  P.  386 . .  261 
Campbell  r.  Fleming,  1  A.  &  E.  40. .  159 
r.  Mersey  Docks  Co.  ,14  C.  B., 

N.  S.  412    14 

Canham  r.   Barry,    24    L.    J.,    C.   P. 

100    151,  153 

Canne  v.  Bryan,  3  B.  &  Aid.  179 427 

Card  r.  Case,  5  C.  B.  627  . .  349,  350,  352 
Carew's  Trusts,  In  re,  26  Beav.  187. .      51 

Carr  v.  Jackson,  7  Ex.  382     127 

C 


XXXIV 


TABLE  OF  CASES. 


PAGE 

Carr  v.  Lancashire  andYorkshireEail. 

Co.,  7  Ex.  707  ....265,  268,  269 

r.  Martinson,    28  L.  J.,  Q.  B. 

126    393,  403 

Carter  v.  Crick,  28  L.  J.,  Ex.  238    . .    116 

■ V.  Tonissant,  2  B.  &  Aid.  855. .  12 

Cashill   r.    Wright,    2    Jur.,    N.    S. 

1072 219,  222 

Castle  V.  Playford,  L.  R.,  7  Ex.  98 . .     30 

■ r.  Sworder,  30  L.  J.,  Ex.  310. .  10  - 

Caswell  r.  Coare,  1  Taunt.  506.. 171,  172, 

205,  206 
Cave  t:  Coleman,  3  M.  &  E.  2  . .  29,  116, 

139 
Chadwick  r.  Burnley,  12  W.  R.  1077.  .24 
Challand  v.  Bray,  1  Dowl.,  N.  S.  783.  .382 
Chalmers,  Ex  parte,  L.  R.,  8  Ch.  App. 

289 32 

■ V.  Harding,  17  L.  T.,  N.  S. 

571    121,  110 

Chamberlain,  Ex  parte,  8  E.  &  B.  644 . .  403 
Champion  r.  Plummer,    1    B.  &  P., 

N.  R.  252    18,  26 

Chandelor  v.  Lopiis,  Cro.  Jae.  4  . .  138,  148 
Chandler  v.  Broughton,  1  Cr.    &  M. 

229 254,  257,  335 

Chanter  v.  Hopkins,  4  M.  •&  W.  399 . .  114, 
121,  170,  178,  194 
'Chapman  r.  Gwyther,  L.  R.,  1  Q.  B. 
163  ;  35  L.  J.,'  Q.  B.  142  ;  14  L.  T., 

N.  S.  477   117 

ChapUn  r.  Hawes,  3  C.  &  P.  554 ....    330 

r.  Rogers,  1  East,  192  13 

Chapman  r.  Allen,    Cro.   Car.    271.. 237, 

242,  243 
Charlewood's  case,  1  Leach,  212  ....  250 
Charlton  r.  Hill,  5  C.  &  P.  147  .  .392,  393 
Chase  v.  Westmore,  5  M.  &  S.  189 . .  30,  232 
Cheeseman  r.  Hart,  N.  P.  1847.  .409,  433 
Chesterman  v.  Lamb,  2  A.  &  E.  129 . .  171, 
192.  206,  207 
Cheveley  v.  Morris,  2  W.  Bla.  1300. .  204 
Chew  V.  Jones,  10  L.  T.  231 ... .  244,  247, 

248 
Child  r.  Hearn,  L.  R.,  9  Ex.  176  ;  43 

L.  J.,  Ex.  100    322,  365 

Chinery  r.  Viall,  29  L.  J.,  Ex.  180  . .   201 
Chippendale  r.  Lancashire  and  York- 
shire Rail.  Co.,  21  L.  J.,  Q.  B.  22.. 269 

Christie  r.  Griggs,  2  Camp.  80 245 

Clare  v.  Maynard,  6  A.  &  E.  523  ....  206, 
208,  209,  210 
Clark  r.  Chambers,  L.  R.,  3  Q.  B.  D. 
327;  47  L.  J.,  Q.  B.  427:   38 
L.  T.,  N.  S.  454    ....304,  315,  317 

V.   Glasgow   Assurance   Co.,    1 

Macq.  H.  of  L.  Cas.  668    ....   204 

r.  Rochester  and  Syracu.so  Canal 

Co.,  14  New  York,  570   205 


PAGE 

Clarke  v.  Callow,  46  L.  J.,  Q.  B.  53 

— C.  A 193 

V.  Dickson,   27  L.  J.,   Q.  B. 

223 159 

V.  Gray,  6  East,  564 181,  182 

V.Hague,  29  L.  J.,  Q.  B.  147..  441 

r.  Roc,  4  Ir.  Com.  Law  Rep.  7.  .240 

■ •  r.  Smythies,  2  F.  &  F.  83 . . . .     54 

Clay  r.  Wood,  5  Esp.  42     329 

Clayards  v.  Dethick,  12  Q.  B.  439    . .   309 

Clayton  v.  Lilly,  4  Taunt.  165 427 

V.  Jennings,  3  W.  Bla.  706 . .  378 

Cleveland  v.  Spier,  16C.B.,N.  S.  399.  .318 
Clinan  v.  Cooke,  1  Sch.  &  Lcf.  22  . .  17 
Clothier  v.  Webster,  31  L.  J.,  C.  P. 

316 320 

Clough  r.  London  and  North  Western 

Rail.  Co.,  L.  R.,  7  Ex.  26,  34  ;  41 

L.  J.,  Ex.  17;  25L.  T.,N.  S.  708..  159 

Coates  V.  Hatton,  3  Stark.  61    433 

V.  Stephens,  9  M.  &  Rob  157 . .  70, 

71,  72,  73,  74,  82,  84,  92,  198 
Cochrane  r.  Rymill,  40  L.  T.,  N.  S. 

744;  27  W.R.  776 40 

Coddington  v.  Paleago,  L.  R.,  2  Ex. 

193 30 

Coggs  r.  Bernard,  Lord  Raym.  915  ; 

1  Sm.  L.  C.  oth  ed.  171.  .260,  261,  263, 

268 
Coleman  v.  Gibson,  1  M.  &  R.  168. .      14 

c.  Riches,  16  C.  B.  101....    125 

Coles  r.  Trccothick,  9  Vesey,  249  a. .  27 
Collen  V.  Gardner,  21  Beav.  543  ....    128 

Collier  v.  Chaplin,  N.  P.  1865 300 

Collins'  case,  Godb.  346 217 

V.  Rodway,  N.  P.  1845 229 

Colquit  r.  Kirkman,  47  Ga.  555  (1873) . .  237 
Coltherd  v.  Puncheon,  2  D.  &  R.  10. .  122 
Combe  v.  London  and  South  AVestern 

Rail.  Co.,  31  L.  T.,N.  S.  613.. 268,  287 
Commerce  (Case  of  the),  3  Rob.  Adm. 

Cas.  287 329 

Connor  v.  Quick,  cited  2  W.  Bla.  708 . .  415, 

433 

Cook  r.  Field,  15  Q.  B.  475  425 

Coombs  V.  Bristol  and  Exeter  Rail. 

Co.,  27  L.  J.,  Ex.  269,  401  . .  14, 
32,  284 
• V.  Dibble,  L.R.,  1  Ex.  248;  35 

L.  J.,Ex.  167;  14  L.  T.,  N.  S.  415.  .418 

Cooper  V.  Andrews,  Hob.  41 5 

■  V.  Barton,  3  Camp.  5,  n.  . .  247,  248 

z'.  Hood,  28L.J.,Ch.  212 21 

r.  Neil,  27  W.  R.  159  ....  423,  424 

. V.  Osborne,  35  L.T.,N.  S.  347 .  .442 

■ r.  Smith,  15  East,  103 26 

r.  Willomatt,  1  C.  B.  672  ....   250 

Copley  V.  Burton,  L.  R.,  5  C.  P.  489; 

40L.  J.,M.  C.  141 216 


TABLE  OF  CASES. 


XXXY 


PAGE 

Coppin  V.  Craig,  7  Taunt.  243 53 

Corbett  t'.Packington,  6  B.  &  C.  258 . .  240 
Cormack  v.  Gillis,  cited  7  East,  480  . .  166 
Comfoot  V.  Fowke,  6  M.  &  W.  358, 

381    125,  131 

Cornman  v.  East.  Counties  Rail.  Co., 

4H.  &N.  781 326 

Cornwellf.  Sandars,  3  B.  &  S.  206.. 362, 

363 
Cort  V.  Ambergate Rail.  Co.,  20  L.  J., 

Q.  B.  465 181 

Cotteril  r.  Tui-ley,  8  C.  &  P.  693  . .  307, 

331 
Cotton  r.  Thurland,  5  T.  R.  408    ....   432 

v.  Wood,  8  C.  B.,  N.  S.  568 . .    325, 

326,  331 
Coulbert  v.  Troke,  L.  R.,  1  Q.  B.D.I; 

45L.  J.,M.  C.  7 216 

Couston  V.  Chapman,  L.  R.,  2  H.  L. 

'      (Sc.  C.)  250    164 

Coventry  v.   McEniry,    13  Ir.    Com. 

Law  Rep.  160  13 

• (Earl  of)  V.  Willes,  9  L.  T., 

N".  S.  384   389 

Cowper  V.  Andrews,  Hob.  41     30 

Cox  r.  Burbridge,    13  C.  B.,   N.  S. 

430 327,  350,  352 

/•.  Walker,  cited  6  A.  &  E.  523 . .  206, 

208,  209 
Coxon  V.  Great  Western   Rail.    Co., 

29L.  J.,Ex.  105;  5H.  &lSr.  274..  286 
Coyne  v.  Brady,  9  L.  T.,  N.  S.  30 . . . .  441 
Ci'ane  v.  London  Dock  Co.,  33  L.  J., 

Q.  B.  224 56 

Crockford  v.   Lord   Maidstone,    Ap- 
pendix     430,  434,  458,  459 

Croft  r.  Allison,  5  B.  &  Aid.  592  ....  336 
Crofton  r.  Colgan,  10  Ir.  Com.  Law 

Rep.  133 418,  420 

Croker  v.  Walsh,  4  Ir.  Jur.  293  ....  443 
Crosier  v.  Tomkinson,  2  Ld.  Ken.  439  .  .  223 

Cross,  Ex  parte,  17  L.  T.  100    32 

V.  Andrews,  Cro.  Eliz.  622   ....    219 

r.  Bartlett,  3  M.  &  B.  542     ....    171 

Crouch  V.  Great  Western  Rail.  Co.,  11 

Ex.  742;  20  L.  J.,  Ex.  418.  .264, 
283 

■ r.  London  and  IsTorth  Western 

Rail.  Co.,  23  L.  J.,  C.  P.  73 264 

Crowder  v.  Austin,  2  C.  &  P.  208  .  .50,  51 
Cundy  v.  Lindsay,  L.  R.,  3  App.  Cas. 
459;  47  L.  J.,  Q.B.  481;  38L.T., 

N.  S.  573   56 

Cunliffe  r.  Harrison,  6  Ex.  903 15 

Currie  v.  Anderson,  29  L.  J.,  Q.  B.  87 . .  15 
Curtis  V.  Hannay,  5  Esp.  83    ....  165,  206 

■ V.  Rickards,  1  M.  &  Gr.  47 ... .     20 

r.  Thomas,   33   L.   T.,  N.  S. 

664— V.  C.  H 47 


Curtis  V.  Williamson,  L.  R.,  10  Q.  B. 

57,  59;  44  L.  J.,  Q.  B.  27;  31  L. 

T.,  N.  S.  678     126 

Cusack  V.  Robinson,  30  L.  J.,  Q.  B. 

261     7,  8,  15 


D. 


D'Arc  V.  London  and  North  Western 

Rail.  Co.,  L.  R.,  9  C.  P.  325;  30 

L.  T.,  N.  S.  763    276,  281 

Daintree  v.  Hutchinson,  10  M.  &  W. 

87     411,  412,  433 

Dale  V.  Humfrey,  El.  Bl.  &  El.  1004.  .24 

Dallraan  v.  King,  5  Scott,  384 169 

Dalton  V.  South  Eastern  Rail.  Co.,  27 

L.  J.,  C.  P.  227     343,  340 

Dansey  v.  Richardson,  3E.  &  B.  144.  .217 
Danube  and  Black  Sea  Rail.  Co.  r. 

Xenos,  31  L.  J.,C.  P.  284 33 

Davies  v.  Mann,  10  M.&W.  546.  .309,  331 
Davis  V.   Ai-tingstall,    49  L.  J.,  Ch. 
609  ;  42  L.  T.,  N.  S.  507  ; 

29  W.  R.  137    41 

V.  Garrett,  6  Bing.  716 248 

V.  Jones,  25  L.  J.,  C.  P.  91  . .     24 

V.  Oswell,  7  C.  &  P.  804    201 

Davy  ('.  Chamberlayne,  4  Esp.  229. .   254 
Dawes  r.  ^Harness,  L.  R.,   10  C.  P. 

100  ;  44  L.  J.,  C.  P.  194     159 

Dawson t).  Chamney,  5Q.  B.  165.  .221,  222 

V.  CoUis,  10  C.  B.  523     . .  164,  166, 

168,  170,  195,  197 
r.  Midland  Rail.   Co.,  L.  R., 

8   Ex.    8  ;  42   L.    J.,  Ex.   49  ;  21 

W.  R.  56    365 

Dean  v.  Branthwaite,  5  Esp.  35    ....    252 

•  V.  Keate,  3  Camp.  4 249 

• V.  Morley,  88  Iowa,  120    85 

Deane  v.  Clayton,  7  Taunt.  489    312 

De  Mattos  v.  Calcutta  Steam  Co.,  33 

L.  J.,  Q.  B.  214 15 

De  Schwanberg  v.  Buchanan,  5  C.  & 

P.  343 143 

Dicas  V.  Hides,  1  Stark.  247 217 

Dickenson  r.  Follett,    1   M.   &  Rob. 

299 86,  87,  96 

V.  Gapp,  cited  1  M.  &  Scott, 

78    141 

Dickinson  r.  Naiil,  4  B.  &  Ad.  638. .      41 

Dickson  v.  Zizinia,  10  C.  B.  602   119 

Diggle  V.  Higgs,  L.   R.,   2  Ex.   D. 

422  ;  46  L.  J.,  Ex.  721 ;  37  L.  T., 

N.  S.  27  ;  25  W.  R.  777— C.  A.  .  .390, 
391,  397,  399,  419,  425,  433 

Dimes  v.  Petley,  15  Q.  B.  283 331 

Dingle  v.  Hare,  7  C.  B.,  N.  S.  145   . .  171, 

210 

C2 


XXXVl 


TABLE  OF  CASES. 


PAGE 

Dixon  V.  Birch,  L.  E.,  8  Ex.  Ub  ;  42 
L.   J.,  Ex.    135  ;  28  L.  T., 

N.  S.  36 218 

• V.  Yates,  5  B.  &  Ad.  390  ... .     28 

Dobell  V.  Stevens,  3  B.  &  C.  625  ....    149 

Dodwell  V.  Biirford,  1  Mod.  24 301 

Dot?g-ett  V.  Catterus,  13  W.  R.  390  .  .449, 

450 
Donatty  v.  Crowder,  11  Moore,  479. .  238 
Doolan  r.  Midland  Eail.  Co.,  L.  R., 

2  App.  Cas.  792  ;  34  L.  T.,  N.  S. 

317 289 

Dorrington  v.  Edwards,  2  Rol.  188. .  137 
Dossett  V.  Rymill  and  Gower,  19  L.  T. 

339 68 

Drury  r.  De  la  Fontaine,  3  B.  &  C.  232 . .  36 
Duckworth  v.  Johnson,  4  H.  &  N.  653 . .  345 
Duncan  v   Cafe,  2  M.  &  W.  244    ... .     53 

,,.  Topham,  8  C.  B.  225   .  .23,  33 

Dunlop  i\  Higffins,    12  Jur.  295  ;   1 

H.  L.  C.  381 20,  23 

r. Waugh,  Peake,  N.  P.  C.  223 . .  149 

■ r.  Wright,  1  Peake,  N.  P.  C. 

197 141 

Dunniore?'.Taylor, Peake,  N.P.  C.  56, .  175 
Dunn  V.  Crump,  2  B.  &  B.  300  ....  204 
Durrell  v.  Evans,  31  L.  J.,  Ex.  337 . .  17,  27 
Dyer  v.  Cowley,  17  L.  J.,  Q.  B.  360  . .  17, 

■ r.  Hargrave,  10  Ves.  507 133 

r.  Pearson,  3  B.  &  C.  42    56 

E. 

Eastman's  case,  1853 92 

Eastonv.Pratchett,  1  C.  M.  &R.  798.  .425 
Eastwood  v.  Bain,  28  L.  J.,  Ex.  74 . .  187 
r.  Miller,  L.R.,9  Q.  B.440; 

43  L.  J.,  M.  C.  139  ;  30  L.  T.,  N.  S. 

716;  22  W.  R.  799 451 

Eaves  v.  Dixon,  2  Taunt.  343  ....  88,  191 
Eden  v.  Blake,  13  M.  .^  W.  614    . .  39,  44 

V.  Dudfield,  1  Q.  B.  307    15 

■ V.  Parkinson,  Doug.  732  a. .  119,  120 

Edgebury  v.  Rosindale,  2  Lev.  94  . .  377 
Edwards"  r.  Hudding,  5  Taunt.  815 . .  52 
Egertou  v.  Eurzeman,  1  C.  &  P.  613 . .  399 

V.  Matthews,  6  East,  307  ... .     26 

Eicholz  I.'.  Bannister,  llJur.,]Sr.S.15. .  113, 

114 

EUiott  V.  Pybus,  10  Bing.  512 184 

V.Thomas,  3  M.&W.  170..  193, 194 

V.  Von  Glehn,  18  L.  J.,  Q.  B. 

221 1-14 

Ellis  V.  Chinnock,  7  C.  &  P.  169  ... .   208 

V.  Hopper,  4  Jur.,  N.  S.  1025.  .    402 

t'.  LoftusIronCo.,L.R.,10C.P. 

10;  44  L.  J.,  C.  P.  24;    31  L.  T., 

N.  S.  483  ;  23  W.  R.  246 354 


PAGE 

EUis  V.  Mortimer,  4  B.  &  P.  257  ... .  4 
r.  Sheffield  Gas  Co.,  23  L.  J., 

Q.  B.  42 317,  318 

Elmore  v.  liingscote,  5  B.  &  C.  583  . .  1 9 

V.  Stone,  1  Taunt.  458    10,  12 

Elphick  V.  Barnes,  L.  R.,  5  C.  P.  D. 

387;  49  L.J. ,  C.  P.  698;  29  W.  R. 

139 lis 

Elton  r.'Brogden,  4  Camp.  281 .  .74,  83,  93 
■ — -  t'.  Jordan,  1  Stark.,  N.P.C.  127. .    74, 

83,  93 

Elvin  V.  Chapman,  Appendix    3-8 

Emanuel  v.  Dane,  3  Camp.  299  ....  1C6 
Emerson  r.  Dickson,  N.  P.  1853.  .400,  433 

r.  Heelis,  2  Taunt.  48  ....  27,  39 

Emery  v.  Richards,  14  M.  &  W.  729 . .  393 
Eskridge  v.  Glover,  5  Stew.  &  Port. 

(Amer.)  264 4 

Essex  (Earl  of)  v.  Capel,  N.  P.  1809     ^ 


358, 
3 '19 
363 

382, 

433 

229 

35 


Evans  r.  Botteril,  33  L.  J.,  M.  C.  50. . 

• V.  Pratt,  4  Scott,  N.  R.  378    . . 

406,410 
Everard  v.  Hopkms,  2  Bulst.  332 ... . 
Everett  v.  Collins,  2  Camp.  515    . . . . 


F. 


Fadenilke  r.  Holroyd,  N.  P.  1846  ..  444 
Faii-maner  r.  Budd,  7  Bing.  575  ....  189 
Falmouth  (Earl  of)  v.  Penrose,  6  B.  & 

C.  387     177 

Farebrother  v.  Simmonds,  5  B.  &  Aid. 

333    27,  43 

Farina  v.  Home,  16  M.  &  W.  119  . .  15 
Fawcett  i\  York  and  North  Midland 

Railway  Co.,  16  Q.  B.  610. .  .  .365,  360 
Fearon  r.  Mitchell,  L.  R.,   7  Q.  B. 

294,  295 58,  59 

Fell  V.  Knight,  8  M.  &  W.  269,  276.  .217 
Felthouse  v.  Bindley,  31  L.  J.,  C.  P. 

204 20 

Fenn  v.  Harrison,  3  T.  R.  760  .  .131,  197 
Fennell  v.  Ridler,  5  B.  &  C.  406  . . . .      36 

Feret  v.  Hill,  6  Q.  B.  587  151,  153 

Ferguson  v.  Carrington,  9  B.  &  C.  59 . .  159, 

160 
FeiTier  r.  Peacock,  2  F.  &  F.  717  . .  153 
Fesenmayer«.Adcock,16M.&W.449..443 
Fielder  v.  Starkie,  1  H.  Bla.  17.  .123,  163, 

171,  172 

Finley  v.  Quirk,  9  Minn.  94 75 

Firebrass  (Sir  Bazill)  v.  Brett,  2  Vern. 

70    430 

Firebrasse  (Sir  Bazil)  v.  Brett,  1  Vern. 

489 430 

Firth  r.  Ackroyd,  N.  P.  1853    315 

Fisher  r.  Bridges,  N.  P.  1853   439 


TABLE  OF  CASES. 


XXXVll 


Fisher  v.  Howard,  13  W.  R.  145  . . . .    216 

t^.  Ronalds,  22  L.J. ,C.  P.  62..   447 

Fitch  v.  Jones,  5  E.  &  B.  238  . .  420,  421 
Fitzmaurice  v.  Bayley,  9  H.  of  L.  Cas. 

78    18 

Fivaz  V.  Nichoils,  2  C.  B.  501,  513  . .  443 
Fletcher  r.  Bowsher,  2  Stark.  561    ..    149 

V.  Rylands,  L.  R.,  1  Ex.  265 . .    355 

Flureau  v.  Thornhill,  2  W.  Bla.  1078..  210 
Foot  V.  Baker,  5  M.  &  G.  339 . .  434, 442, 443 

Ford  V.  Sykes,  N.  P.  1853 115 

Foreman  v.  Great  Western  Rail.  Co., 

38  L.  T.,  N.  S.  851 273,  282 

Forth  V.  Simpson,  13  Q.  B.  680  ....  234 
Foster  v.  Smith,  18  C.  B.  156   . .  140,  144 

V.  Thackeray,  1  T.  R.  57,  n. . .   424 

Fowler  «>.  Lock,  L.'R.,  7  C.  P.  272; 

41  L.  J.,  C.  P.  99;  26  L.  T.,  N.  S. 

476 335,  342 

Fowlest;.  Great  Western  Rail.  Co.,  22 

L.  J.,  Ex.  76;  7  Exch.  099    285 

France  v.  Gandet,  L.  R.,  6  Q.  B.  199  ; 

40  L.  J.,  Q.  B.  121     201 

Francis  v.  Cockrell,  L.  R.,  5  Q.  B.  509  ; 

39  L.  J.,  Q.  B.  113 247 

V.  Wyatt,  3  Burr.  1498   .  .59,  232, 

237,  238 
Franklin  v.  South  Eastern  Rail.  Co., 

3H.  &N.  211 343 

Frederick  (Bart.)  v.  Lookup,  4  Burr. 

2018    378 

Freeman  v.  Baker,  2  N.  &  M.  446 . .  138, 149 
Freestone,Exparte,25L.J.,M.C.121. .  437 
French  v.  Styring,  26  L.  J.,  C.P.  181 . .  389 
Frend  r.  Dennett,  27  L.  J.,  C.P.  314. .  194 
Fuller r.  Abrahams,  3  B.  &  Bing.  116  .  .    154 

Furley  r.  Bates,  33  L.  J.,  Ex.  43 30 

Fyson  v.  Chambers,  9  M.  &  W.  460 . .     28 

G. 

Gainsford  v.  Caroll,  2  B.  &  C.  624  . .  204 
Gallaghers.  Great  Western  Rail.  Co., 

Ir.  R.,  8  C.  L.  326  ....    281 
V.  Humphrey,  6  L.  T.,  N.  S. 

684 317 

Gallaway  r.  Maries,  L.  R.,  8  Q.  B.  D. 

275;  30  W.  R.  151    450,  451 

Ganly  v.  Ledwidge,  10  L-.  R.,  C.  L. 

33  (Q.  B.) 56 

Gapp  V.  Giandonati,  N.  P.  1857  ....  247 
Gardiner  v.  Gray,  4  Camp.  145  ....  137 
Gardner  r.  Grout,  2  C.  B.,  N.  S.  340 . .      14 

Garment  v.  Barrs,  2  Esp.  673    93 

Gamett  v.  Bradley,  L.R.,  3  App.  Cas. 

944  ;  48  L.  J.,  Ex.  186 ;  39  L.  T., 

N.  S.  261 212 

Garton  v.  Bristol  and  Exeter   Rail. 

Co.,  28  L.  J.,  C.  P.  306 269 


PAGE 

Gassiot  r.  Carpmael,  19  L.  T.  64,  94. .  320 
Gatty  r.  Field,  9  Q.  B.  408,  431 . .  385,  396, 

397 

Gaunt  r.  Smith,  N.  P.  1856 241 

Geddes  i\  Pennington,  5  Dow,  163. .  122, 
123,  191,  192,  198 

Gedge  r.  Minue,  2  Bulst.  62      357 

Gelber  v.  Berkley,  Skin.  648 226 

Gelley  r.  Clerk,  Cro.  Jac.  188  .  .220,  237 
George  (The)  and  Richard,  L.  R.,   3 

Adm.  466  ;  24  L.  T.,  N.  S.  717  . .  342 
Gething  v.  Morgan,  N.  P.  1857  ....  350 
Gibbons  v.  Pepper,  1  Lord  Raym.  38 . .  323 
GibHn  r.  McMiillen,  L.  R.,  2  P.  C.  317 . .  260 
Gibson  v.  Carruthers,  8  M.  &  W.  346 . .  160 

V.  Holland,  L.  R.,  1  C.  P.  1 . .     21 

r.  Pepper,  2  Salk.  637    301 

Gilbert  r.  Svkes,  16  East,  150 415 

Gilbert's  case,  1  Mood.  C.  C.  186. .. .  61 
Gilbertson  v.  Richardson,  5  C.  B.  502 . .  345 
Gillc.  Manchester,  &c.  Rail.  Co.,  L.  R., 

8  Q.  B.  186;  42  L.  J.,  Q.  B.  89; 

28  L.  T.,  N.  S.  587 286 

Gilpin  r.  Clutterbuck,  13  L.  T.  71  . .  447 
Gimson  v.  Woodfall,  2  C.  &  P.  41  . .  65 
Gladman  r.  Johnson,  36  L.  J.,  C.  P. 

153 351 

Godwin  r.  Francis,  L.  R.,  5  C.  P.  295; 

39  L.  J.,  C.  P.  121 ;  22  L.  T.,  N.  S. 

338  26 

Goldsmith  'v.  Martin,"  4  M..  &  G.  5  " '. '.  398 
Gompertz  v.  Bartlett,  22  L.  J.,  Q.  B. 

99  178 

V.  Denton,  1  Cr.  &  M.  207. .    168 

Goodman  v.  Griffiths,  25 L.  J.,  Ex.  145     21 

V.  Harvev,  4  A.  (Sr  E.  870. .    426 

V.  Kennell,  3  C.  &  P.  167  . .    340 

V.  Taylor,  5  C.  &  P.  410    . .    322 

Goramt-. Sweeting, 2  Wms.Saund.200 , .  138 

Gordon  v.  Rolt,  4  Ex.  366 341 

V.  Strange,  1  Ex.  477     34 

Gore  V.  Gibson,  13  M.  &  ^Y.  626 ....  162 
Graham  v.  Ewart,  26  L.  J.,  Ex.  97. .    360 

V.  Musson,  5  Bing.  N.  C.  603 . .     28 

Granger  r.  Dacre,  12  M.  &  AV.  431. .  184 
Gravely  v.  Ford,  Lord  Raym.  209    . .    182 

Gray  v.  Cox,  4  B.  &  C.  115    120 

r.  Gutteridge,  3  C.  &  P.  40  . .  52,  53 

t'.Pullen,32L.J.,Q.B.  169   .317,319 

Great  Northern  Rail.  Co.  r.  Swaffield, 

L.  R.,  9  Ex.  132;  43  L.   J.,   Ex. 

89  :   30  L.  T.,  N.  S.  562     284 

Great  Western  Rail.  Co.  v.  Glenister, 

29  L.  T.,  N.  S.422;  22W.  R.  72..  282 
Greathead  v.  Moriey,  3  M.  &  G.  139 . .  361 
Green  r.  Bartlett,  8  L.  T. ,  N.  S.  503 . .  54 
r.  Baverstock,  32  L.  J.,  C.  P. 

181 49 

V.  Goddard,  2  Salk.  640     364 


XXXYlll 


TABLE  OF  CASES. 


PAGE 

Greenr.  Greeubauk,  2Marsh.485 . .  179, 180 
Greenland  v.  Chaplin,  5  Exch.  243  . .  308, 

344 
Greenway  v.  Marshall,  N.  P.  1845  . .     81 

Gregory  v.  Piper,  9  B.  &  C.  591    257 

V.  West  Midland  Eail.  Co.,  33 

L.  J.,  Ex.  155    274,  279 

Greville  v.  Chapman,  5  Q.  B.  745 410 

Grier  v.  Sampson,  27  Penn.  St.  183  . .  329 

Grieve  v.  Milton,  N.  P.  1850     315 

Griffiths  V.  Lee,  1  C.  &  P.  1 10 283 

V.  Perry,  28  L.  J.,  Q.  B.  204.  .34, 

205 
Grill  V.  General  Iron  Screw  Collieiy 

Co.,  L.  E.,  1  C.  P.  612 260 

Grizewood  v.  Blane,  11   C.  B.  538, 

540 423 

Groucott  V.  Williams,  32  L.  J.,  Q.  B. 

237 241 

Gundry  v.  Feltham,  1  T.  R  337.  .358,359 

Gunnis  v.  Echart,  1  H.  Bla.  289 44 

Guthing  v.  Lj-un,  2  B.  &  Ad.  234  . .  29,  181 
Gutsole  r.  Mathers,  1  M.  &  W.  495. ,   180 


H. 


Hadland  v.  Price,  Apj^endix 411 

Hadleyr.Baxendale,23L.J.,Ex.l79..199, 

200 

r.  Taylor,  L.  R.,  1  C.  P.  53. .   316 

Haigh  r. Sheffield  (Corporation),  L. P., 

10  Q.  B.  102;  44  L.  J.,  M.  C.  17; 

31L.T.,N.S.  536;  23W.  R.  547..  450 
Hale  r.  Eawson,  27L.  J.,  C.  P.  191.. 203 
Hales  V.  London  &  North  Western 

Rail.  Co.,  32  L.  J.,  Q.  B.  292  ... ,  291 
HaU  V.  Condor,  2  C.  B.,  N.  S.  40    . .    114 

V.  Johnson,  13  W.  R.  411     341 

v.  Knox,  33  L.  J.,  M.  C.  1   ....    363 

r.  Rogerson,  Appendix 93 

Hamlin  v.  Great  Northern  Rail.  Co., 

1  H.  &N.  410 201 

Hampden  r.  Walsh,  L.  R.,  1  Q.  B.  D. 

189;  45  L.  J.,  Q.  B.  238;  33L.  T., 

N.  S.  852  ;  25  W.  R.  607 . .  396,  397,  418, 

433 
Hammack  r.  White,  11  C.  B.,  N.  S. 

588 323,  324,  325,  328 

Handayside  v.  Wilson,  3  C.  &  P.  530 . .  328 
Handford  r.  Palmer,  2  B.  &  Bing.  359 . .  262 
Handley  r.  M'Laiue,  10  Bing.  488  . .  20 
Hands  v.  Burton,  9  East,  349  ... .  182,  187 
Hankey  v.  Smith,  Peake,  N.  P.  C.  57,  n.   1 75 

Hanson  r.  Meyer,  6  East,  621   31 

• r.  Roberdeau,  Peake,  N.  P.  C. 

163    49,  52 


Hardcastle  r.  South  Yorkshire  Rail. 

Co.,  28  L.  J.,  Ex.  139,  287    316 

Hardingham  r.  Allen,  5  C.  B.  793  . .    46, 
53,  179,  188,  189 
Hardy  v.  Thacker,  L.  R.,  4  Q.  B.  D. 
685;  48L.  J.,Q.  B.  289;   39L.  T., 
N.  S.  595  ;  27  W.  R.  158— C.  A.. .   424 
Hare  r.  Osborne,  34  L.  T.,  N.  S.  294.  .441 
Harington  v.  Hogart,  1  B.  &  Ad.  577.  .53 
Harman  r.  Reeve,  25  L.  J. ,  C.  P.  257 . .      7 
Harnor  r.  Groves,  24  L.  J.,  C.  P.  53 . .      13 
Harper  v.  Williams,  4  Q.  B.  232  ....    124 
Harris  r.  Midland  Rail.  Co.,  25  W.  R. 

63— D.  C.  A 276 

r.  Mobbs,  L.  R.,  3  Ex.  D.  268; 

39L.T.,N.S.164;  27  W.R. 

154     304 

V.  Nickerson,  L.  R.,  8  Q.  B. 

286;  42  L.  J.,  Q.  B.   171; 
28   L.  T.,   N.    S.  410;    21 

W.  R.  635    48 

Harrison  r.  London,  Brighton  and 
South  Coast  Rail.  Co.,  29 
L.  J.,  Q.  B.  209;  31  L.  J., 

Q.  B.  113   278,  279,  283 

V.  Luke,  14  M.  &  W.  139  . .    177 

Hartr.Baxendale,  16  L.  T.,N.S.  390.  .292 

r.  Bush,  27  L.  J.,  Q.  B.  271    . .     15 

Harvey  r.  Archbold,  3  B.  &  C.  626. .    185 

• V.  Young,  Yelv.  20 153 

Hastelow  v.  Jackson,  8  B.  &  C.  221 . .  396, 

397   432 
Hawker  r.  Hallewell,  3  Sm.  &  Giff.' 

194    444 

r.  Wood,  1  W.  R.  316   .  .410,  447 

Hawkes  v.  Smith,  Car.  &  M.  72    ....   283 
Hawkins  v.  Cooper,  8  C.  &  P.  473   . .   320 

■ V.  Rutt,  Peake,  N.  P.  C.  248.  .34 

Hawser.  Crow,  R.  &  M.  414    161 

Hawthorn  v.  Hammond,  IC.  &K.  407 ..  217 
Hay  V.  Ayling,  20  L.  J.,  Q.  B.  171 . .    446 

Haycroft  r.  Creasy,  2  East,  92 155 

Hayworth  r.  Hutchinson,  L.  R.,   2 

Q.  B.  447  ;  36  L.  J.,  Q.  B.  370    . .   168 
Head  v.  Diggon,  3  M.  &  R.  97     ....     47 

r.  Tat'tersall,  L.  R.,  7  Ex.  7;  41 

L.  J.,  Ex.  4;  25L.T.,  N.  S.  631..  118, 

169 
Hegan  v.  Eighth  Avenue  Rail.  Co., 

15N.  Y.  380 330 

Heilbut  V.  Hickson,  L.  R.,  7  C.  P.  438 ; 

41  L.  J.,  C.  P.  228 13,  205 

Hclver  r.  Hawke,  5  Esp.  72  ....  130,  197 
Hemming  r.  Parry,  6  C.  &  P.  580    . .    118 

Henderson  r.  Blake,  N.  P.  1852   116 

Heugh  i'.  London  aLd  North  Western 
Piail.  Co.,L.  R.,5Ex.  51;  39  L.  J., 

Ex.  48 ;  21  L.  T.,  N.  S.  676 284 

Hewitt  V.  Price,  4  M.  &  G.  355    ....   423 


TABLE  OF  CASES. 


XXXIX 


PAGE 

Heyward  v.  Barnes,  23  L.  T.  68   ....     22 
Hibblewhite   v.   M'Morine,   5  M.    & 

W.  462 30 

Hickman  v.  Hayiies,  L.  R.,  10  C.  P. 
598;  44L.  J.,C.P.  358;  32L.  T., 

N.  S.  873;  23  W.  R.  871    24 

Higgins  V.  Senior,  8  M.  &  W.  845   . .    124 
Higginson  v.  Simpson,  L.  R. ,  2  C.  P. 
76  ;  46  L.  J.,  C.  P.  192  ;  36  L.  T., 

N.  S.  17  ;  25  W.  R.  303 419 

Higgons ;-.  Burton,  26  L.  J. ,  Ex.  342 . .  160 

Higgs  r.  Thrale,  N.  P.  1850 76,  118 

HiU  V.  Balls,  3  Jur.,  N.  S.  592   ..  114,  211 

I'.  Fox,  4  H.  &N.  359..417,  423,  444 

V.  Gray,  1  Stark.  N.  P.  C.  434.. 49, 

154 

• V.  South  Staffordshire  Rail.  Co., 

L.  R.,    18  Eq.  194  ;  43  L.  J.,  Ch. 

566 202 

Hilliard  V.  OrbeU,  N.  P.  1834    168 

Hiuchcliffe r.  Barwick,  L. R.,  5  Ex.  D. 
177  ;  49  L.  J.,  Ex.  495  ;  42  L.  T., 

N.S.  492 117,  118 

Hinde  v.  Whitehouse,  7  East,  568. .  18,  43 
Hiort  V.  Bott,  L.  R.,  9  Ex.   86,   89  ; 
43L.  J.,Ex.  81  ;  30L.  T.,N.  S.  25; 

22  W.  R.  776    40 

Hirst  V.  Molesburv,  L. R.,  6 Q.  B.  130 ; 
40  L.  J.,  M.  C.  76;  23  L.  T.,  N.  S. 

55  ;   19  W.  R.  246     437 

Hoare  v.  Great  Western  Rail.  Co.,  37 

L.  T.,  N.  S.  186  ;  25  W.  R.  83  . . . .    282 
Hobbs  V.  London  and  South  Western 
Rail.  Co.,  L.  R.,  10  Q.  B.  117  ;  44 
L.  J.,   Q.  B.   52  ;   32  L.  T.,  N.  S. 

352;  23  W.  R.  520 199 

Hodgman  r.  West  Midland  RaU.  Co., 

33L.  J.,  Q.  B.  233 284 

Hodson  V.  TerriU,    1  C.   &  M.   797, 

802    432,  434 

Hoghton's  (Sir  Henry)  case,  cited  5  B. 

&  C.  556     252 

Holder  r.  Soulby,  29  L.  J.,  C.  P.  246.  .217 
Hole   r.  Sittingbourne   RaU.   Co.,   6 

H.  &N.  488;  30L.  J.,Ex.  81  ....    318 
HoUeran  v.  Bagnell,  L.  R.,  4lr.  740— 

C.  P.D 342 

Hohnes  v.  Bagge,  17  Jur.  1095     434 

V.  Hoskins,  9  Ex.  753     7, 10 

■ V.  Mather,  L.  R.,  10  Ex.  261  ; 

44  L.  J.,  Ex.  176;  33  L.  T., 

N.  S.  361 325 

V.  Onion,  2  C.  B.,  N.  S.  790  . .   251 

v.  Sixsnuth,7Ex.802..160,400,433 

Holyday   v.   Morgan,    28   L.  J.,   Q. 

B.  9  71,  103,  134 

Honeyman  v.  Marryat,  21  Beav.  14  .  .      21 
Hooper  v.Kenshole,  L.  R.,  2  Q.  B.  D. 
127;  46  L.  J.,  M.  C.  160    57 


PAGE 

Hopkins  v.  Tanqueray,  28  L.  J.,  C.  P. 

162 51,  140,  154 

V.Ware,  L.  R.,  4  Ex.  268  ; 

38  L.  J.,  Ex.  147     35 

Hore   V.  Milner,    Peake,    N.    P.    C. 

58,  n 175 

Home  ('.Midland  Rail.  Co.,   L.  R., 

8  C.  P.  131  ;  42  L.  J.,  C.  P.  54  ... .  201 
HorsfaU  v.  Thomas,  1  H.  &  C.  90  . . . .  151 
Hotson  V.  Brown,  9  C.  B.,  N.  S.  445 . .  150 
Hounsell  v.  Smyth,  7  C.  B. ,  N.  S.  731 . .  316 
HouseholdFire  Insurance  Co.  1'.  Grant, 

L.  R.,  4  Ex.  D.  216 ;  48  L.  J.,  Ex. 

577;  41  L.  T.,  N.  S.  298;  27  W. 

R.  858— C.  A 23 

Howard  v.  Castle,  6  T.  R.  634 50 

V.  Sheward,   L.  R.,  2  C.  P. 

148;  36  L.  J.,  C.P.42. . . .  129,  130,  131 
Howe  V.  Pahner,  3  B.  &  Aid.  324  . .  10,  12 
Hewlett  V.  Haswell,  4  Camp.  118  . .  179 
Hudson  V.  Baxendale,  2  H.  &  N.  575 . .  268, 

283 

t'.  Lombard,  L.  R.,  1    H.  L. 

324 186 

r.  Roberts,  6  Ex.  697 354 

Hughes  r.  Quentin,  3  C.  &  P.  703  . .  345 
Humble  v.  Hunter,  12  Q.  B.  310  ... .  127 
Hume  V.  Oldacre,   1  Stark.  N.  P.  C. 

351 359 

Humphrey  f.  Dale,  27  L.  J.,Q.  B.  390 . .  194 

Hunt  V.  Hecht,  22  L.  J.,  Ex.  295 14 

Hurst  r.  Orbell,  8  A.  &  E.  107 178 

Hyams  v.  Webster,  L.  R.,   2  Q.  B. 

264;  L.R.,  4Q.  B.  138— Ex.  Ch...    318 

Hyde  c.  Davis,  Appendix 94 

Hyman  v.  Nye,  L.  R.,  6  Q.  B.   D. 
685 245 


Iliidge  V.  Goodwin,   5  C.   &  P.  190, 

193    306,  311 

Ilott  V.  Wilkes,  3  B.  &  Aid.  304  ....  312 
Imperial  Land  Co.  of  Marseilles,  In 

re,  Harris'  case,  L.  R.,  7  Ch.  587  ; 

41  L.  J.,  Ch.  621  ;  26  L.  T.,  N.  S. 

781  ;  20  W.  R.  290 23 

Inchbald  v.  Western  Neilgherry  Coffee 

Co.,  11  L.  T.,  N.  S.  345 204 

Ireland  r.  Johnson,  1  Bing.  N.  C.  162 . .  180 
Irons  V.  SmaUpiece,  2  B.  &  Aid.  551 . .  3 
Irvine  v.  Watson,  L.  R.,   5  Q.  B.  D. 

102  ;  49  L.  J.,  Q.  B.  239;  41  L.  T. 

N.  S.  51 127 

Irving  V.  Motley,  7  Bing.  551  160 

Irwin   V.  Osborne,   5  Ir.  Com.  Law 

Rep.  404    420 


xl 


TABLE  OF  CASES. 


J. 


PAGE 

Jackson  r.  Cummius,  5  M.  &  W.  350.  .233, 

234,  242 

V.  Smithson,  15  M.  &  W.  563 .  .    354 

Jacobs  r.  Latour,  2  M.  &  P.  205  ....    234 

James  r.  Morgau,  1  Lev.  Ill    203 

Janson  r.  Brown,  1  Camp.  41    356 

Jay  V.  Whitefielcl,  cited  4  Bing.  644 . .    313 
Jeffeiyy.Walton,  1  Stark. N. P.C.267. .   258 

Jeffreys  v.  Walter,  1  Wils.  220 434 

Jelly  r.  Clark,  Cro.  Jac.  189 220 

Jendwiue  r.  Slado,  2  Esjj.  572  . .  141,  149 
Jennings  r.  Rimdall,  8  D.  &  R.  335. ,  248 
Jessoi3 «'. Lutwyche,  24  L.  J.,  Ex.  65. .  422 
Joel  V.  Morrison,  6  C.  &  P.  501 .  .337,  338 
Johnson  v.  Dodgson,  2  M.  &  W.  653. .  17, 
25    193    194 

V.  Hill,  3  Stark.N.P.C.  172 . .'  225 

r.  Johnson,  3  B.  &  P.  162 .  .        3 

v.  Lansley,  12  C.  B.  468  .  .422, 427 

■ V.  Midland  Ptail.  Co.,  4  Ex. 

367,  373 268 

v.  Pye,  1  Sid.  258   161 

v.  Stear,33L.J.,C.P.  130..   201 

Joliff  V.  Bendell,  R.  &  M.  136 92 

Jones  V.  Bright,  3  M.  &  P.  175. .  113,  115, 
116,  120,  121,  158 

V.  Carter,  15  L.  J.,  Q.  B.  96   . .    398 

V.  Cowley,  4  B.  &  C.  445  . .  118,  182 

V.  Dowlo,  9  M.  &  W.  19   193 

t'.  Gibbons,  22  L.  J.,  Ex.  348  . .    177 

■  r.  Hart,  2  Salk.  4  40   229 

V.  Jackson,  29  L.  T.,  N.  S.  399 . .    219 

V.  Just,   L.  R.,  3  Q.  B.  197;  37 

L.  J.,  Q.  B.  89;   18  L.  T., 

N.  S.  208    121,  137,  206 

V.  Osborn,  2  Chit.  484   214 

r.  Pearle,  1  Stra.  557 225,  226 

V.  Perry,  2  Esp.  482 350 

r.  Powell,  5  B.  &  C.  650  244 

r.  Randall,  Cowp.  39     414 

r.  Thurloe,  8  Mod.  172. .. .  225,  226 

• .  V.  Tyler,  1  A.  &  E.  522 221 

• V.  Victoria  Graving  Dock  Co., 

L.  R.,  2  Q.  B.  D.  314;  46 
L.J.,  Q.  B.  219;  32  L.  T., 

N.  S.  347  26 

r. Williams,  4G  L.  J.,  M.  C.  270; 

36L.T.,N.  S.  559;  25  W.  R.  501 . .    363 
Jordan  v.  Norton,  4  M.  &  W.  155. .       9, 

22,  132 
Joseph  r.  Adkins,  2  Stark.  N.  P.  C.  76 . .  64 
Josling  V.  Irvine,  6  H.  &  N.  512 ....    204 

v.Kingsford,  32L.J.,  C.P.94  ..116 

Judson  V.  Etheridge,  1  Cr.  &  M.  743 . .    243 
Justice  V.  GosUng,  21  L.  J.,  C.  P.  94 . .    300 


K. 

PAGE 

Kain  V.  Old,  2  B.  &  C.  627  ....  3,  24,  119 
Kearney  v.   London,    Brighton    and 
South   Coast   Rail.    Co.,  L.   R.,  5 
Q.    B.   411;    Ex.    Ch.,    L.    R.,    6 

Q.  B.  759    328 

Kellett  t'.  Stannard,  4  Ir.  Jur.  50  (Ex. 

Ir.) 356 

Kelner  v.  Baxter,  L.  R.,  2  C.  P.  174  ; 

36  L.  J.,  C.  P.  94     124 

Kendall  v.  London  and  Southwestern 

Rail.    Co.,   L.   R.,  7  Ex.   373;  41 

L.  J.,Ex.  184;  26L.T.,N.  S.  735. .   266 

Kennedy  r.  Gad,  3  C.  &  P.  376 .  .  399,  434 

Kent  V.  Midland  Rail.  Co.,  L.  R.,  10 

Q.  B.  1;  44  L.   J.,  Q.  B.   18;  31 

L.  T.,N.  S.  43 270 

Kenworthy  v.  Scholfield,  2  B.  &  C.  945 . .  19, 

43 
Kenyon  v.  Hart,  13  W.  R.  406     ....    363 
Keppel  V.  Countess  Dowager  of  Albe- 
marle, 1850    392 

Kibble  v.  Gough,  38  L.  T.,  N.  S.  204 

—  C.  A 10,  14 

Kiddell  v.  Barnard,  9  M.  &  W.  670   . .  70, 

71,  72,  73,  74,  82,  92,  101,  109,  197 

King  v.  Boston,  cited  7  East,  481,  n. . .    166, 

195 

V.  Price,  2  Chit.  416    205 

V.  Sears,  2  C.  M.  &  R.  53  . .  181,  187 

•  V.  Spurr,  L.  R.,  8  Q.  B.  D.  104 . .  335, 

342 

King's  case,  N.  P.  1853 436 

Kingsford  v.  Merry,  11  Ex.  577  ;  26 

L.  J.,  Ex.  83 159,  160 

Kington  v.  Kington,  1 1  M.  &  W.  233 . .      34 
Kirby  r.  Great  Western  Rail.  Co.,  18 

L.  T.,  N.  S.  658 273 

Knight's  case,  1  Lewin's  C.  C.  168. .    296 
Knight  r.  Cambers,  15  C.  B.  562.  .422,  427 

V.  Fitch,  15  C.  B.  566.... 422,  427 

V.  Fox,  5  Ex.  725    318 

Knox  V.  Whalley,  1  Esp.  159     172 

Kornegay  v.  White,  10  Ala.  255. ...      70 
Kronheim  v.  Johnson,  L.  R.,  7  Ch.  D. 
6;  47  L.  J.,  Ch.   132;  37  L.  T., 
N.  S.  752    25 


L. 


Lacey  r.  Umbers,  2  C.  M.  &  R.  116  .  408 
Laing  r.  Hain,    2  S.   M.   &  P.   395 

(Court  of  Sess.  Sco.) 46,  52 

Lake  Shore  Railroad  Co.  v.  Perkins, 

25  Mich.  329 268 


TABLE  OF  CASES. 


xli 


TAGE 

Lamb  v.  Lady  Elizabeth  Palk,  9  C. 

&  P.  629 337 

Lambert  v.  Harrison,  N.  P.  1853 302 

Lane  z;.  Cotton,  1  Salk.  18  ....  217,  228, 

232 
Langton  v.  Higgins,    28  L.   J.,  Ex. 

252 14 

Laugher  r.  Pointer,  5  B.  &  C.  547, 

558 252,  253,  254 

Laytliroap  v.  Bryant,  2  Bing.  N.  C. 

244    18,  26 

Layton  v.  Hurrv,  8  Q.  B.  811     228 

Leame  v.  Bray,"'3  East,  593  328 

Leather    Cloth    Co.    v.    Heirouimus, 

L.  R.,10  Q.  B.  140;  44  L.  J.,Q.  B. 

.54;  32  L   T.,  N.  S.  307 21 

Leatt  r.  Vine,  30  L.  J.,  M.  C.  207  . .    363 

Lee  V.  Bayes,  18  C.  B.  599 56,  66 

• ?;.  Gold,  44  J.P.  395— Q.B.D...   455 

V.  Irwin,  4  L.  Jiir.  372  (Ex.  Ir.) . .    234 

. r.  Paterson.  8  Taunt.  540 204 

V.  Piley,  18  C.   B.,  N.   S.    722; 

34  L.  J.,  C.  P.  212 354 

r.  Shore,  1  B.  &  C.  94    185 

Leeser's  case,  Cro.  Jac.  497 430 

Leeson  r.  Smith,  4  N.  &  M.  304 185 

Legg  V.  Pardoe,  9  C.  B.,  N.  S.  289. .  363 
Legge  V.  Tucker,  1  H.  &  N.  500  ....  240 
Leroux  v.  Brown,  16  Jur.  1021     ...  .5,  25 

Levy  r.  Green,  1  El.  &  El.  969 15 

V.  Langridge,  4  M.  &  W.  337  . .    150 

V.  Lord'  Herbert,  7  Taunt.  318 . .    185 

Lewis  t'.  Bright,  24  L.  J.,  Q.  B.  191..   421 

V.  Cosgreave,  2  Taimt.  2 194 

V.  Great  Western   Rail.  Co.,  5 

H.  &  N.  867 276 

r.  Great  Western  Rail.  Co.  (2), 

L.  R.,  3Q.  B.D.  195;  47L.J., 
Q.B.131;  37L.T.,N.S.744..  272, 
276,  281,  282 

• r.  Nicholson,  2 1  L.  J.,  Q.B.  31 6..  125 

V.  Peake,  7  Taunt.  153 74,  210 

I'.  Pedi'ick,  29L.  T.,  N.  S.  178  ..     22 

Lickbarrow  r.  Mason,  2  T.  R.  63.  .32,  251 

Liddard  v.  Kain,  2  Bing.  183    120 

Limpus  V.   General  Omnibus  Co.,    1 

H.  &  C.  526 332,  334,  341 

Lindley  v.  Lacey,  5  N.  R.  51 24 

Liverpool  Adelphi  Loan  Association  v. 

Fairhurst,  9  Ex.  422    161 

Llandaff  and  Canton  Districts  Market 

Co.  V.  Lyndon,  6  Jur.,  N.  S.  1344. .     57 
Lloyd  v.  Ogleby,  5  C.  B.,  N.  S.  667.  .328, 

329,  331 
Load  V.  Green,  15  M.  &  W.  216. .  159,  160 
Lobb  i:  Stanley,  5  Q.  B.  574,  581    . .     25 

Lockett  V.  Nicivlin,  2  Ex.  93 24 

Loder  v.  Kekulc,  27  L.  J..,  C.  P.  27 . .  205 
Logan  r.  Le  Mesurier,  1 1  Jur.  1094 . .     28 


London  Chartered  Bank  of  Australia 

V.  Lempriere,  L.  R.,  4  P.  C.  572  . .  186 
Longmatev. Ledger,  6  Jur.,N.  S.  481 . .  162 
Longmead  v.  Holliday,6Ex.764,  766 ..  150, 

229 
Lord  V.  Midland  Rail.  Co.,  L.  R.,  2 

C.  P.  339    276 

Loveseyr.  Stallard,  30L.  T.,N.  S.792 . .  363 
Lowe  V.  London  and  North  Western 

Rail.  Co.,  21  L.  J.,  Q.  B.  363  ....  174 
Luard  V.  Batcher,  15  L.  J.,C.  P.  187. .  517 
Lucas  V.  Bristow,  El.  Bl.  &  El.  913. .     24 

■ V.  Delacoiir,  I  M.  k  W.  249  . .    127 

Lygo  V.  Newbolt,  23  L.  J.,  Ex.  108.  .251, 

306,  314 

Lynch  v.  Nurdin,  1  Q.  B.  33 306,  314 

Lyne  v.  Siesfield,  1  H.  &  N.  278  ... .  422 
Lynn  ;-.  Bell,  10  Ir.  R.,  C.  L.  487  . .  421 
Lyons  v.  Be  Pass,  11  A.  &  E.  326   . .     57 

V.  Martin,  8  A.  &  E.  515    332 

Lysney  v.  Selby,  Lord  Raym.  1120. .    179 


M. 


Macdonald  r.  Longbottom,    6   Jur., 

N.  S.  724    24 

Mackay  v.  Commercial  Bank  of  New 

Brunswick,  L.  R.,  5  P.  C.  394  ;  43 

L.  J.,  P.  C.  31 125 

Maclean  v.  Dunn,  4  Bing. 729.  .27,  52,  175 
Mahalen  v.  Dubhn,  &c.  Distillery  Co. 

Ir.  R.,  11  C.  L.  83 21 

Mallan  v.  Radloff,  5  N.  R.  54  . .  123,  143 
Manby  r.  Scott,  1  Mod.  136,  137.  .31,  434 
Manchester  and  Altrincham  Rail.  Co. 

V.  Fullarton,  14  C.  B.,  N.  S.  54  . .  305 
Manchester,  Sheffield  and  Lincolnshire 

Rail.  Co.  «'.  Wallis,  14  C.  B.  213..  366 
Mangan  r.  Atterton,  L.  R.,  1  Ex.  239 ; 

4  H.  &  C.  388 314 

Manning  r.  Purcell,  24  L.  T.  317  . .  400 
Manzoni  «'.  Douglas,  L.  R.,  6  C.  P. 

D.  145 300,  324 

Marfell  v.  South  Wales  Rail.  Co.,  8 

C.  B.,  N.  S.  525    241,  367 

Margetsont'. Wright,  1  M.  &  Sc.  622 . .  104, 

134,  135,  136,  179 

Marryatt  v.  Broderick,  2  M.  &W.  369 . .  392, 

393,  402,  410 

Marsh  v.  Densham,  1  M.  &  R.  442  . ,    183 

V.  Jelf,  3  F.  &  F.  234     39 

r.  Keating,  1  Bing.  N.  C.  198 . .      66 

Marshall  r.  Lynn,  6  M.  &  W.  118  .  .5,  23 
Marson  v.  Short,  2  Bing.  N.  C.  118. .    184 

Martin  v.  Hewson,  10  Ex.  737 396 

V.  Nightingale,  3  Bing.  421 . .      39 

V.  Smith,  6  Scott's  N.  R.  272 . .   443 

Martindale  v.  Smith,  1  Q.  B.  395..  30,  32 


xlii 


TABLE  OF  CASES. 


30 

9 

155 

350 

156 


331 


Martineau  r.  Kitching,  L.  E..,  7  Q.  B. 

438 

Marvin  v.  Wallace,  2  Jur.,  N.  S.  689 . . 
Mash  V.  Densham,  1  M.  &  Rob.  442.. 
Mason  v.  Keeling,  12  Mod.  333  .  .349, 

V.Williams,  28L.T.,N.S. 232.. 

Matthews  r.  Parker,  Appendix 94 

May  V.  Burdett,  9  Q.  B.  101 355 

Mayhew  v.  AVardley,  14  C.  B.,  N.  S. 

550    3G2,  363 

Mayor  of  Colchester  v.  Brooke,  7  Q.  B. 

359 301,  308, 

■ •  Reading  v.  Clarke,  4  B.  & 

Aid.  269 181 

M'Cance  v.  London  and  North  Western 

Rail.  Co.,  31  L.  J.,  Ex.  65;  34  L.  J., 

Ex.  39 279,  281,  292 

M'Carthy  V.Young,  3  L.T.,N.S.785. .  258 
M'Connell  r.  Murphy,  L.  R.,  5  P.  C. 

203;  28  L.  T.,  N.'S.  713    116 

M'Elwainey.  Mercer,  9  Ir.  Com.  Law, 

13     397 

M'Ewan  v.  Smith,  2  H.  of  L.  Cas.309 . .  15 
M'Hole  r.  Davies,  L.  R.,  1  Q.  B.  D. 

59;  45  L.  J.,  M.  C.  30    59 

M'Kean  v.  M'lver,  L.  R.,  6  Ex.  36; 

40  L.  J., Ex.  30;  24  L.T.,N.S.559. .  283 
M'Kenzie  r.  Hancock,  R.  &  M.  436. .  206 
M'Keon   v.    Bolton,    3    Ir.    Jur.    288 

(Q.  B.  Ir.) 320 

M'Kinnell  v.  Robinson,   3  M.   &  W. 

434 422,  427,  434,  442,  444,  458 

M'Laughliu  v.  Pryor,  1  C.  &  Marsh. 

354   255,  257,  335 

M'Lean  r.  Nicholl,  7  Jur  ,  N.  S.  999 . .  21 
McMahon  v.  Field,  L.  R  ,  7  Q.  B.  D. 

591 ;  50  L.  J.,  Ex.  552-C.  A 199 

M'Manus  v.  Cricket,  1  East,  106  ... .  332 
V.  Lancashire  and  Yorkshire 

Rail.  Co.,  4  H.  &  N.  327.  .272,  275,  280 
Mearing  v.  HeUings,  14  M.  &  W.  712 . .  396, 

397 
MeUisht'.Motteux,Peake,N.P.C.115. .  156 

Mellor  V.  Leather,  17  Jur.  709 68. 

Mesnard  v.  Aldridge,  3  Esp.  271  .  .45,  47 
Metzler  r.Gouuod,  32  L.T. ,  N.S.  656 . .  22 
Mews  V.  Carr,  26  L.  J..  Ex.  39     ....     39 

P.  1853 443 

2  Lev.  173     301, 

354,  355 
Daykin,  17  C  B. 
366 


Meynell  v.  Bone,  N. 
Michael  v.  Alestree, 


Midland  Rail.  Co. 
126 

Miles  V.  Sheward,  8  East,  7    182 

Miller  v.  Beale,  27  W.  R.  403  (M.  R.) . .  54 

V.  Lawton,  15  C.  B.,  N.  S.  834 . .  128 

Milne  v.  Marwood,  15  C.  B.  778    150 

Milnes  v.  Cowley,  8  Price,  620 153 

Miner  v.  Bradley,  22  Pick.  Rep.  459 

(Amer.)  3 


PAGE 

Mitchell  V.  CrasweUer,  22  L.  J.,  C.  P. 

104   337,  338,  339 

V.  Hayne,  2  Sim.  &  S.  63  . .     42 

Moffatt  V.  Bateman,  L.  R. ,  3  P.  C.  1 1 5 ; 

22L.T.,N.S.140;  6  Moore, P.  C.  C, 

N.  S.  390    300 

Motj-gridge  v.  Jones,  3  Camp.  38  ... .  172 
Moudel  r.  Steel,  8  M.  &  W.  858  ....  195 
Monkton  v.  Pashley,  2  Salk.  639  ... .   362 

Moore  V.  Cooper,  1853    397 

Moran  v.  Pitt,  42  L.  J.,  Q.  B.  47  ;  28 

L.  T.,  N.  S.  554  ;  21  W.  R.  525  . .  65 
Morden  v.  Porter,  7  C.  B.,]Sr.  S.641 . .  363 
Morgan  v.  Hedger,  L.  R.,  5  C.  P.  485; 

40  L.  J.,  M.  C.  13    216 

V.  Ravey,  30  L.  J.,  Ex.  131.. 219, 

222 
Morley  i'.  Attenborough,  18  L.  J.,  Ex. 

148    113,  114 

V.  Greenhalgh,  32  L.  J.,  Q.  B. 

199 441 

Morris  v.  Blackman,    10  Jur.,  N.  S. 

520 438 

Morse  v.  Slue,  1  Ventr.  238    269 

Morton  r.  Tibbett,  15  Q.  B.  428  ...  .8,  It 
Mosley  v.  Fossett,  1  Rol.  Abr.  3  ....  221 
Moss  V.  Sweet,  20  L.  J.,  Q.  B.  167.. 170, 

177,  194 

■  V.  Townsend,  1  Bulst.  207. .  225,  227 

Mounsey  r.  Ismay,  1  H.  &  C.  729  . .    389 

V. ,  34  L.  J.,  Ex.  52..   390 

Mullet  r.  Mason,  L.  R.,  1  C.  P.  559  ; 

35  L.  J.,  C.  P.  299 211 

Mulliner  v.  Florence,  L.  R.,  3  Q.  B. 

D.  484;    47  L.  J.,  Q.  B.  700;    38 

L.  T.,  N.  S.  167     223,  224 

Mummery r. Paul,  1  C.  B.  322.  .  151,179,180 
Murphy  r.  Boese,  L.  R.,  10  Ex.  126  ; 

44  L.  J.,  Ex.  40  ;  32  L.  T.,  N.  S. 

122 28 

Murray  v.  Mann,  2  Ex.  538.  .53,  125,  150, 
159,  186,  187,  239 
Muschamp  v.  Lancaster  and  Preston 

Rail.  Co.,  8  M.  &  M.  421  ....281,  285 
Myers  r.  London  and  South  Western 

Rail.  Co.,  L.  R.,  5  C.  P.  1 291 

Mynn  v.  JolifPe,  1  M.  &  Rob.  326     . .     52 


N. 


National  Mercantile  Bank  v.  Rymill, 

44  L.  T.,  N.  S.  767— C.  A 40 

Nelson  v.  Stocker,  28  L.  J.,  Ch.  760. .  161 
Newcomen  v.  Lynch,  10  Ir.  R.,  C.  L. 

248,  Ex.  Ch 404 

Newton  v.  Trigg,  1  Show.  270 217 

Nicholas  r.  Badg-er,  3  T.  R.  259,  n.  . .  357 

NichoUe  v.  Plume,  1  C.  &  P.  272  ... .  15 


TABLE  OF  CASES. 


xliii 


Nichols  V.  Marsland,  L.  R.,   10  Ex. 

2oo;  L.R.,2Ex.  D.  1;46L.  J.  174.. 265 
Nicholson  I'.  Bower,  28  L.  J.,  Q.  B.  97..13 

r.  Great  Western  Rail.  Co., 

28  L.  J.,  C.  P.  89     269 

Nitro-Phosphate,  &:c.  Manure  Co.  v. 
London  and  St.  Katherine  Docks 
Co.,  L.  R.,  3  Ch.  D.  503  ;  39  L.  T., 

N.  S.  433    265 

Noadr.Murrow,40L.T.,N.  S.  100..    186 
Noble  r.  Ward,  L.  R.,  1  Ex.  117,  Ex. 

Ch.  ;  L.  R.,  2  Ex.  135    23 

Norman  r.  PhiUips,  14  M.  &  W.  283. .      14 
North  V.  Jackson,  2  F.  &  E.  198   . . . .     64 

v.  Smith,  10  C.  B.,  N.  S.  572  . .    309 

Nugent  V.  Kirwan,  1  Jebb  &  Symes, 

97  (Q.  B.  Ir.)    244 

r.  Smith,  L.  R.,   1  C.  P.  D. 

441,  444  ;  45  L.  J.,  C   P.  697;  34 

L.  T.',  N.  S.  827 265,  267 


O. 


Oakham  r.  Ramsden,  44  L.  J.,  C.  P. 

309  ;  32  L.  T.,  N.  S.  825    422 

Oakley    v.    Portsmouth,    &c.    Steam 
Packet  Co.,  llExch.  623; 

21  L.  J.,  Ex.  101 264 

V,  Rigby,  3  Scott,  194 423 

Ockenden  v.  Henley,  27  L.  J.,  Q.  B.  ' 

361 16 

O'Connor  v.  Bradshaw,  5  Ex.  890    . .    439 
Ogler.  Vane  (Earl),  L.  R.,  3  Q.  B. 

272,  Ex.  Ch.  ;  37  L.  J.,  Q.  B.  771  . .  24, 

205 
Ohrby   v.   Ryde    Commissioners,    33 

L.  J.,  Q.  B.  296 320 

Okell  r.  Smith,  1  Stark.  N.  P.  C.  107.  .166 
Oldham  c.  Ramsden,  44  L.  J.,  C.  P. 

309  :  32  L.  T.,  N.  S.  825    452 

Ollivant  v.  Bailey,  5  Q.  B.  288 164 

Onley  r.  Gee,  30  L.  J.,  M.  C.  222    . .   455 
Onslow  V.  Eames,   1  Stark.  N.  P.  C. 

81 100,  110 

Oppenheim  v.  White  Lion  Hotel  Co., 

L.  R.,  6  C.  P.  515  ;  40  L.  J.,  C.  P. 

93;  25  L.  T.,  N.  S.  93  219 

Orchard  v.  Rackstraw,  9  C.  B.  698  . .  239 
Ormrod  v.  Huth,  14  M.  &  W.  664  . .  116, 
141,  155,  186,  190,  197 
Orr  r.  Fleming,  1 W.  R.  339 . .  349,  350,  352 
Osborn  v.  Gillett,  L.  R.,  8  Ex.  88  ;  44 

L.  J.,  Ex.  53     66 

V.  Meadows,  12  C.  B.,  N.  S. 

10     363 

V.  Thompson,  9  C.  &  P.  337  . .    186 

Cborne  v.  Hart,  23  L.  T.,N.  S.  851; 

19  W.  R.  331,  Ex 114 

Oughton  V.  Seppings,  1  B.  &  Ad.  241 . .  178 


PAGE 

Oulds  V.  Harrison,  24  L.  J.,  Ex.  66.  .422, 

427 
Overton  r.  Freeman,  21  L.  .J..  C.  P. 

52 318,  319 

Owen's  case,  1  Mood.  C.  C.  205     ....     62 

P. 

Padgett  2'.  Macnair,  15  Court  of  Sess. 

76  (Sco.) 170 

Paice  r.  Walker,  L.  R.,  5  Ex.   173  ; 

39  L.  J.,  Ex.  109 ;  22  L.  T.,  N.  S. 

547 127 

Palmer  r.  Grand  Junction  Canal  Co., 

4M.  &  W.  749 264 

Pappin  V.  Maynard,  9  L.  T.,  N.   S. 

327 434 

Pardington  v.  South  Wales  Rail.  Co., 

1  H.  &N.  396 274 

Parker  r.  Farebrother,  2  W.  R.  370 . .     40 

v.  Great  Western  Rail.  Co.,  7 

Scott,  N.  R.  835 264 

r.  Wallis,  5  E.  &  B.  28 13 

Parkhurst  r.  Foster,  1  Salk.  387  ....  237 
Parkinson  v.  Lee,  1  East,  323  . .  117,  123 
Parr  v.  Winteringham,  28  L.  J.,  Q.  B. 

123    402,  403 

Parsey  v.  Edmonds,  N.  P.  1853    458 

Parsons  v.  Alexander,  1  Jur.,  N.  S. 

660    418,434 

—  V.  Gingell,  4  C.  B.  550,  558  . .  237, 

238,  364 

■ -—  V.  Sexton,  4  C.  B.  905  ....  193,  195 

Parton  v.  Crofts,  33  L.  J.,  C.  P.  189.  .17 

Pasley  v.  Freeman,  3  T.  R.  56  . .  120,  147, 

148,  151,  152,  153,  186 

Pater.son  r.  Powell,  9  Bing.  320    424 

Pateshall  v.  Tranter,  3  A.  &  E.  103. .  172 
Patten  v.  Rea,  26  L.  J.,  C.  P.  235  . .  340 
v.  Rhymer,  29  L.   J.,  M.  C. 

189 441 

Patterson  v.  Gandasequi,  15  East,  69. .  126 

Paul  V.  Dod,  2  C.  B.  800     194 

■ -r.  Hardwick,  N.  P.  1831    85 

V.  Summerhayes,  L.  R.,  4  Q.  B. 

D.  9 ;  48  L.  J.,  M.  C.  33 ;   39  L.  T., 

N.  S.  574 ;  27  W.  R.  215    358 

Payne  v.  Cave,  3  T.  R.  148    4,  47 

V.  Whale,  7  East,  274 . .  118, 166,  170, 

190 
Peachey  v.  Roland,  13  C.  B.  182  ....    318 

Pear's  case,  1  Leach,  212    250 

Peek  V.  North  Staffordshire  Rail.  Co., 

32  L.  J.,  Q.  B.  241  271,  279,  280 

Peer  v.  Humphrey,  2  A.  &  E.  495  . .  65 
Peudlebury  v.  Grceuhalgh,  L.    R.,  1 

Q.  B.  D.  36  ;   45  L.  J.,  Q.  B.  3  ;  33 

L.  T.,  N.  S.  372;  24  W.  R.  98— 

C.  A 319 


xliv 


TABLE  OF  CASES. 


PAGE 

Percival  r.  Dudgeon,  Appendix    ....   345 

V.  Oldacre,  N.  P.  1865    ....    143 

V.  Spencer,  Yelv.  45    204 

Peto  V.  Hague,  5  Esp.  134 130 

Pettingall  r.  Pettingall,  Appendix  .  .  465 
Pettitt  r.  Mitchell,    5   Scott,   N.    R. 

740    30,  33 

Phillpotts  V.  Evans,  5  M.  &  W.  475. .   204 

Pickering  v.  Busk,  5  East,  38 41,  131 

'■ —  V.  Dawson,  4  Taunt.  785  . .  119, 

157 

■ V.  Marsh,  43  L.  J.,  M.  C. 

143;  22  W.  R.  798 353 

Pickford  r.  Grand  Junction  Rail.  Co., 

10  M.  &  W.  399 264 

Pierce  v.  Corf,  L.  R.,  9  Q.  B.  217;  43 

L.  J.,  Q.  B.  52 18,  19,  21,  27,  43 

Pike  r.  Alcock,  N.  P.  1858    397 

Pilmore  v.  Hood,  5  Bing.  N.  C.  97. .    49, 

154 
Pinder  r.  Button,  9  L.  T.,  N.  S.  269..  117 
Piatt  V.  Bromage,  24  L.  J.,  Ex.  63. .  178 
Plevins  v.  Downing,  L.  R.,  1  C.  P.  D. 

220  ;  45  L.  J.,  C.  P.  695  ;  35  L.  T., 

N.  S.  263   185 

PluckweU  V.  Wilson  (Bart.),  5  C.  &  P. 

375 320,  322,  328 

Polhill  V.  Walter,  3  B.  &  Ad.  114  . .  150 
Poole  r.  Longuevil,  3  Wms.  Sauud. 

290,  n.(q) 244 

Pope  V.  Whalley,  6  B.  &  S.  303  ;   1 1 

Jur.,  N.  S.  444  ;   34  L.  J.,  M.  C. 

76;   11  L.  T.,  N.  S.  769     57 

Potter  V.  Faulkner,  31  L.  J.,  Q.  B. 

30    341 

Poulton  V.  Lattimore,  9  B.  &  C.  265 . .  163, 

171, 195 

Povey  r.  Purnell,  N.  P.  1853    241 

Powell  V.  Edmunds,  12  East,  6     44 

■ r.  Salisbury,  2  Y.  &  J.  394  . .    262 

Power  v.  Barham,  4  A.  &  E.  473     . .  138, 

143,  149 

r.  Welles,  Cowp.  818     167 

V.  Wells,  Doug.  24,  n.  .  .   166,  178 

Powles    r.  Hider,   25   L.   J.,   Q.    B. 

331 335 

Prebble  r.  Boyhurst,  1  Swanst.  329  .  153 
Frestwick  v.  Marshall,  7  Bing.  565 . .  27 
Price  V.  Morgan,  2  M.  &  W.  55  ....  133 
Prince  v.  Brunette,    1    Bing.   N.   C. 

438 27 

Pyke,  Ex  parte.  Lister,  in  re,  L.  R., 

8  Ch.  D.  754  ;  47  L.  J.,  Bk.  100  ; 

38  L.  T.,  N.  S.  923  ;  26  W.  R.  806 

— C.  A 421,  427 

Pym  V.  Campbell,  0  Ell.  &  Bl.  370    . .      24 

V.  Great  Northern  Rail.  Co.,   2 

B.  &  S.  767  ;  4  B.  &  S.  396  ..  343, 
345,  346 


Q. 


Quarman  r.  Burnett,  6  M.  &  W.  499 . .  252, 

254 
Quarrier  t\   Colston,   1  Turn.  &  Ph. 
147 427 


R. 


Raffles  V.  Wichelhaus,  33  L.  J.,  Ex. 

160 194 

Rambert  v.  Cohen,  4  Esp.  213 188 

Rambool  v.  SoojumnuU,  6  Moore's  P. 

C.  314     516 

Randall  v.  Newson,  L.  R.,  2  Q.  B.  D. 
102;  46  L.  J.,  Q.  B.  259; 
36L.  T.,]Sr.  S.  164;  25  W. 
R.  113— C.  A.  ..  116,  121,  198 

-y.Roper,  27  L.  J.,Q.B.266..   210 

Randell«;.Trimen,25L.J.,C.P.307..  199 
Randleson  v.  Murray,  8  A.  &  E.  109 . .  229 
Ransome  r.  Eastern  Counties  Rail. 

Co.,  26  L.  J.,  C.  P.  91    269 

Raphael  v.  Bank  of  England,  17  C.  B. 

161 426 

Rawson  v.  Johnson,  1  East,  203  ....  175, 

185,  194 
Rayner  v.  Mitchell,  L.  R.,  2  C.  P.  D. 

359  ;  25  W.  R.  633     339 

Read t'. Edwards,  11L.T.,N.S.  311.. 351, 

360,  364 

V.  Fairbanks,  22  L.  J.,  C.  P.  206 . .  30, 

201 

r.  King,  N.  P.  1858 351 

Readhead  r.  Midland  Rail.  Co.,  L.  R., 

4  Q.  B.  379     121,  245 

Reading  r.  Menham,  1  M.  &  Rob.  234 . .  254 

(Mayorof)  r.Clarke,4  B.&Ald. . .  181 

Redgate  t'.  Haynes,  L.  R.,  1  Q.  B.  D. 

89;  45L.J.,M.C.65;  33L.T.,N.S. 

779 442 

Reed  r.  Tate,  N.  P.  1846     321,  328 

Reeve  r.  Palmer,  28  L.  J.,  C.  P.  168. .  193 
Reeves  r.  Capper,  5  Bing.  N.  C.  136 . .  32 
R.  V.  Aldi-idge,  4  Cox,  C.  C.  143.. 59,  181 

—  r.  Ashton,  22  L.  J.,  M.  C.  1   ....  434, 

441,  442 

—  V.  Bailey,  4  Cox,  C.  C.  390,  397. .  147, 

432,  434 

—  r.  Banks,  R.  it  R.  441 61,  251 

—  r.  Bristol  (Justices  of)  Banc.  1854 . .   436 

—  V.  Brooks,  8  C.  &  P.  295.  .62,  250,  251 

—  V.  Bullock,  37  L.  J.,  M.  C.  47 ;  L.R., 

1  C.  C.  R.  115 63 

—  r.  CarU,sle,  23  L.  J.,  M.  C.  109   . .    148 

—  v.  Cavendish,  8  Ir.  R.,  C.  L.  178— 

C.  C.  R 297 


TABLE  OF  CASES. 


xlv 


PAGE 

R.  V.  Chappie,  E.  &  R.  77 62 

—  r.  Child  (John),  C.  C.  C.  1858 ....    355 
■ —  r.  Clark  and  Jcrvis,  1853 432 

—  V.  Cook,  Appendix 296,  297 

—  V.  Cooper,  16  Jur.  750    62 

—  V.  Cridland,  7  E.  &  B.  853    363 

—  V.  Critchlow,  6  W.  R.  681     263 

—  r.  Crump,  1  C.  &  P.  658    62 

—  V.  Dale,  7  C.  &  P.  352    61 

—  r.  Dant,  C.  C.  C.  1865 355 

—  V.  Dixon,  10  Mod.  336 457 

—  V.  Gardner,  N.  P.  1851 428 

—  V.  Goldsmith,  12  Cox,  C.  C.  597. .     67 

—  V.  Gompertz,  9  Q.  B.  824 160 

—  V.  Haigh,  Liverpool  Winter  Assizes     68 

—  V.  Harvey,  1  Leach,  467    61 

• —  V.  Haywood,  Russ.  &  Ry.  16  ... .      62 

—  V.  Henson,  1  Dears.  &  Pearce,  C.  C. 

24     90 

—  V.  Holmes,  22  L.  J.,  M.  C.  122  . .   437 

—  V.  Horan,  6  Ir.  R.,  C.  L.  293— C. 

C.  R 67 

—  V.   Huggins,  2  Ld.  Raym.  1583  . .  347, 

355 

—  r.  Ivens,  7  C.  &  P.  219 217 

—  V.  Janson,  4  Cox,  C.  C.  82  62 

—  V.  Jeans,  1  C.  &  K.  539 62 

—  r.  Jones,  22  L.  T.,  N.  S.  298  ;  11 

Cox,  C.  C.  544 298 

—  V.  Kayley,  10  L.  T.,  N.  S.  339  . .  362 

—  V.  Kendall,  30  L.  T.,  N.  S.  345;  12 

Cox,  C.  C.  598— C.  C.  R 61 

—  V.  Kenrick,  5  Q.  B.  62  147,  148 

—  V.  Kew,  12  Cox,  C.  C.  355  298 

—  V.  Kilderby,  1  Saund.  312,  n.  2   . .   229 

—  V.  Lewis,  1 1  Cox,  C.  C.  484 51 

—  V.  Liston,  5  T.  R.  240 434,  458 

—  V.  Luellin,  12  Mod.  445 217 

—  V.  Mason,  Loach,  C.  C.  548 457 

—  V.  Mogg,  4  C.  fc  P.  364     63 

—  V.  Murray,  5  Cox,  C.  C.  509  (Ir.)..299 

—  V.  O'Connor,  45  L.  T.,  N.  S.  512— 

C.  C.R 431 

—  V.  Orbell,  6  Mod.  42 428 

—  r.  Parker,  33  L.  J.,  M.  C.  135 ....   363 

—  V.  Patch,  1  Leach,  521 61 

—  r.  Patey,  2  W.  Bla.  721    62 

—  V.  Peach,  1  Burr.  548     432 

—  V.  Pear,  1  Leach,  521     61 

—  i\  Pembliton,  L.R.,2C.C.  R.  119; 

43  L.  J.,  M.  C.  91     63 

—  r.  Phillips,  2  East,  P.  C.  c.  16,  s.  98   . .  62 

—  i\  Pitman,  2  C.  &  P.  423 60 

—  V.  Pratt,  1  Mood.  C.  C.  185 61 

—  T. ,  24  L.  J.,  M.  C.  113  ....   363 

—  V.  Pywell,  1  Stark.  N.  P.  C.  402   . .    147 

—  i'.  Read,  6  Cox,  C.  C.  135 147 

—  r.  Roach,  1856     436 

—  r.  Rogier,  1  B.  &  C.  272 449,  457 


PAGE 

R.  V.  Rymer,  L.  R.,  2  Q.  B.  D.  13G ; 

46  L.  J.,  M.  C.  108;  35  L.  T., 

N.  S.  744;  25W.  R.  415    ....   217 

—  V.  Saddlers'  Co.,  32  L.  J.,  Q.  B. 

337 151,  153,  159 

—  V.  Saint  Nicholas,  Gloucester  ....   463 

—  V.  Sanders,  9  Q.  B.  235 457 

—  V.  Sheppard,  9  C.  &  P.  123 60,  147 

—  v.  Silvester,  33  L.  J.,  M.  C.  79 36 

—  r.  Smith,  1  Mood.  C.  C.  473 240 

—  V. ,  12  Cox,  C.  C.  597 67 

—  V.  Southwestern  Rail.  Co.,  1  Q  B. 

581     463 

—  IK  Stancliffe,  11  Cox,  C.  C.  318    . .     67 

—  V.  Swiudall,  2  C.  &  K.  230 297 

—  V.  Timmins,  7  C.  &  P.  500 298,  325 

—  v.  Tivey,  1  C.  &  K.  704    63 

—  V.  Walker,  1  C.  &  P.  32    297 

—  V.  Welch,  45  L.  J.,  M.  C.  17     ....      63 

—  V.  Wheatley,  2Burr.  1127 . .  147, 148, 150 

—  V.  Whitney,  1  Mood.  C.  C.  3    . . . .     62 
• —  V.  Wolverhampton     (Justices),    L. 

R.,  6  Q.  B.  514;  40  L.J.,  M. 
C.  209;  24  L.  T.,  N.  S.  508; 
19  W.  R.  890    437 

—  i\  Wood,  3  B.  &  Ad.  657 457 

Reese   River   Silver    Mining   Co.    v. 

Smith,  L.  R.,  4  H.  L.  64,  69  ;    39 

L.  J.,  Ch.  849 154 

Reuss  V.  Picksley,  L.  R.,  1  Ex.  342, 

Ex.  Ch 26 

Richards  v.  Porter,  6  C.  &B.  438   .   20,  21 

V.  Symons,  8  Q.  B.  90.  .242,  243, 

244 
Richardson  v.  Brown,  8  Moore,  338 . .    142 

V.  Dunn,30L.J.,C.P.44..199 

V.  North    Eastern     Rail. 

Co.,L.  R.,  7  C.  P.  75; 
41  L.  J.,  C.  P.  60;  26 

L.  T.,  N.  S.  131     268 

V.  Sylvester,  L.  R.,  9  Q. 

B.  34  ;  43  L.  J.,  Q.  B.  1     155 

Richmond  v.  Smith,  8  B.  &  C.  9.  .218,  221 
Rickard  r.  Moore,    38   L.  T.,    N.   S. 

841— C.  A 12,  13 

Ricketts  v.  East  India  Docks  and  Bir- 
mingham Junction  Rail.  Co.,  21  L. 

J.,  C.  P.  201 365 

Ridgway  v.  Wharton,  27  L.  J.,  Ch.  46  . .  18 

Rigby  V.  Hewitt,  5  Ex.  242     306,  344 

Rigg  V.  Earl  of  Lonsdale,  1  H.  &  N. 

923 360 

Rimell  r.  Sampayo,  1  C.  &  P.  254 251 

Ring  V.  Roxbrough,  2  C.  &  J.  418.. 181, 

183 
Rishton  v.  Whatmore,  L.  R.,  8  Ch.  D. 

467;   20  W.  R.  827    19,  43 

Roberts  v.  Brett,  6  C.  B.,  N.  S.  611, 

633 175 


xlvi 


TABLE  OF  CASES. 


PAGE 

Roberts  v.  Great  Western  Rail.  Co., 

4  Jur.  N.  S.  1240    367 

-: V.  Humphreys,   L.  R.,    8  Q. 

B.  483;    42  L.  J.,   M.  C. 
147;  29  L.  T.,  N.  S.  387; 

21  W.  R.  885 216 

. V.  Jenkins,  1  Foster  (N.  H.), 

116    70 

Robertson  r.  Howard,  L.  R.,  3  C.  P. 

280;  47  L.  J.,  C.  P.  480 181 

Robinson  v.  Great  Western  Rail.  Co., 
35  L.  J.,  C.  P.  123;  H. 

&R.  97 276,  281 

. V.  Rutter,   24  L.  J.,  Q.  B. 

250 41,  53 

r.  Southwestern  Rail.  Co., 

C.  P.  Banc., May  1, 1865  . . 285 

V.  Walter,  3  Bulst.  270     ..226, 

227 
-,  Pop.  127 


Roddy  i:  Stanley,  5  Ir.  Jur.  10     ....    438 

Rodgers  r.  Nowill,  5  C.  B.  109 145 

Roo'ersr.Ingham,L.R.,3Ch.D.351..  178 
Rohde  r.  Thwaites,  6  B.  &  C.  388  . .  184 
Rolinr.  Steward,  23L.  J.,  C.  P.  148. .  201 
Rolph  V.  Crouch,   L.  R.,    3  Ex.  44  ; 

37  L.  J.,  Ex.  8 210 

Rooth  r.  North  Eastern   Rail.   Co., 
L.  R.,  2  Ex.  173;  36  L.  J., 

Ex.  83 280 

r.  Wilson,  1  B.  &  Aid.  59     . .    241 

Roper  v.  Johnson,  L.  R.,  8  C.  P.  167; 

42L.J.,C.P.65;28L.T.,N.S.296..204 
Roscorla  v.  Thomas,  3  Q.  B.  234  ....  181 
Rosewarner.Billing,10Jur.,N.S.496..422 
Rosse  V.  Biamstead,  2  Rol.  Rep. 438 . .  226 
Roiirke  r.  Short,  5  E.  &  B.  901  ....  417 
Routledge  r.  Grant,  4  Bing.  653  ....  47 
Rowley  v.  London  and  North  Western 

Rail.  Co.,  L.  R.,  8  Ex.  221 ;  42  L. 

J.,  Ex.  153  ;  29  L.  T.,  N.  S.  180— 

Ex.  Ch 343,  346 

Rnshforth  r.  Hadtiekl,  7  East,  229..   233 


S. 


Sadler  v.   Henlock,   24  L.  J.,    Q.  B. 

138 316,  318,  319 

. r.  Smith,  10  B.  &  S.  17;  L.  R., 

5  Q.  B.  40;  39  L.  J.,  Q.  B.  17;  21 
L.  T.,  N.  S.  502;   18  W.  R.  148— 

Ex.  Ch 406 

Salmon  r.Ward,  2  C.  &  P.  211. .   116,  139 

Samuel  v.  Wright,  2  Esp.  263 252 

Sanderson  r.  Bell,  2  C.  &  M.  304,  312 . .   233 
Sandysr.Eloreuce,47L.  J.,C.P.598. .   221 


PAGE 
Sarlr.  Bourdillon,  26  L.  J.,  C.  P.  78..  20, 

26 
Saunders  z'.Plummer,Orl.Bridg.227..  214, 

220,  224 

V.  Topp,  4  Exch.  394    ....   7,  8 

Saunderson  v.  Jackson,  2  B.  &  P.  238 . .     25 
Savage  r.  Madder,  36  L.  J.,  Ex.  178; 

16L.  T.,N.  S.  600;  16  W.  R.  910..   399 

Saxby  a.  Wilkm,  1  D.  &  L.  281   ....    181 

Scarfe  v.  Morgan,  2  M.  &  W.  270  . .  226, 

232,  233,  234,  235,  243 

Scattergood  r.  Sylvester,  19L.  J.,  Q.  B. 

447 66 

Scetchett  r.  Eltham,  Freem.  534 354 

Schneider  v.  Heath,  3  Camp.  508 . .  154,  158  , 

V.  Norris,  2  M.  &  S.  286  . .     26 

Scholefield  v.  Robb,  2  M.  &  R.  210. .  71,  74, 

85,  92,  191 
Scotland  (Bank  of)  r.Watson,  1  Dowl. 

45 131,  197 

Scott  r.  Ea.stern  Counties  Rail.  Co., 

12  M.  &  W.  33  6 

V.  England,  2  D.  &  L.  524. .  51,  175 

t'.LondonDockCo.  13W.R.410..328 

Searle  v.   Laverick,   L.   R.,   9  Q.  B. 
.  122  ;  43  L.  J.,  Q.  B.  43  ;  30  L.  T., 

N.  S.  89 239 

Semple's  case,  1  Leach,  420 250 

Settle  V.  Garner,  N.  P.  1857 90 

Seymour t'.  Greenwood, 7  H.&  N.  355. .  336, 

337 
Sharman  r.  Brandt,   L.  R.,   6  Q.  B. 

720  ;  40  L.  J.,  Q.  B.  312 27,  43 

Sharp  r.  Powell,  L.  R.,  7  C.  P.  253  ; 

41L.J.,C.P.95;26L.T.,N.S.436..344 
Shaw  r.   Morley,   L.  R.,   3  Ex.  137; 

37  L.  J.,  M.  C.  105     450 

Sheldon  r.  Cox,  3  B.  &  C.  420 177 

Shelley  v.  Ford,  5  C.  &  P.  313 250 

Shelton  v.  Livius,  2  C.  &  J.  416 44 

Shepherd  v.  Bristol  and  Exeter  Rail. 
Co.,  L.  R.,  3  Ex.  189;  37 

L.  J.,  Ex.  113 283 

V.  Kain,  5  B.  &  A.  240    . .    138, 

149,  156 
Sherbon  r.  Coleback,  2  Ventr.  175  ..  430 
Sheirod  r.  Longden,  21  Iowa.  518  ..  211 
Shrewsbuiy  r.  Blount,  2M.  &  G.  475.  .151, 

154,  155 

Siegel  r.  Eisen,  41  Cal.  109    330 

Sieve  Wright  v.  Archibald,  20  L.  J., 

Q.  B.  529 17 

Sigel  V.  Jebb,  3  Stark.  N.  P.  C.  2    . .   434 
Siramonds  r.  Humble,  13  C.  B.,  N.  S. 

258 9 

Simmons  i:  Swift,  4  B.  &  C.  857 ....    184 
Simons  r.  Great  Western  Rail.   Co., 

26  L.  J.,  C.  P.  25 273,  276 

Simpson  v.  Bloss,  7  Taunt.  246     443 


TA15LE  OF  CASES. 


xlvii 


PAGE 

Simpson  v.  Potts,  Appendix. ..  ,96,  103, 

178 
Sims  V.  Marryat,  17  Q.  B.  9  ...  .113,  114 
Simson  v.  London  General  Omnibus 
Co.,  L.  R.,  8  C.  P.  390  ;  42  L.  J., 
C.  P.  112  ;  28  L.  T.,  JST.  S.  560  ;  21 

W.  R.  595 300,  325 

Singleton  r.  Ea.stern  Counties  Rail. 

Co.,  7  C.  B.,  N.  S.  287   314 

Skrine  r.  Elmore,  2  Camp.  407  .  .187,  190 

Slater  v.  Swan,  2  Stra.  872    331 

Sleath  V.  Wilson,  9  C.  &  P.  608 . .  337,  338, 

339 
Slim  V.  Great  Northern  Rail.  Co.,  14 

C.  B.  647    ^    285 

Smart  v.  Allison,  Appendix    71,  93 

V.  Hyde,  8  M.  &  W.  728    . .  182,  197 

Smeed  v.  Foord,  28  L.  J.,  Q.  B.  178 . .  199, 

200 
Smethui-st  r.  Mitchell,  28  L.  J.,  Q.  B. 

241 ^ 126 

Smith  r.  Anderson,  L.  R.,  15  Ch.  D. 

269 440 

V.  Bickmore,  4  Taunt.  474     ....    432 

V.  Chance,  2  B.  &  A.  755 185 

r.  Cook,  L.  R.,  1  Q.'B.  D    79 ; 

45L.  J.,Q.  B.  122;  33  L.  T., 

N.  S.  722     241,  350 

V.  Deerlove,  6  C.  B.  132,  n 214, 

220,  223,  224 

. r.  Ferrand,  7  B.  &  C.  19  35 

• V.  Great EasternRail.  Co., L.R., 

2  C.  P.  153    351 

V.  Green,  L.  R.,  1  C.  P.  D.  92  ; 

45  L.  J.,  C.  P.  48 198,  211 

V.  Hudson,  34  L.  J.,  Q.  B.  145. .      14 

V.  Hughes,  L.  R.,  6  Q.  B.  597  ; 

40L.  J.,Q.  B.  221;  25L.T., 

N.  S.  329   151 

. r.  Kay,  7  H.  of  L.  Cas.  775     . .    150 

r.  Lawrence,  2  M.  &  R.  1     ....    252 

r.  Lindo,  5  C.  B.,  N.  S.  587    . .   421 

r.  Littledale,  15  W.  R.  69,  C.  P. . .  404 

V.  M'Namara,  N.  P.  1853     ....    SOI 

V.  Mundy,  29  L.  J.,  Q.  B.  172. .     34 

• V.  Neale,  26  L.  J.,  C.  P.  143   . .     20 

r.  O'Brien,  11  L.  T.,  N.  S.  346. .  104, 

136,  137 

r.  Par.sons,  8  C.  &  P.  199 122 

. r.  Rolt,  9  0.  &  P.  696 .  .  185,  187,  194 

r.  Sparrow,  4  Bing.  88 36 

Snead  r.  Watkins,   26  L.  J.,   C.   P. 

57    223 

Southcote's  case,  4  Rep.  83    269 

Southerne  v.  Howe,  2  Rol.  Rep.  5  . .    134 
Sowerby  r.   Wadsworth,  3  F.   &  F. 

734 389 

Spartali  r.  Benecke,  10  C.  B.  212     . .    194 
Specot's  case,  5  Rep.  58a,  p.  118. . . .    430 


PAGE 

Spice  V.  Bacon,  L.  R.,  2  Q.  B.  D.  463; 

46  L.  J.,  Q.  B.  713;  36  L.  T.,  N.  S. 

896 218 

Spicer  v.  Barnard,  28  L.  J. ,  M.  C.  176 . .  363 
Springwell  v.  Allen,  Aleyn,  91      ....    150 

Squire  r.  Hunt,  3  Price,  68    185 

■  r.  Wheeler,  16L.  T.,  N.  S.  93.  .218 

Stables  r.  Eley,  1  C.  &  P.  614 340 

Stacey  v.  Live.say,  N.  P.  1856 241 

r.  Wliiteiiurst,  13  W.  R  384  .  .362 

Stadhard  r.  Lee,  32  L.  J. ,  Q.  B.  75 . .     29 

Standish  v.  Ross,  3  Ex.  527 178 

Stanley  r.  Dowdeswell,  L.  R.,  10  C.  P. 

102  ;  23  W.  R.  389 23 

Staunion  v.  Da\as,  Salk.  404 221 

Staunton  r.  Wood,  16  L.  T.  486  ....  33 
Stead  r.  Dawber,  10  A.  &  E.  57  ....  24 
Steinthal  v.  Myers,  Nov.  23,  1855    ..    170 

Stevens  v.  Lee,  N.  P.  1853     54 

Steward  r.  Coesvelt,  1  C.  &  P.  23  . .  123 
Stilesr.  Cardiff  Steam  Navigation  Co., 

10  Jur.,  N.  S.  1199 352 

Stone  V.  Mar.sh,  6  B.  &  C.  551 66 

Storey  v.  Ashton,  L.  R.,  4  Q.  B.  476; 
38  L.  J.,  Q.  B.  223;  17  W. 
R.  727     339 

r.  Robinson,  6  T.  R.  138  . . . .    364 

Storr  r.  Scott  (Bart.),  6  C.  &  P.  241 . .  413 
Street  v.  Blay,  2  B.  &  Ad.  456. .  164,  167, 

168,  169,  193,  194,  195 
Strode  v.  Dyson,  1  Smith,  400  ..  132,  190 
Stuart  r.  Wilkins,  Doug.  18  ....  1 1 1,  123 
Stuckfield  r.  Hind,  N.  P.  1859  ....  31,  .35 
Stucley  r.  Baily,  31  L.  J.,  Ex.  483  . .  119 
Sunboif  V.  Alford,  3  M.  &  W.  248  . .  224 
Sutton  r.  Moody,  Lord  Raym.  250  . .    300 

V.  Temple,  12  M.  &  W.  60    . .  120, 

242,  251 
Suydam  v.   Grand  St.  Rail.  Co.,  41 

Barb.  365 330 

Sweet  V.  Lee,  3  M.  &  Gr.  452,  460  . .  25 
Sweeting  r.  Turner,   L.  R.,  7  Q.  B. 

310  :  41  L.  J.,  Q.  B.  58  ;  25  L.  T., 

N.  S.  796;  20  W.  R.  185 52 

Swift  V.   Jewsbury,   L.  R.,  9  Q.  B. 

391  ;  43  L.  J.,  Q.  B.  561 . . 55, 156 
r.  Winterbotham,  L.  R.,  8  Q.  B. 

244,  254  125,  155 

Swinfen  v.  Lord  Chelmsford,  5  H.  & 

N.  890,  921    186 

Swire  v.  Francis,  L.  R.,  3  App.  Cas. 

106;  47  L.  J.,  P.  C.  18 125 

Sykes  v.  Beadon,  L.   R.,  11   Ch.  D. 

170 440 

•  V.  Giles,  5  M.  &  W.  650   .  .52,  127 

r.  North  Ea.stern  Rail.  Co.,  44 

L.  J.,  C.  P.  191  ;  32  L.  T.,  N.  S. 

199  ;  23  W.  R.  473 343 

Symondst'.  Carr,  1  Camp.  361  ..119,  181 


xlvili 


TABLE  OF  CASES. 


T. 

PAGE 

TapHn  r.  Florence,  10  C.  B.  744  ....     43 
Tarlinff  v.  Baxter,  6  B.  &  C.  3G4.  .28,  30, 

31,  32 
Tarrant  t^  Webb,  25  L.  J.,  C.  P.  261.  .341 
Tarry  v.  Ashtou,  L.  R.,  1   Q.  B.  D. 
314;  45L.  J.,Q.  B.  260  ;  34L.T., 

N.  S.  97  ;  24  W.  E.  581 318 

Tate  V.  Gleed,  C.  B.,  H.  T.  24  Geo.  3.  .244 

Taylor  v.  Ashtou,  11  M.  &  AV.  413  .  .150, 

^  154 

r.  BuUen,  5  Ex.  779 156 

. V.  Chester,  L.  R.,  4  Q.  B.  309; 

38  L   J.,  Q.  B.  225 193 

. r.  Great   AVestera   Rail.   Co., 

L.  R.,  1  C.  P.  385;  35  L. 

J.,  C.  P.  210 264,  290 

V.  Greeuhalgh,  24  W.  R.  311 

p    A  319 

V.  Humphries',"  13  W."r.  136.  .210 

V.  Wakefield,  6  El.  &  Bl.  765. .   8 

Tempest  v.  Fitzgerald,  3  B.  &  Ad.  G80 . .  13 

. . V.  Kilner,  2  C.  &  P.  308     . .  184, 

185 
Templeman  v.  Haydon,  19  L.  T.  218.  .307 
Thistlewoodr.  Cracroft,  1 M.  &  S.  500 . .  444 

Thom  r.  Biglaud,  8  Ex.  725 186 

Thomas  v.  Morgan,  2  C.  M.  &  R.  496 . .  350 
Thompson  v.  Bertram,  23  Ark.  730. .     70 

r.  Davenport,  9  B.  &  C. 

86    49,  124,  126 

r.  Lacy,  2  B.  &  Aid.  286.  .214 

Thoruborow    r.     Whiteacre,     2    Ld. 

Raym.  1164 203 

Thoruett  r.  Haines,  15  L.  J.,  Ex.  230.  .51 
Thorogoodi'.  Bryan,  8  C.  B.  130..  300,  321 

Thorpe  v.  Colman,  1  C.  B.  199 445 

V.  Thorpe,  1  Ld.  Raym.  665 .  .      33 

Threfall  v.  Borwick,  L.  R.,  10  Q.  B. 

210;  44  L.  J.,  Q.  B.  87;  32  L.  T., 

N.  S.  32,  Ex.  Ch 223 

Tollett  V.  Thomas,   L.  R.,   6   Q.   B. 

514;  40  L.  J.,  M.  C.  209;  24I-.  T., 

N.  S.  508;   19  W.  R.  890 437 

Tooke  V.  HoUings worth,  5  T.  R.  215..  32 
Toomey  v.  London,  Brighton  and  S.  C. 

Rail.  Co.,3C.  B.,N.  S.  146 326 

Torrance  v.  Bolton,  L.  R.,  8  Ch.  118; 

42L.  J.,  Ch.  177 40 

Tourrett  v.  Cripps,  48  L.  J.,  Ch.  567; 

27  W.  R.  706    26 

Towers  v.  Barrett,  1  T.  R.  133.  .166,  169, 
170,  178,  192 
Trent  and  Mersey  Navigation  Co.  v. 

AVood,  2  Esp.  r27    264 

Trimble  i\  Hill,  L.  R.,  5  App.  Cas. 

3i2    394,  433 

Tuff  V.  Warman,  27  L.  J.,  C.  P.  322.  .307 


PAGE 

Turberville  r.  Stampe,  1  Lord  Raym. 

264 340 

Turley  r.  Thomas,  8  C.  &  P.  103 ... .   330 
Turnbull  v.  Appleton,  45  J.  P.  469. .    437 
Turner  r.  Hey  land,  L.  R.,  5  C.  P.  D. 
432  ;  48  L.  J.,  C.  P.  535  ;  41  L.  T., 

N.  S.  556   212 

Tarrell  v.  Crawley,  18  L.  J.,Q.  B.  155 . .  225 
Tyers  v.  Rosedale,  &c.  Iron  Co.,  L.  R., 
8  Ex.  305  ;  Ex.  Ch.,  L.  R.,  10  Ex. 
195  ;  44  L.  J.,  Ex.  130  ;   33  L.  T., 
N.  S.  56     205 

U. 

Udell  V.  Atherton,  7  H.  &  N.  172  . .  125 
Underwood  z'.NicholLs,  25  L.  J.,  C.  P. 

79    34 

Urquhart  v.    Macpherson,    L.    R.,   3 

App.  Ca.s.  831  159 

Uther  V.  Rich,  10  A.  &  E.  784 426 


Valpy  i>.  Oakeley,  16  Q.  B.  941    . . . . 
Varney  r.  Hickman,  5  C.  B.  281 . .  396, 

Venables  r.  Smith,  L.  R.,  2  Q.  B.  D. 
279;  46L.  J.,  Q.  B.470;  36L.T., 
N.  S.  509  ;  25  AV.  R.  .584    ....  335, 

Vernon  v.  Keys,  12  Ea.st,  637 153 

Vicars  r.  AVilcocks,  8  East,  3    . 


205 
416, 
417 


342 
,  1.54 

198 


W. 

Wadhurst  v.  Damme,  Cro.  Jac.  44  . .    356 
AVain  V.  AVarlters,  2  Sm.  L.   C,  8th 

ed.  261    6 

Waite  r.  North-Eastern  Railway  Co., 

E.  B.  &  E.  719 321 

AVakeman  r.  Robinson,  1  Bing.  213  . .  323 
AValker  r.  Holsiugton,  43  Vt.  608.  .84,  85 

—  r.  Laogham,  N.  P.  1865 442 

r.  Mellor,  1 1  Q.  B.  478 1 94 

AVallace  r.AA^oodgate,  1C.&P.275 . .  226,  238 
AValler   v.  Midland    Great   AVe.stem 

Rail.  Co.,  L.  R.,4lr.  376..  293 
r.  South -Eastern  Rail.  Co.,  32 

L.  J.,  Ex.  205 341 

AValley  r.  Holt,  35  L.  T.,  N.  S.  631 .  .218 
AVallingford  v.  Mutual  Society,  L.  R., 

5  App.  Cas.  685;  43  L.  T.,  N.  S. 

258  ;  29  W.  R.  81~H.  L 440 

AValmesley  v.  Matthews,  3  Scott,  N.  R. 

584    408,  411 

AValioole  v.  Saunder.s,  7D.  &  R.  130.  .399, 

434 
Walter  r.  Haynes,  R.  &  M.  149    ....     34 


TABLE  OF  CASES. 


xlix 


PAGE 

Wardv.  General  Omnibus  Co.,  42  L.  J., 
C.  P.  265  ;  28  L.  T.,  N.  S.  850— Ex. 

Ch 336 

V.  Hobbs,  L.  E,.,  4  App.  Gas.  13 ; 

48  L.  J.,  C.  P.  281 ;  40  L.  T.,  N.  S. 
73;  27  W.  E.  114..  ..59,  158,  211,  212 

Ware  v.  Juder,  2  C.  &  P.  351    181 

Warlow  V.  Harrison,  29  L.  J.,  Q.  B.  14 . . 47 
Warner y.Willington,  25  L.  J.,Ch  662.  .20 
Warwicke  v.  Noakes,  Peake,  N.  P.  98 . .  34 
Washburn  v.  Cuddihy,  8  Gray,  430 . .  84,  85 
Waterhouse  v.  Skinner,  2  B.  &  P.  447 . .  189 
Watkins  r.  Major,  L.R.,  10  C.  P.  662; 
44L.  J.,M.  C.  164;  33L.  T.,N.  S. 

352  ;  24  W.  R.  164 262 

AYatson   v.  Ambergate,   Nottingham 
and  Boston  Pail.  Co.,   15 

Jur.  448 281,  292 

—  V.  Denton,  7  C.  &P.  86 . .  78, 205,  209 

V.  Earl  of  Charlmont,  12  Q.  B. 

862 151 

r.  Martin,  13  W.  P.  144  ... .   436 

Watts  V.  Ainsworth,  1  H.  &  C.  83  . .  20 
Wayde  v.  Lady  Carr,  2  D.  &  R.  256 . .    329 

Weall  V.  King,  12  East,  452 180 

Weaver  v.  Bush,  8  T.  R.  78 364 

Webb  V.  Bell,  1  Sid.  440    364 

r.  Fairmanner,  3  M.  &  W.  473. .  185, 

194 

• V.  Fox,  7  T.  R.  397    28 

V.  Great  Western  Rail.  Co.,  26 

W.  R.  Ill 282 

Weir  v.  Bamett,  L.  R.,  3  Ex.  D.  32. .    125 
Weller  v.  Deakins,  2  C.  &  P.  618 ... .  398, 
408,  410,  411 
Wells  ;•.  Abrahams,  L.  R.,  7  Q.  B.  557 ; 

41  L.  J.,  Q.  B.  306 65 

V.  Porter,  3  Scott,  141    423 

Welsh  V.  Lawrence,  2  Chit.  262    307 

Wentworth  v.  Outhwaite,  10  M.  &W. 

452 33 

Westbrook  v.  Griffith,  Moor,  876 214, 

226,  227 
Weston  r.Downcs,  Doug.  23..  166, 171,  178 
Whatman  v.  Pearson,  L.  R.,  3  C.  &  P. 

422 337 

Wheatley  v.  Patrick,  2  M.  &  W.  650 . .  262 
Wheeler  v.  Collier,  M.  &  M.  126  ... .  51 
Wheelton  v.  Hardisty,  27  L.  J.,  Q.  B. 

241    144,  145 

White r.  Garden,  20  L.  J.,  C.  P.  166 . .    159 

V.   Great  Western  Rail.  Co., 

26  L.  J.,  C.  P.  158.... 276,  278 

■ V.  Spettigiie,  13  M.  &  W.  603 . .     66 

Whitehead  v.  Anderson,  9  M.  &  W. 

518 32 

Whitelcy  r.  Pepper,  L.  R.,  2  Q.  B.  D. 
276;  46L.  J.,Q.B.  436;  36L.T., 

N.  S.  588  ;  25  W.  R.  B07  318 

O. 


PAGE 

Wicksv.Macnamara,27L.J.,Ex.419. .   328 

Wieler  v.  Schilizzi,  17  C.  B.  619 116 

Wiggett  V.  Fox,  25  L.  J.,  Ex.  188  . .  341 
Wilkes  V.Atkinson,  1  Marsh.  412.  .175,185 
Wilkinson  r.  Evans,L.  R. ,  1 C.  P.  41 7 . .     21 

V.  Godefroy,  9  A.  &  E.  536 . .   393 

V.  L'Eaugier,  2  Y.  &  C.  366 . .   443 

,  Willan  V.  Carter,  N.  P.  1853 79,  153 

Williams  v.  Barton,  3  Bing.  145 28 

V.  Byrnes,   9   Jur.,  N.    S. 

363    18,  26 

V.  Evans,  L.  R.,  1  Q.  B.  352; 

35  L.  J.,  Q.  B.  111..     52 

V.  Hide,  Palm.  548 262 

V.  Hill,  Pabn.  548 261 

V.  Holmes,   22  L.  J.,   Ex. 

283 42,  223 

V.  Jordan,  L.  R.,  6  Ch.  D. 

517;    46   L.  J.,    Ch. 

681  18,  26 

V.  Lake,  29  L.  J.,  Q.  B.  1 . .  18, 26 

V.  Lloyd,    Jones   on  Bail- 

ments, 179 261 

V.  Millington,  1  H.  Bla.  81 .  .39, 

41,  42 

v.  Paul,  6  Bing.  653 37 

V.  Richards,  3  C.  &  K.  82. .  331 

r.  Trye,  23  L.  T.  72 423 

Williamson  v.  Allison,  2  East.  453  . .  150  • 
V.  Barton,  31  L.  J.,  Ex. 

170    49,  54 

Willoughby  r.  Horridge,   22  L.  J., 

C.  P.  90 292 

Wilson  V.  Brett,  11  M.  &  W.  113 ... .    260 

V.  Cole,  36  L.  T.,  N.  S.  702. .   417 

■  V.  Merry,  L.  R.,  1  H.  L.  326, 

341 319 

Wiltshire  «;.  Willett,  11  C.  B.,  N.  S. 

240;  31  L.  J.,  M.  C.  8    57 

Wise  v.  Great  AVestern  Rail.  Co.,   1 

H.  &  N.  63  ;  25  L.  J.,  Ex.  258    . .   274 
Wiseman  v.  Booker,  L.  R.,  3  C.  P.  D. 

184;    38    L.    T.,    N.    S.    392;    26 

W.  R.  634 365 

Wood V. Leadbitter,  13M.  &W.  838..   413 

r.  Midgeley,  23  L.  J.,  Ch.  553 . .      17 

V.  Smith,  4  C.  &  P.  45    ...  .116,  117 

Woodbvrry    v.    Robbins,     10     Cush. 

(Mass.)  520    89 

Woodin  V.  Burford,  2  Cr.  &  M.  391 . .  132, 

190,  197 
Woodleyt'.Coventry,32L.  J., Ex.185 . .  14 
WoodrofPe  r.  Farnham,  2  Vern.  291 . .  430 
Woodward's  case,  2  East,  P.  C.  653. .   240 

Woolf  V.  Beard,  8  C.  &  P.  373 306 

Woolfe  V.  Home,  L.  R.,  2  Q.  B.  D. 

355  ;  46  L.  J.,  Q.  B.  534  ;  36  L.  T., 

N.  S.  705  ;  25  W.  R.  728 49 

Worth  r.  Gilling,  L.  R.,  2  C.  P.  1  . .   351 

d 


TABLE  OF  CASES, 


PAGE    I 

Wray  v.  Lister,  2  Str.  1110 204    | 

Wren  v.  Pocock,  34  L.  T.,  N.  S.  G97 . .   354 

Wright  V.  Bii-d,  1  Price,  20 39 

■  r.  Dannah,  2  Camp.  203  . .  27,  43 

•  r.  Freeman,  48  L.  J.,   C.  P. 

276;  40L.  T.,N.  S.  134.. 42,  115 

V.  Johnson,  1  Sid.  440,  447  . .    183 

v.  Leonard,  30  L.  J.,  Ch.  365 . .    161. 

V.  London  General  Omnibiis 

Co.,  L.  P.,  2  Q.  B.  D.  271  ; 

40  L.  J.,  Q.  B.  429  ;  36  L. 

T.,N.  S.  590;  25W.R.647..   344 
v.  London  and  North -Western 

Eail.  Co.,  L.  P.,   10  Q.  B. 

298;  L.  P.,  1  Q.  B.  D.  252; 

45  L.  J.,  Q.  B.  570  ;  33  L. 

T.,  N.  S.  830— C.  A 341 


Wright  V.  Pearson,  L.  R.,  4  Q.  B.  582; 

38  L.  J.,  Q.  B.  312;  20  L. 

T.,N.S.849;17W.R.1099..   352 
Wrightiip   V.   Chamberlain,   7  Scott, 
598 210 


Y. 

York  V.  Greenhaugh,  2  Lord  Raym. 

867 220,  237,  238 

r.  Grindstone,  1  Salk.  388    ....   220 


Z. 

Znntz  V.  South  Eastern  Rail.  Co.,  L. 
P.,  4  Q.  B.  539;  38  L.  J.,  Q.  B. 
209  ;  20  L.  T.,  N.  S.  873 270 


TABLE  OF  STATUTES. 


PAGE 

12  Ricli.  2,  c.  G     370 

1 1  Hen.  4,  c.  4 370 

11  Hen.  7,  e.  13    371 

22  Hen.  8,  e.  7 371 

27  Hen.  8,  c.  6 371 

32  Hen.  8,  c.  13   102,  371,  372,  375 

33  Hen.  8,  c.  o 372 

33  Hen.  8,  c.  9,  ApiJendix.  .370,  372,  373, 

459,  4C0,  461,  484 

1  Edw.  6,  c.  5 374 

2  &  3  Ph.  &  M.  c.  7,  AiDpendix.  .64,  374, 

375,  486 
2  &  3  Ph.  &  M.  c.  9 374 

5  Eliz.  c.  19     375 

8  EUz.  c.  8 375 

31  Eliz.  c.  12,  Appendix 64,  375,  488 

43  EUz.  c.  6 73 

21  Jac.  1,  c.  28 372,  375 

16  Car.  2,  c.  7    376,  377,  446 

25  Car.  2,  c.  6 371 

29  Car.  2,  c.  3    ..,.5,  6,  7,  10,  11,  15,  16, 

23,  27,  184,  187,  391 

29  Car.  2,  c.  7     35,  36,  37,  235 

10  &  11  Will.  3,  0.  17.  .377,  434,  435,  438 

6  Anne,  c.  16 421 

9  Anne,  c.  6 378,  435 

9  Anne,  c.  14 378,  444,  445,  446 

9  Anne,  c.  19 377 

10  Anne,  c.  26    378,  435 

8  Geo.  1,  c.  2    379,  435 

9  Geo.  1,  c.  19 379,  435 

2  Geo.  2,  c.  28,  Appendix 379,  491 

6  Geo.  2,  c.  35 379,  385 

7  &  8  Geo.  2,  c.  8 423 

12  Geo.  2,  c.  28,  Appendix   379,  435,  439, 

458,  492 

13  Geo.  2,  c.  19,  Appendix    379,  380, 

434,  435,497 

17  Geo.  2,  c.  5 436 

18  Geo.  2,  c.  34,  Appendix.  .380,  381,  498 

25  Geo.  2,  c.  36 457,  458 

7  Geo.  3,  c.  48    379 

14  Geo.  3,  c.  48     381,  424,  425 

26  Geo.  3,  c.  71    579 

27  Geo.  3,  c.  1 ..    381 

29  Geo.  3,  c.  49    38 

42  Geo.  3,  0.  119 381,  436,  438 

46  Geo.  3,  0.  148    381,  435 

49  Geo.  3,  0.  98     3S1 


PAGE 

49  Geo.  3,  c.  109 378 

59  Geo.  3,  e.  52    381 

1  Geo.  4,  c.  4 300 

3  Geo.  4,  c.  40    436 

3  Geo.  4,  c.  41 372,  374 

3  Geo.  4,  0.  114 381 

5  Geo.  4,  c.  83,  Appendix    381,  436, 

501 

6  Geo.  4,  c.  105 381 

7  Geo.  4,  c.  64    428 

7  &  8  Geo.  4,  c.  29 59 

7  &  8  Geo.  4,  c.  30    62 

9  Geo.  4,  0.  14 6,  155 

9  Geo.  4,  c.  61    442 

11  Geo.  4  &  1  Will.  4,  c.  68 270 

1  &  2  Will.  4,  c.  22 335,  578 

1  &  2  Will.  4,  c.  32 362,  363 

1  &  2  Will.  4,  c.  36    378 

1  &  2  Will.  4,  c.  58    42 

2  &  3  Will.  4,  c.  71    390 

2  &  3  Will.  4,  c.  120 578 

3  &  4  Will.  4,  0.  42,  Apjjendix    183, 

202,  205,  502 

3  &  4  Will.  4,  0.  48    578 

5  &  6  Will.  4,  c.  41,  Appendix.  .377,  382, 
420,  425,  443,  4440 
445,  446,  447,  604 

5  &  6  Will.  4,  c.  50 297,319 

5  &  6  Will.  4,  0.  59    228,  434,  440 

5  &  6  Will.  4,  0.  76   68 

6  &  7  Will.  4,  c.  66    382,  435 

1  &  2  Vict.  c.  106 421 

2  &  3  Vict.  c.  4 511 

2  &  3  Vict.  c.  47     297,  300,  344,  441 

2  &  3  Vict.  c.  71    67,  453,  454 

3  &  4  Vict.  c.  5 383 

3  &  4  Vict.  c.  24     364 

5  &  6  Vict.  c.  47     385 

5  &  6  Vict.  c.  55     366 

5  &  6  Vict.  c.  79     578 

6  &  7  Vict.  e.  85     198 

6  &  7  Vict.  c.  86 335,  343,  578 

7  &  8  Vict.  c.  3    384,  399,  434 

7  &  8  Vict.  c.  87     579 

7  &  8  Vict.  c.  109    385,  435 

8  &  9  Vict.  c.  20 365,  366 

8  &  9  Vict.  c.  57     385 

8  &  9  Vict.  c.  74 385,  435 

8  &  9  Vict.  c.  84     385 

f/2 


TABLE  OF  STATUTES. 


PAGE 

8  &  9  Vict.  c.  109,  Appendix  .  .372,  380, 

390,  391,  393,  394,  395,  397,415,416, 

418,  419,  420,  421,  422,  423,  425,  427, 

428,  431,  432,  433,  434,  437,  444,  447, 

452,  459,  460,  461,  463,  464,  508 

9  &  10  Vict.  c.  23 385 

9  &  10  Vict.  c.  48,  Appendix  .  .385,  435, 

438,  520 

9  &  10  Vict.  0.  62 342 

9  &  10  Vict.  c.  93     .  .302,  342,  343,  345, 

346 
10  &  11  Vict.  c.  14 57 

10  &  11  Vict.  c.  89    232,  578 

11  &  12  Vict.  0.  29 361 

11  &  12  Viet.  c.  43 362 

12  &  13  Vict.  c.  92    228,  233,  440 

12  &  13  Vict.  c.  106     431 

13  &  14  Vict.  c.  7     578 

13  &  14  Vict.  c.  Gl  240 

14  &  15  Vict.  c.  99    187,  198 

14  &  15  Vict.  0.  100     60 

15  &  16  Vict.  c.  76  . . . .  180,  181,  182,  183 

16  &  17  Vict.  c.  33,  Appendix    .  .521,  578 

16  &  17  Vict.  c.  83    187,  198 

16  &  17  Vict.  c.  90 385 

16  &  17  Vict.  0.  119,  Appendix..  386,  422, 

423,  449,  450,  451,  452,  453, 
454,  455,  456,  531 

16  &  17  Vict.  c.  127,  Appendix  .  .530,  578 

17  &  18  Vict.  c.  31.... 264,  269,  270,  271, 

272,  273,  274,  277,  279,  284, 

285,  289,  292 

17  &  18  Vict.  c.  38,  Appendix  .  .461,  462, 

463,  538 

17  &  18  Vict.  c.  60    228,  233 

17  &  18  Vict.  c.  90    202,  447 

19  &  20  Vict.  0.  64    102,  371,  375 

19  &  20  Vict.  0.  82 385 

19  &  20  Vict.  0.  97 176 

20  &  21  Vict.  c.  54 68 

21  &  22  Vict.  c.  102     385 

22  &  23  Vict.  c.  17 463 

23  &  24  Vict.  c.  28 423 


26 


&  24  V 
&  25  V: 
&  25  V 
&  25  V 
&  25  V 
&  25  V: 
&26  V 
&  26  V 
&  27  V: 


PAGE 

ct.  c.  126  42 


ct.  0.  95  . 
ct.  c.  96  . 
ct.  c.  97  . 
ct.  c.  100 
ct.  c.  134 
ct.  c.  88  . 
ct.  c.  114 


26  &  27  V: 


.59,  66,  68,  251 


.39, 


68 
428 

60 
300 
431 
145 
363 


ct.  0.  41,  Appendix  ..218,  219, 
220,  544 
ct.  c.  125   ..370,  371,  373,  374, 
375 
27  &  28  Vict.  c.  47 428 

27  &  28  Vict.  0.  95    342,  343 

28  &  29  Vict.  c.  60    350,  352 

30  &  31  Vict.  c.  35 67 

30  &  31  Vict.  c.  134     578 

30  &  31  Vict.  c.  142     240 

31  &  32  Vict.  0.  119 287,  288,  289 

32  &  33  Vict.  c.  14 578 

32  &  33  Vict.  c.  71 39 

32  &  33  Vict.  c.  1 15     578 

33  &  34  Vict.  c.  97     18,  187,  190 

34  &  35  Vict.  0.  56 353 

34  &  35  Vict.  c.  78    288,  289 

34  &  35  Vict.  c.  87 35 

35  &  36  Vict.  c.  94    441,  464 

36  &  37  Vict.  c.  38 436 

36  &  37  Vict.  0.  66.. 30,  42,  172,  181,  183, 

192,  193,  212,  398 

37  Vict.  c.  15,  Appendix  .  .386,  387,  456, 

537 

37  Vict.  0.  16    39,  385 

37  &  38  Vict.  c.  49  ....214,  215,  216,  442 

37  &  38  Vict.  c.  62 161 

39  Vict.  0.  13    63 

41  &  42  Vict.  c.  38    225,  227 

41  &  42  Vict.  c.  74 59,  90,  211,  290 

42  &  43  Vict.  c.  18,  Appendix    .  .387,  546 

43  &  44  Vict.  c.  42 341 

43  &  44  Vict.  c.  47 361 

44  &  45  Vict.  c.  61 215 

44  &  45  Vict.  c.  62 228 


INTRODUCTION. 


Arrangement  of  the  Subject ....  liii 

Giving  a  Warranty liv 

Warranty  should  seldom  be  given  liv 

When  to  give  a  Warranty  ....  Iv 

The  Cause  of  Difficulty  in  Horse- 

dcaling Iv 


The  Cause  of  Rascality  in  Horse- 
dealing  Iv 

Veterinary  Certificates Ivi 

Veterinary  Opinion Ivi 

Difficulties  felt  by  the  Veterinary 

Profession Ivii 

Conflicting     Certificates    as     to 

Soundness    Iviii 


It  lias  been  found  most  convenient  to  arrange  under  three  Arrangement 
heads  the  various  subjects  treated  of  in  this  work.  ject^ 

1st.  Contracts  concerning  Horses,  i^c,  which,  including 
the  Bargain  and  Sale  of  Chattels,  comprises  the  law  of 
buying,  selling,  and  exchanging,  the  doctrine  of  un- 
soundness and  vice,  the  law  of  warranty  and  false  repre- 
sentation ;  the  privileges  and  liabilities  of  Innkeepers, 
Livery-stable  Keepers,  Farriers,  Trainers,  &c.,  and  hiring, 
borrowing  and  carrying  Horses. 

2nd.  Negligence  in  the  use  of  Horses,  ^c,  which  includes 
the  criminal  and  civil  liabilities  incurred  through  negligent 
driving,  or  keeping  ferocious  and  vicious  animals,  and  the 
liabilities  of  parties  in  hunting  or  trespassing  on  the  lands 
of  another. 

3rd.  Racing,  Wagers,  and  Gaming,  which  gives  a  sketch 
of  their  history,  rise  and  progress  in  this  country,  and  lays 
down  the  law  on  these  subjects  in  connection  with  the 
numerous  and  important  alterations  made  by  the  "Act  to 
amend  the  Law  concerning  Grames  and  Wagers"  (a),  the 
"Act  for  Legalizing  Art  Unions  "(6),  and  the  recent 
"Act  for  the  Suppression  of  Betting  Houses"  (c). 

(a)  8  &  9  Vict.  c.  109.  ih)  9  &  10  Vict.  c.  48. 

[c)  16  &  17  Vict.  c.  119. 


liv 


INTRODUCTION. 


Giving  a 
"Warranty. 


Warranty 
should 
seldom  be 
criven. 


One  great  peculiarity  attending  a  portion  of  tliis  work, 
is  the  difficult  question  of  "Warranty  in  connection  mtli 
Unsoundness.  Because  at  wliat  precise  point  Soundness 
ends  and  Unsoundness  begins  has  always  been  a  subject 
of  dispute  botli  in  and  out  of  the  Veterinary  profession. 
Therefore,  when  a  Horse  warranted  sound  turns  out 
unsound,  great  difficulties  must  frequently  arise  from  the 
nature  of  the  case.  For  a  warranty  is  in  the  nature  of 
an  Insurance,  and  when  a  man  warrants  a  Horse  sound 
he  insures  that  of  which  he  can  know  very  little.  It  is 
not  like  the  Warranty  of  manufactured  goods,  where  a 
man  calcidates,  from  the  skill  and  materials  employed,  the 
exact  amount  of  responsibility  he  can  take  upon  himself. 
When  a  man  warrants  a  Horse  he  does  it  at  his  own  risk, 
and  of  com-se  that  risk  is  very  much  greater,  when  he  does 
it  upon  his  own  opinion,  than  when  he  warrants  after  the 
Horse  has  been  pronounced  sound  by  men  of  Yeterinary 
skill.  So  that  if  an  action  is  brought  on  an  alleged  breach 
of  Warranty,  he  is,  in  the  former  case,  almost  entirely  in 
the  hands  of  the  Yeterinary  evidence  produced  by  the  pur- 
chaser ;  in  the  latter  case  he  has  men  of  skill  to  prove  the 
exact  state  of  the  Horse  at  the  time  of  sale.  For  instance, 
should  the  purchaser  produce  Yeterinary  evidence  to  prove 
that  the  Horse  has  a  Bone  Spavin,  and  that  it  must  have 
existed  at  the  time  of  sale,  the  vendor  in  the  latter  case 
would  be  able  to  prove  by  actual  examination  that  no  such 
Spavin  did  then  exist,  and  would  therefore  have  a  very 
strong  case  to  go  to  a  Jury. 

But  it  appears  that  soundness  is  a  subject  on  which, 
from  the  nature  of  the  case,  a  Warranty  should  very 
seldom  be  given  :  for  there  seems  no  reason  why  a  person 
who  buys  a  Horse  should  not  act  as  he  would  in  any  other 
transaction  where  there  is  risk.  For  instance,  a  man 
buying  a  house  does  not  merely  examine  it  himself,  and 
then,  because  he  likes  it,  buy  it  with  a  Warranty ;  but  he 
takes  his  surveyor  ^ith  him,  who  points  out  all  its  defects, 
and  then  he  buys  it  or  not  according  to  the  opinion  he  may 


INTRODUCTION.  Iv 

form  of  its  value  after  these  have  been  taken  into  consi- 
deration. 

And  in  all  cases  where  a  risk  is  run  and  an  Insurance 
effected,  there  are  regular  rules  laid  down  by  which  such 
transactions  are  governed.  For  where  a  person  insures 
his  life,  he  submits  to  a  regular  medical  investigation, 
and  no  Company  would  act  in  so  unbusiness-like  a  manner 
as  merely  to  take  a  person's  own  Warranty  that  he  is 
sound  in  health  and  constitution,  and  so  be  put  to  the 
proof,  in  case  of  his  death,  that  he  was  not  so  at  the  time 
he  gave  the  Warranty. 

The  best  Rule  for  a  man  therefore  to  follow  in  selling  "When  to 
a  Horse  is  this :  Where  the  Horse  is  of  no  great  value,  ranty^ 
to  refuse  a  Warranty  altogether,  and  such  a  Horse  is  best 
sold  by  auction.  '\Yhere  the  Horse  is  of  great  value,  if 
sound,  but  that  appears  doubtful,  then  to  let  the  pm"- 
chaser  be  satisfied  by  a  Veterinary  examination,  and  so 
take  the  responsibility  upon  himself.  Where,  however, 
the  seller  is  confident  that  the  Horse  is  perfectly  sound, 
and  that  with  a  Warranty  he  would  fetch  a  much  larger 
price  than  without  one,  he  should  have  him  examined 
and  certified  as  sound,  &c.,  by  one  or  two  Yeterinary 
Surgeons  of  respectability  and  experience,  and  then, 
knowing  on  what  ground  he  goes,  he  may  take  the 
risk  of  warranting  him  sound. 

The    vexation    and    difficulty    experienced    in    Horse-  The  caiise  of 
dealing  arises,  in  a  great  measure,  from  the  loose  manner  I^ifficulty  m 
in  which  such  transactions  are  conducted,  and  from  the  dealing, 
thoughtless   manner   in   which   people   give  Warranties ; 
and  we  generally  find  that  the  smaller  a  man's  knowledge 
may  be  with  regard  to  Horses,  the  more  ready  he  is  to 
warrant,  little  knowing  the  responsibility  he  is  thus  fixing 
upon  himself. 

A  dealer,  who  from  the  nature  of  his  business  must  be  The  cause  of 
constantly   buying  and   selling   Horses,   has   an  evident  Rascality  in 
advantage  over  the  persons  with   whom   he   deals,   who  dealing, 
probably  do  not  buy  or  sell  Horses  half  a  dozen  times  in 


Ivi 


INTRODUCTION. 


Veterinary 
Certificates. 


Veterinary 
Opinion. 


a  year,  and  very  few  of  wlioni  can  form  a  reasonable 
opinion  as  to  a  Horse's  value.  But  the  Dealer,  to  say 
the  least,  is  a  pretty  good  judge,  and,  being  well  ac- 
quainted with  the  routine  of  his  business,  may,  generally, 
go  on  in  as  satisfactory  and  reputable  a  manner  as  any 
other  tradesman,  so  long  as  he  keeps  honest.  The  fre- 
quent Rascality  in  Horsedealing  transactions  arises  from 
parties  making  improper  use  of  that  superior  knowledge 
which  experience  alone  can  supply.  Because  purchasing 
a  Horse  is  a  very  different  affair  from  buying  a  manu- 
factured article  ;  for,  in  the  latter  case,  there  are  certain 
trade  prices,  and  a  corresponding  quality  of  goods,  which 
every  man  expects,  and  of  which  any  ordinary  man  can 
judge ;  and,  therefore,  as  each  party  has  in  general  a 
sufficiently  competent  knowledge,  very  few  disputes  arise. 

When  a  Horse  is  free  from  hereditarij  disease,  is  in  the 
possession  of  /ris  iiafural  and  constitutional  health,  and  has 
as  much  hodihj  perfection  as  is  consistent  with  his  natural 
formation,  a  Yeterinary  Surgeon  may  safely  certify  him 
to  be  sound.  But  as  there  is  in  most  Horses  some  slight 
alteration  in  structure,  either  from  disease,  accident,  or 
work,  a  Veterinary  Surgeon  in  giving  his  Certificate  had 
much  better  describe  the  actual  state  of  the  Horse,  and 
the  probable  consequences,  without  mentioning  so »;;f/« ess  or 
unsoundness  at  all,  and  so  let  the  purchaser  buy  him  or  not 
as  he  may  be  advised.  Because  in  such  a  case  a  straight- 
forward statement  would  be  made,  and  a  man  in  the 
Veterinary  profession  would  not  be  called  upon  in  an  off- 
hand manner  to  decide  questions  which  are  of  the  greatest 
nicety,  being  full  of  uncertainty,  and  upon  which  no 
conclusive  decision  can  safely  be  arrived  at.  For  we  find 
the  greater  the  difficulty,  the  more  likely  is  a  decision 
(if  come  to  at  all)  to  be  the  result  of  a  slight  prepon- 
derance of  one  over  each  of  many  conflicting  opinions. 

We  find  that  a  man  will  sometimes  warrant  a  Horse  in 
consequence  of  a  Veterinary  opinion  given  in  an  off-hand 
manner,  either  without  a  sufficient   examination   of  the 


INTRODUCTIOX.  h 

Horse  having  beeu  made,  or  sometimes  in  the  face  of 
actual  disease ;  for  the  giving  a  Warranty  seems  to  be 
considered  quite  a  trifling  matter.  Thus,  in  the  case  of 
Hall  V.  Rorjerson,  tried  at  the  Newcastle  Spring  Assizes, 
1847  («),  it  appeared  that  a  -fitness,  who  was  a  Veterinary 
Surgeon,  had  taken  off  the  Horse's  shoes,  and  examined  his 
feet,  when  he  found  a  slight  Convexity  of  Sole.  The  o^^-ner 
then  asked  him  if  he  would  he  justified  in  warranting  the 
Horse  as  it  had  been  warranted  to  him  ;  the  witness  asked 
him  if  he  was  satisfied  tlie  Horse  went  sound ;  he  replied, 
"  Perfectly  so  :"  he  then  said  he  was  justified.  On  cross- 
examination,  the  witness  said,  "  I  pointed  out  a  slight 
disease  in  the  Sole,  but  thought  he  would  have  been 
justified  in  warranting  him;  if  I  had  taken  the  pre- 
caution to  see  him  go,  things  might  have  been  different." 
So  that  a  Veterinary  Surgeon  finding  that  a  Horse  has 
a  disease  in  the  Sole,  and  without  taking  the  precaution 
to  see  him  go,  tells  the  0-\vner  he  is  justified  in  warranting. 
Now  the  use  of  the  word  justified  shows  that  neither  of 
the  parties  fully  knew  the  amount  of  liability  incurred  by 
giving  a  Warranty,  and  it  seems  as  if  they  had  considered 
it  rather  an  affair  of  conscience  or  honour  than  of  legal 
responsibility. 

That  the  Veterinary  profession  feel  the  greatest  diffi-  Difficulties 
culty  in  dealing  with  the  question  of  unsoundness  when  Vetermary 
called  upon  for  a  Certificate  on  that  point,  will  appear  profession. 
from  part  of   an  article  on   "  Soundness  as   opposed   to 
Lameness,"   by   Mr.    Percival,   M.E.C.S.,    editor   of  the 
Veterinarian;    he  writes,   "Reluctantly  as  we   enter   on 
this  difficult  and  much  debated  question,  we  feel  it  our 
duty  to  make  some  observations  on  the  subject,  though 
these  observations  will  be  rather  of  a  general  than  of  a 
particular  nature,  and  have  especial  reference  to  sound- 
ness, regarded  as  the  converse  of,  or  opposite  state  to, 
lameness.     No  person  buys  or  sells  a  Horse  without  feel- 
ing some  concern  as  to  the  soundness  of  the  animal ;  the 

(«)  Hall  V.  Rogerson,  Appendix. 


Iviii 


INTRODUCTION. 


purcliaser  is  apprehensive  lest  his  new  Horse  should  from 
any  cause  turn  out  unserviceable  or  unequal  to  that,  for 
the  performance  of  which  he  has  bought  him  ;  the  vendor 
is  apprehensive,  either  lest  the  animal,  in  other  hands, 
should  not  prove  that  sound  and  effective  servant  he  con- 
ceived or  represented  him  to  be,  or  lest  some  unrepre- 
sented or  concealed  fault  or  defect  he  is  aware  the  animal 
possesses  may  now,  in  his  new  master's  hands,  be  brought 
to  light." 

"Soundness,  as  opposed  to  actual  or  decided  lameness 
(or  as  synonymous  with  good  health),  is  a  state  too  well 
understood  to  need  any  definition  or  description ;  when 
we  come,  however,  to  draw  a  line  between  soundness  and 
lameness  in  their  distinguished  form — to  mark  the  point 
at  which  one  ends  and  the  other  begins — we  meet  a  diffi- 
culty, and  this  difficulty  increases  when  we  find  ourselves 
called  on  to  include,  under  our  denomination  of  unsound- 
ness, that  which  is  liliehj  or  has  a  tendency  to  bring  forth 
lameness.  It  will  be  requisite,  therefore,  for  us  to  say, 
not  simply  that  every  lame  Horse  is  unsound,  but  to  add 
these  words,  or  who  has  that  about  him  u-hich  is  likely  on 
work  to  render  him  lame.  This  will,  it  is  true,  open  the 
door  to  difference  of  opinion  and  equivocation.  There 
may,  as  we  have  seen,  spring  up  two  opinions  concerning 
the  2^rescnce  even  of  lameness.  There  will  in  more  cases 
be  two  opinions  concerning  that  which  is  accounted  to 
be  the  precursor  of  lameness,  or  may  have  a  tendency  at 
some  period  proximate  or  remote  to  produce  it ;  all  which 
differences  are  best  got  rid  of  by  reference  to  the  ablest 
Veterinary  advice.  There  will  be  less  diversity  of  opinion 
among  professional  men  than  among  others,  and  the  more 
skilful  and  respectable  the  professional  persons  are,  the 
greater  will  be  the  probability  of  a  liappy  unison  in  their 
views  of  the  case  "  (a). 
Conflicting  Mr.    Godwin,    M.E.C.S.,   Veterinary   Surgeon   to   the 

trsmmdnU   ^^^en,   makes   the    following   sensible    remarks    on   the 

(«)   The  Veterinarian,  vol.  xviii.  p.  366. 


INTRODUCTION.  lix 

Certificates  given  by  Veterinary  Surgeons  to  the  vendors 
and  purchasers  of  Horses.  He  says,  "  It  is  to  be  re- 
gretted that  the  members  of  the  Veterinary  profession 
have  not  been  taught  to  adopt  some  rules  for  rendering 
the  Certificates  they  are  requii*ed  to  give  upon  examining 
Horses  as  to  soundness,  at  least  somewhat  similar  in  the 
construction  and  expression  of  their  opinions,  so  as  to 
render  them  more  intelligible  to  the  persons  who  have  to 
pay  for  them.  I  am  quite  aware  of  the  impossibility  of 
attempting  to  reduce  professional  opinions  to  one  common 
standard ;  but  I  think  that  our  leading  practitioners  might 
meet  together,  and  agree  upon  some  general  principles  for 
their  guidance,  that  would  make  their  Certificates  less 
liable  to  the  censure  and  ridicule  they  both  merit  and 
incur.  The  occurrence  is  by  no  means  uncommon  for  a 
buyer  to  send  a  Horse  to  be  examined  by  a  Veterinary 
Surgeon,  and,  not  feeling  satisfied  with  the  opinion  he 
obtains,  to  send  him  to  another ;  and  then  comparing  the 
Certificates  of  the  two,  and  finding  them  diametrically 
opposite  in  their  statements,  he  finally  trusts  himself  to  the 
Warranty  of  the  dealer,  purchases  the  Horse,  and  at  the 
end  of  six  months  has  had  to  congratulate  himself  upon 
the  possession  of  a  sound  animal,  and  the  escape  he  has 
had  in  avoiding  tico  unsound  Certificates  "  {a). 

{a)  The  Veterinarian,  vol.  xix.  p.  88. 


THE 

LAW  OF  HORSES, 

INCLUDING  THE 

BARGAIN  AND   SALE   OF   CHATTELS 

.VLSO  THE  LAW  OF 

INNKEEPEES,  VETEEINAEY  SURGEONS,  &c. ; 

AND   OF 

EACING,  WAGEES  AND  GAMING. 


PART  I. 

CONTEACTS  CONCEENING  HOESES,  &c. 


CHAPTER  I. 

BUYING,  SELLING  AND  EXCHANGING  ;  THE  REQUISITES  OF 
THE  STATUTE  OF  FRAUDS  ;  DELIVERY  AND  PAYMENT, 
AND   THE    LAW   AS   TO    SUNDAY   DEALING. 


Bargain,  Sale  and  Exchange. 

Bargain    3 

Afffe  and  Exchange id. 

Bargain  and  Sale    id. 

Transfer  of  Property  by  Gift     . .  id. 
Exectited  and  Executory  Contract,  id. 

Entire  Contract    id. 

Severable  Contract    id. 

Verbal  Contract    id. 

Writtoi  Contract     id. 

Rigid  of  Rescission 4 

Right  of  Trial id. 

Buying  a  Horse  under  10/ id. 

Where  neither  Party  can  be  off , .     5 

Striking  a  Bargain id. 

Contract  not  to  be  performed  %cithin 

a  Year id. 

Statute  of  Frauds,  s.  4   id. 

Requisites  under  s.  4 id. 

Buying  a  Horse  at   lOl.  or  vp- 

urirds    6 

Statute  of  Frauds,  s.  17 id. 

Extended  by  9  Geo.  4,  c.  14   ....  id. 

Effect  of  Extension id. 

Requisites  under  s.  17     7 

O. 


The  Acceptance  and  Receipt. 

In  what  they  consist    7 

General  Rule    id. 

Acceptance  before  Delivery 8 

When  Vendor  may  disaffirm  Sale  id. 

Where  an  Article  is  selected  ....  id. 

Question  for  Jury    9 

Constructive  Possession  of  Buyer .  id. 

Seller  may  become  Agent  of  Buyer  1 0 
What  has  been  held  sufficient  as 

an  Aeccptcmce  and  Receipt ....  id. 

What  has  been  held  insufficient . .  1 1 

Various  Acts  of  Ownership   ....  12 

A  ready-Money  Transaction  ....  id. 
Criterion  for  determining  xehether 

Goods  accepted  or  not 13 

Where  Buyer  offers  to  resell  ....  id. 
Where  Goods  are  agreed  to  be  re- 
sold    id. 

Goods  bought  out  of  a  larger  Bulk  id. 

Vendee  disposing  of  Goods 14 

Goods  sold  by  Sample id. 

More  Articles  sent  than  ordered.,  id. 

Aeceptance  must  be  unequivocal. .  15 

Ee livery  Order    id. 


/t 


CONTRACTS  CONCERNING  HORSES,  ETC. 


The  Earnest  axd  Part-Payitent. 

Two  Kinds  of  Earnest    15 

Symbolical   16 

Fccuniary    id. 

Fecuniary  Earnest  is  Fart  pay- 
ment      id. 

Should  be  retained  by  I'cndor    . .    id. 

The  Old  Male id. 

Effect  of  Earnest  under  Statute  of 
Frauds 17 

Effect  of  Fart-payment id. 

Fart-payment  in  Contract  not 
icithin  Statute  of  Frauds    ....    id. 

The  Note  or  Memorandum  in 
Writing. 

Written  Agreement    17 

Ko  particular  Form  required ....  id. 
Names  of  the  Contracting  Farties  18 
Terms   of  the   Contract  must   be 

stated    id. 

May  be  collected  from  more  than 

one  Bocument id. 

The  Stamp  Act    id. 

Catalogue  at  a  Sale id. 

Frice  ichere  agreed  xipon     19 

Where  no  Frice  is  agreed  upon  . .    20 

Contract  by  Letter id. 

Sufficient  between  the  Farties  . .  id. 
Must  express  all  the  Terms  of  the 

Agreement   id. 

Mutual  Assent    21 

Where  the  Contract  is  complete  . .  23 
Terms  cannot  be  varied  bg  Farol .   id. 

But  may  be  cvplained 24 

Evidence  that  Goods  are  supiilicd 

on  Credit id. 

3fatters  antecedent  to  the  Writing  id. 

Condition  Frecedent     id. 

When  admissible id. 

Memorandum  made  after  Action  .  25 
A  foreign  Contract id. 

The  Signature  by  the  Party  to 
BE  charged. 

What  is  necessary   25 

As  to  Initials id. 

Where  a  Man  prints  his  Name. .  id. 

Names  of  Farties,  hoiv  to  he  shoivn  26 

Signature  for  other  Furpose   ....  id. 

The  Signature  by  an  Agent. 

What  is  necessary 26 

Who  may  be  an  Agent    27 

JIoiv  constituted id. 

Need  not  be  authorized  in  Writing  id. 

Auctioneer   id. 

Auctioneer'' s  Clerk id. 

Clear  Recognition  of  Contract  by 
Farties  stiff cient id. 


Delivery  and  Payment. 
Rights  of  F roper ty  and  Fossession  28 
Executed  and  Executory  Contracts  id. 
Fropcrty  may  pass  tcithout  Fe- 

livery    id. 

What  immediately  passes  the  Fro- 

perty     id. 

Condition  as  to  Frice  ascertainccble  id. 
Effect  u-here  not  ascertainable  , .  29 
Unreasonable,  but  not  therefore  to 

be  rejected     id. 

Risk  after  Sale    id. 

Goods  to  be  made  to  Order 30 

Goods  to  be  delivered  on  a  future 

Fay id. 

Felivcry    and   Fayment  contem- 

jjoraneous  Acts     id. 

Time  not  the  Essence  of  a  Contract  id. 
Where  nothing  is  said  about  the 

Time  of  Felivcry 31 

Relative  Fosition  of  the  Farties  . .   id. 

Seller'' s  Lien  for  the  Frice id. 

Lien  in  Case  of  an  Exchange  ....    id. 

Conditional  Fossession     id. 

Buyer'' s  Right  of  Fossession  where 

Goods  are  sold  on  Credit 32 

How  it  may  be  defeated id. 

Seller'' s  Lien  during  Fossession  . ,  id. 
His  Right  of  Stoppage  in  transitu  id. 
Whe>i  Goods  are   held   to  be  in 

transitu   id. 

When  anything  remains  to  be  done 

by  Seller   id. 

Eff'ect  of  Stoppage  in  transitu  . .  33 
Goods  to  be  delivered  before  Fay  - 

ment id. 

When    Time  of  Felivcry    is   not 

fixed  to  a  Fay id. 

Goods  to  be  paid  for^  before  De- 
livery        id. 

Renunciation  of  Contract    id. 

Frice  directed  to  be  sent  by  Fost . .    34 

Fost  Office  Order id. 

Forged  Bank  Note id. 

F'lshonourcd  Bill id. 

IDilves  of  Banli  Notes id. 

Wr'iting   off  Febt   to   Agent    by 

Agent id. 

Banker'' s  Cheque id. 

Bill  of  Exchange     35 

Febt  paid  to  a  Third  Farty   ....   id. 

Sunday  Dealing. 

Law  of  King  Athelstan 35 

Statute  of  Charles  2    id. 

Farjner  not  within  the  Statute  . .  36 

Sale  by  a  Ilorscdealer id. 

By  an  ordinary  Person id. 

A  subsequent  Rat'ification id.  ^ 

Breach  of  a  Warranty  g'lren  on  a 

Sunday     37 


BARGAIN,  SALE  AND  EXCHANGE. 


BARGAIN,  SALE  AND  EXCHANGE. 


A  BARGAIN  or  mutual  agreement  or  understanding  as  to  Bargain, 
terms  between  tlie  parties,  is  implied  in  every  contract  for 
a  Sale  or  Exchange  (a). 

A  Sale  is  a  transfer  of  goods  for  money,  and  an  Ex-  Sale  and  ex- 
change is  a  transfer  of  goods  for  other  goods  by  way  of  c^i^^^ge- 
barter,  and  in  either  case  the  same  rules  of  law  are  pre- 
scribed for  regulating  the  transaction  {b). 

Therefore  a  bargain  and  sale  of  personal  chattels  is  an  Bargain  and 
agreement  to  sell,  followed  and  completed  by  actual  sale(c).  '^^^^• 

In  order  to  transfer  property  by  gift,  there  must  either  Transfer  of 
be  a  deed  or  instrument  of  gift,  or  there  must  be  an  actual  Pyop^^^'ty  ^7 
delivery  of  the  t/tijig  to  the  donee.     So,  where  the  plain-  ° 
tiff  claimed  two  Colts  under  a  verbal  gift  made  to  him  by 
his  father  twelve  months  before   his  death,  which  how- 
ever remained  in  his  father's  possession  until  his  death,  it 
was  held,  that  the  property  in  them  did  not  pass  to  the 
son  {(l). 

A  contract  may  be  either  executed,  as  if  A.  agrees  to  Executed  and 
change  Horses  with  B.,  and  they  do  it  immediately ;  or  e-'^ecutory 
it  may   be   executory,  as   if   they   agree   to  change  next  '    "    - 

week  [e). 

If  a  person  buy  a  Horse  and  a  Pony  together  for  100/.,  Entire  con- 
the  contract  is  entire,  as  there  is  no  means  of  determining 
the  price  of  each  (/). 

But  if  he  should  purchase  them  both  together,  agreeing  Severable 
to  pay  30/.  for  the  Pony,  and  70/.  for  the  Horse,  the  con-  contract, 
tract  would  be  severable ;  and  if  the  seller's  title  to  the 
Pony  should  fail,  the  buyer  w^ould  be  obliged  to  keep  and 
pay  for  the  Horse  (./). 

Where  a  bargain  is  made  by  word  of  mouth,  all  that  Verbal  con- 
passes  may  sometimes  be  taken  together  as  forming  parcel 
of  the  contract,  though  not  always,  because  matter  talked 
of  at  the  commencement  of  a  bargain  may  be  excluded  by 
the  language  used  at  its  termination  ( g) . 

But  if  the  contract  be  in  the  end  reduced  into  writing.  Written  con- 
nothing  which  is  not  found  in  the  writing  can  be  con-    ^^'^  ' 
sidered  as  part  of  the  contract  [g). 

(«■)  See  2  Steph.  Com.  67.  Aid.  551. 

[h)  2  Steph.  Com.  66;  Anou.,  3  {c)  2  Steph.  Com.  57. 

Salk.  157;   Chit.  jun.  Contr.  11th  (/)  See  Ilincr    v.    Bradley,    22 

ed.  353.  Pick.  Eep.  459  (Amer.);  Johnson  v. 

(c)  Com.  Dig.  Bargain  and  Sale  Johnson,  3  B.  &  P.  162  ;  Story  on 

(A.).  Sales,  164,  190. 

(rf)  Irons  V.  HmaUpkcc,  2  Barn.  &  (v)  Knln  v.  OW,  2  B.  &  C.  634. 

b2 


CONTRACT?  CONCERNING  HORSES,  ETC, 


Eig-ht  of  res- 
cission. 


Risrlitof  trial. 


Buying  a 
horse  under 
10/. 


"Where  one  of  the  parties  has  the  option  of  completing 
a  contract  or  agreement  at  a  particular  day,  the  other 
party  has  a  right  of  rescission  at  any  time  before  the  ratifi- 
cation by  the  first  (//).  Thus,  where  A.  proposed  to  ex- 
change Horses  with  B.  and  give  him  a  specific  sum  as 
difference,  and  B.  reserved  to  himself  the  privilege  of 
determining  upon  it  by  a  certain  day,  and  before  that 
day  arrived,  A.  gave  notice  to  B.  that  he  would  not 
confirm  the  proposed  contract,  it  was  held  that  no  action 
would  lie  to  recover  the  difference  agreed  to  be  paid 
byA.(0. 

Where  an  arrangement  is  made  that  the  person  pro- 
posing to  purchase  shall  have  the  right  of  trial  during  a 
certain  time,  the  other  party  cannot  conclude  the  nego- 
tiation until  the  time  allotted  has  elapsed.  Thus  A., 
having  a  Ilorse  to  sell,  agreed  to  let  B.  have  him  for  30 
guineas,  if  he  liked  him, '  and  that  he  should  take  him 
a  month  upon  trial.  B.  accordingly  took  him,  and  kept 
him  about  a  fortnight,  and  then  told  A.  he  liked  the 
Ilorse  but  not  the  price.  A.  desired  him,  if  he  did  not 
like  the  price,  to  return  the  Horse,  but  B.  kept  him  ten 
days  longer,  and  then  returned  him.  A.,  however,  re- 
fused to  receive  him,  and  brought  an  action  on  the  con- 
tract for  30  guineas.  It  was  held  by  the  Court  of  Common 
Pleas  that  ho  could  not  maintain  such  action  (/r). 

"Where  a  Horse  is  bought  for  any  price  or  consideration 
under  the  value  of  10/.,  and  there  is  not  an  actual  payment 
and  delivery  at  the  time  of  sale,  and  the  contract  is  to  be 
performed  within  a  year,  the  bargain  may  be  bound  by  any 
of  the  following  five  methods  (/) ;  1st.  An  agreement  to 
deliver  the  Ilorse  on  a  certain  day,  a  day  also  being  agreed 
upon  for  payment  of  the  price  ;  and,  in  default,  the  buyer 
may  have  an  action  for  the  Horse,  or  the  seller  for  his 
money ;  2ndly.  The  payment  of  the  whole  price,  and  then 
if  the  seller  do  not  deliver  the  Horse,  the  buyer  may  sue 
him,  and  recover  it ;  3rdly.  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  (u/)  may  be  given,  and  even  the  smallest 
sum  is  sufficient,  and  in  such  case  the  remedies  are  reciprocal ; 
5thly.  An  actual  delivery  of  the  Horse,  and  even  if  there 


{h)  Faym  v.  Cave,  3  T.  E.  148; 
Story  on  Sales,  99. 

(»)  Eskridgc  v.  Glover,  5  Stew.  & 
Port.  (Amer.)  2G4. 


(/■)  Ellis  V.  Mortimer,  4  B.  &  P. 
257. 

[I)  Sheppard's  Toucli.  225. 
{in)  Earnest,  post,  15. 


BARGAIN,  SALE  AND  EXCHANGE.  0 

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. 

Where  the  price  is  under  10/.,  and  the  seller  states  what  Where  neither 
he  asks  for  his  Horse,  and  a  buyer  says  he  will  give  it,  the  ^^^^  ^^^  ^^ 
bargain  is  struck,  and  neither  of  them  are  at  liberty  to  be 
off,  provided  that  immediate  possession  of  the  Horse  or  the 
money  be  tendered  by  either  side  («) . 

Anciently,  among  all  the  northern  nations,  shaking  of  Striking  a 
hands  was  held  necessary  to  bind  a  bargain,  a  custom  which  ^^'^^o^^^- 
we  still  retain  in  many  verbal  contracts.  A  sale  thus  made 
was  called  a  //and  sale,  "  venditio  per  mutuam  manuum  com- 
pkxioiiem"  (o).  This  method  of  striking  a  bargain  is  very 
much  practised  in  the  north  of  England  at  the  present  day, 
both  in  horsedealing  and  other  transactions ;  and  whatever 
efficacy  it  may  be  supposed  to  have  from  custom  in  small 
dealings,  it  certainly  does  not  bind  the  bargain  where  the 
Horse  is  worth  10/.  or  upwards,  or  where  the  agreement  is 
not  to  be  performed  within  a  year. 

Where  the  contract  for  the  sale  or  exchange  of  a  horse  Contract  not 
is  not  to  be  performed  within  a  year,  the  agreement  itself  ^J^  ^®  ?®^',,  • 

^  ,  ,        P  -J  1  1      •  "i-  1    lormed ■witmn 

or  some  memorandum  or  note  oi  it  must  be  m  writing,  and  a  year, 
be  signed  by  the  party  to  be  charged  or  his  agent,  within 
the  4th  section  of  the  Statute  of  Frauds  (p). 

The  words  of  the  4th  section  of  the  Statute  of  Frauds  Statute  of 
applicable  to  a  contract  of  this  description  are  as  follows  :  ^^^^^'  ^-  • 
"  And  be  it  enacted,  that  no  action  (q)  shall  be  brought 
upon  any  agreement  that  is  not  to  be  performed  within 
the  space  of  one  year  from  the  making  thereof,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully  authorized." 

A  contract  not  to  be  performed  within  a  year  is  very  Requisites 
seldom  made  in  buying  or  selling  a  Horse  ;  and  it  will  be  under  s.  4. 
seen  that  the  only  distinction  between  the  4th  and  17th 
sections  of  the  statute  is  this,  that  under  the  4th  section 
the  whole  contract  must  be  in  writing,  including  the  con- 
sideration which  induced  the  party  to  make  the  stipula- 
tion ;  whereas  under  the  17th  section  it  is  sufficient  if  all 
the  terms  by  which  the  defendant  is  to  be  bound  are  stated 
in  writing  so  as  to  bind  liini  (r). 

(«)   Cooper  V.  Andreivs,  Hob.  41  ;  (i^)  29  Car.  2,  c.  3. 

Noy's  Max.  c.  42;  2Bla.  Com.  447.  (7)  Leroux  v.  Broioi,  post,  p.  25. 

(0)  2  Bla.  Com.  448.  (/)  Marshall  v.  Lynn,  6  M.  &  W. 


b       •  CONTRACTS  CONCERNING  HORSES,  ETC. 

Buying-  a  The  17th  sectlon  of  the  Statute  of  Frauds  is  the  founda- 

horse  at  10/.     ^'qj^  q£  ^j^g  ]^g^.^  o^overniuff  the  transfer  of  goods  and  chattels 

or  ui^'WcirQS  cj  cj  o 

worth  10/.  or  upwards,  and  among  other  things  the  buying 
and  selling  of  Horses  of  that  value. 
Statute  of  The  words  of  the  17th  section  of  the  Statute  of  Frauds 

Frauds,  s.  17.  r^j.Q  ^g  follows  I  "  And  be  it  enacted,  that  no  contract  for 
the  sale  of  any  goods,  wares  or  merchandizes,  for  the  price 
of  10/.  or  upwards,  shall  be  allowed  to  be  good,  except  the 
buyer  shall  accept  part  of  the  goods  so  sold,  and  actnalhj 
receive  the  same,  or  give  something  in  earnest  to  bind  the 
bargain,  or  in  part  payment^  or  that  some  note  or  memoran- 
dum in  writing  of  the  said  bargain  be  made  and  signed  by 
the  party  to  he  charged  by  such  contract,  or  their  agents 
thereunto  lawfully  authorized." 
Extended  by  This  statute  was  further  extended  by  9  Greo.  4,  c.  14, 
9  Geo.  4,  c.  14.  commonly  called  Lord  Tenterden's  Act,  by  the'  7th  sec- 
tion of  which  it  is  enacted,  that  "the  provisions  of  the 
Statute  of  Frauds  shall  extend  to  all  contracts  for  the  sale 
of  goods  to  the  value  of  10/.  om  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." 
Effect  of  ex-  The  17th  section  of  the  Statute  of  Frauds,  and  the  7th 
tension.  section  of  Lord  Tenterden's  Act,  must  be  read  together ; 

the  effect  of  which  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/.,"  and  thus  to  make  the 
rule  uniform  in  all  cases  (.s) .  Accordingly,  where  an 
action  was  brought  on  a  verbal  contract,  under  which  the 
plaintiff  agreed  to  sell  to  the  defendant  a  certain  Mare 
and  Foal,  and  at  his  own  expense  to  keep  this  and 
another  Mare  and  Foal  which  belonged  to  the  defendant 
for  a  certain  fixed  time,  and  the  defendant  agreed  to 
purchase  the  first-named  Mare  and  Foal  and  to  fetch  them 
away  at  the  end  of  the  term  thus  fixed,  and  to  pay  the 
plaintiff  the  sum  of  30/.  ;  it  was  held,  that  this  contract 
was  one  within  the  statute,  and  which  coidd  not  therefore 
be  enforced,  inasmuch  as  though  it  did  not  very  distinctly 
appear  on  the  face  of  the  contract  that  the  plaintiff's 
Mare  and  Foal  were  worth  more  than  10/.,  yet  that  they 

118;  Wa'iHY.  JFf/rltcrs,  2  Sin.  Jj.  G.  (.s)   Scoff   v.    Fasfcm   Counties   E. 

8th  ed.  261,  262  ;  and  see  Benj.  on       Co.,  12  M.  &  W.  33. 
Sales,  2nd  ed.  91, 


BARGAIN,  SALE  AND  EXCHANGE,  7 

miglit  and  would  have  been  shown  by  parol  evidence  to 
be  so,  and  that  there  could  be  no  doubt  of  the  fact.  It 
was  also  held,  that  this  contract  was  not  less  within  the 
statute  because  something  else,  which  was  merely  ancillary 
to  its  principal  subject-matter,  and  to  which  the  17th  section 
of  the  Statute  of  Frauds  did  not  apply,  was  included  in  it, 
as  the  contract  was  an  entire  one  and  the  price  was  indi- 
visible (0. 

Therefore  to  make  the  sale  of  a  Horse  at  10/.  or  upwards  Eequisites  of 
valid  under  the  17th  section  of  the  statute,  the  buyer  must  *  ^'^^j^  o^ 
either  actually  accept  and  receive  it,  or  give  something  in  faluethanio^. 
earnest  to  bind  the  bargain,  or  something  in  part  payment ; 
or  the  parties  to  bo  charged  must  either  themselves  or  by 
their  agents  make  and  sign  some  note  or  memorandum  in 
writing  of  the  bargain. 
We  shall  consider — 

1st.  The  Acceptance  and  Receipt. 

2nd.  The  Earnest  and  Part  Payment. 

3rd.  The  Note  or  Memorandum  in  writing. 

4th.  The  Signature  by  the  Party  to  be  charged. 

5th.  The  Signature  by  an  Agent. 


THE    ACCEPTANCE    AND    RECEIPT. 

To  satisfy  the  Statute  of  Frauds,  there  must  be  an  ac-  In  what  they 
ceptance  and  a  receipt  of  the  goods,  and  the  acceptance  ''°^^^^''- 
must  be  of  the  goods  "  so  sold,"  for  the  enjoyment  of 
something  merely  engrafted  upon  the  principal  subject- 
matter  of  the  contract  will  not  satisfy  the  statute  (t).  The 
acceptance  must  be  with  the  intention  of  taking  pos- 
session as  owner.  And  the  receipt  implies  deliver}^,  either 
actual  or  constructive  {u). 

There  is  always  an  acceptance  and  receipt  by  the  pur-  General  rule, 
chaser  when  the  vendor  has  parted  with  his  lien,  because, 
as  was  laid  down  by  Mr.  Justice  Holroyd,  "  upon  a  sale 
of  specific  goods  for  a  specific  price,  by  parting  with  the 
possession  the  seller  parts  with  his  lien.  The  statute 
contemplates  such  a  parting  with  the  possession,  and 
therefore,  so  long  as  the  seller  preserves  his  control  over 
the  goods,  so  as  to  retain  his  lien,  he  prevents  the  vendee 
from  accepting  and  receiving  them  as  his  own  within  the 
meaning  of  the  statute  "  {ir). 

[t)  minnan  v.  Seevc,  25  L.  J.,  C.  {ic)   Baldeif  v.  Pnrl-er,  2  B.   &  C. 

r.  257.  44  ;  S.  C.  3  D.  &  E.  220  ;  Cxsack  v. 

{u)  See  per  Parke,  B.,  Saioiders  liobiiisoii,  30  L.  J.,  Q.  B.  261  ;  and 

V.  Topj),  4  Ex.  394 ;  Holmes  v.  IIos-  see  Benjamin  on  Sales,  2nd  cd,  140. 
Icins,  9  Ex.  753. 


8 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Acceptance 
before  de- 
livery. 


In  the  case  of  Saunders  v.  Topp  {u),  the  learned  Judges 
doubted  whether  in  any  case  there  could  be  an  acceptance 
and  receipt  before  actual  delivery.  But  recent  cases 
show  that  in  the  case  of  specific  goods  the  acceptance 
may  precede  the  actual  delivery,  and  need  not  be  con- 
temporaneous or  subsequent  to  it  (x).  For  inasmuch  as 
the  vendor  may  lose  his  lien  on  the  goods  without  losing 
the  personal  possession  of  them,  so  may  a  vendee  have 
accepted  and  have  actually  received  them  within  the 
meaning  of  the  statute  without  having  the  personal  pos- 
session of  them  ;  ('.//.,  in  a  case  in  which  it  is  agreed 
between  the  vendor  and  the  vendee  that  the  possession 
shall  thenceforth  be  kept,  not  as  vendor,  but  as  bailee 
for  the  purchaser,  the  lien  of  the  vendor  is  gone,  and  the 
goods  are  no  longer  in  his  possession  as  unpaid  vendor  {>/). 
When  vendor  The  vcndor  may  at  any  time  disaffirm  a  sale  of  goods 
maydisaffinn  q£  ^|^g  value  of  10/.  or  upwards,  if  only  contracted  to  be 
made  by  parol,  before  the  vendee  does  anything  to  bind 
the  bargain;  if,  however,  the  buyer  has  "taken  to"  the 
goods,  before  the  contract  is  disaffirmed,  it  will,  as  it  would 
seem,  bind  the  bargain  in  favour  of  the  buyer  as  well  as 
the  seller  (~) . 

Where  however  an  article  is  selected  by  the  buyer,  very 
slight  evidence  of  its  acceptance,  n-hen  received,  would  be 
sufficient  to  show  an  acceptance,  coupled  with  a  receipt. 
As  where  the  defendant  verbally  agreed  to  buy  some  sheep 
which  he  had  selected  from  the  plaintiff's  flock,  and 
directed  them  to  be  sent  to  his  field,  which  was  accordingly 
done.  Two  days  afterwards  he  sent  his  man  to  remove 
them  from  the  field  to  his  farm,  which  was  some  miles 
distant,  and  on  their  arrival  he  counted  them  over  and 
said,  "  It  is  all  right."  It  was  held  that  this  was  evidence 
for  the  Jury  of  his  acceptance  of  the  sheep  so  as  to  satisfy 
the  Statute  of  Frauds,  notwithstanding  he  afterwards  re- 
pudiated the  purchase,  and  sent  the  sheep  back  to  the 
plaintiff  (a).  And  Mr.  Baron  Alderson  remarked  on  the 
case  as  follows :  "  The  previous  selection  of  the  sheep  is 
very  material,  to  show  the  nature  of  the  acceptance  when 
the  sheep  w^ere  received.  The  defendant  says,  '  It  is  all 
right.'     If  he  had  never  seen  the  sheep,  and  there  had 


Where  an 
article  is 
selected. 


(u)  Sec  note  («),  ante,  p.  7. 

(z)  Morton  v.  Ttbbcit,  15  Q.  B. 
428  ;  UusacJcv.  Robinson,  30  L.  J., 
Q.  B.  261. 


(;/)  Cnsach  v.  Eohiuson,  30  L.  J., 
Q.B.  261. 

(c)  Tcnjlor  v.  WaJcrfield,  6  E.  & 
B.  765. 

(«)  Saunders  v.  Topp,  4  Ex.  390. 


THE  ACCEPTANCE  AND  RECEIPT.  \) 

been  no  previous  acceptance,  his  saying  '  It  is  all  right ' 
would  have  had  no  effect;  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  Horse  with  peculiar  spots,  the  vendee  had 
said,  '  All  right,'  there  could  be  no  doubt  he  would  mean 
*  This  is  the  Horse  I  bought.'"  [b). 

It  is  a  question  for  the  Jury  whether  there  has  been  an  Question  for 
acceptance  and  receipt.  Thus  W.,  living  at  Hereford,  *^^*^  J^^'i"- 
ordered  goods  (at  a  price  above  10/.)  of  A.,  living  at 
Bristol,  and  directed  that  they  should  be  sent  by  the 
"  Hereford "  slooj)  to  Hereford.  They  were  sent  accord- 
ingly, and  a  letter  of  advice  was  also  sent  to  W.,  with  an 
invoice,  stating  the  credit  to  be  three  months.  On  their 
arrival  at  Hereford  they  were  placed  in  the  warehouse  of 
the  owner  of  the  sloop,  where  W.  saw  them ;  and  he  then 
said  to  the  warehousemen  that  he  would  not  take  them, 
but  he  made  no  communication  to  A.  till  the  end  of  five 
months,  when  he  repudiated  the  goods.  A.  brought  an 
action  against  AV.  for  the  price,  and  it  was  held  that  the 
Judge  ought  not  to  have  told  the  Jury  that  there  was  no 
acceptance  and  actual  receipt  under  the  Statute  of  Frauds, 
but  should  have  left  them  to  find,  upon  these  facts,  whether 
or  not  there  had  been  such  acceptance  and  actual  receipt  (r). 

It  has  been  stated  above  {d)  that  there  may  be  an  ac-  Coustmctive 
ceptance  and  receipt  by  the  vendee  before  the  goods  are  possession  by 
actually  delivered  by  the  vendor.  Thus,  after  the  de- 
fendant had  verbally  agreed  to  jourchase  of  the  plaintiff  a 
Horse,  but  before  there  had  been  any  actual  delivery 
plaintiff  requested  defendant  to  lend  it  to  him  to  take 
certain  journeys.  To  this  the  defendant  assented,  and  the 
Horse  remained  with  plaintiff  for  a  fortnight,  when  it  was 
sent  to  the  defendant,  who  however  refused  to  receive  it : 
the  Jmy  found  that  the  bargain  for  the  purchase  of  the 
Horse  was  complete  before  the  proposal  to  borrow  it  was 
made,  and  that  the  defendant,  as  owner  of  the  Horse,  gave 
plaintiff  permission  to  keep  it.  It  was  thereupon  held  that 
there  was  evidence  of  an  acceptance  and  receipt  of  the 
Horse  to  satisfy  the  Statute  of  Frauds  (e).     But  the  con^ 

(i)    Ibid.    395.      See   also   Sun-  160.     See  also  BeDJamiu  on  Sales, 

monds  v.  Humble,  13  C.   B.,  N.  S.  2nd  ed.  113. 

258.  ((/)  See  ante,  p.  8. 

(c)  Bitshell  V.  Wheeler,  15  Q.  B.  [c)    Marvin   v.    Wallace,   2   Jur., 

442  ;   Jordan  v.  Norton,  4  M.  &  W.  N.  S.  689. 


10 


CONTRACTS  CONCERNING  HORSES,  ETC 


Seller  may 
become  agent 
for  buyer. 


What  has 
been  held 
sufficient  as 
an  acceptance 
and  receipt. 


structive  possession  by  the  vendee  must  be  clearly  siicli,  as 
that  by  it  the  vendor  would  lose  his  lien  on  the  goods  (./). 

In  all  cases  of  this  description  there  may  be  such  a 
change  of  character  in  the  seller  as  to  make  him  the  agent 
of  the  buyer,  so  that  the  buyer  may  treat  the  possession 
of  the  seller  as  his  own  {(j)  ;  and  the  question  for  the  Jury 
will  be,  whether  the  seller  held  the  subject-matter  of  the 
sale  as  owner,  or  merely  as  keeper  for  the  buyer.  Thus, 
when  A.  agreed  to  purchase  of  B.  a  Ovirriage  then  standing 
in  B.'s  shop,  A.  at  the  same  time  desiring  that  certain 
alterations  might  be  made  on  it,  the  alterations  having 
been  made,  the  Carriage  was,  at  A.'s  request,  placed  in 
the  back  shop.  A.  called  at  the  shop  on  a  Saturday,  and 
requested  B.  to  hire  a  Horse  and  a  man  for  him,  and  to 
send  the  Carriage  to  his  house  on  the  following  day,  in 
order  that  he  might  take  a  drive  in  it.  A.  had  previously 
intimated  his  intention  to  take  the  Carriage  out  a  few 
times,  in  order  that,  as  he  was  going  to  take  it  abroad,  it 
might  pass  the  Custom-IIouse  as  a  second-hand  Carriage. 
The  Carriage  was  accordingly  sent  to  and  iised  by  A.  on 
the  Sunday,  A.  paying  for  the  hire  of  the  Horse  and  man. 
A.  afterwards  refused  to  take  or  pay  for  the  Carriage.  It 
was  held  that  there  was  a  sufficient  acceptance  and  receipt 
of  the  Carriage  by  A.  before  the  Sunday,  within  the  17th 
section  of  the  Statute  of  Frauds  {Ji). 

In  some  cases  great  difficulty  arises  in  deciding  whether 
there  has  been  such  an  acceptance  and  receipt  as  consti- 
tutes a  constructive  delivery  under  the  statute;  and  we 
shall  see  by  the  following  cases  that  some  very  nice  dis- 
tinctions have  been  drawn  :  Elmore  v.  Stone  (i)  is  a  leading 
case  on  the  subject,  and,  though  its  authority  was  doubted 
by  Mr.  Justice  Bayley  in  Hoire  v.  Palmer  (./),  it  will  be 
seen  that  it  may  be  distinguished  from  that  and  all  the 
following  cases. 

In  Elmore  v.  Stone  (/)  an  action  was  brought  for  the 
price  of  two  Horses,  and  a  question  arose  whether  there 
had  been  a  delivery  of  them  under  the  Statute  of  Frauds. 
The  plaintiff  was  a  Lirerij-stalile  keeper  and  Horse  dealer. 
He  asked  180  guineas  for  two  Horses,  which  the  defendant 
at  first  refused  to   give,  but   afterwards  sent  word  that 

( /)    Holmes   V.  Hoskbis,    9   Ex.  (J)  Elmore  v.  Stone,  1  Taunt.  458. 

753.  See  also  Kibble  v.  Goii(//i,  38  L.  T., 

{(/)   Castle  V.  Sicordo;  30  L.  J.,  N.  S.  204— C.  A. 
Ex.  310.  U)  iioi-<''<:  V.  Fulmcr,  3  B.  &  Aid. 

{h)  Beaumont  v.  Brcugeyi,  5  C.  B.  324. 
301. 


THE  ACCEPTANCE  AND  RECEirT.  11 

"  the  Horses  were  his,  but  that  as  he  had  neither  servant 
nor  stable  the  plaintiff  must  keep  them  at  livery  for  him  ;" 
the  plaintiif  assented,  and  removed  them  out  of  the  sale 
stable  into  another.  The  defendant  afterwards  refused  to 
take  them,  and  set  up  for  his  defence  the  17th  section  of 
the  Statute  of  Frauds.  It  was  there  held  that  if  a  man 
bargains  for  the  purchase  of  goods,  and  desires  the  vendor, 
to  keep  them  in  his  possession  for  an  especial  purpose  for 
the  vendee,  and  the  vendor  accepts  the  order,  it  is  a  suffi- 
cient delivery  of  the  goods  within  the  Statute  of  Frauds, 
and  that  it  is  no  objection  to  a  constructive  delivery  of 
goods  that  it  is  made  by  words  parcel  of  the  parol  contract 
of  sale ;  and  Chief  Justice  Mansfield  said,  "  A  common 
case  is  that  of  a  sale  of  goods  at  a  wharf  or  a  warehouse, 
where  the  usual  practice  is  to  deliver  the  key  of  a  ware- 
house or  a  note  to  the  wharfinger,  who  in  consequence 
makes  a  new  entry  of  the  goods  in  the  name  of  the 
vendee,  although  no  transfer  of  the  local  situation  or 
actual  possession  takes  place.  After  the  defendant  in  this 
case  had  said  that  the  Horses  must  stand  at  livery,  and 
the  plaintiff  had  accepted  the  order,  it  made  no  difi;'erence 
whether  they  stood  at  livery  in  the  vendor's  stable,  or 
whether  they  had  been  taken  away  and  put  in  some  other 
stable.  The  plaintiff  possessed  them  from  that  time,  not 
as  owner  of  the  Horses,  but  as  any  other  livery-stable 
keeper  might  have  them  to  keep.  Under  many  events  it 
might  appear  hard  if  the  plaintiff  should  not  continue  to 
have  a  lien  upon  the  Horses  which  were  in  his  own  posses- 
sion, so  long  as  the  price  remained  unpaid  ;  but  it  was  for 
him  to  consider  that  before  he  made  his  agreement.  After 
he  had  assented  to  keep  the  Horses  at  livery,  they  would, 
on  the  decease  of  the  defendant,  have  become  general 
assets ;  and  so,  if  he  had  become  bankrupt,  they  would 
have  gone  to  his  assignees.  The  plaintiff  could  not  have 
retained  them,  though  he  had  not  received  the  price." 

But  where  a  purchaser  verbally  agreed  at  a  public  Wliat  has 
market  with  the  agent  of  the  vendor  to  purchase  twelve  l^een  held 
bushels  of  tares  (then  in  the  vendor's  possession,  consti- 
tuting part  of  a  larger  quantity  in  bulk),  to  remain  in  the 
vendor's  possession  till  called  for,  and  the  agent  on  his 
return  home  measured  the  twelve  bushels  and  set  them 
apart  for  the  purchaser,  it  was  held  by  the  Court  of  King's 
Bench  that  this  did  not  amount  to  an  acceptance  by  tiie 
latter,  so  as  to  take  the  case  out  of  the  17th  section  of  the 
Statute  of  Frauds.     And  Mr.  Justice  Bayley  said,  "  In 


12 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Various  acts 
of  owuersliip. 


A  ready - 
money  trans- 
action. 


Elmore  v.  Stone  (k)  the  buyer  directed  expense  to  be  in- 
curred, 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  the  direction  of  the  buyer;  here  there 
is  none.  But  I  must  say,  however,  that  I  doubt  the 
authority  of  that  decision.  This  case  is  clearly  within  the 
statute"  (/). 

However,  the  case  of  Elmore  v.  Stone  (/•)  seems  to  have 
been  properly  decided,  because  the  plaintiff,  being  a  Licerij- 
stabte  keeper  as  well  as  a  Horse  dealer,  the  buyer,  by  order- 
ing him  to  keep  the  Horses  at  livery,  directed  expense  to  be 
incurred ;  and  the  plaintiff,  by  consenting  to  keep  them  at 
livery,  relinquished  his  possession  as  owner,  and  held  them 
only  as  Lieery-dahle  keeper. 

In  the  case  of  Carter  v.  Touissant  (ni),  which  was  a  sale 
upon  credit,  the  purchaser  had  exercised  various  acts  of 
ownership  over  the  Horse,  which  were  held  to  be  no  ac- 
ceptance within  the  statute.  It  appeared  that  the  Horse 
was  sold  by  a  parol  contract  for  30/.,  but  no  time  was  fixed 
for  the  payment  of  the  price.  The  Horse  was  fired  in  the 
purchaser's  presence,  and  with  his  approbation,  and  it  was 
agreed  that  the  Horse  should  be  kept  by  the  vendor  for 
twenty  days  without  any  charge  being  made  for  it.  At 
the  expiration  of  that  time  the  Horse  was  sent  to  grass  by 
the  direction  of  the  purchaser,  and  by  his  desire  entered  as 
the  Horse  of  the  vendor.  Chief  Justice  Abbott  and  Jus- 
tices Bayley  and  Holroyd  distinguished  this  case  from 
Elmore  v.  Stojie  (/»•),  on  the  ground  that  there  the  plaintiff 
was  both  a.  Lirer //-stable  keeper  and  a  Horse  dealer;  but  that 
here  he  was  not ;  and  held  that  there  was  no  acceptance  of 
the  Horse  by  the  purchaser  within  the  17th  section  of  the 
Statute  of  Frauds. 

The  following  case  was  a  ready-money  transaction,  and 
the  agreement  was  that  the  Horse  should  be  taken  away 
and  the  money  paid  on  a  certain  day ;  on  that  ground 
there  was  held  to  have  been  no  acceptance  within  the  sta- 
tute, although  the  purchaser  had  exercised  various  acts  of 
ownership  over  him.     It  seems  A.  entered  into  a  parol 


{k)i:imore  v.  Stour,  1  Taimt.  458. 

{!)  Howe  V.  ralmer,  3  B.  &  Aid. 

324.     And  see  Itickard  v.   Moore, 


38  L.  T.,  N.  S.  841— C.  A. 

(;«)   Carter  v.    'Touissant,  2  B.   & 
Aid.  855 ;  S.  C,  1  D.  &  E.  515. 


THE  ACCEPTANCE  AMD  RECEIPT.  13 

agreement  to  purcliase  a  Horse  of  B.  for  ready  money,  and 
to  take  him  away  at  a  time  agreed  upon.  Shortly  before 
the  expiration  of  that  time  A.  returned  and  ordered  the 
Horse  to  be  taken  out  of  the  stable,  when  he  and  his 
servant  mounted,  galloped  and  leaped  him ;  and  after  they 
had  so  done,  his  servant  cleaned  him,  and  A.  himself  gave 
directions  that  a  roller  should  be  taken  off  and  a  fresh  one 
put  on,  and  that  a  strap  should  be  put  upon  his  neck, 
which  was  consequently  done :  A.  then  requested  that  he 
might  remain  in  B.'s  possession  a  week  longer,  at  the 
expiration  of  which  time  he  promised  to  fetch  him  away 
and  pay  for  him ;  to  this  B.  assented.  The  Horse  died 
the  day  before  A.'s  return,  and  he  refused  to  pay  the 
price.  It  was  held  by  the  Court  of  King's  Bench  that 
this  was  a  ready-money  bargain,  and,  as  the  purchaser 
could  have  no  right  to  take  away  the  Horse  till  he  had 
paid  the  price,  that  there  was  no  acceptance  of  the  Horse 
within  the  meaning  of  the  Statute  of  Frauds  (o). 

The  conduct  of  the  vendee  after  the  receipt  of  the  goods  Criterion  for 
will  often  be  the  criterion  for  determining  whether  he  has  detei-mining 
accepted  them(;;).     Acts  done  for  the  mere  purpose  of  ^e*accejted  ^ 
examination   of   the  goods  do  not  constitute  an  accept-  or  not. 
ance  (</).     But  a  person  must  be  taken  to  have  accepted 
goods  within  the  statute,  if,  on  their  being  sent  to  him, 
he  uses  more  of  them  than  is  necessary  to  test  them  (r). 

Where  a  person,  who  has  contracted  for  the  purchase  Where  a 
of  a  Horse  or  any  other  goods,  offers  to  resell  them  as  his  buyer  offers  to 
own,  it  is  a  question  for  the  Jury  whether  or  not  a  deli-  ^^^^  ' 
very  to  and  acceptance  by  himself  has  been  proved  (.s). 
Where,  however,  the  defendant  offered  goods  which   he 
had  refused  to  accept,  for  resale  in  the  market,  stating  at 
the  same  time  that  he  had  not  accepted  them,  and  that  he 
would  have  to  make  other  arrangements  before  he  could 
sell,  it  was  held  that  there  had  been  no  acceptance  (/). 

An  agreement  for  the  resale  of  goods  by  the  vendee  is  Where  goods 
sufficient  evidence  of  a  delivery  and  acceptance,  as  against  are  agreed  to 
him,  to  leave  to  the  Jury  [u). 

If  a  man  buys  a  quantity  out  of  a  larger  bulk,  he  does  Goods  bought 

(o)   Tempest  v.  Fitzgerald,  3  B.  &  13  Ir.  Com.  Law  Reps.  160  ;  and 

Aid.  680.  see  Hcilbnt  v.  llickson,  L.  E.,  7  C. 

{p)  Farker  v.  JFallls,  5  E.  &  B.  P.  438  ;  41  L.  J.,  C.  P.  228. 

28.  (s)  Blenkinsop  v.  Clayton,  7  Taunt. 

{q)  Kicholson  v.  Bower,  28  L.  J.,  597. 

Q.  B.  97.  (0  Rielcard  v.  Moore,  38  L.  T., 

(r)  Harnor  v.    Groves,   24  L.  J.,  N.  S.  811— C.  A. 

C.  P.   53;    Coventry  v.  M'Fnivry,  {u)  Chaplin  v. Rogers,  lEast,  192. 


14 


CONTRACTS  CONCERNING  HORSES,  ETC. 


out  of  a  larger 
bulk. 


Vendee  dis- 
posing of 
goods. 


Goods  sold  by 
sample. 


More  articles 
sent  than 
ordered. 


]iot  buy  it  until  it  is  separated  from  tlie  rest,  and  there 
must  be  an  acceptance  after  the  separation  (i').  He  must 
have  an  opportunity  of  refusing  what  the  vendor  may 
have  selected.  In  some  cases  possibly  an  a  priori  assent 
may  be  enough  (;^•),  but  the  general  principle  deducible 
from  the  decisions  is  that  the  acceptance  must  be  after  the 
purchaser  has  exercised  his  option,  or  has  done  something 
to  preclude  him  from  so  doing ;  and  {y)  until  he  is  so 
precluded  he  cannot  be  said  to  have  accepted  them  within 
the  meaning  of  the  statute  {z).  But  where  goods  are 
delivered  to  the  vendee,  any  objection  on  account  of  non- 
compliance with  the  order  or  otherwise  must  be  made* 
within  a  reasonable  time,  otherwise  the  vendee  will  be 
considered  to  have  accepted  them  {a).  It  is  for  the  reason 
that  the  vendee  cannot  be  said  to  have  accepted  goods 
which  he  has  not  had  an  opportunity  of  rejecting,  that  the 
delivery  to  a  carrier  is  a  delivery  to  and  an  acceptance  by 
the  consignee  only  where  the  goods  are  specific  and 
ascertained  (/>). 

But  where  a  vendor  has  recognized  the  right  of  his 
vendee  to  dispose  of  goods  remaining  in  the  actual  posses- 
sion of  the  vendor,  he  cannot  defeat  the  right  of  a  person 
claiming  under  the  vendee,  on  the  ground  that  no  proj)erty 
passed  to  the  latter  by  reason  of  the  want  of  a  specific 
appropriation  of  the  goods  {c). 

Where  goods  are  sold  by  sample,  the  handing  over  the 
samples  to  the  buyer  does  not,  in  the  absence  of  evidence 
of  an  usage  or  custom  to  the  contrary,  amount  to  a  de- 
livery and  acceptance  of  a  part  of  the  thing  sold  ;  but  it  is 
otherwise,  where  the  buyer  draws  samples  from  the  bulk 
after  he  has  purchased  the  goods  {d). 

If  a  person  orders  one  article,  and  two  are  put  upon 
him,  there  is  no  delivery  until  both  parties  agree  upon  the 
particular  one,  so  that  there  may  be  one  which  the  buyer 

(y)  Ca»ijjbeU  v.  Mersey  Docks,  14 
C.  B.,  N.  S.  412. 

{x)  AMridije  v.  Johiiso»,  2G  L.  J., 
Q.  B.  296,  per  Campbell,  C.  J. ; 
Langton  v.  Higgins,  28  L.  J.,  Ex. 
252  ;  and  see  Kibble  v.  Gough,  38 
L.  T.,  N.  S.  204,  C.  A.,  where 
defendant's  foreman  received  goods 
and  gave  a  receipt  marked  ' '  not 
equal  to  sample,"  and  it  was  held 
that  there  was  sufficient  evidence 
of  an  accejitance.  See  also  Sinith 
V.  Hudson,  34  L.  J.,  Q.  B.  145. 

(y)  mint  V.  Etcht,  22  L.  J.  295 


(Ex.).  Much  of  what  was  said  in 
Morton  v.  Tibbelt,  15  Q.  B.  428, 
doubted  in  this  case. 

(:;)  Xorman  v.  FhllUps,  14  M.  & 
W.  283. 

{a)  Coleman  v.  Gibson,  1  M.  & 
Eob.  168. 

{b)  Coombs  V.  Bristol  and  Exeter 
R.  Co.,  27  L.  J.,  Ex.  401  ;  and  see 
Benjamin  on  Sales,  2od  ed.  135. 

{c)  iroodleg  v.  Corentrij,  32  L.  J., 
Ex.  185. 

{d)  Gardner  v.  Grout,  2  C.  B., 
N.  S.  340. 


THE  ACCEPTANCE  AND  RECEIPT.  15 

can  call  his  own.  Thus,  in  an  action  to  recover  the  price 
of  ten  hogsheads  of  claret,  it  appeared  that  the  defendant 
having  verbally  ordered  ten  hogsheads  of  the  plaintiif,  the 
latter  in  October  sent  him  fifteen,  whereupon  the  defend- 
ant wrote  to  him,  stating  that  he  could  only  take  ten  on 
their  proving  satisfactory,  and  would  hold  the  other  five 
on  account  of  the  plaintiff.  To  this  the  plaintiff  answered 
thus,  "  Whatever  suits  you  best  is  most  acceptable  to  us. 
The  wine  is  superior  :  you  will  ascertain  in  the  spring  if 
you  have  room  for  it."  The  defendant  placed  the  fifteen 
hogsheads  in  the  bonded  warehouse  in  his  own  name,  and 
shortly  after  tasted  and  disapproved  of  the  wine,  but  gave 
no  notice  to  the  plaintiff  of  his  disapproval  until  April  ' 
following,  and  in  May  refused  to  take  any  of  the  wine. 
It  was  held  by  the  Court  of  Exchequer  that  there  was  no 
acceptance  of  the  ten  hogsheads,  within  the  17th  section 
of  the  Statute  of  Frauds  (e).  But  in  all  cases  where  the 
goods  ordered  are  sent,  together  with  others  not  ordered, 
the  vendee  would  not  have  a  right  to  refuse  to  accept 
any ;  though  if  there  is  any  danger  or  trouble  attending 
the  severance  of  the  two,  or  any  risk  that  the  vendee  might 
be  held  to  have  accepted  the  whole,  if  he  accepted  his  own, 
he  is  at  liberty  to  refuse  to  accept  at  all  (/) . 

In  all  cases  the  acts  of  the  parties,  in  order  to  be  tan-  Accei^tance 
tamount  to  a  delivery  and  actual  receipt,  must  be  unequi-  ™"'^*^  ^^  "^' 
vocal  {(/)  ;  and  therefore,  where  goods  are  lodged  with  a  '^l'"^^^^  • 
warehouseman  as  agent  for  the  vendor,  the  mere  acceptance 
and  retainer  by  the  purchaser  of  the  warrant  or  delivery    * 
order  will  not  amount  to  an  actual  receipt  of  the  goods  so 
as  to  bind  the  bargain  {//)  ;  but  to  have  this  effect  tlie 
document  must  be  lodged  by  the  purchaser  with  the  ware- 
houseman, who  must  then,  as  it  were,  attorn  to  him,  or,  in 
other  words,  agree  to  hold  the  property  henceforth  as  his 
agent  (/). 

THE  EARNEST  AND  PART  PAYMENT. 

The  civil  law  called  the  Earnest  "  Arr/ia,^'  and  this  it  ^wo  kinds  of 
interprets  to  be  "  emptionis-venditionis,  contractor  argu-  ■^''^^°^®*- 

(6-)   CunUfi!  V.  Jfarrison,  20  L.  J.,  /S'^m;«  Co.,  33  L.  J.,  Q.  E.  214. 
Ex.  325  ;  ,S.  C.  6  Ex.  903.  (i)  J]entaU  v.   Burn,   3  B.  &  C. 

(/)  Per  Byles,  J. ;  Levy  v.  Green,  423  ;  Farina  v.  Home,  16  M.  &  W. 

1  El.  &  El.  969.  119  ;    CitsacJc  v.  Rohimon,  30  L.  J., 

{g)  NiehoUe  v.  Plume,  1   C.  &  P.  Q.  B.  261 ;  Eart  v.  Bxsh,  27  L.  J., 

272  ;  Eden  v.  Ludfeld,  1  Q.  B.  307.  Q.  B.  271  ;   Currie  v.  Anderson,  29 

[h)  M'-Ewmi.  V.  Smith,  2  H.  L.  L.  J.,  Q.  B.  87;  see  also  Brown  v. 

Cas.  309  ;    Le  Matios  v.    Calcutta  Hare,  27  L.  J.,  Ex.  372. 


16 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Symbolical. 


Pecuniary. 


Pecuniary 
Earnest  is  a 
part  pay- 
ment. 


Earnest 
should  be  re- 
tained by  the 
vendor. 


The  old  rule. 


mentiim"  (/<•).  It  recognized  two  kinds  of  Earnest, — 
symbolical  and  pecuniary ;  the  one  being  a  transfer  of 
something  by  way  of  pledge  or  assiu-ance,  and  the  other 
being  a  payment  of  part  of  the  purchase-money  (/).  A 
similar  distinction  is  made  in  the  Statute  of  Frauds  (ni). 
Thus  the  buyer  must  "  give  something  in  Earnest  to  bind 
the  bargain,"  or  "  give  something  in  part  payment." 

A  symbolical  Earnest  may  be  anything  used  by  the 
parties  to  bind  the  bargain.  Therefore,  a  saddle,  bridle, 
horsewhip  or  currycomb  may  be  used  for  the  purpose. 

A  pecuniary  Earnest  consists  of  a  current  coin  or  sum 
of  money  given  in  part  payment,  and  its  efficacy  does  not 
depend  upon  its  value  being  proportioned  to  that  of  the 
article  contracted  for. 

Accordingly  inasmuch  as  a  pecuniary  Earnest  is  to  be 
considered  as  a  part  payment  of  the  purchase-money,  in 
a  case  where  there  was,  upon  a  sale  by  auction,  the  com- 
mon condition  for  the  forfeiture  of  the  deposit,  and  for  a 
resale,  and  the  condition  that  "  aH>/  deficicnci/  upon  such 
resale,  with  all  expenses,  should  be  made  good  by  the 
defaulter,  and  should  be  recoverable  as  liquidated  da- 
mages;" and  the  purchaser  did  not  pay  the  deposit,  which 
amounted  to  24/.,  and  upon  a  resale  the  property  fetched 
15/.  less  than  upon  the  first  sale,  and  the  expenses  of  the 
second  sale  were  9/.  5.s-. ;  it  was  held  that  the  seller  could 
not  recover  the  15/.,  the  expenses,  and  the  deposit  besides ; 
for  although  the  deposit,  if  it  had  been  paid,  would  have 
been  forfeited,  yet  it  would  have  been  a  part  payment  of 
the  purchase-money.  The  seller  was  allowed,  therefore, 
to  recover  only  24/.  5.s\,  to  which  sum  the  loss  on  the 
resale  and  the  expenses  amounted,  exclusive  of  the  de- 
posit {ii). 

Where  the  Earnest,  whether  symbolical  or  pecuniary, 
is  delivered  to  the  vendor,  it  should  be  kept  by  him,  and 
not  be  returned  to  the  purchaser.  For  where  the  pur- 
chaser of  a  Horse  or  other  goods  draws  the  edge  of  a 
shilling  over  the  hand  of  the  vendor,  and  returns  the 
money  into  his  own  pocket,  which  in  the  north  of  England 
is  called  "  striking  olf  a  bargain,"  it  is  neither  an  Earnest 
nor  a  part  payment  within  the  Statute  of  Frauds  (o). 

Where  an  Earnest  was  given  on  a  contract  of  sale,  the 


{k)  2  Bla.  Com.  447. 
[l)  Code  Ci\dle,   1590;   Vinnius, 
Com.  in  Inst.  1.  3,  tit.  324. 
(;«)  29  Car.  2,  c.  3,  s.  17. 


(w)  OcJcoiden  v.  Kcnhj,  27  L.  J., 
Q.  B.  361. 

(o)  Blenlcinsoj)  v.  Chx'jton,  7  Taunt. 
597. 


THE  EARNEST  AND  PART  PAYMENT.  17 

old  rule  was,  that  if  the  buyer  repented  of  his  bargain, 
he  might  refuse  to  fulfil  it,  upon  forfeiting  to  the  seller 
the  whole  Earnest  money  deposited.  But  if  the  failure 
to  comply  with  the  contract  was  on  the  part  of  the  vendor, 
he  was  bound  to  make  fourfold  restitution  to  the  vendee  [p) . 

But  under  the  Statute  of  Frauds  the  Earnest  binds  the  Effect  of 
bargain,  and  therefore  the  property  passes  in  the  same  ^^^g^^^j^g 
way  as  where  there  is  a  part  payment.     And  under  such  statute  of 
circumstances  an  action  for  the  price  may  be  supported  {q) .  Frauds. 
Thus  in  an  Exchange  of  Horses,  when  it  was  agreed  that 
the  plaintiff  should  pay  the  defendant  four  guineas  to  boot 
on  the  17th  December  following,  and  also  that  the  plaintiff 
should  keep  the  Colt  till  the  September  following,  and  the 
defendant,  "  to  make  the  agreement  more  firm  and  bind- 
ing, paid  to  the  plaintiff  one  halfpenny  in  Earnest  of  the 
bargain,"  it  was  held  that  the  payment  of  the  halfpenny 
vested  the  property  of  the  Colt  in  the  defendant  (r). 

Where  there  was  a  part  payment   for   some   animals.  Effect  of  part 
which   were   deposited   with   a   third  party  till   the   full  payment, 
amount  was  paid,  and  two  of  them  died,  the  loss  was  held 
to  fall  on  the  purchaser  (s) . 

It  must  be  remembered  that  part  payment  of  purchase- 
money  is  only  a  part  performance  in  respect  of  contracts 
for  the  sale  of  goods,  wares  or  merchandizes,  within  the 
17th  section  of  the  Statute  of  Frauds  {t). 


THE  NOTE  OR  MEMORANDUM  IN  WRITING. 

■If  there  has  been  either  an  agreement  in  writing,  or  a  Written 
parol  agreement  v/hich  is  afterwards  reduced  into  writing,  agreemen  . 
by  the  parties,  tliat  writing  alone  must  be  looked  to,  to 
ascertain  the  terms  of  the  contract  {ii). 

No  particular  form  is  necessary  to  constitute   a  good  No  particular 
note  or  memorandum  in  writing ;  and  a  sold  note  {x)  or  form  re- 
a  bill  of  parcels  is  sometimes  sufiicient,  where  it  can  be  ^^"^'^'^• 
proved  that  it  has  been  recognized  by  the  other  party  ( ?/). 

(;;)  Bracton,  lib.  2,  cap.  27,  fol.  Ch.  553. 
02.  (»)  Per  Lord  Abiuger,    C.   E., 

(-?)  Dijer  V.  Cowki/,  17  L.  J.,  Q.  Allen  v.  Fhik,  4  M.  &  W.  144. 
B.  360.  (.r)  PartoH   v.    Crofts,   33  L.  J., 

(r)  Sack  V.  Owen,  5  T.  R.  409.  C.   P.    189 ;   Sievewright  v.  Archi- 

(s)  Dyer  v.  Cowley,  17  L.  J.,  Q.  bald,  20  L.  J.,  Q.  B.  529. 
B.  360.  (y)  See  Johnson  v.  JDodgson,  2  M. 

(0  Sugd.  Vend.  &  Purch.   14th  &   W.   653;    Diorell  v.  Evans,   31 

ed.  152;   Clinan  v.  Cooke,  1  Sch.  &  L.  J.,  Ex.  337. 
Lef.  22  ;  Wood  v.  Mxdgley,  23  L.  J., 

O.  C 


18 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Names  of  the 

contracting 

parties. 


Terms  of  the 
contract  must 
be  stated. 


May  bo  col- 
lected from 
more  than 
one  docu- 
ment. 


The  Stamp 
Act. 


Catalogue  at 
a  Sale. 


However,  there  are  certain  requisites  whicTi  must  be  con- 
tained witliin  the  instrument,  to  satisfy  the  statute. 

The  note  or  memorandum  in  writing  must  state  who  are 
the  contracting  parties  (;:).  But  it  is  not  necessary  that 
they  shoukl  appear  actually  on  the  face  of  the  memoran- 
dum ;  if,  from  the  memorandum  taken  in  connection  with 
surrounding  circumstances,  it  clearly  appear  who  they  are, 
this  is  sufficient  {n). 

It  must  also  state  the  terms  upon  which  the  contract 
is  made,  because  the  word  bargain  means  the  terms  upon 
which  the  parties  contract.  As,  for  instance,  in  Bristoic  v. 
Ilalford  {b),  the  memorandum  of  agreement  on  the  sale  of 
a  Race  Horse  called  Baron  Biel,  was  to  the  effect  that  the 
defendant  should  purchase  the  Horse  for  300^.  paid  down, 
100/.  in  three  months,  100/,  on  the  Horse  winning  the 
Goodwood  Cup,  and  1,000/.  on  his  winning  the  St.  Leger 
Stakes,  for  which  the  defendant  undertook  to  enter  him. 

But  though  it  does  not  state  the  terms  upon  which  the 
contract  is  made,  it  will  be  sufficient  to  satisfy  the  statute, 
if  it  distinctly  refers  to  and  recognizes  another  document, 
which  does  contain  them  (c) .  The  connection  between  the 
documents  must  appear  on  the  face  of  them,  for  it  cannot 
be  supplied  by  parol  evidence  (r/),  which  can  only  be  used 
to  show,  what  the  writing  is  which  is  referred  to,  and  which 
is  not  admissible  to  supply  any  defects  or  omissions  in  the 
written  evidence  (e). 

An  "  agreement,  letter,  or  memorandum  made  for  or 
relating  to  the  sale  of  any  goods,  wares,  or  merchandize," 
is  exempted  from  stamp  duty  (/). 

If  at  an  auction  the  purchaser's  name  be  signed  to  a 
catalogue,  it  must  be  connected  with  or  refer  to  the  condi- 
tions of  sale,  to  make  the  contract  valid  ((/).  And  it  is 
not  sufficient  where  they  are  merely  in  the  room  but  not 
adiialhj  attached  to  the  catalogue,  or  clearly  referred  to  in 


(r)  WlUiams  v.  LaJcc,  29  L.  J., 
Q.  B.  1 ;  WiUiams  v.  Byrnes,  9 
Jur.,  N.  S.  363 ;  Champion  v. 
Fhimmer,  1  N.  R.,  B.  &  P.  252; 
La\ithroap  v.  Bryant,  2  Bing.,  N. 
S.  2-14  ;  Williams  v.  Jordan,  L.  R., 
C  Ch.  D.  517 ;  46  L.  J.,  Ch.  681. 

(«)  Chitty  on  Contracts,  10th  ed. 
359. 

(i)  Brisfoiv  V.  Ilalford,  before 
Lord  Campbell,  C.  J.,"  West.  C.  P. 
Feb.  1,  1853. 


(f)  Eidgivayy.  Wharton,  27  L.  J., 
Ch.  46. 

[d)  Boydelly.  Drummond,  1 1  East, 
142  ;  CaddicJc  v.  Skidmore,  27  L.  J., 
Ch.  153;  Fierce  v.  Corf,  L.  R.,  9 
Q.  B.  217;  43  L.  J.,  Q.  B.  52. 

(f)  Boydell  v.  Drummond,  11 
East,  142 ;  Fitzmanrice  v.  Bayley, 
9  H.  L.  Cas.  78. 

(/)  33  &  34  Vict.  c.  97,  Sch. 
"Agreement"  (3). 

{(j)  Hinde  v.  Whiie/iotisc,  7  East, 
568. 


THE  NOTE  OR  MEMORANDUM  IN  WRITING.  10 

it ;  and  if  during  tlie  sale  they  get  separated,  the  signa- 
tures made  after  the  separation  are  unavailable  {/i). 

And  where,  at  a  sale  of  Horses,  there  was  a  catalogue 
which  contained  the  number  of  the  lot,  the  description  of 
the  Mare  to  be  sold,  and  the  conditions ;  and  a  sales  ledger 
containing  the  same  information  with  regard  to  lot  and 
description,  together  with  the  name  of  the  purchaser  and 
the  price  at  which  the  Mare  was  sold,  but  having  no  refer- 
ence to  the  catalogue  which  contained  the  conditions  of 
sale ;  it  was  held  that  the  catalogue  and  conditions  of  sale 
were  not  sufficiently  connected  with  the  sales  ledger  to 
make  a  memorandum  within  the  statute. 

The  Court  was  also  of  opinion  that  a  letter,  which  the 
purchaser  subsequently  wrote  admitting  the  purchase,  did 
not  constitute  a  sufficient  memorandum,  because  it  neither 
stated  a  price  nor  referred  to  the  sales  ledger  where  the 
price  was  stated  («). 

The  price  when  agreed  upon  is  a  material  part  of  the  Price  when 
bargain,  and  must  be  stated  in  the  memorandum.  Thus,  f^g^'eed  upon, 
where  on  the  13th  Juno  a  verbal  contract  was  made  for 
the  sale  of  a  Horse,  warranted  five  years  old,  for  200 
guineas,  and  in  order  to  take  the  case  out  of  the  Statute 
of  Frauds,  the  plaintiff  gave  in  evidence  the  following 
letter,  written  by  the  defendant  on  the  18th  of  June : 
"Mr.  Kingscote  begs  to  inform  Mr.  Elmore,  that  if  the 
Horse  can  be  proved  to  be  five  years  old,  on  the  13th  of 
this  month,  in  a  perfect  satisfactory  manner,  of  course  he 
shall  be  most  happy  to  take  him  ;  and  if  not  most  clearly 
proved,  Mr.  K.  will  most  decidedly  not  have  him."  Lord 
Chief  Justice  Abbott  was  of  opinion  that  this  was  not  a 
sufficient  note  or  memorandum  in  writing  within  the 
Statute  of  Frauds,  and  nonsuited  the  plaintiff.  The 
Court  of  King's  Bench  confirmed  the  nonsuit,  on  the 
ground  that  the  price  agreed  to  be  pnid  constitutes  a  mate- 
rial part  of  the  bargain ;  because  if  it  were  competent  to 
a  party  to  prove  by  parol  evidence  the  price  intended  to 
be  paid,  it  would  let  in  much  of  the  mischief  which  it  was 
the  object  of  the  statute  to  prevent  (/<•) ;  but  it  has  been 
held  that  a  written  order  for  goods  "  on  moderate  terms," 
is  sufficient  (/). 

(/^)  Kcnworthy  v.  ScholfieU,  2  B.  47  L.  J.,  Ch.  629  ;  26  W.  R.  827. 
&  C.  945.  (/.)  Elmore  v.  Kingscote,  5  B.  & 

(0  Pierce  V.  Corf,  L.  R.,  9  Q.  B.  C.  683. 
■  210 ;  43  L.  J.,  Q.  B.  52  ;  29  L.  T.,  (0  Ashcroft  v.  il/b?vi«,  4  M.   & 

N.  S.    919.      And   see   Itishton   v.  G.  450. 
Whatmore,  L.  R.,   8  Ch.  D.  4G7  ; 

c2 


20 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Where  no 
price  is 
agreed  upoE. 


Contract  by- 
Letter. 


Sufficient 
between  the 
parties. 


Must  express 
all  the  terms 
of  the  agree- 
ment. 


If,  however,  no  price  is  fixed  and  agreed  upon,  a  note 
or  memorandum  which  does  not  state  any  will  be  suffi- 
cient, and  the  law  will  infer  that  a  reasonable  price  was  to 
be  paid  {m)  ;  on  the  principle  that  if  I  take  up  wares  from 
a  tradesman,  without  any  agreement  as  to  price,  the  law 
concludes  that  I  contracted  to  pay  their  real  value  («). 

The  omission  of  the  particular  mode  or  time  of  payment 
does  not  necessarily  invalidate  the  agreement  (o). 

A  person  who  transacts  a  proposal  by  Letter  must  be 
considered  as  renewing  his  offer  every  moment,  until  the 
time  at  which  the  answer  is  to  be  sent,  and  then  the  con- 
tract is  completed  by  the  acceptance  of  the  offer.  For  if 
the  law  were  otherwise,  no  contract  could  ever  be  com- 
pleted by  post  (^;).  And  if  a  letter  be  given  in  evidence 
with  the  direction  torn  off,  the  jury  will  do  well  to  pre- 
sume prima  facie,  that  it  was  addressed  to  the  person  who 
produces  it  {q). 

Where  an  intending  purchaser  wrote  to  the  seller  saying, 
"  If  I  hear  no  more  about  the  Horse,  I  consider  the  Horse 
is  mine  at  50/.  15s.,"  and  the  seller  did  not  answer  the 
letter,  the  purchaser  would  have  been  bound  to  his  offer,  if 
the  seller  had  chosen  to  accept  it ;  but  the  fact  of  the  seller 
not  having  answered  the  letter  Avill  not  bind  him,  as  the 
purchaser  had  no  right  to  put  upon  him  the  burden  of  the 
choice  of  writing  a  letter  of  refusal  or  being  bound  by  the 
agreement  proposed  (;•). 

If  letters  taken  together  contain  a  sufficient  contract, 
namely,  one  that  would  express  all  its  terms,  they  would 
constitute  a  memorandum  in  writing  within  the  Statute. 
And  of  course  therefore  the  Court  may  look  at  all  the 
letters  which  have  passed,  for  the  purpose  of  seeing  whe- 
ther or  not  they  contain  a  sufficient  contract  to  take  the 
case  out  of  the  Statute  («). 

But  they  must  express  all  the  terms  of  the  contract  (t). 
Thus,  where  it  was  clear  from  Letters  and  Invoices  that 
the  defendant  had  bought  goods  from  the  plaintiff  upon 


(m)  HandJey  v.  M'Zaine,  10  Bing. 
488. 

(«)  2  Bla.  Com.  30. 

(o)  Sari  V.  Boicrdillon,  26  L.  J., 
C.  P.  78. 

(^j)  Bxmlop  V.  Higyins,  12  Jui'. 
295  ;  Chitty  on  Contracts,  10th  ed. 
11. 

{q)  Curtis  V.  Richards,  1  M.  &  G. 
47,  per  Tiudal,  C.  J. 


(>•)  Felthouse  v.  Bindley,  31  L.  J., 
C.  P.  204. 

(.•))  Archer  v.  Baynes,  5  Ex.  629  ; 
Ilichards  v.  Forter,  6  C.  B.  438; 
Warner  v.  WiUington,  25  L.  J.,  Ch. 
662  ;  Smith  v.  Neale,  26  L.  J.,  C.  P. 
143 ;  Watts  v.  Ainsicorth,  1  H.  & 
C.  83. 

{t)  Bailey  v.  Siveetiny,  9  W.  R. 
273. 


THE  NOTE  OR  MEMORANDUM  IN  WRITING.  21 

some  contract  or  other ;  but  wliether  he  bought  them  on  a 
contract  to  take  particular  goods  seen  by  him  at  the  ware- 
house, or  whether  he  had  bought  them  on  a  particular 
sample  which  had  been  delivered  to  him,  on  the  condition 
that  they  should  agree  with  the  sample,  or  whether  the 
agreement  was  that  they  should  be  delivered  within  a  par- 
ticular time,  did  not  appear.  It  was  held,  that  there  was 
no  agreement  coming  within  the  Statute  of  Frauds ;  be- 
cause what  was  in  truth  the  dispute  between  the  parties 
was  not  settled  by  the  contract  in  writing  (u) . 

A  letter  signed  by  the  party  to  be  charged  after  the 
transaction  has  taken  place,  which  states  (or  plainly  refers 
to  other  documents  which  state)  and  admits  the  terms  of 
the  contract,  is  a  good  memorandum  under  the  Statute, 
even  if  such  letter  contain  an  attempted  repudiation  by  the 
writer  of  his  liability  under  the  contract  (x). 

But  as  mutual  assent  is  necessary  to  constitute  a  binding  Mutual 
contract,  it  is  held  that  where  it  is  sought  to  establish  an  assent. 
agreement  by  means  of  Letters,  such  Letters  will  not 
amount  to  an  agreement,  unless  the  answer  be  ex  simpliccy 
without  the  introduction  of  any  new  term  (//).  Thus,  in 
the  following  case  an  action  of  Assumpsit  was  brought  for 
the  price  of  a  Mare  sold  and  delivered,  to  which  the  de- 
fendant pleaded  JVoji  Assumpsit.  It  appeared  that  the 
defendant  having  seen  and  ridden  a  Mare,  wrote  to  the 
plaintiff,  "  I  will  take  the  Mare  at  twenty  guineas,  of 
course  warranted ;  therefore  as  she  lays  out,  turn  her  out 
my  Mare."  The  plaintiff  agreed  to  sell  her  for  the  twenty 
guineas.  The  defendant  afterwards  wrote  again  to  him, 
"  My  son  will  be  at  the  '  World's  End'  (a  public  house) 
on  Monday,  when  he  will  take  the  Mare  and  pay  you ; 
send  anybody  with  a  Receipt,  and  the  money  shall  be 
paid ;  only. say  in  the  Receipt  sound,  and  quiet  in  hariiess.'" 
The  plaintiff  wrote  in  reply,  "  She  is  warranted  sound, 
and  quiet  in  double  harness;  I  never  put  her  in  single 
harness."     The  Mare  was  brought  to  the  "  World's  End" 

(m)  Archer  v.  Baines,  5  Ex.  625  ;  [x)  BaiUy  v.   Sicectiiiq,   9  C.   B 

Eichards    v.    Porter,    6    B.    &  C.  (N.  S.)  843 ;  30  L.  J.,  "C.  P.  150  ; 

438;  Goodman  v.  Griffiths,  26  L.  J.,  Wilkinson  v.  Evans,  L.  R.,  1  C.  P. 

Ex.  145;  M'leanv.  MchoU,7  Jut.,  417;  Buxton  v.  Bust,   L.  R.,  7  Ex. 

N.  S.  999  ;  Honey  man  v.  Marrijat,  1  ;  41  L.  J.,  Ex.  1 ;  25  L.  T.,  N.  S. 

21  Beav.  14;  Tierce  \.  Corf,  L.  E,.,  502,   affirmed  L.  R.,  7  Ex.   279; 

9   Q.  B.  214  ;  43   L.  J.,   Q.  B.  52  ;  Leather  Cloth  Co.  v.  Hcironimus,  L. 

29  L.  T.,  N.  S.  919  ;  Mahahn  v.  R.,  10  Q.  B.  140  ;  44  L.  J.,  Q.  B. 

Buhlin,  ^-c.  Distillery  Co.,  Ir.  R.,  11  54  ;  32  L.  T.,  N.  S.  307;  and  see 

C.  L.  83 ;  Bertel  v.  Ncveiix,  39  L.  Gibson  v.  Holland,  L.  R.,  1  C.  P.  1. 

T.,  N.  S.  257.  (y)  Cooperw.Hood,2fi'L.3 .,Qh..1l2. 


22  CONTRACTS  CONCERNING  HORSES,  ETC. 

on  tlie  Monday,  and  the  defendant's  son  took  her  away 
without  paying  the  price,  and  without  any  Receipt  or 
Warranty.  The  defendant  kept  her  two  days  and  then 
returned  her  as  being  unsound.  The  learned  Judge  stated 
to  the  Jury  that  the  question  was,  whether  the  defendant 
had  accepted  the  Mare,  and  directed  them  to  find  for  the 
defendant  if  they  thought  he  had  returned  her  within  a 
reasonable  time  ;  and  desired  them  also  to  say  whether 
the  son  had  authority  to  take  her  without  the  waiTanty. 
The  Jury  found  that  the  defendant  did  not  accept  the 
Mare,  and  that  the  son  had  not  authority  to  take  her  away. 
It  was  held  by  the  Court  of  Exchequer,  on  motion  to  enter 
a  verdict  for  the  plaintiff,  that  there  was  no  complete  con- 
tract in  writing  between  the  parties ;  that  therefore  the 
direction  of  the  learned  Judge  was  right.  Also  that  the 
defendant  was  not  bound  by  the  act  of  the  son  in-  bringing 
home  the  Mare,  inasmuch  as  he  had  thereby  exceeded  his 
authority  as  agent,  and  consequently  that  the  plaintiff  was 
not  entitled  to  recover  (::) .  And  where  the  plaintiff  sent 
his  Horse  to  a  livery  stable  for  sale,  and  the  defendants 
bid  75/.  for  him,  but  no  final  agreement  was  come  to,  and 
the  plaintiff  left  the  Horse  at  the  livery  stable  to  see  if  the 
defendants  would  buy  the  animal,  arranging  with  the 
livery  stable  keeper  that  he  was  to  have  no  commission  on 
the  sale  unless  75/.  or  more  were  paid ;  and  the  Horse 
proving  slightly  unsoimd,  the  defendants  wrote  to  the 
livery  stable  keeper  offering  70/.  for  him,  and  the  livery 
stable  keeper  having  transmitted  their  Letter  to  the  plain- 
tiff, he  (the  plaintiif )  wrote  to  the  livery  stable  keeper  as 
follows :  "  As  the  Horse  is  with  you  he  shall  go  at  70/. 
clear  to  me.  I  will  pay  no  expenses,  you  must  get  what 
you  can  of  Mr.  B.  (one  of  the  defendants)  ;  I  cannot 
allow  anything  off  the  70/."  It  was  held,  that  as  the 
plaintiff,  by  his  answer  to  the  defendant's  offer,  stipulated 
that  they  should  bear  expenses  to  which  he  as  vendor  was 
prinul  facie  liable,  he  had  added  a  new  term  to  those  pro- 
posed, and,  in  the  absence  of  an  acceptance  of  that  term, 
there  was  no  complete  contract  between  the  parties  (a). 

On  the  other  hand,  however,  two  Letters  may  be  suf- 
ficiently identical  to  constitute  a  contract,  although  the 
Letter  of  proposal  may  mention  a  term  which  is  omitted 
to  be  mentioned  in  the  Letter  of  acceptance  {b). 

(;)  Jordan  v.  Korton,  4  M.  &  W.       N.  S.  178. 
155;  mi/ward  V. Barnes,  2ZL.T.GS.  {b)  Metzler  v.  Gounod,  32  L.  T., 

(«)  Lewis  V.  Fedrick,   29  L.  T.,       N.  S.  656, 


THE  NOTE  OR  MEMORANDUM  IN  WRITING.  23 

It  is  also  necessary  that  the  Letter  of  acceptance  he 
ahsolute  and  unqualified  {e). 

Where  a  contract  is  to  be  made  out  by  an  offer  on  one 
side  and  an  acceptance  on  the  other,  if  the  answer  is 
equivocal  or  anything  is  left  to  be  done,  the  two  do  not 
constitute  a  binding  contract  (d). 

The  better  opinion  is  that  a  contract  is  complete  upon  Where  the 
the  posting  by  one  party  of  a  Letter  addressed  to  the  contract  is 
other,  accepting  the  terms  offered  by  the  latter,  notwith-  ^^^^ 
standing  such  Letter  never  reaches  its  destination  (e). 

The  terms  of  a  written  contract  for  the  sale  of  goods.  Terms  can- 
falling  within  the  operation  of  the  Statute  of  Frauds,  ^^ot  bo  varied 
cannot  be  varied  or  altered  by  parol ;  and  where  a  con-  ^  ^^^^ ' 
tract  for  the  bargain  and  sale  of  goods  was  made,  stating 
a  time  for  the  delivery  of  them,  it  was  held  by  the  Court 
of  Exchequer  that  an  agreement  to  substitute  another 
day  for  that  purpose  must,  in  order  to  be  valid,  be  in 
writing ;  and  Mr.  Baron  Alderson  said, — "  By  the  4th 
section  of  the  Statute  of  Frauds,  it  is  provided  that  the 
contracts  therein  mentioned  shall  be  in  writing,  otherwise 
no  action  shall  be  maintained  upon  them.  The  17th  sec- 
tion requires  that  some  Note  or  Memorandum  in  writing 
of  the  bargain  before  made  shall  be  signed  by  the  party 
to  be  charged  by  such  contract,  or  his  agent  lawfully 
authorized.  There  is  undoubtedly  a  distinction  between 
the  two  enactments,  for  by  the  4th  section  the  whole  con- 
tract must  be  in  writing,  including  the  consideration 
which  induced  the  party  to  make  the  stipulation  by 
which  he  is  to  be  bound;  but  by  the  17th  section  it  is 
sufficient  if  all  the  terms  by  which  defendant  is  to  bo 
bound  are  stated  in  writing  so  as  to  bind  him.  Now  hero 
there  is  a  stipulation  which  is  to  bind  the  defendant,  and 
it  is  proposed  to  alter  that  by  parol,  which  cannot  bo 
done.  It  is  much  better  plainly  to  define  what  the  law 
is  than  to  attempt  to  create  fanciful  distinctions  "  (/).     So, 

(e)  Applehy  v.  Johnson,  L.  R.,  9  Co.  v.  Grant,  L.  R.,  4  Ex.  D.  216 ; 

C.  P.  158.  48  L.  J.,  Ex.  577;  41  L.  T.,  N.  S. 

{d)  Per  Grove,  J.,  ibid.  163;  and  298;  27  W.  R.  858—0.  A.,  oxev- 

sce  Slanh'!/ V.  DoKclestfeU,Jj.  H.,  10  ruling  British  and  American  Tele- 

C.  P.  102  ;  23  W.  R.  389.  r/rryj/t  Co.  v.  Colson,   L.  R.,   6  Ex. 

(c)  Duncan  v.   Topham,  8   C.   B.  108  :  40  L.  J.,  Ex.  97;  23  L.  T., 

225  ;  Bunlop  v.  JUffffins,  1  H.  L.  C.  N.  S.  868,  where  it  was  held  that 

381;  and  see  Imjicrial  Land  Co.  of  the  contract  was  not  complete  until 

Marseilles,  In  re,  Harris's  case,  L.  the  actual  receipt  of  the  letter. 

R.,  7  Ch.  587;  41  L.  J.,  Ch.  621  ;  (/)  MarshaUx.  Lynn,  6  M.  &  W. 

26  L.   T.,  N.   S.   781;  20  W.   R.  118;  and  see  iVoi^e  v.  JFard,L.Ii., 

290;  and  household  Fire  Insurance  1  Ex.117;  Ex.  Ch.,  L.  R.,  2  Ex.135. 


24 


CONTRACTS  CONCERNING  HORSES,  ETC. 


But  may  bo 
explained. 


Matters  ante- 
cedent to  the 
writins:. 


Condition 
precedent. 


also,  where  the  day  appointed  for  the  delivery  of  goods 
was  subsequently  discovered  to  be  a  Sunday,  and  it  was 
then  by  word  of  mouth  agreed  between  the  parties  that 
the  delivery  should  be  made  on  the  "  Monday  or  Tuesday" 
follo"^ang :  it  was  held  by  the  Court  of  Queen's  Bench, 
that  the  enlargement  of  time  having  materially  varied 
the  contract,  and  in  fact  substituted  a  new  one,  an  action 
for  nondelivery  could  not  be  maintained  {g).  But  for- 
bearance on  the  part  of  the  plaintiff  is  not  a  variation  of 
the  contract  {Ji) . 

But  though  the  terms  of  a  written  contract  cannot 
be  contradicted,  altered  or  varied  by  parol  evidence,  yet 
such  evidence  is  admissible  to  define  what  the  written 
contract  has  left  undefined  (/)  ;  c.  (/.,  where  it  contains  no 
date  (/.•),  or  where  its  terms  can  only  be  given  precision 
when  explained  by  the  sense  which  mercantile  usage  has 
put  upon  them  (/),  or  where  the  subject-matter  of  the 
contract  can  only  be  ascertained  by  the  admission  of  a 
conversation  with  reference  to  it  (iii).  So,  too,  where 
goods  are  ordered  by  Letter,  which  does  not  mention  any 
time  for  payment,  and  such  Letter  amounts  to  a  valid 
contract  within  the  Statute  of  Frauds,  parol  evidence  is 
admissible  to  showthat  the  goods  were  supplied  on  credit  {n). 

But  a  matter  antecedent  to  and  dehors  the  writing  may 
in  some  cases  be  received  in  evidence,  as  showing  the  in- 
ducement to  the  contract ;  such  as  a  representation  of  some 
particular  quality  or  incident  of  the  thing  sold.  But  the 
buyer  is  not  at  liberty  to  show  such  a  representation, 
unless  he  can  also  show  that  the  seller  by  some  fraud  pre- 
vented him  from  discovering  a  fault  which  he,  the  seller, 
knew  to  exist  (o). 

Parol  evidence  is  also  admissible  of  a  condition,  on 
which  the  written  agreement  depends,  such  evidence  being 
as  to  facts  distinct  from,  but  collateral  to,  the  written 
agreement  (|;). 


{(/)  Stead  V.  Baivher,  10  A.  &  E. 
57 ;  and  see  Hiclcman  v.  Harpies, 
L.  R.,  10  C.  P.  598;  44  L.  J.,  C.  P. 
358 ;  32  L.  T.,  N.  S.  873 ;  23  "W.  E. 
871. 

(A)  Ogle  V.  Tane  {Earl),  L.  R.,  3 
Q.  B.  272,  Ex.  Ch. ;  37  L.  J.,  Q. 
B.  771. 

(i)  Per  Erie,  C.  J.,  Lucas  v.  Bris- 
tow,  El.  Bl.  &  El.  913. 

(k)  Davis  v.  Jones,  25  L.  J.,  C.  P. 
91, 


(/)  Lucas  V.  Bristow,  El.  Bl.  & 
El.  907  ;  Dale  v.  Humfrey,  El.  Bl. 
&  El.  1004. 

[in)  Maedonald  v.  Lougbottom,  6 
Jul-.,  N.  S.  724  ;  Chadu-iek  v.  Burn- 
leg,  12  W.  R.  1077.  See  also  Bux- 
ton V.  Bust,  L.  R.,  7  Ex.  280,  281— 
Ex.  Ch.  per  WHles,  J. 

(«)  Lockett  V.  Nicklin,  2  Ex.  93. 

(o)  Kain  V.  Old,  2  B.  &  C.  634. 

(2))  Pym  V.  Campbell,  6  El.  &  Bl. 
370  ;  Lindley  v.  Lacey,  5  N.  R.  51, 


THE  NOTE  OR  MEMO  RAM  DUM  IN  WRITING.  25 

In  order  to  sustain  an  action,  there  must  be  a  good  con-  Memorandum 
tract  in  existence  at  the  time  of  action  brought.     There-  ^^^^  ^^^^"^ 
fore,  a  Memorandum  in  writing  of  a  contract  after  action  ^^  ^°^' 
brought  does  not  satisfy  the  Statute  of  Frauds  {q). 

But  though  an  agreement  be  not  in  writing,  as  required  A  foreign 
by  this  statute,  it  is  not  absohitely  void,  as  the  4th  section  contract, 
relates  to  the  mode  of  procedure,  and  not  to  the  contract 
itself.  Therefore,  although  such  contract  is  void,  so  far  as 
no  action  can  be  brought  on  it  in  this  country,  there  is 
nothing  in  the  statute  to  prevent  any  foreign  Court  from 
giving  force  to  the  contract  (r) . 

THE  SIGNATURE  BY  THE  PARTY  TO  BE  CHARGED. 

The  Statute  of  Frauds  requires  that  there  should  be  a  What  is 
Note  or  Memorandum  of  the  contract  in  writing,  signed  by  necessary. 
tJw  j^arty  to  he  charged ;  and  the  cases  have  decided  that, 
although  the  Signature  be  in  the  beginning  or  middle  of 
the  instrument,  it  is  as  binding  as  if  at  the  foot  of  it,  the 
question  being  always  open  to  the  Jury,  whether  the  party 
not  having  signed  it  regularly  at  the  foot,  meant  to  be 
bound  by  it  as  it  then  stood,  or  whether  he  left  it  so  un- 
signed, because  he  refused  to  complete  it  (.s'). 

The  Christian  name  of  the  Signature  may  be  set  out  at  As  to  initials, 
length  or  denoted  by  the  initial,  or  left  out  altogether  it)  ; 
but  it  seems  that  the  surname  must  be  written  at  length, 
and  that  the  mere  initials  will  not  suffice  iii).  A  mark  by 
a  person  unable  to  write  may  suffice  if  sufficiently  iden- 
tified ('^?).  An  unsigned  postscript  commencing,  "I  had 
quite  omitted  to  tell  you  and  Martin,"  on  a  separate  piece 
of  paper,  enclosed  in  the  same  envelope  with,  but  not  re- 
ferred to  by,  a  letter  signed  with  initials,  is  not  sufficient 
to  satisfy  the  statute  {x) . 

If  a  man  be  in  the  habit  of  printing  instead  of  writing  Where  a  man 
his  name,  he  may  be  said  to  sign  by  his  printed  as  well  as  Points  hia 
his  written  name  {//).     And  an  invoice  with  "Bought  of  "'^°^*^- 
Norris  &  Co."  printed  on  it,  which  was  filled  up  in  the 

(q)  Bill  V.  Banicnt,  9  M.  &  W.  («)  Sweet  v.  Lee,  3  M.  &  G.  452, 

36.  460. 

(?•)    Leroux  v.   Broivn,    16    Jur.  (v)  Chitty  on  Contracts,  10th  ed. 

1021  (C.  B.)  .  362. 

(«)  Per  Lord   Abinger,    C.    B.,  (.r)  Kronheim  v.  Johnson,  L.  R., 

Johnsonv.  Lodgson,  2  M.  &  W.  659.  7  Ch.  D.  60  ;   47  L.  J.,  Ch.   132  ; 

[l)  Lohb  V.  Stanleij,  5  Q.  B.  574,  37  L.  T.,  N.  S.  752. 

58i.  {y)  Saiindcrson  v.  Jackson,  2  B.  & 

P.  238. 


26 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Names  of 
parties  how- 
to  be  shown. 


Signature  for 
another  pur- 
pose. 


body  with  the  handwriting  of  Norris,  was  held  to  be,  for 
the  purpose  of  the  statute,  signed  by  Noriis  (s) . 

The  statute  requires  that  the  note  should  be  signed  by 
the  party  to  be  charged  ;  accordingly  it  is  no  objection  that 
it  is  not  also  signed  by  the  other  party,  and  consequently 
that  there  is  no  remedy  against  him  {a).  But  a  note  in 
writing,  signed  by  one  party,  will  be  insufficient,  unless  it 
also  specifies  the  name  of  the  other  party  (h).  A  signature 
-by  the  defendant,  however,  in  the  plaintiffs'  order-book  on 
the  fly-leaf,  at  the  beginning  of  which  were  written  the 
plaintiffs'  names,  will  do  (c) .  And  where  the  defendant 
accepted  an  offer  to  buy,  by  telegram,  giving  signed  in- 
structions to  the  telegraph  clerk,  this  was  held  to  be  a 
sufficient  signature  {d).  If,  on  the  other  hand,  the  note  in 
writing  is  signed  by  the  seller  only,  it  will  plainly  be  in- 
sufficient to  charge  the  buyer  (e) . 

It  is  no  objection  to  the  signature  that  it  was  not  made 
to  satisfy  the  Statute  of  Frauds,  but  in  obedience  to  some 
other  statute ;  so  long  as  it  is  by  the  party  to  be  charged 
and  attests  the  document  which  contains  the  terms  of  the 
agreement,  it  is  sufficient  to  satisfy  the  Statute  of 
Frauds  (/). 


THE  SIGNATURE  BY  AN  AGENT. 

What  is  The  statute  requires  some  Note   or   Memorandum   in 

necessary.  writing,  to  be  signed  by  the  party  to  be  charged,  or  his 
Agent  thereunto  lawfuUij  authorized,  leaving  us  to  the  rules 
of  common  law  as  to  the  mode  in  which  the  agent  is  to  re- 
ceive his  authority.  Now,  in  all  other  cases  a  subsequent 
sanction  is  considered  the  same  thing  in  effect  as  assent  at 
the  time.  Omnis  ratihahitio  retrotrahitur,  ct  mandato  cequi- 
2Mratur ;  and  the  subsequent  sanction  of  a  contract,  signed 
by  an  agent,  takes  it  out  of  the  operation  of  the  statute 
more  satisfactorily  than  an  authority  given  beforehand. 


{£)  Schneider  v.  Norris,  2  M.  &  S. 
286.  And  see  Tourrct  v.  C'ripps, 
48  L.  J.,  Ch.  567 ;  27  W.  R.  706. 

{fi)  Allen.  V.  Bennett,  3  Taunt. 
160 ;  Egcrton  v.  Mattheivs,  6  East, 
307  ;  Laytliroap  v.  Bryant,  2  Bing. 
N.  C.  744;  Beussv.  PicMcij,  L.  R., 
1  Ex.  342,  Ex.  Ch.  ;  Buxton  v. 
Rust,  L.  R.,  7  Ex.  279,  Ex.  Ch. 

[b)  Williams  v.  Lake,  29  L.  J., 
Q.  B.  1 ;  Williams  v.  Byrnes,  9 
Jur.,  N.  S.  363  ;  Williams  v.  Jor- 
dan, L.  R.,  6  Ch.  517  ;   46  L.  J., 


Ch.  681  ;  26  W.  R.  230. 

(c)  Sari  V.  Bourdillon,  26  L.  J., 
C.  P.  78. 

{d)  Godwin  V.  Francis,  L.  R.,  5 
C.  P.  295 ;  39  L.  J.,  C.  P.  121 ;  22 
L.  T.,  N.  S.  338. 

(e)  Champioti  v.  Plumnicr,  1  B.  & 
P.,  N.  R.  252  ;  Cooper  v.  Smith,  15 
East,  103. 

(/)  Jo7ics  V.  Victoria  Graving 
Bock  Co.,  L.  R.,  2  Q.  B.  D.  314; 
46  L.  J.,  Q.  B.  219;  32  L.  T., 
N.  S.  347. 


THE  SIGNATURE  BY  AN  AGENT.  27 

Where  the  authority  is  given  beforehand,  the  party  must 
trust  to  his  agent ;  if  it  be  given  subsequently  to  the  con- 
tract, the  party  knows  that  all  has  been  done  according  to 
his  wishes  (r/) . 

An  agent  must  be  a  third  person,  and  not  the  other  con- 
tracting party  {//). 

An  infant  or  married  woman  may  be  an  agent,  their  Who  may  be 
acts  in  that  capacity  not  being  affected  by  their  disabilities  ^^  ^S^^^- 
of  infancy  and  coverture  respectively  (/). 

An  agent  may  be  constituted  either  by  express  appoint-  How  consti- 
ment  or  by  implication  of  law  arising  from  the  circum-  tuted. 
stance  in  which  parties  are  placed  (A-) . 

The  authority  of  the  Agent  to  sell  for  his  Principal  may  Need  not  be 
be  conferred  by  word  of  mouth  (/) ;  for  it  is  now  clearly  ^^^t^onzed  m 
settled  that  the  Agent  need  not  be  authorized  in  writing  (m).  °' 

In  general  an  Auctioneer  may  be  considered  as  the  Agent  Auctioneer. 
and  Witness  of  both  parties  ;  but  a  difficulty  arises  in  the 
case  where  the  Auctioneer  sues  as  one  of  the  contracting 
parties.  The  case  of  Wriglit  v.  Dannah  («),  seems  to  be  in 
point ;  namely,  that  the  Agent  contemplated  by  the  legis- 
lature, who  is  to  bind  a  defendant  by  his  signature,  must 
be  some  third  person,  and  not  the  other  contracting  party 
upon  the  record  (o) . 

An  entry  made  in  the  sale  book  by  the  Auctioneer's  Auctioneer's 
clerk  who  attends  the  sale,  and  as  each  lot  is  knocked  ^^°^^' 
down  names  the  purchaser  aloud,  and  on  a  sign  of  assent 
from  him  makes  a  note  accordingly  in  the  book,   is  a 
Memorandum  in  writing  by  an  agent  within  the  statute  (;;) . 

A  Memorandum  drawn  up  by  the  agent  of  both  parties  Clear  recog- 
by  the  authority  of  the  defendants,  in  their  presence,  and  1"*''^°,  °*  ^'^^' 
recognized  by  them  at  the  time,  though  unsigned  by  them-  ties  suffi^eut. 
selves,  yet  with  their  names  inscribed  on  the  document  by 
him,  will  bind  them  and  satisfy  the  statute  (*/).     But  a 


{{/)  Per  Eest,  C.  J.,  Maclean  v.  son  v.  Hedis,  2  Taunt.  48. 

Dunn,  4  Bing.  727.  («)    Wright  v.  Dannah,  2  Camp. 

(//)  Sharman  v.  Brandt,  L.  R.,  6  203. 

Q.  B.  720;  40   L.  J.,  Q.  B.  312;  (o)  Farehrother  v.  Simmons,   5  B. 

Wright  v.  Dannah,  2  Camp.  203  ;  &  Aid.   335 ;    Sharman  v.  Drandf, 

Farebrother  v.  Simmons,  5  B.  &  Aid.  L.  E..,  6  Q.  B.  720. 

333.  {i))  Bird  v.  Boulton,  4  B.  &  Adol. 

{i)  Paley's  Principal  and  Agent,  443.     The  book  in  which  the  entry 

2 ;  Fresticick  v.  Marshall,  7  Bing.  is  made  must,  however,  be  suffi- 

565 ;    Frince  v.   Brunette,    1  Bing.  ciently   connected  with   the    con- 

N.  C.  438  ;  2  Steph.  Com.  56.  ditions    of    sale.      Fierce  v.    Corf, 

(k)  2  Steph.  Com.  50.  L.  R.,  9  Q.  B.  310;  and  see  lie- 

{/)  Aechal  v.  Lcvg,  10  Bing.  378,  positorics  and  Auetions,  post,  39. 

{m)  Per    Lord    Eldon,    Coles    v.  {q)  Durrell  v.  Evans,    31  L.  J., 

Trecothick,  9  Vesey,  249  a;  Emmer-  Ex.  337. 


28  CONTRACTS  CONCERNING  HORSES,  ETC. 

Memorandum  written  in  the  buyer's  book,  drawn  up  and 
signed  by  a  person,  who  is  the  agent  of  the  seller  only, 
although  this  was  done  at  the  request  of  the  buyer,  will 
not  bind  him  (r). 

DELIVERY  AND  PAYMENT. 

Rights  of  The  right  of  property  and  the  right  of  possession  are 

possesswn^'^    distinct  from  each  other ;  the  right  of  possession  may  be 
in  one  person,  the  right  of  property  in  another  (s).     For 
by  the  law  of  England,  possession  is  not  proof  of  pro- 
perty (/).     It  is,  at  the  same  time,  presumptive  proof  of 
ownership,  and  may  be  acted  on  as  such  {ii). 
Executed  and       "When  the  contract  is  executed,  the  possession  and  the 
contract^s"^        right  are  transferred  together;  where  it  is  executori/,  the 
right  only  vests,   and  the  reciprocal  property  is  not   in 
possession,  but  in  action ;  for  a  contract  executed  (which 
when  it  relates  to  an  exchange  or  sale  of  goods  differs  in 
nothing  from  an  assignment)  conveys  a  chose  in  possession, 
a  contract  executory/  conveys  only  a  chose  in  action  (x). 
Property  may       It  is  clear  that  by  the  law  of  England  the  sale  of  a 
deUvery  °^^    specific  chattel  passes  the  property  in  it  to  the  vendee 
without  delivery  (y) .     Even  in  this  case,  however,  if  the 
contract  show  that  there  is  no  intention  to  pass  the  pro- 
perty until   something   be  done  by  the  seller,  either  in 
order  to  prepare  the  goods  for  delivery,  or  for  the  purpose 
of  ascertaining  the  price,  the  sale  is  not  perfected,  and  the 
property  does  not  pass  until  that  thing  is  done  (;:). 
Wliat  immc-        To  constitute  a  sale  which  shall  immediately  pass  the 
diatcly  passes  property,  it  is  necessary  that  the  thing  sold  should  be 
ascertained  in  the  first  instance,  and  that  there  should  be 
a  price  ascertained  or  ascertainable  (ci) .    So  that  there  may 
be  a  sale  of  a  specific  chattel,  which  shall  immediately  pass 
the  property,  even  though  the  price  may  have  to  be  after- 
wards ascertained  (b). 
Condition  as         Where,  in  an  agreement  of  sale,  a  condition  as  to  the 
tainable^^^^'^"  V^^^^  ^^  annexed,  and  the  fulfilment  of  it  is  ascertainable, 

(;•)   Graham  v.  Musson,   5  Bing.  (//)  See  per  Parke,  J.,  Dixon  v. 

N.   C.   603.      And  see  Miirphi/  v.  Yates,  b  B.  &  Adol.  340 ;  Buddie  v. 

Boesc,  L.  R.,  10  Ex.  126 ;  44  L.  J.,  Green,  27  L.  J.,  Ex.  33. 

Ex.  40  ;  32  L.  T.,  N.  S.  122.  {-)  Chitty  on  Contracts,  lOth  ed. 

(.?)   Tarling  v.  Baxter,  6  B.  &  C.  S48. 

364.  {a)  Judgment  of  C.  P.,  Logan  v. 

{t)  See  per  Best,  C.  J.,  WiUiams  Le  Mcsurier,  11  Jur.  1094. 

V.  Barton,  3  Bing.  145.  {h)  See  Logan  v.  Lc  Mesiirier,  11 

lu)   Webh  V.  Fox,   7  T.  R.  397  ;  Jur.    1091    (C.  P.) ;    Chit.  Contr., 

Fy'son  v.  Chambers,  9  M.  &  W.  460.  10th  cd.  316. 

(z)  2  Steph.  Com.  50. 


DELIVERY  AND  PAYMENT.  29 

such  condition  would  appear  to  be  good ;  as  where  the 
plaintiff  purchased  a  Horse  for  55/.,  and  the  defendant 
warranted  him  sound,  and  agreed  to  give  back  1/.  if  the 
Horse  did  not  bring  the  plaintiff  4/.  or  5/.  profit  (c). 

But  if  such  condition  is  not  ascertainable,  of  course  it  EfEect  where 
cannot  be  enforced,  and  then  it  becomes  an  immaterial  not  ascer- 
part  of  the  agreement.  Thus,  where  a  horse  was  sold  to  *^i^^"^le. 
the  plaintiff  for  100  guineas,  "  and  10/.  more  if  the  Horse 
suited  him,"  Lord  Tenterden  said,  "  If  the  buyer  had 
kept  the  Horse,  I  do  not  see  how  the  seller  could  have 
maintained  any  action  to  recover  the  10/.  The  buyer 
might  have  said, '  the  Horse  does  not  suit  me,  but  I  choose 
to  keep  him  nevertheless'  "  (r/).  So,  also,  where  the  plain- 
tiff agreed  to  purchase  a  Horse  for  63/.,  and  "  if  the  Horse 
was  lucky,  he  would  give  the  defendant  5/.  more,  or  the 
buying  of  another  Horse,"  it  was  held  that  this  part  of 
the  agreement  was  too  vague  to  be  legally  enforced,  and 
did  not  amount  in  point  of  law  to  a  promise.  Thus,  Lord 
Tenterden  said,  "  The  remaining  part  of  the  consideration, 
that  if  the  Horse  proved  lucky  the  plaintiff  should  give  5/. 
more,  or  the  buying  of  another  Horse,  is  much  too  loose 
and  vague  to  be  considered  in  a  Court  of  law.  Who  is  to 
say  under  what  circumstances  a  Horse  shall  be  said  to 
have  proved  '  lucky'  ?  The  price  at  which  the  Horse  sold 
would  not  determine  it.  Suppose  a  year  passed  before  the 
advanced  price  was  obtained,  it  might  then  still  be  a  ques- 
tion, whether  the  bargain  had  been  lucky  or  not.  But 
admitting  that  this  could  be  ascertained,  how  could  the 
contract  to  give  5/.,  or  the  buying  of  another  Horse,  be 
enforced  ?  It  is  at  the  option  of  the  contracting  party  to 
do  either ;  and  what  could  be  made  of  an  action  for  not 
buying  another  Horse  ?  The  party  sued  might  say  he 
was  ready  to  buy,  but  too  much  was  asked"  (e). 

Where  from  the  whole  tenor  of  a  contract  it  is  clear  Unreasonable 
that,  however  unreasonable  and  oppressive  a  stipulation  or  ^^* notthere- 
condition  may  be,  the  one  party  intended  to  insist  upon,  rejected. 
and  the  other  to  submit  to  it,  the  Court  will  give  full 
effect  to  the  terms  which  have  heen  agreed  upon  between 
the  parties  (/). 

The  rule  of  law  is,  that  where  there  is  an  immediate  The  risk  after 
sale,  and  nothing  remains  to  be  done  by  the  vendor  as  sale. 

(c)  m>/th  V.    Hampton,    3   Bing.       234. 

472.  (/■)  Stadhard  v.  Lee,   32  L.   J., 

[d)  Cave  v.  Coleman,  3  M.  &  R.  3.       Q.  B.  75  ;  Andreus  v.  BeJfield,  2  C. 
\e)  Guthing  v.  Lynn,  2  B.  &  Adol.       B  ,  N.  S.  779. 


30 


CONTRACTS  CONCEHNING  HORSES,  ETC. 


Goods  to  be 
made  to  order. 


Goods  to  be 
delivered  on  a 
future  day. 


Delivery  and 
payment  con- 
temporaneous 

acts. 

Time  not  tlie 
essence  of  a 
contract. 


between  him  and  tlie  vendee,  the  property  in  the  thing 
sold  vests  in  the  vendee,  and  then  all  the  consequences 
resulting  from  the  vesting  of  the  property  follow,  one  of 
which  is,  that  if  it  be  destroyed,  the  loss  falls  upon  the 
vendee  (r/).  Thus,  in  Noy's  Maxims  it  is  said,  "If  the 
Horse  die  in  my  stable  between  the  bargain  and  the 
delivery,  I  may  have  an  action  of  debt  for  my  money, 
because,  by  the  bargain,  the  property  was  in  the  buyer"  (A). 
By  contract,  however,  the  risk  may  be  in  the  vendee,  even 
though  the  vendor  may  have  both  the  property  in  and  the 
possession  of  the  goods  (/). 

Where  goods  are  to  be  made  to  order,  as  on  a  contract 
for  building  a  carriage  or  a  ship,  it  is  a  question  of  in- 
tention, to  be  inferred  from  the  circumstances,  whether 
the  property  passes  before  the  completion  of  the  article 
or  not  (A-) . 

A  contract  for  the  sale  of  goods,  to  be  delivered  at  a 
future  day,  is  not  invalidated  by  the  circumstance  that,  at 
the  time  of  the  contract,  the  vendor  neither  has  the  goods 
in  his  possession,  nor  has  entered  into  any  contract  to  buy 
them,  nor  has  any  reasonable  expectation  of  becoming 
possessed  of  them  by  the  time  appointed  for  delivering 
them,  otherwise  than  by  purchasing  them  after  making 
the  contract  (/). 

"Where  there  is  a  sale  of  an  ascertained  article,  and  no 
provision  is  made  to  the  contrary,  the  delivery  and  pay- 
ment are  to  be  contemporaneous  acts  (;;?). 

In  a  sale  of  chattels.  Time  was  not  generally,  even  at  law, 
of  the  essence  of  the  contract,  unless  made  so  by  express 
agreement,  by  introducing  conditional  words  into  the 
bargain  (;;).  And  now,  by  the  Judicature  Act,  1873 
(36  &  37  Yict.  c.  G6),  s.  25,  sub-s.  7,  stipulations  in  con- 
tracts as  to  Time  or  otherwise,  which  would  not  before  the 
passing  of  that  Act  have  been  deemed  to  be  or  to  have 
become  of  the  essence  of  such  contracts  in  a  Court  of  equity, 


{(j)  Per  Bayley,  J.,  Tarling  v. 
Baxter,  6  B.  &  C.  364  ;  see  also 
Furley  v.  Bates,  33  L.  J.,  Ex.  43 ; 
Castle  V.  Fhyford,  L.  R.,  7  Ex.  98. 

(A)  Noy's'Maxims,  208. 

(i)  Martbieau  v.  Kltcliinq,  L.  R., 
7  Q.  B.  436,  cited  in  Chitty  on 
Contracts,  10th  ed.  348. 

{k)  Puad  V.  Fairbanks,  22  L.  J. 
206  (C.  P.). 


(/)  Eihhlcwhite  V.  McMorine,  5  M. 
&  W.  462. 

(;«)  Fcttitt  V.  Mitchell,  6  Sco.  N. 
R.  740  ;  Chase  v.  Westmore,  5  M.  & 
S.  189 ;  Coicpcr  v.  Andreivs,  Hob. 
41 ;  Noy's  Maxims,  cap.  42;  2  Bla. 
Com.  447;  Year  Book,  Easter  Term, 
5  Edw.  4,  fol.  20. 

(«)  Per  Cur.,  Martindalc  v.  Smith, 
1  Q.  B.  395.  See  Coddington  v. 
Faleogo,  L.  R.,  2  Ex.  193, 


DELIVERY  AND  PAYMENT,  31 

sliall  receive  in  all  Courts  the  same  construction  and  effect 
as  they  would  theretofore  have  received  in  equity. 

"Where  goods  are  sold,  and  nothing  is  said  as  to  the  time  Where 
of  the  delivery,  or  the  time  of  payment,  and  every  thing  ^^^about 
the  seller  has  to  do  with  them  is  complete,  the  property  the  time  of 
vests  in  the  buyer,  so  as  to  subject  him  to  the  risk  of  any  the  delivery, 
accident  which  may  happen  to  the  goods,  and  the  seller 
is  liable  to  deliver  them  whenever  they  are   demanded, 
iijion  payment  of  the  price,  but  not  before  (o). 

A  vendor  may  have  a  qualified  right  to  retain  the  goods  Eelative  posi- 
unless  payment  is  duly  made,  and  yet  the  property  in  tionofthe 
these  goods  maybe  in  the  vendee  {p).     Thus  it  is  said,  P''^^  ^®^- 
in  Noy's  Maxims  (7),  "If  I  sell  my  Horse  for  money,  I 
may  keep  him  until  I  am  paid,  but   I  cannot  have  an 
action  of  debt  until  he  is  delivered;  yet  the  property  of 
the  Horse  is,  by  the  bargain,  in  the  bargainee  or  buyer. 
But  if  he  do  presently  tender  me  my  money,  and  I  do 
refuse  it,  he  may  take  the  Horse,  or  have  an  action  of 
detainment."     And  if  the  buyer  in  such  case  take  away 
the  Horse  before  the  price  is  paid,  the  seller  may  have 
an  action  of  Trespass,  or  an  action  of  Debt  for  the  money, 
at  his  choice  (r). 

The  seller's  right  in  respect  of  the  price  is  not  a  mere  Seller's  lien 
lien  which  he  will  forfeit  if  he  parts  with  the  possession,  ^^^  t^®  P^°®- 
but  grows  out  of  his  original  ownership  and  dominion, 
because  payment  or  a  tender  of  the  price  is  a  condition  pre- 
cedent on  the  buyer's  part,  for  until  he  makes  such  payment 
or  tender  he  has  no  right  to  the  possession  (s) . 

In  the  case  of  an  exchange  of  two  Horses  for  one,  a  Lien  in  case 
delivery  of  one  of  the  two  would  not  preclude  the  owner's  ^^  ^^  ®^" 
lien  on  the  other  till  the  delivering  of  the  one  Horse  for  ^  ^^°^' 
which  the  two  were  to  be  exchanged  [t) . 

And  whatever  conditional  or  temporary  arrangement  be  Conditional 
made   as  to  possession,  so  long  as   it  is   consistent  with  possession. 
an  intention  to  retain  a  special  right  to  detain  the  goods, 
the  seller  will  not  forfeit  his  lien.     Thus  if  A.  purchase  a 

(0)  Bhxam  v.  Sanders,  4  B.  &  C.  Ex.  N.  P.  Nov.  3,  1859,  where  two 

94i.  horses  were  sold,  and  were  to  bo 

{p)   Tarl'uig  \.  Baxter,  6  B.  &  C.  kept    by   a  third  party,    until    a 

364.  cheque    given    in     payment    was 

(q)  Noy's  Maxims,  208.  cashed,  that,   as  the   cheque   was 

(r)  Manhy  v.  Scott,  1  Mod.  137 ;  dishonoured,  the  vendor  had  not 

1  Dyer,  30  a,  pi.  203.  given  up  possession. 

(«)  Bloxam  v.  Sanders,  4  B.  &  C.  (t)  See  Hanson  v.  Meyer,  6  East, 

948.     It  was  held  by  Martin,  B.,  621. 
in  the  case  of  Stuchfield  v.  Kind, 


32 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Buyer's  right 
of  possession 
"where  goods 
are  sold  on 
credit. 
How  it  may- 
be defeated. 


Seller's  lien 
during  pos- 
session. 


His  right  of 
stoppage  in 
transitu. 


When  goods 
are  held  to  be 
in  transittc. 


When  any- 
thing remains 
to  be  done  by 
seller. 


Horse  of  B.,  which,  is  not  to  be  delivered  until  the  price 
be  paid,  but  B.  in  the  meantime  allows  A.  to  take  the 
Horse  for  a  day  or  a  week  to  drive,  the  lien  of  B.  is  not 
determined,  but  merely  suspended  during  the  time  for 
which  he  allows  A.  to  take  the  Horse  (u). 

If  goods  are  sold  upon  credit,  and  nothing  is  agreed 
upon  as  to  the  time  of  delivering  them,  the  buyer  is 
immediately  entitled  to  the  possession,  and  the  right  of 
possession  and  the  right  of  property  vest  at  once  in  him  {v). 

But  his  right  of  possession  is  not  absolute ;  it  is  liable 
to  be  defeated  if  he  becomes  bankrupt  before  he  obtains 
possession  {ir). 

The  sale  of  a  specific  chattel  on  credit,  though  that 
credit  may  be  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  upon  the  goods, 
if  they  remain  in  his  possession,  till  that  price  be  paid, 
but  default  of  payment  does  not  rescind  the  contract  {x). 

The  seller  of  goods  has  not  only  a  lien  on  them  for  the 
price,  whilst  they  are  in  his  possession,  but  when  the  price 
is  unpaid,  he  may,  after  he  has  parted  with  the  possession 
of  the  goods,  and  whilst  they  are  in  transitu,  retake  them 
in  the  event  of  the  Bankruptcy  or  Insolvency  of  the  buyer  (//). 

Stoppage  in  transitu,  as  its  name  imports,  can  only 
take  place  whilst  the  goods  are  on  their  way  to  the  buyer  ; 
and  the  rule  to  be  collected  fi-om  the  cases  is,  that  they 
are  in  transitu  so  long  as  they  are  in  the  hands  of  the 
carrier  as  such  (;:),  and  also  so  long  as  they  remain  in  any 
place  of  deposit  connected  with  their  transmission  {a). 

And  so  long  as  there  remains  any  thing  to  be  done  by 
the  seller,  or  at  his  risk  or  charge,  the  transit  is  incom- 
plete. Thus,  where  corn  was  to  be  conveyed  from  the 
warehouse  at  the  railway  to  the  buyer's  waggons,  at  the 
expense  of  the  seller,  it  was  held,  even  after  it  had  reached 
the  station,  to  be  still  in  transitu  (b). 


{u)  See  Stoiy  on  Sales,  236; 
Reeves  v.  Capper,  5  Bing.  N.  C. 
136  ;  and  see  Benj.  on  Sales,  667. 

{v)  Bloxam  v.  Sanders,  4  B.  &  C. 
948. 

{w)  Ibid.  ;  Tootce  v.  HolUngs- 
worth,  5  T.  R.  215  ;  Ex  parte  Chal- 
mers, L.  R.,  8  Ch.  App.  289  ;  and 
see  Chitty  on  Contracts,  10th  ed. 
392. 

[x)  See  per  Cur.,  Martindale  v. 
Smith,    1    Q.   B.    395;    Tarling  v. 


Baxter,  6  B.  <&  C.  362 ;  Ex  parte 
Chalmers,  8  Ch.  App.  289. 

[y)  See  Chit.  Contr.  1 1th  ed.  400 ; 
Lickbarroiv  v.  Mason,  2  T.  R.  63. 

{£)  Whitehead  v.  Anderson,  9  M. 
&  W.  518. 

{a)  See  1  Smith's  Leading  Cases, 
8th  ed.  816. 

{h)  Ex  parte  Cross,  re  Flgot,  Court 
of  Bankruptcy,  17  L.  T.  160;  see 
Coombs  V.  Bristol,  ^-c.  B.  Co.,  27 
L.  J.,  Ex.  401. 


DELIVERY  AND  PAYMENT.  33 

What  tlie  effect  of  stoppage  in  transitu  is,  whetlier  en-  EfPect  of 
tirely  to  rescind  the  contract,  or  only  to  replace  the  seller  stoppage  m 
in  the  same  position  as  if  he  had  not  parted  with  the  pos- 
session, and  entitle  him  to  hold  the  goods  until  the  price 
he  paid,  is  a  point  not  yet  finally  decided,  but  the  latter 
view  of  the  case  seems  to  be  the  correct  one  (c). 

In  a  contract  for  the  sale  of  goods,  "  the  goods  to  be  Goods  to  be 
delivered  at  the  works  forthwith,  and  to  be  paid  for  f ^p^^j^'^'^ent 
within  fourteen  days  from  the  date  of  the  contract,"  the 
delivery  of  the  goods  is  a  condition  precedent  to  the  right 
of  the  seller  to  claim  the  payment  of  the  purchase-money. 
The  use  of  the  word  "forthwith"  shows  that  the  goods 
ought  to  have  been,  and  that  the  parties  intended  that 
they  should  be,  delivered  at  some  time  within  the  fourteen 
days(r/). 

When  there  are  no  special  indications  of  the  limit  of  When  time  of 
time  in  a  contract,  that  it  should  be  performed  "  directly"  <lelivery  is 
means  that  it  should  be  performed  not  "  within  a  reason-  ^^j_  ' 
able  time"  but  "speedily,"  or  at  least  "as  soon  as  prac- 
ticable" ((^)  ;  and  "as  soon  as  possible"  means  "without 
unreasonable  delay,"  regard  being  had  to  the  ability  of 
the  person  contracting,  and  the  orders  he  has  already  in 
hand  (/) . 

If  there  be  an  express  contract  between  the  parties,  Goods  to  be 
that  the  goods  shall  be  paid  for  before  delivery,  an  action  f^^c  deliver" 
may  be  brought  for  the  money  before  the  goods  are  de- 
livered. Thus  if  A.  undertakes  to  pay  100/.  on  the  1st 
of  January  for  a  Horse  purchased  by  him,  and  B.  agrees 
to  deliver  it  on  the  1st  of  April  following,  B.  may  in  the 
meantime  maintain  an  action  against  A.  for  the  money, 
without  delivering  or  offering  to  deliver  the  Horse  {g). 

Where  two  parties  enter  into  a  contract  which  is  to  be  Eenunciation 
performed  at  a  future  day,  and  before  the  day  of  per-  °*  contract, 
formance  arrives,  one  of  them  gives  the  other  notice  that 
he  does  not  hold  himself  bound  by  it,  the  other  is  at  liberty 
to  treat  such  renunciation  as  a  breach  of  the  contract, 
without  waiting  for  the  arrival  of  the  day  which  is  fixed 
for  its  performance  (A). 

(c)    Wentworth  v.    OHthicaitc,   10  C.  P.  73. 

M.  &  W.  452 ;  1  Sm.  L.  C.  8th  ed.  (y)  See  Pcttitt  v.  Mitchell,  5  Sco. 

811.  N.  R.   740;    T/ior2)e  v.    T/iorpe,   1 

{d)  Stmmton  v.  Wood,  16  L.  T.,  Lord  Raym.   665  ;    S.   C.   1    Salk. 

Q.  B.  486.  171 ;   and  see  Add.  Contr.  7th  ed. 

(e)  Duncan  v.   Topliam,   8  C.  B.  461. 

225.  (A)  Danube,  ij'C.  Co.  v.  Xenos,   31 

(/)  AftwoodY.  Emery,  26  L.  J.,  L.  J.,  C.  P.  281  (Ex.  Ch.). 

O.  D 


34 


CONTRACTS  COXCERNING  HORSES,  ETC. 


Price  directed 
to  be  sent  by 
post. 


Post-office 
order. 


Forged  bank 
note. 


Dishonoured 
biU. 


Halves  of 
bank  notes. 


Writing  off 
debt  by  agent 
to  agent. 


Banker's 
cheque. 


If  tlie  buyer  is  directed  to  send  the  price  by  Post,  or  if 
it  lias  been  the  usual  practice  between  the  parties,  to  do 
so  (i),  and  the  letter  containing  the  money  properly  di- 
rected [j)  and  posted  {k)  is  lost,  the  debt  is  extinguished, 
and  the  seller  must  bear  the  loss  (/). 

Where  the  defendant,  in  answer  to  a  letter  demanding 
payment,  sent  a  Post-Office  Order,  in  which  the  plaintiff 
was  described  by  a  wrong  christian  name,  and  the  plaintiff 
kept  it,  but  did  not  cash  it,  although  he  was  informed  at 
the  Post  Office  he  might  receive  the  money  at  any  time 
by  signing  it  in  the  name  of  the  payee,  it  was  held  by  the 
Court  of  Exchequer  that  this  was  no  evidence  of  pay- 
ment {)n). 

If  payment  be  made  in  forged  Bank  of  England  notes, 
it  may  be  treated  as  a  nullity,  and  an  action  be  maintained 
by  the  creditor  against  the  debtor  for  the  money  (w). 

Where  there  is  a  sale  of  specific  chattels,  and  a  bill  is 
given  in  payment,  though  the  vendor  has  then  lost  his 
lien  in  the  strict  sense  of  the  word,  yet,  if  afterwards  an 
insolvency  happens,  and  the  bill  is  dishonoiu'ed,  then  the 
vendor  has  a  right  somewhat  analogous  to  that  which  a 
vendor  has  over  goods  i)i  transitu,  and  if  they  are  still  in 
his  hands,  he  has  a  right  to  withhold  the  delivery  of  the 
goods  (o). 

If  payment  is  made  by  halves  of  Bank  notes,  no  pro- 
perty in  them  passes  to  the  payee,  till  the  other  halves  are 
sent  {p) ;  and  therefore  it  would  seem  that  such  an  in- 
choate payment  will  be  no  payment  within  the  Statute  of 
Frauds. 

If  a  creditor  employs  an  agent  to  receive  money  from 
a  debtor,  and  the  agent,  instead  of  so  doing,  writes  off  a 
debt  due  from  himself  to  the  debtor,  his  debtor  is  not 
thereby  discharged,  unless  indeed  there  is  a  subsequent 
ratification  by  the  creditor  of  the  act  of  his  agent  (y) . 

If  a  creditor  is  offered  cash  in  payment  of  his  debt,  or 
a  cheque  upon  a  Banker  from  an  agent  of  his  debtor,  and 
he  prefers  the  latter,  this  does  not  discharge  the  debtor 
if  the  cheque  be  dishonoured ;    although  the  agent  fails 


{()  WanvicTie  v.  Xoalxs,  Peake, 
N.  P.  98. 

[j)  Walter  V.  Ilaijnes,  E.  &  M. 
149. 

(^•)  HaicMns  v.  Rutt,  Peake,  N. 
P.  248. 

(/)  Kington  v.  Kington,  11  M.  & 
W.  233. 


[m)   Gordon,  v.  Strange,  1  Ex.  477. 

(«)  See  Chit.  Contr.'  10th  ed.  681. 

[o)  Per  Cronipton,  J.,  Griffiths  \. 
Ferry,  28  L.  J.,  Q.  B.  204. 

{]))  Smith  V.  Mundy,  29  L.  J., 
Q.  B.  172. 

{q)  Undencood  v.  Nichols,  25  L. 
J.,  C.  P.  79. 


DELIVERY  AND  PAYMENT.  35 

with  a  balance  of  liis  principal  in  his  hands  to  a  larger 
amount  (/•). 

The  creditor  must,  however,  present  the  cheque  within 
a  reasonable  time  (s). 

If  a  creditor  prefers  a  Bill  of  Exchange  accepted  by  a  Bill  of  ex- 
stranger  to  ready  money  from  his  debtor,  he  must  abide  change, 
the  hazard  of  the  security  he  takes  (t). 

By  the  order  of  the  creditor,  a  debt  may  be  paid  to  a  DeU  paid  to 
third  party,  who,  if  he  take  payment  in  any  other  way  '^  ^^^^^''^  party, 
than  in  money,  or  if   he  give  the  debtor   further  time, 
without  the  knowledge  of  the  creditor,  he  does  it  at  his 
peril  (u). 

SUNDAY  DEALING. 

By  a  law  of  King  Athelstan,  all  "  merchandizing  on  Law  of  King 
the  Lord's  Day  "  is  prohibited,  and  it  is  thus  laid  down :  ^tliel^tau. 
"Die  autem  Domiiiico  nemo  mercafnram   facifo ;    id  quod 
si  quis  egerif,  et   ij)sa  mercc,  ct   30  prieterea  soUdis  miilc- 
tator''  {x). 

And  by  29  Car.  2,  c.  7,  s.  1,  which  is  "An  Act  for  Statute  of 
the  better  Observation  of  the  Lord's  Day,"  it  is  enacted,  ^'^'''■^■l'^^  2. 
"that  no  tradesman,  artificer,  workman,  labourer,  or 
other  person  whatsoever,  shall  do  or  exercise  any  u-orldhj 
labour,  business  or  icorh  of  their  ordinary  callings  upon 
the  Lord's  Day  or  any  part  thereof  (works  of  necessity 
and  charity  only  escej)ted),  and  every  person  being  of  the 
age  of  fourteen  years  or  upwards  offending  in  the  premises 
shall  for  every  such  offence  forfeit  the  sum  of  5«. ;  and 
that  no  person  or  persons  whatsoever  shall  publicly  cry, 
show  forth  or  expose  to  sale  any  wares,  merchandizes, 
fruit,  herbs,  goods  or  chattels  whatsoever  upon  the  Lord's 
Day  or  any  part  thereof,  upon  pain  that  every  person  so 
offending  shall  forfeit  the  same  goods  so  cried  or  showed 
forth,  or  exposed  to  sale." 

By  the  34  &  35  Yict.  6.  87  (continued  by  the  Expiring 
Laws  Continuance  Act),  s.  1,  no  prosecution  or  other 
proceeding  shall  be  instituted  for  the  contravention  of  this 
Act,  but  with  the  consent  in  writing  of  the  chief  officer  of 
the  police  of  the  police  district  in  which  the  offence  is 
committed,  or  of  two  justices  of  the  peace,  or   of  the 

{r)  Everett   v.    Collins,    2   Camp.  {t)  See  per  Lord  EUenborough, 

515;  see  Stuckfield  v.  Sincl,   ante,       Everett  y.  Collins,  2  Camp.  516;  aud 
p.  31.  see  Chit.  Contr.  10th  ed.  682. 

(?)  IIopMnsY.Warc,  L.  E.,  4  Ex.  («)  Smith  v.  Ferrnnd,  7  B.  &  C. 

268;  38  L.  J.,  Ex.  147.  19  ;  Chit.  Contr.  10th  ed.  GSS. 

(.»•)  2  Inst.  cap.  31,  p.  220. 

d2 


36 


CONTRACTS  CONCERNING  HORSES,  ETC. 


Farmers  not 
within  sta- 
tute. 

Sale  by  a 
Ilorscdcaler. 


By  an  orcli- 
naiy  person. 


Subseqiient 
ratification  of 
a  contract. 


stipendiary  magistrate  having  jurisdiction  in  tlie  place 
where  such  offence  is  committed. 

A  farmer  has  been  held  not  to  be  within  section  1  of  the 
29  Car.  2,  c.  7,  on  the  ground  that  he  is  not  "  a  tradesman, 
artificer,  workman,  or  ejusdon  generis  with  any  of  these"  (v/). 

A  Ilorsedealer  cannot  maintain  an  action  upon  a  con- 
tract for  the  sale  and  warranty  of  a  Horse  made  by  him 
upon  a  Sunday.  The  law  on  this  subject  was  laid  down 
by  the  Court  of  King's  Bench  in  Feiinell  v.  Rieller  (z)  on  a 
motion  for  a  new  trial,  and  Mr.  Justice  Bayley  delivered 
the  following  judgment :  "  This  was  an  action  upon  the 
warranty  of  a  Horse.  The  plaintiffs  were  Ilorsedeakrs, 
and  the  Horse  was  bought  and  the  warranty  given  on  a 
Sunday ;  and  the  only  question  was,  whether,  under  the 
29  Car.  2,  c.  7,  the  purchase  was  illegal,  and  the  plaintiffs 
precluded  from  maintaining  the  action.  That  the  pur- 
chase of  a  Horse  by  a  Ilorsedealer  is  an  exercise  of  the 
business  of  ]iis  ordinary  calling  no  one  can  doubt.  The 
act  does  not  apply  to  all  persons,  but  to  such  only  as  have 
some  ordinar//  calling.  In  Druri/  v.  De  la  Fontaine  {a) 
Lord  Mansfield,  C.  J.  (after  the  Court  had  taken  time  to 
consider),  laid  it  down,  that  if  any  man  in  the  exercise  of 
his  ordinary  calling  make  a  contract  on  a  Su)ida//,  that 
contract  would  be  void  (and  the  case  before  him  was  a 
private  contract  for  the  purchase  of  a  Horse),  but  he 
showed  that  that  case  was  not  within  the  statute,  because 
no  one  of  the  parties  was  in  the  exercise  of  the  business  of 
his  ordinary  calling.  His  expression,  that  the  contract 
would  be  raid,  probably  meant  only  that  it  would  be  void 
so  as  to  prevent  a  party  who  was  privy  to  what  made  it 
illegal  from  suing  upon  it  in  a  Court  of  law,  but  not  so  as 
to  defeat  a  claim  upon  it  by  an  innocent  party ;  and  so  it 
was  considered  by  this  Court  in  Bloxsome  v.  Williams'^  (b). 

"Where  neither  parties  are  Ilorsedcalers,  a  contract  be- 
tween them  for  the  sale  of  a  Horse  is  good,  though  made 
on  Sunday ;  and  this  was  recognized  by  Mr.  Justice 
Bayley  in  the  last  case,  as  having  been  distinctly  laid 
down  by  Lord  Mansfield  in  Drury  v.  De  la  Fontaine, 

Where  a  bargain  for  some  cattle  was  made,  and  the 
price  agreed  on,  on  a  Saturday  evening,  subject  to  the 
defendant's  approval  of  the  beasts  upon  inspection  next 
33  L.  J.,  M. 


(y)  E.  V.  Silvester 
C.  79. 

(z)  Fennell  and  another  v.  liidkr, 
5  B.  &  C,  406. 


{a)  Drtiri/  v.  De  la  Fontaine,  3  B. 
&  C.  232 ;  but  see  per  Parke,  J., 
Smith  V.  Sparroic,  4  Bing.  88. 

(i)  Bloxsome  v.  Williams,  1 
Taunt.  135 ;  -S.  C.  3  B.  &  C.  232. 


SUNDAY  DEALING.  37 

morning;  and  accordingly  on  Sunday  the  defendant  in- 
spected and  approved  them,  and  afterwards  kept  them  for 
some  time  and  promised  to  pay  for  them ;  it  was  held, 
that  although  the  original  contract  was  on  Sunday,  yet  as 
they  continued  in  the  possession  of  the  defendant,  who 
afterwards  promised  to  pay  for  them,  this  subsequent  pro- 
mise was  sufficient  on  a  quant  urn  meruit,  or  as  a  ratification 
of  the  agreement  of  the  Saturday  (c). 

But  a  party  cannot  sue  on  a  breach  of  warranty  if  he  Breach  of 
take  it  on  a  Sunday  from  a  pgrson  he  knows  to  be  a  Horse-  warranty 
dealer.  However,  where  an  innocent  party  brings  an  Sunday, 
action  on  the  breach  of  a  warranty  given  to  him  by  a 
Jlorsedealer  on  a  Sunday,  it  is  not  competent  for  the  de- 
fendant to  set  up  his  own  breach  of  the  law  as  an  answer 
to  the  action ;  and  this  was  so  held  in  the  case  of  IjIox- 
some  V.  Williams  {d),  where  an  action  was  brought  on  the 
warranty  of  a  Horse,  and  an  objection  was  taken  that  it 
had  been  given  on  a  Sunday.  It  ajipeared  that  the  de- 
fendant was  a  coach  proprietor  and  Horsedealer,  and  that 
the  plaintiff's  son  was  travelling  on  a  Sunday  in  the  de- 
fendant's coach,  and  while  the  Horses  were  changing  he 
made  a  verbal  bargain  with  the  defendant  for  the  Horse 
in  question,  for  the  price  of  thirty-nine  guineas ;  the  latter 
warranted  the  Horse  to  be  sound,  and  not  more  than  seven 
years  old.  The  Horse  was  delivered  to  the  plaintiff  on 
the  following  Tuesday,  and  the  price  was  then  paid  ;  there 
was  nothing  in  evidence  to  show  that  the  plaintiff's  son 
knew  at  the  time  when  he  made  the  bargain  that  the 
defendant  exercised  the  trade  of  a  Horsedealer.  The 
Horse  was  unsound,  and  seventeen  years  old.  It  was 
objected,  on  the  part  of  the  defendant,  that  the  plaintiff 
could  not  recover,  on  the  ground  that  the  bargain  having 
been  made  on  a  Sunda//  was  void  within  the  29  Car.  2, 
c.  7,  s.  2.  The  learned  judge  overruled  the  objection,  and 
the  plaintiff  obtained  a  verdict  for  the  price  of  the  Horse. 
The  Court  of  King's  Bench  discharged  a  rule  for  a  new 
trial,  and  Mr.  Justice  Bayley  said,  "  In  this  case  there  was 
no  note  in  writing  of  the  bargain,  and  on  the  Sunday  all 
rested  in  parol,  and  nothiag  was  done  to  bind  the  bargain. 
The  contract,  therefore,  was  not  valid  until  the  Horse  was 
delivered  to  and  accepted  by  the  defendant.  The  terms  on 
which  the  sale  was  afterwards  to  take  place  were  only 
specified  on  the  Sunday,  and  those  terms  were  incorporated 
in  the  sale  made  on  the  subsequent  day." 

(c)  WUUamsv.  Paul,  6  Bing.  653.  {d)  See  note  ib),  ante. 


(     38     ) 


CHAPTER  II. 


HORSEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


HOESEDEALEE. 

Definition  of  a  Horse-dealer     ....   38 

ji  Seller  on  Commission id. 

The  Proprietor  of  Aldridge' s     , .   39 
Ko  Duty  payable  by  a  Horsedealer  id. 
Horscdealer  when  a  Trader  within 
BankrujJtcy  Act id. 

Kepositoeies  and  Auctions. 

An  Auctioneer    id. 

Liable  to  an  Action  for  Negligence  40 

Or  for  Conversion    id. 

Selling  Horse  comp)riscd  in  Bill  of 
Sale 41 

Horse  sent  to  a  Repository id. 

Auctioneer'' s  Possession id. 

An  Auctioneer  canset  up  Jus  tertii  42 

Interpleader  by  Auctioneer id. 

Goods  privileged  from  Distress  ..  id. 

His  Right  to  remain  on  the  Pre- 
mises        43 

Auctioneer  or  Clerk  Agent  of  both 
Parties id. 

Purchaser'' s  Name  signed  to  a 
Catalogue id. 

Printed  Particulars  of  Sale    ....   44 

An  incorrect  Catalogue   ....  ....  id. 

A  liiniicd  IFarranty  id. 

JFhere  it  applies  only  to  Sound- 
ness      45 

Trial  of  a  Horse  warranted  quiet 
in  Harness   46 

Notice  of  the  Conditions  of  Sale. .  id. 


Notice  of  Particulars 47 

JFhere  a  Bidder  may  retract  ....  id. 

Sale  "  tviihouf  reserve'''' id. 

Effect  of  Advert'isement 48 

Warranty  of  Ownership     id. 

Auctioneer  not  disclosing  h  is  Pr'm- 
cipal     49 

Liabd'dy  for  Non- Delivery    ....  id. 

Puffoig id. 

Person  employed  to  bid    50 

Eff'ect  of  previous  Private   IFar- 
ranty       51 

Agreement  not  to  b'ul against  each 
other id. 

Mock  Auctions id. 

Purchaser  may  transfer  his  Bar- 
gain   id. 

Where  Party  refuses  to  take  Goods  id. 

Goods  resold  without    comnmni- 
eating  luith  Purchaser 52 

Auctioneer  proper  Pccrty  to  receive 
the  Price id. 

Has  no  Authority  to  receive  a  Bill 
of  Exchange id. 

He  is  Stakeholder  for  both  Parties  id. 

Effect  of  this  Attribute id. 

As  to  Interest 53 

Auct'ioncer'' s  Lien    id. 

When  the  Price  vests  in  the  Fendor  id. 

Price     obtained     by    Principal's 
Fraud id. 

Agent  not  declaring  himself  to  be 

so 54 

. .  id. 


Auct'ioncer^ s  Commission 


Definition  of 
a  Horse- 
dealer. 


A  seller  on 
Commission. 


HORSEDEALER. 

A  Horscdealer,  strictly,  is  a  person  who  by  liis  traffic  "  dis- 
tributes" Horses  (f/).  And  by  29  Greo.  3,  c.  49,  s.  5,  he 
is  clearly  defined  to  be  a  person  who  "  seeks  his  living  by 
buying  and  selling  Horses"  {a). 

It  has  not  however  been  decided,  whether  a  person  who, 
for  Commission,  sells  by  auction  or  private  contract  the 


(«)  Alloi  V.  Sltarp,  2  Excli.  357. 


HORSEDEALER.  39 

Horses  of  others,  is  a  Horsedealer  within  the  Assessed  Tax 
Acts. 

The  Judges  at  Serjeants'  Inn  held  the  proprietor  of  ThoPro- 
Aldridge's  Kepository  to   be  a  Horsedealer.     When  the  pi'ietor  of 
case   came   before  the  Court   of   Exchequer,   Mr.   Baron  ^<l^'i<^^ge  ^■ 
Parke,  with  whom  Mr.  Baron  Alderson  agreed,  said,  "  I 
am  by  no  means  prepared  to  say  that  the  decision  of  the 
Judges,  as  to  the  construction  of  the  word  '  Horsedealer ' 
in  these  statutes,  was  wrong ;  if  I  were  forced  to  give  an 
oj)iuion,  it  might  be  in  accordance  with  theirs"  (b). 

The  duty  which  was  formerly  payable  by  a  Horsedealer  No  duty  pay- 
has   been   repealed   by  the  37  Vict.  c.  IG,  s.    11,  which  '^^e  by 
provides  that  duties  on  licences  for  exercising  or  carrying     '^^^^  ^^  ^^' 
on  the  trade  of  Horsedealers  shall  cease  to  be  payable. 

Though  all  debtors  are  now  liable  to   become   bank-  A  Horso- 
rupts  (c),   yet   the   distinction   between  traders  and  non-  'dealer  when  a 
traders   retains   its   importance,  inasmuch  as  the   test  of  the  Bank- 
bankruptcy  varies  in  the  case  of  traders  and  non-traders  ruptcy  Act. 
(as  defined  before  the  Act  of  1861),  and  many  acts,  which 
in  the  case  of  a  trader  would  be  acts  of  bankruptcy,  would 
not  justify  an  adjudication  in  the  case  of  a  non-trader. 
It  must  therefore  be   borne  in  mind  that  a  person  who 
seeks  his  living  by  buying  and  selling  Horses  (d),  or  who 
buys  Horses  for  the  express  purpose  of  gaining  by  it  (e)  as 
part  of  his  business  (/),  which  is  a  question  for  the  Jury  {[/), 
is  a  trader. 

REPOSITORIES  AND  AUCTIOXS. 

An  Auctioneer  is  solely  the  agent  of  the  seller  of  the  An  Anc- 
goods,  until  the  sale  is  effected,  and  then  he  becomes  also  t^oneer. 
the  agent  of  the  buyer  for  particular  purposes  {h).  For 
when  he  signs  the  printed  particulars  of  sale,  he  signs 
them  as  the  agent  of  the  purchaser  {i).  But  as  soon  as 
the  auction  is  over,  the  Auctioneer  loses  his  distinctive 
attributes;  and  to  sales  afterwards  effected  by  him,  the 
rules  of  ordinary  sales  alone  are  applicable  (/.•) . 

(3)  Allen  v.  Sharp,  2  Ex.    352,  66. 

366.  (/-/)    Wright  v.  Bird,  1  Price,  20. 

(c)  Bankruptcy  Act,  1861,  24  &  [h)  Story  on  Sales,  61  ;  Williams 
25  Vict.  c.  134,  s.  69.  And  see  v.  Millington,  1  H.  Bla.  81 ;  Em- 
32  &  33  Vict.  c.  71,  s.  6.  merson  v.  Jlcelis,  2  Taunt.  38 ;  Ben- 

[d]  Martin    v.     Nightingale,     3       jamin  on  Sales,  2nd  ed.  202. 
Bing.  421.  (()  See  per  Eolfe,   B.,    Eden  v. 

((■)  Bartholomew   v.    Sherwood,    1       Blake,  13  M.  &  W.  619. 
T.  R.  573.  (/>•)  Mews  v.  Carr,  26  L.  J.,  Ex. 

(/)  Belly.  Young,  24  L.  J.,  C.  P.       39  ;  Marsh  v.  Jclf,  3  E.  &  E.  234, 


40 


HOKSEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


Liable  to  an 
action  for 
ne^lio-ence. 


Or  fur  con- 
version. 


An  action  lies  against  an  Auctioneer  employed  to  con- 
duct a  sale  for  negligence  in  his  management  of  it.  As 
■where  the  seller  had  to  make  the  purchaser  compensation, 
in  consequence  of  the  property  having  been  improperly 
described  by  the  Auctioneer  who  had  been  employed  to 
prepare  particulars,  and  sell  the  property  (/). 

And  where  an  Auctioneer,  by  an  unauthorized  sale, 
deprives  another  of  his  property  permanently  or  for  an 
indefinite  time,  he  is  liable  to  an  action  for  conversion  (w) . 
The  case  of  Cochrane  v.  Upmill  {n)  is  an  instance  of  wrongful 
conversion  by  an  Auctioneer.  In  that  case  the  plaintiff 
by  agreement  let  some  cabs  on  hire  to  one  Peggs,  who  took 
them  to  the  defendant,  who  was  an  Auctioneer,  and  ob- 
tained an  advance  on  them.  The  defendant  by  Peggs' 
instructions,  and  without  any  notice  of  the  plaintiff's  pro- 
perty in  the  goods,  subsequently  sold  them  by  auction,  and 
having  recouped  himself  for  his  advance,  commission,  and 
expenses,  handed  over  the  balance  to  Peggs ;  and  it  was 
held  by  the  Court  of  Appeal  (affirming  the  judgment  of 
Lord  Coleridge,  C.  J.),  that  the  plaintiff*  was  entitled  to  re- 
cover damages  from  the  defendant  for  conversion  of  the 
goods ;  and  Bramwell,  L.  J.,  in  the  course  of  his  judgment 
said,  "  It  is,  no  doubt,  a  very  hard  case  for  the  defendant 
who  has  acted  innocently  throughout  in  the  matter ;  but 
setting  aside  the  hardship  of  the  case,  the  law  applicable  to 
it  is  quite  clear.  Here  is  Peggs,  a  man  who  is  not  the  true 
owner  of  these  goods,  but  appearing  to  act  as  such,  but 
who  has  no  power  whatever  to  sell,  takes  them  to  the  de- 
fendant and  gets  a  loan  from  him  on  them.  The  defen- 
dant keeps  them  and  finally  sells  them  in  such  a  way  as  to 
pass  the  property  in  them  to  the  buyers,  and  if  that  is  not 
a  conversion,  then  I  think  there  can  be  no  such  thing. 
Supposing  a  man  were  to  come  into  an  auction  yard  hold- 
ing a  Horse  by  the  bridle  and  to  say,  '  I  want  to  sell  my 
Horse  :  if  you  wall  find  a  purchaser  I  will  pay  commission.' 
And  the  Auctioneer  says,  '  Here  is  a  man  who  wants  to  sell 
a  Horse ;  will  anyone  buy  him  ?'  If  he  then  and  there  finds 
him  a  purchaser  and  the  seller  himself  hand  over  the  Horse, 
there  could  be  no  act,  on  the  part  of  the  Auctioneer,  which 
could  render  him  liable  to  an  action  for  conversion.     But, 


(0  rarhrv.  Farchrothcr,  2'Weekly 
Eep.,  C.  B.  370;  and  see  Torrance 
V.  Bolton,  L.  R.,  8  Ch.  118;  42 
L.  J.,  Ch.  177. 


{m)  mart  v.  Botf,  L.  R.,  9  Ex. 
86,  89  ;  43  L.  J.,  Ex.  81 ;  30  L.  T., 
N.  S.  25  ;  22  W.  R.  414. 

{n)  40  L.  T.,  N.  S.  744;  27 
W.  R.  770. 


REPOSITORIES  AND  AUCTIONS.  41 

looking  at  this  case,  there  is  a  clear  dealing  with  the  pro- 
perty and  exercising  dominion  over  the  chattel,  and  a 
delivery  of  it  by  the  defendant  to  another  person  to  do 
what  he  likes  with  it." 

But  where  the  plaintiffs  were  the  holders  of  a  Bill  of  Selling' 
Sale  including  certain  Horses  and  harness ;  and  the  grantor  Worses  com- 
of  the  Bill  of  Sale,  without  the  plaintiff's  knowledge,  took  of  sale. 
the  Horses  and  harness  to  the  defendant's  Repository  for 
sale  by  auction  and  they  were  entered  in  the  catalogue, 
the  defendant  knowing  nothing  of  the  Bill  of  Sale ;  but 
before  the  auction  the  grantor  of  the  Bill  of  Sale  sold  the 
Horses  and  harness  by  j)rivate  contract  in  the  defendant's 
yard,  and  the  purchase-money  was  paid  to  the  defendant, 
who  deducted  his  commission  and  paid  the  balance  to  the 
seller,  the  Horses  and  harness  being  delivered  to  the  pur- 
chaser ;  it  was  held  that  the  defendant  was  not  guilty  of 
conversion  (o).  For  the  defendant  had  received  the  Horses 
and  harness  from  the  grantor  of  the  Bill  of  Sale,  and  had 
delivered  them  back  to  the  person  to  whom  the  grantor  of 
the  Bill  of  Sale  had  given  a  delivery  order ;  he  had  not 
claimed  to  transfer  the  title,  and  he  had  not  purported  to 
sell ;  all  the  dominion  he  exercised  over  the  chattels  was  to 
re-deliver  them  to  the  man,  the  person  from  whom  he 
had  received  them  had  told  him  to  re-deliver  them  {p). 

Where  a  Horse  is  sent  to  a  common  Bepository,  for  the  Horse  sent  to 
sale  of  Horses,  an  authority  to  sell  is  implied,  although  no  ^  Kei^ositoiy. 
authority  was  ever  given  in  fact,  and  the  owner  will  be 
bound  by  a  sale  to  a  bond  fide  purchaser,  although  made 
without  his  express  consent  [q). 

Where  a  Horse  is  sold  at  a  Bepository,  the  possession  Auctioneer's 
is  in  the  Auctioneer,  and  it  is  he  who  makes  the  contract,  po'^sestsion. 
If  the  Horse  should  be  stolen  he  may  maintain  an  indict- 
ment, and  he  has  such  a  special  property  as  to  maintain 
an  action  against  the  buyer  for  Goods  sold  and  deli- 
vercd{r),  but  not  in  a  case  where  the  right  of  a  third 
person  intervenes,  and  is  established  (-s).  But  where,  as 
in  the  north  of  England,  there  is  a  sale  by  auction  of 
Horses  and  cattle  on  the  owner's  premises,  it  is  doubtful 

(o)  National  Mercantile  Bank   v.  (r)  See  Williams  v.  Milling  ton,  1 

Mymill,  44  L.  T.,  N.  S.  767— C.  A.  H.  Bla.  85  ;  Robinson  v.  Ruttcr,  24 

Eeversiug  Ibid.  307— Lopes,  J.  L.  J.,  Q.  B.  250.     See  also  Bacis  v. 

{p)  Ibid,  per  Bramwell,  L.  J.  Artinr/stall,  49  L.  J.,  Cli.  G09  ;  42 

{q)    See   Fickerinf/   v.    Busk,     15  L.  T.,  N.  S.  507;  29  W.  R.  137. 

East,    38,   45;  Chit.   Contr.    lltli  («)  Dickenson  v.  Naul,  i  B.  &  Ad, 

ed.  195.  638. 


42 


HORSEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


An  Auc- 
tioneer can 
set  lip /MS 
tertii. 


Interpleader 
by  Auc- 
tioneer. 


Goods  privi- 
leged from 
distress. 


whether  the  Auctioneer  has  such  an  interest  in  them  as 
to  recover  the  price  {t). 

An  Auctioneer  can  set  up  the  jus  tertii,  if  he  defends 
the  action  upon  the  right  and  authority  of  the  third  person, 
to  a  claim  for  the  proceeds  of  a  sale  of  goods,  which  he  has 
been  employed  to  sell  by  auction  by  a  person  who  had 
gained  possession  of  them  by  an  illegal  distress  (w) . 

An  Auctioneer  may  interplead  where  he  has  sold  goods, 
and  the  proceeds  of  the  sale  are  claimed  by  a  third 
party  (.r)  ;  and  it  seems  that  he  is  entitled  to  do  so  not- 
withstanding that  he  claims  a  lien  on  the  proceeds  of  the 
sale  for  his  commission,  for  in  such  cases  he  claims  no, 
interest  in  the  corpus  of  the  property  {y) .  But  where  the 
claims  are  not  co-extensive,  an  auctioneer  has  no  right  to 
interplead.  Thus,  in  a  case  where  the  defendant,  the 
proprietor  of  a  Horse  repository,  sold  there  by  public 
auction  a  Horse  to  the  plaintiff,  warranted  quiet  to  ride 
and  in  harness,  but  subject  to  a  condition,  by  which,  if 
considered  by  the  buyer  incapable  of  working  from  any 
infirmity  or  disease,  it  might  be  returned  on  the  second 
day  after  the  sale,  and  the  matter  determined  by  veterinary 
surgeons  according  to  the  terms  provided  for  in  such  con- 
dition. The  Horse  was  returned  accordingly  by  the 
plaintiff,  who  demanded  to  have  back  the  money  he  had 
paid  for  the  piu-chase,  and  this  being  refused,  he  brought 
an  action  against  the  defendant  for  damages  for  breach  of 
the  warranty,  and  the  party  who  had  placed  the  Horse  at 
the  repository  for  sale,  claimed  of  the  defendant  the 
proceeds  of  the  sale,  stating  that  the  Horse  had  left  the 
repository  perfectly  sound ;  it  was  held  that  the  defendant 
was  not  entitled  to  an  interpleader  order  {£). 

Goods  sent  to  an  Auctioneer  to  be  sold  on  premises 
occupied  by  him  are  privileged  from  distress  for  rent  {a)  ; 
although  he  may  sell  in  a  place  let  to  him  merely  for 


(t)  See  per  "Wilson,  J.,  Williams 
V.  MilH>ir/toH,  1  H.  Bla.  86. 

{u)  Biddle  V.  Boml,  6  B.  &  S. 
225;  34  L.  J.,  Q.  B.  137. 

(.r)  Best  V.  Hayes,  32  L.  J.,  Ex. 
129. 

iy)  Ibid.,  per  Martin,  B.  In 
this  case  the  Court  of  Exchequer 
refused  to  follow  the  decision  in 
Chancery  in  Mitchell  v.  Hayne  (2 
Sim.  &  S.  63),  where  it  was  held 
that  an  Auctioneer,  in  such  a  case, 


covdd  not  file  a  bill  of  interpleader. 
As  to  interpleader  generally,  see  1 
&  2  Wm.  4,  c.  58,  ss.  1,  2,  7;  23 
&  24  Vict.  c.  126,  ss.  12—18 ;  36  & 
37  Vict.  c.  66,  Sch.  Ord.  1,  r.  2. 

(;)  Wright  v.  Freeman,  48  L.  J., 
C.  P.  276;  40  L.  T.,  N.  S.  134; 
ibid.  358,  C.  A. 

(rt)  Adams  v.  Grave,  1  C.  &  M. 
380 ;  Williams  v.  Holmes,  22  L.  J., 
Ex.  283. 


REPOSITORIES  AND  AUCTIONS.  43 

the  occasion,  or  by  a  person  witliout  authority,  or  the 
occupation  has  been  acquired  by  the  Auctioneer  by  any 
act  of  trespass  {b) . 

An  Auctioneer,  who  is  employed  to  sell  goods  by  public  His  right  to 
auction,  has  not  such  an  interest  as  will  make  the  licence  remamonthe 
to  enter  the  premises  irrevocable.  Therefore,  where  the 
owner  of  the  premises  revoked  his  consent  to  the  Auc- 
tioneer remaining  there,  it  was  held  that  he  had  no  right 
to  continue  there,  though  he  had  incurred  expenses  in 
allotting  the  goods,  and  though  he  remained  only  to 
complete  the  sale  by  delivering  the  goods  to  the  pur- 
chasers (c). 

After  a  sale  is  effected,  the  Auctioneer  may  in  general  Auctioneer  or 
be  considered  as  the  agent  and  witness  of  both  the  parties  9^^^^  ageiit  of 
to  a  contract ;  but  a  difficulty  arises  in  the  case  where  "  ^'^^  ^^^' 
the  Auctioneer  sues  as  one  of  the  contracting  parties  {d), 
because  the  agent,  whose  signature  is  to  bind  the  de- 
fendant, must  not  be  the  other  contracting  party  upon 
the  record  {e).  However,  an  entry  made  in  a  sale  book 
by  the  Auctioneer's  clerk  who  attends  the  sale,  and  as 
each  lot  is  knocked  down  names  the  purchaser  aloud,  and 
on  a  sign  of  assent  from  him  makes  a  note  accordingly  in 
the  book,  is  a  memorandum  in  writing  by  an  agent  within 
the  Statute  of  Frauds  ;  for  the  clerk  is  not  identified  with 
the  Auctioneer  (who  sues),  and  in  the  business  which  lie 
performs  of  entering  the  names,  &c.,  he  is  impliedly 
authori2;ed  by  the  persons  attending  the  sale  to  be  their 
agent  (/). 

But  if  the  purchaser's  name  be  signed  to  a  Catalogue,  it  Purchaser's 
must  be  connected  with  or  refer  to  the  conditions  of  sale  to  ^ame  signed 
make  the  contract  valid  (g) ;  and  it  is  not  sufficient  if  they  logue. 
are  even  in  the  same  room,  so  long  as  they  are  not  actually 
attached  to  the  Catalogue,  or  clearly  referred  to  in  it ;  and 
if  during  the  sale  they  get  separated,  the  signatures  made 
after  separation  are  unavailing  {h). 

{b)  Brown  v.  Arumlell,  10  C.  B.  p.    27  ;    Bird    v.    Bolton,    4   B.   & 

54 ;  S.  C.  IG  L.  T.  126.  Adol.    443  ;    see   Sugd.    Vend.    & 

(e)   TapUn  v.  Florence,   10  C.   B.  Purch.  14th  ed.  147. 

744  ;  see  -S'.  C.  15  Jur.  402.  {/))  Ilindc  v.  Whitchoiise,  7  East, 

{d)   Wright  v.  Dannah,  2  Camp.  568. 

203.  {h)  Kenworthy  v.  Scholficld,  2  B. 

(e)  Farehrothcr  v.  Simmonds,  5  B.  &  C.  945.     S(?e  also  Pierce  v.  Corf, 

&  A.   333.     And  sec  Sharman   v.  L.    K,    9    Q.    B.   210;    43  L.  J., 

Brandt,   L.  E.,  6   Q.  B.  720;   40  Q.  B.  52;  29  L.  T.,  N.  S.  919;  22 

L.  J.,  Q.  B.   312  ;    19  W.  R.   036,  W.  E,.  299  ;   Eishton  v.   Whatmorc, 

Ex.  Ch.  L.  R.,  8  Ch.  D.  467  ;  47  L.  J.,  Ch. 

(/)  29  Car.  2,  c.  3,  and  see  ante,  629  ;  26  W.  E,.  827. 


44 


HORSEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


Printed  Par- 
ticiilars  of 
a  Sale. 


An  iucoiTCct 
Catalo"-uc. 


A  limited 
Avarranty. 


It  is  a  useful  and  proper  general  rule  that  an  Auc- 
tioneer by  parol  explanation  at  the  time  of  sale  shall  not 
be  suffered  to  vary  from  the  terms  of  the  Printed  Parti- 
culars. This  rule  is  attended  with  no  hardship,  because 
it  would  be  easy  to  obviate  any  difficulty  in  case  the 
article  sold  bo  different  from  the  description ;  Gunnis  v. 
Ecliart  {I),  Pojccll  v.  Udmunds  (A-),  and  many  other  cases 
collected  in  Mr.  Phillip's  book  on  Evidence,  show  the 
2:)rinciple  to  be,  that  a  written  instrument  signed  with  the 
purchaser's  name  is  the  instrument  at  which  we  are  to  look 
to  see  what  is  the  contract  between  the  parties  (/). 

But  when  the  contract  is  not  in  waiting,  a  mistake  in 
the  Catalogue  may  be  explained  by  the  Auctioneer. 
Thus,  in  the  printed  Catalogue  of  articles  intended  to  be 
sold  by  auction,  a  dressing-case  was  described  to  have 
silver  fittings,  but  previously  to  the  sale  of  it  the  Auc- 
tioneer stated  publicly  from  his  box,  and  in  the  hearing 
of  tlie  defendant,  that  the  Catalogue  was  incorrect  in 
stating  the  fittings  of  the  dressing-case  to  be  of  silver,  and 
that  it  would  be  sold  as  having  plated  fittings ;  but  no 
alteration  was  made  in  the  Catalogue.  The  defendant 
afterwards  bid  for  the  dressing-case,  and  became  the  pur- 
chaser. In  an  action  brought  by  the  Auctioneer  to  re- 
cover the  price  of  the  dressing-case,  which  was  less  than 
10/.,  it  Avas  held  that  parol  evidence  of  the  statement  of 
the  Auctioneer  at  the  time  of  the  sale  was  admissible,  the 
contract  not  being  in  writing.  And  Mr.  Baron  Alderson 
said,  "  The  sole  question  is,  what  were  the  terms  upon 
which  this  article  was  sold.  Are  those  terms  in  writing  ? 
If  they  are,  they  cannot  be  varied  by  parol  testimony ; 
but  if  they  exist  only  in  parol,  they  of  course  may  be 
varied  by  parol ;  and  as  it  appears  that  the  article  was 
not  sold  under  an  agreement  in  writing,  it  was  for  the 
Jury  to  say  whether  the  contract  existed  in  the  printed 
particulars  alone,  or  partly  in  them  and  partly  in  parol, 
namely,  that  the  Auctioneer  stated  that  there  was  an 
inaccuracy  in  the  particulars,  which  declaration  was  heard 
by  the  defendant,  who  after  hearing  it  bid  for  the  article. 
This  the  Jury  have  found"  {m). 

By  the  conditions  of  sale  at  Repositories  and  public 
auctions  a  specified  short  time  is  usually  allowed,  within 

(i)   Guiinis   V.   Echart,    1    H.   B.  {I)  SJtcUon  v.  liviiis,  2  C.  &  J. 

289.  41(3. 

ik)  FoutUy.  Edmunds,  12  East,  6.  (m)   Eden  v.  Ela/cc,  13  M.   &  W. 

G14. 


REPOSITORIES  AND  AUCTIONS.  45 

which  the  purchaser  must  give  notice  of  any  breach  of 
warranty ;  and  if  he  neglect  to  do  so,  he  has  no  remedy 
unless  such  condition  has  been  rendered  inoperative  by 
fraud  or  artifice.  This  subject  was  fully  considered  by 
the  Court  of  King's  Bench  in  the  following  case : — A 
Horse  was  bought  by  private  contract  at  a  Repository, 
warranted  sound.  At  the  time  of  sale  there  was  a  board 
fixed  on  the  wall  of  the  liepository  having  certain  rules 
painted  upon  it,  one  of  which  was  that  a  warranty  of 
soundness  then  given,  should  remain  in  full  force  until 
noon  of  the  day  following,  when  the  sale  should  become 
complete  and  the  seller's  responsibility  terminate,  unless  a 
notice  and  Yeterinary  Surgeon's  certificate  of  unsound- 
ness were  given  in  the  meantime.  The -rules  were  not 
particularly  referred  to  at  the  time  of  this  sale  and  war- 
ranty. The  Horse  proved  unsound,  but  no  complaint 
was  made  till  after  twelve  on  the  following  day.  The 
unsoundness  was  of  a  nature  not  likely  to  be  immediately 
discovered.  Some  evidence  was  given  to  show  that  the 
defendant  knew  of  it,  and  the  Horse  was  shown  at  the 
sale  under  circumstances  favourable  for  concealing  it. 
After  verdict  for  the  plaintiff,  it  was  held  that  there  was 
sufficient  proof  of  the  plaintiff  having  had  notice  of  the 
rules  at  the  time  of  sale  to  render  them  binding  on  him ; 
also  that  the  rule  in  question  was  such  as  a  seller  might 
reasonably  impose,  and  that  the  facts  did  not  show  such 
fraud  or  artifice  in  him,  as  would  render  the  condition 
inoperative ;  and  Mr.  Justice  Littledale  observed,  "  The 
warranty  here  was  as  if  the  vendor  had  said,  '  after 
twenty -four  hours  I  do  not  warrant ; '  such  a  stipulation  is 
not  unreasonable  "  {ii). 

If  a  horse  sold  at  a  public  auction  be  warranted  sound  Whore  it  ap- 
and  six  years  old,  and  it  be  one  of  the  conditions  of  sale  pli^s  ouly  to 
that  it  shall  be  deemed  sound  unless  returned  in  two  days, 
this  condition  applies  only  to  the  warranty  of  soundness. 
Therefore,  where  a  Horse  sold  with  such  warranty  was 
discovered  to  be  twelve  years  old  ten  days  after  sale,  and 
was  tlien  offered  to  the  seller,  who  refused  to  take  him, 
it  was  held  by  the  Court  of  King's  Bench  that  an  action 
might  be  maintained  by  the  buyer  against  the  seller,  and 
Lord  Kenyon  said,  "  The  question  turns  on  the  meaning 
of  this  condition  of  sale,  and  I  am  of  opinion  that  it  must 

(«)  Byicater  v.    Richardson,    I  A.  &  E.  508  ;  S.    C.  3  N.  &  M.   748 ; 
Mesnarclv.  Aldriclge,  3  Esp.  271  ;  and  see  post,  p.  117. 


46 


HOESEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


Trial  of  a 
Horse  war- 
ranted quiet 
in  harness. 


Notice  of  the 
conditions  of 


be  confined  solely  to  the  circumstance  of  unsoundness. 
There  is  good  sense  in  making  such  a  condition  at  public 
sales,  because,  notwithstanding  all  the  care  that  can  be 
taken,  many  accidents  may  happen  to  the  Horse  between 
the  time  of  sale  and  the  time  when  the  Plorse  may  be 
returned,  if  no  time  were  limited.  But  the  circumstance 
of  the  ago  of  the  Horse  is  not  open  to  the  same  diffi- 
culty (o) . 

By  the  rules  of  some  Repositories  every  Horse  sold, 
warranted  quiet  in  harness,  is,  in  cases  of  dispute,  to  be 
tried  by  an  impartial  person  ;  and  the  expense  of  trial,  in 
case  the  Horse  does  not  answer  his  warranty,  is  to  fall  on 
the  seller.  The  keeper  of  the  Repository  has  a  specific  lien 
on  the  Horse  until  such  expense  be  paid  (p). 

Where  the  Auctioneer  declares  that  the  conditions  of 
a  sale  by  auction  are  as  usual,  there  is  a  sufficient  notice 
of  them  to  purchasers  {q),  where  they  are  printed  and 
posted  up  in  a  conspicuous  part  of  the  auction-room. 
Thus,  where  an  action  on  the  Case  was  brought  on  the 
warranty  of  a  Horse,  it  appeared  that  the  Horse  was  sold 
by  auction  at  the  defendant's  Repository,  and  w\arranted 
sound.  The  sale  took  place  on  the  "Wednesday.  At  the 
time  of  the  sale,  the  Auctioneer  announced  that  the  con- 
ditions of  the  sale  were  as  usual.  These  conditions  of  sale 
were  proved  to  be  contained  in  a  printed  paper  pasted 
up  under  the  Auctioneer's  box,  and  by  one  of  them  all 
Horses  purchased  there,  in  case  of  any  unsoundness  being 
discovered,  were  required  to  be  returned  before  the  even- 
ing of  the  second  day  after  the  sale.  The  Horse  in  ques- 
tion was  not  returned  till  the  Saturday.  When  returned 
by  the  plaintiff,  he  was  informed  that  it  was  too  late,  as 
he  ought,  pursuant  to  the  conditions  of  sale,  to  have  re- 
turned him  on  the  evening  of  Friday.  It  was  contended 
that  there  was  no  evidence  of  notice  of  the  conditions  of 
sale  sufficient  to  bind  the  plaintiff.  But  Lord  Kenyon 
(in  summing  up)  said — "  In  this  case  it  is  proved  that 
printed  particulars  of  the  sale  are  pasted  up  in  the  public 
sale  room  under  the  Auctioneer's  box.  In  the  case  of 
carriers,  who  advertise  that  they  will  not  be   liable   for 


(o)  Ijuchanayi  v.  Parnsliaic,  2  T. 
R.  74G. 

{p)  Hardingham  v.  Allen,  5  C.  B. 
797. 

(r/)  By  the  law  of  Scotland,  a 
purchaser  at  a  public  auction  can- 


not be  allowed  to  plead,  that  he 
was  ignorant  of  the  articles  and 
conditions  of  sale.  See  Lalng  v. 
Ilaln,  2  S.  M.  &  P.  395.  (Court  of 
Sess.  Sco.) 


REPOSITOEIES  AND  AUCTIONS.  47 

goods  lost  above  tlie  value  of  5/.,  unless  entered  as  such, 
the  ijostiug  up  of  a  bill  in  the  coach  office  to  that  effect 
has  been  held  to  be  sufficient.  I  therefore  think  the 
same  mode  being  adopted  here  gives  the  same  degree  of 
notice  to  all  persons  who  come  to  this  sale,  and  that  it 
is  a  sufficient  notice  of  the  conditions  under  which  the 
Horses  are  sold."  "  With  respect  to  the  main  point, 
when  parties  enter  into  a  special  agreement,  they  must 
adhere  to  the  terms  of  it.  Here  there  is  a  condition  that 
the  party  purchasing  must  return  the  Plorse  within  two 
days,  which  he  has  not  done;  I  therefore  think  the  plaintiff 
must  be  nonsuited"  {>•). 

But  when  property  is  sold  in  lots  described  in  particulars  Notice  of 
of   sale,  a  vendee  is  only  affected  with  notice   of   what  Particulars, 
concerns  the  lots  which  he  purchases,  and  is  not  to  be 
taken  as  having  read  all  the  particulars  of  all  the  lots  (s). 

A  Bidder  at  an  auction  under  the  usual  conditions  that  Where  a 
the  highest  bidder  shall  be  the  purchaser,  may  retract  his  ^^'Wer  may- 
bidding  before  the  hammer  is  down ;  because  the  Auc- 
tioneer is  the  agent  of  the  vendor,  and  the  assent  of  both 
parties  is  necessary  to  make  the  contract  binding,  and 
that  is  signified  on  the  part  of  the  seller  by  knocking 
down  the  hammer.  Every  bidding  is  nothing  more  than 
an  offer  on  one  side,  which  is  not  binding  on  either  side  till 
it  is  assented  to  (/) . 

Where  a  Horse  is  to  be  sold  "without  reserve,"  and  Sale"with- 
the  vendor  buys  it,  the  highest  bo)id  fide  bidder  is  entitled  °"*  reserve." 
to  recover  damages  from  the  Auctioneer.  In  the  case  of 
Warlow  V.  Harrison  {u),  the  sale  was  stated  to  be  "with- 
out reserve,"  and  one  of  the  printed  conditions  was, 
"  any  lot  ordered  for  this  sale,  and  sold  by  private  con- 
tract by  the  owner  or  advertiser  'without  reserve,'  fnid 
bought  by  the  owner,  to  be  liable  to  the  usual  commission 
of  5/.  per  cent."  There  was  also  the  usual  condition  that 
the  highest  bidder  should  be  the  buyer.  After  a  bond  fide 
bid  by  a  third  person,  the  owner  advanced  on  the  bidding, 
and  the  lot  was  knocked  down  to  him.  The  Court  of 
Queen's  Bench  held  that  the  owner  could  not  claim  the  lot 
as  sold  to  the  Auctioneer,  against  whom  the  action  was 
brought,  and  that  they  were  not  called  upon  to  say  whether 

{r)  Mesnard  v.  AUrldge,  3  Esi^.  {t)  Payne  v.  Cave,  3  T.  R.  148 ; 

271.  and  see  Roullcdgc  v.  Grant,  4  Bing. 

(s)  Curtis  V.   Thomas,   33  L.  T.,       C53 ;   Head  v.  'Biggon,  3  M.  &  R. 
N.  S.  664,  V.-C.  II.  97. 

(m)  29  L.  J.,  Q.  B.  14. 


48 


HORSEDEALERS,  REPOSITORIES  AND  AUCTIONS. 


Effect  of  ad- 
vertisement. 


Warranty  of 
ownership. 


there  was  any  or  what  remedy  on  the  conditions  of  sale 
against  the  vendor,  who  violated  the  condition  that  the 
article  should  be  bond  fide  sold  "  without  reserve,"  but  they 
were  clear  that  the  bidder  had  no  remedy  against  the 
Auctioneer,  whose  authority  to  accept  the  offer  of  the 
bidder  had  been  determined  by  the  vendor  before  the 
hammer  had  been  knocked  down.  But  in  the  Exchequer 
Chamber,  to  which  this  case  was  carried,  three  Judges  held 
that  the  jiurchaser  was  entitled  to  recover  damages,  for  they 
thought  that  the  highest  bond  fide  bidder  at  an  auction  may 
sue  the  Auctioneer  as  upon  a  contract  that  the  sale  shall 
be  "  without  reserve,"  and  that  the  contract  is  broken  upon 
a  bid  being  made  by  or  on  behalf  of  the  owner,  whether  it 
be  during  the  time  when  the  property  is  under  the  hammer, 
or  it  be  the  last  bid  on  which  the  property  is  knocked  down. 
They  did  not  doubt  that  the  owner  at  any  time  before  the 
contract  is  legally  comj)lete  might  revoke  the  Auctioneer's 
authority.  As  to  the  conditions,  they  held  that  tlie  owner 
could  not  be  the  buyer ;  and  that  the  Auctioneer  ought 
not  to  have  taken  his  bid,  but  to  have  refused  it,  stating 
as  his  reason  that  the  sale  was  "  without  reserve." 
Inclining  to  differ  from  the  Queen's  Bench,  they  rather 
thought  the  bid  of  the  owner  was  not  a  revocation  of  the 
Auctioneer's  authority.  The  other  two  Judges  agreed,  but 
founded  their  judgment  upon  the  evidence  that  the 
Auctioneer  had  not  authority  to  sell  except  "  without 
reserve,"  and  thought  that  there  ought  to  be  a  count  added 
by  way  of  amendment,  stating  an  undertaking  by  the 
Auctioneer  that  he  had  authority  to  sell  "  without  reserve," 
and  a  breach  of  that  undertaking. 

But  where  an  Auctioneer  advertised  in  the  London 
papers  that  a  sale  by  auction  would  take  place  on  a 
particular  day  in  a  country  town,  and  also  circulated  cata- 
logues specifying  the  articles  to  be  sold ;  and  a  person 
attended  the  sale  intending  to  buy  certain  articles  specified 
in  the  catalogue,  but  on  the  day  of  sale  they  were  with- 
drawn by  the  Auctioneer ;  it  was  held  that  there  was  no 
implied  contract  by  him  to  indemnify  the  intended  pur- 
chaser against  the  expense  and  inconvenience  that  he  had 
incurred,  as  the  advertising  was  a  mere  declaration  of 
intention  to  sell  {x). 

A  statement  that  a  Horse  is  the  property  of  the  vendor, 


{x)  Harris  v.  NlcJicrson,   L.  E,.,  8  Q. 
28  L.  T.,  N.  S.  410 ;  21  W.  K.  635. 


B.  286;  42  L.  J.,  Q.   B.  171; 


REPOSITORIES  AND  AUCTIONS.  49 

made  by  himself  or  agent,  is  a  sufficient  warranty  of  the 
ownership,  and  an  assertion  by  an  Auctioneer  that  all  the 
Horses  in  a  sale  are  the  bona  fide  property  of  the  person 
whose  stud  he  has  advertised  as  selling,  would  vitiate  the 
purchase  of  a  Horse  belonging  to  another  party,  made  on 
the  faith  of  that  representation,  such  Horse  having  been 
put  into  the  sale  without  notice ;  because  the  purchaser 
would  probably  give  a  much  higher  price  for  a  Horse 
belonging  to  the  stud  in  question,  than  for  one  without  a 
character  (//)  ;  and  the  following  case  goes  much  further, 
for  where  the  defendant,  erroneously  supposing  that  a 
picture  had  been  in  the  possession  of  Sir  F.  Agar,  pur- 
chased it  from  the  agent  of  the  plaintiff,  who,  though 
aware  of  the  defendant's  mistake,  did  not  undeceive  him ; 
Lord  Ellenborough  held,  that  the  plaintiff  could  not  re- 
cover the  sum  for  which  the  picture  was  sold,  the  price 
being  probably  enhanced  by  the  error  {z) . 

Where  an  Auctioneer  sells  a  commodity  without  saying  Auctioneer 
on  whose  behalf  he  sells  it,  in  such  case  the  purchaser  is  "?*  disclosing 
entitled  to  look  to  him  personally  for  the  completion  of  the  "'^  pimcipa  . 
contract  {a),  and  the  same  rule,  according  to  the  general 
law  of  principal  and  agent,  applies  to  purchasers  [h). 

An  Auctioneer  is  not  in  the  position  of  an  ordinary  Liability  for 
agent,  but  may  be  personally  liable  for  non-delivery  of  iioii-<lelivery. 
goods,  even  though  he  sells  for  a  disclosed  principal,  and 
although  a  condition  of  sale,  by  which  goods  are  to  be 
cleared  out  by  the  purchaser  within  a  given  time,  has  not 
been  complied  with,  at  all  events  where  such  condition  is 
not  a  condition  precedent  (c) . 

Where  a  Horse  is  bid  up  by  a  Puffer,  and  one  condition  Puffing, 
of  the  auction  is,  that  the  highest  bidder  is  to  be  the  pur- 
chaser, the  vendor  cannot  recover  the  price  (c/).  The  law 
on  this  point  was  fully  considered  by  the  Court  of  Com- 
mon Pleas  in  the  following  case  : — An  action  was  brought 
by  the  plaintiff  to  recover  the  value  of  a  Horse  sold  by 
him  to  the  defendant,  at  a  public  auction  at  Alcbidge's 
Repository.     It  appeared  that  it  was  one  of  the  conditions 

{y)  Bexwell    v.     Christie,    Cowp.  jmrt,  9  B.  &  C.  86  ;  and  post,  54, 

397;  and  see  Bradshaiv^ s  case,  there  Williamson  v.  Barton. 

cited.  (c)    Woolfe  v.  Home,  L.  R.,  2  Q. 

(--)  mil  V.  Gray,  1   Stark.  N.  P.  B.  D.  355";  46  L.  J.,  Q.  B.  534;  36 

C.  434.  L.  T.,  N.  S.  705  ;  25  W.  R.  728. 

(«)  Hanson  v.  Roberdeau,  1  Peake,  {d)  Bilmore  v.  Hood,  5  N.  C.  97; 

163.  Green  v.  BaverstocJc,  32  L.  J.,  C.  P. 

{b)  As  to  principal  and  agent,  181. 
see  the  rule  iu  Thompson  v.  JJaren- 

O.  E 


50  HORSEDEALEHS,  REPOSITORIES  AND  AUCTIONS. 

of  sale,  "  tliat  each.  Horse  should  be  sold  to  the  highest 
bidder;"  that  the  plaintiff's  groom  attended  at  the  sale  on 
the  part  of  his  master  for  the  purpose  of  raising  the  price ; 
that  the  last  bond  fide  bidder  had  bid  12/. ;  after  which, 
until  the  horse  was  knocked  down  to  the  defendant  for 
29/.,  he  and  the  groom  were  the  only  bidders ;  and  that 
when  the  defendant  discovered  against  whom  he  had  been 
bidding  he  refused  to  take  the  Horse.  Upon  these  facts 
Chief  Justice  Best  said  :  "I  am  clearly  of  opinion  that  the 
action  cannot  be  maintained.  I  have  long  been  surprised 
that  the  objection  has  never  been  taken.  A  man  goes  to 
a  sale,  and  is  told  that  if  he  is  the  highest  bidder  he  shall 
have  the  article.  He  bids  a  certain  sum,  and  a  person 
(employed  by  the  seller)  whom  he  does  not  know  attends 
and  pulfs  against  him,  and  in  consecpence  of  that  he  is 
compelled  to  pay  a  much  larger  price  than  he  would  other- 
wise have  paid.  Is  not  this  a  gross  fraud  ?  I  am  pre- 
pared to  nonsuit  the  plaintiff." 
Person  em-  It  was  then  proved  for  the  plaintiff,  by  the  evidence  of 

ployed  to  bid.  ^]^g  Auctioneer,  that  the  defendant  was  in  the  habit  of 
attending  sales  of  Horses,  and  that  he  knew  the  plaintiff's 
groom  was  present ;  and  it  was  stated  that  there  was  a 
case  deciding  that  a  seller  has  a  right  to  have  one  person 
to  bid  for  him  at  the  sale,  if  he  does  not  do  it  in  order  to 
impose.  Chief  Justice  Best  then  said  :  "I  agree  that  he 
has  such  a  right,  but  then  he  must  declare  it  by  the  con- 
ditions of  sale.  I  am  of  opinion  that  a  person  acts  in 
opposition  to  the  conditions  of  sale  where  the  highest 
bidder  is  to  be  the  buyer,  if  he  employs  a  person  to  bid 
for  the  purpose  of  enhancing  the  price.  In  this  case  the 
other  person  at  the  sale  did  not  go  near  the  ultimate  sum. 
It  is  impossible  under  these  circumstances  to  say  that  29/. 
was  the  highest  price  contemplated  by  the  conditions ; 
for  the  defendant,  under  them,  was  entitled  to  have  the 
Horse  at  the  next  highest  bidding  to  that  of  the  only  fair 
bidder"  {e).  The  Court  of  Common  Pleas  confirmed 
Chief  Justice  Best's  ruling  at  nisi  prius ;  and  Mr.  Justice 
Park  said :  "I  entirely  concur  in  the  opinion  expressed 
by  Lord  Mansfield  ;"  as  to  which  Lord  Kenyon,  in  Howell 
V.  Castle  (/),  said  :  "  The  whole  of  the  reasoning  of  Lord 
Mansfield  in  Bexicell  v.   Christie  [g]    is  founded   on  the 

[e)   Croicder  v.  Austin,  2  0.  &  P.       634. 
208.  iff)  Bexwell    v.    Christie,   Cowp. 

(/)  Howard  v.    Castle,   6  T.   R.       396. 


EEPOSITORIES  AND  AUCTIONS.  51 

noblest  principles  of  morality  and  justice, — principles  that 
are  calculated  to  preserve  honesty  between  man  and  man. 
The  circumstance  of  puffers  bidding  at  auctions  has  been 
always  complained  of.  If  the  first  case  of  this  kind  had 
been  tried  before  me,  perhaps,  I  should  have  hesitated  a 
little  before  I  determined  it ;  but  Lord  Mansfield's  com- 
prehensive mind  saw  it  in  its  true  colours,  and  made  a 
precedent  which  I  am  happy  to  follow"  (A).  And  this 
decision  has  been  further  confirmed  by  a  case  in  the 
Court  of  Exchequer,  where  it  was  held,  that  in  a  sale  by 
auction  without  reserve,  if  a  puffer  be  employed  without 
notice  of  his  being  there  to  protect  the  interest  of  the 
seller,  the  sale  is  void  (/). 

The  law  is  so  jealous  of  the  rights  of  boud  fide  bidders,  Effect  of  pre- 
that  it  has  been  held  as  doubtful  (in  the  Court  of  Common  ^^°^^  P^'^^*^*^ 
Pleas)   whether  a  previous  private  warranty  to  a  jjerson  ^^^"^"^  ^" 
who  became  an  unsuccessful  bidder  would  not  avoid  the 
sale  to  a  third  party ;  for  it  was  like  puffing,  and  in  a  sale 
by  auction,  all  have  a  right  to  suppose  that  they  are  bid- 
ding upon  equal  terms  (/). 

An  agreement  made  by  two  persons  not  to  bid  against  Agreement 
each  other,  but  that  one  of  them  should  bid  up  to  a  certain  ^J^  ^^^  Yl 
sum,  and  that  the   lot   should  subsequently  be   divided  other, 
between  them,  is  not  illegal,  and  therefore  furnishes  no 
ground  for  opening  the  biddings,  or  annulling  the  sale  [k) . 

A  mock  auction  with  sham  bidders,  for  the  purpose  of  M:ock  auc- 
selling  goods  at  prices  grossly  above  their  worth,  is  an  *^°^®' 
offence  at  common  law,  and  the  persons  aiding  and  abet- 
ting such  a  proceeding  may  be  indicted  for  a  conspiracy 
with  intent  to  defraud  (/). 

A  purchaser  at  an  auction  can,  before  payment,  make  Purchaser 
a  complete  bargain  and  sale  of  the  article  which  he  has  may  transfer 
bought,  to  a  third  party ;  so  as  to  maintain  an  action  for    ^^   argam. 
Goods  bargained  and  sold  («?). 

Where  a  party  refuses  to  take  goods  he  has  purchased,  -where  party 

(h)  Crou-der  v.  Austin,   3  Bing.  the  rule  prevailing  in  equity.     See 

368  ;  ,S'.  C.  11  Moore,  283  ;  and  see  Sugd.  V.  &  P.  14th  ed.  9. 
JVheeler  v.  CoUier,   M.  &  M.  126  ;  {J)  Hoi^kins  v.  Tanqneray^  23  L. 

Sugd.  V.  &  P.  24.  J.,  C.  P.  162. 

()■)  Thornctt  \.  Haines,  15  L.  J.,  [k)  In  re  Carew^s  Trusts,  26  Beav. 

Ex.   230.     Lord  St.  Leonards  in-  187. 

clined  to  the  opinion  that  the  seller  (/)  Seff.  v.  Lewis,  11  Cox,  C.  C. 

should  have  the  right  to  privately  484. 

appoint  one  person,  within  a  fixed  (»?)  Scott  v.  Englatid,  2  D,  &  L. 

limit,  and  only  to  prevent  a  sale  at  520. 
an  under  value,  in  accordance  -with 

e2 


62 


HORSEDEALER?,  REPOSITORIES  AND  AUCTIONS. 


refuses  to 
take  goods. 

Goods  resold 
without  com- 
municating 
■with  pur- 
chaser. 


Auctioneer 
proper  party 
to  receive  the 
price. 


Has  no 
authority  to 
receive  a  bill 
of  exchange. 
He  is  stake- 
holder for 
both  parties. 


EfiPect  of  this 
attribute. 


tliey  should  be  resold,  and  lie  will  be  liable  to  the  loss,  if 
any,  upon  the  resale  {n). 

Thus  in  Scotland,  where  some  Horses  were  sold  by 
public  auction  without  stipulation  as  to  credit,  and  the 
purchaser  allowed  two  days  to  elapse  without  tendering 
the  price.  It  was  held  that  the  seller,  who  had  never 
]iarted  w'ith  the  possession,  was  entitled  on  the  third  day 
to  resell  them  without  any  communication  with  the  original 
purchaser,  and  to  sue  the  original  purchaser  for  the  differ- 
ence in  the  prices,  and  for  the  keep  of  the  Horses  between 
the  periods  of  sale  and  resale,  and  the  expenses  of  the 
resale  (o). 

An  Auctioneer,  employed  to  sell  goods  for  ready  money, 
is  the  agent  of  the  vendor  to  receive  the  price  {]))  ;  but 
w^here  the  goods  are  sold  on  credit,  it  depends  upon  the 
extent  of  his  authority,  Avhich,  in  the  absence  of  any  proof 
of  general  authority,  must  depend  upon  the  conditions  of 
sale  ;  and  where  the  only  authority  given  to  the  Auctioneer 
by  these  conditions  is  to  receive  the  deposit  money,  the 
vendor  reserves  to  himself  or  his  agent  the  power  to  receive 
the  remainder  of  the  purchase-money  {q) . 

And  in  any  case  where  he  has  authority  to  receive  the 
purchase-money,  he  has  no  authority  to  receive  it  by  means 
of  a  bill  of  exchange  (>•). 

Where,  by  the  terms  of  a  sale  by  auction,  a  deposit  is 
to  be  made  with  the  Auctioneer,  he  becomes  the  stake- 
holder of  both  parties,  and  must  retain  possession  of  it  (-s)  ; 
and  if  he  accepts  a  less  sum  than  that  which  is  to  be  paid 
by  the  conditions  of  sale,  he  cannot  afterwards  object  that 
too  little  is  paid  (/). 

If  he  parts  with  the  deposit  without  authority  from  the 
vendee,  he  may  be  sued  for  it.  Thus,  when  the  Auctioneer 
received  the  deposit,  and  signed  the  agreement  that  he 
would  complete  the  sale,  and  the  vendee  found  the  title  to 
the  estate  sold  defective,  it  was  held  that  he  might  bring  an 


(«)  See  31aclea>i  v.  Diiiui,  4  Bing. 
729  ;  Stoiy  on  Sales,  348. 

(o)  Zaiiiff  V.  JIaiii,  2  S.  M.  &  P. 
396.     (Court  of  Sess.  Sco.) 

{p)  Si/kes  V.  Giles,  5  M.  &  W. 
650;  Williams  v.  Evans,  L.  R.,  1 
Q.  B.  352;  35  L.  J.,  Q.  B.  111. 

[q)  Sykes  v.  Giles,  5  M.  &  W. 
650 ;  lii/nn  v.  JoUffc,  1  M.  &  Eob. 
326.  And  see  Alexander  v.  Gibson, 
2  Camp.  555. 

(r)  ,Si//,-es  v.    Giles,    5   M.   &  W. 


652.  And  see  Williams  v.  Evans, 
L.  R.,  1  Q.  B.  352;  35  L.  J., 
Q.  B.  111. 

(v)  See  Edwards  v.  Sodding,  5 
Taunt.  815;  Gray  y.  Gutteridge,  3 
C.  &  P.  40 ;  Story  on  Contracts, 
64.  And  see  Sweeting  v.  Turner, 
L.  R,  7  Q.  B.  310;  41  L.  J., 
Q.  B.  58 ;  25  L.  T.,  N.  S.  796 ;  20 
W.  R.  185. 

(/■)  Hanson  v.  Rohcrdeau,  1  Peake, 
N.  P.  163. 


KEPOSITORIES  AND  AUCTIONS.  53 

action  for  money  had  and  received  against  the  Auctioneer 
for  the  deposit,  though  the  latter  had  paid  it  over  to  the 
vendor  without  any  notice  from' the  purchaser  not  to  do  so, 
and  before  the  defect  of  title  was  ascertained  {u) ;  for  in 
strict  law  the  Auctioneer,  being  a  stakeholder,  is  not  en- 
titled to  notice  of  the  contract  being  rescinded  (,r) . 

An  Auctioneer,  being  a  mere  stakeholder,  is  not  liable  As  to  intc- 
f or  interest  on  the  deposit  to  the  vendor  {y) .  ^"'^^t- 

An  Auctioneer  has  a  lien  upon  the  goods  sold  by  him,  Auctioneer's 
and  a  right  of  lien  upon  the  price  when  paid,  for  his  ^*^^- 
commission  and  charges  (2).  With  this  object  he  may 
bring  an  action  in  his  own  name  for  the  price  of  the 
goods  sold  by  him.  Accordingly,  where  the  defendant 
pleaded  to  a  declaration  for  the  price  of  a  Horse  sold  and 
delivered  by  the  plaintiff,  who  was  an  Auctioneer,  that 
the  plaintiff  sold  the  Horse  as  Auctioneer,  agent  and 
trustee  for  K.,  and  that  defendant  had  paid  K.  before 
action  brought,  this  plea  was  held  on  demurrer  to  be  a  bad 
plea  («) . 

Where  a  Horse  is  sold  at  a  Repository  on  certain  con-  When  the 
ditions,  one    of  which  for  instance   may  be,  a  power  to  P^'^°®  ^^f"^  ^^ 
return  the  Horse  within  a  certain  time,  if   he  does  not 
answer  his  warranty ;  it  has  been  held  that  the  price  which 
the  Auctioneer  has  received  does  not  vest  in  the  vendor 
until  the  conditions  have  been  complied  with  {p) . 

Where  an  Agent  on  a  Sale  receives  as  the  price  of  an  Price  obtained 
article  money  olDtained  by  the  fraud  of  his  principal,  it  is  ^y  principal's 
not  Money  received  to  the  tise  of  the  principal,  but  to  the    ^^^  ' 
use  of  the  purchaser  of  the  chattel.     Thus  a  Horsedealer 
employed  an  Auctioneer  to  sell  a  Horse  for  him,  and  to 
make   certain   representations  which  amounted   to   gross 
fraud.     The  Horse  was  sold  and  paid  for,  but  before  the 
money  was  paid  over,  the  fraud  was  discovered  and  the 
money    returned    to    the    purchaser.     The    Horsedealer 
brought  an  action  against  the  Auctioneer  to  recover  the 
money  so  received  by  him.     But  it  was  held  by  the  Court 
of   Queen's   Bench   that    he   could   not    recover,   as   the 
principle  of  Murray  v.  Mann  (c)  applied  with  the  greatest 
force  to  this  case.     And  it  was  said  that  it  would  be  a 

(«)   Gray  v.  Guttericlr/e,  3  C.  &  P.  Robinson  v.  Rictter,  24  L.  J.,  Q.  B. 

40.  250. 

(.(•)  Duncan  v.  Cafe,  2  M.  &  W.  {a)  Robinson  v.  Rutter,  24  L.  J., 

244.  Q.  B.  250. 

{y)  Harington  v.  Hogart,  1  B.  &  (i)  Ilardingham  v.  Allen,  5  C.  B. 

Ad.  577.  796. 

(i)  Coppin  V.  Craig,  7  Taunt.  243 ;  (c)  Murray  v.  Mann,  2  Exch.  538. 


54 


HORSEDEALERS,  REPOSITORIES  AKD  AUCTIONS. 


Agent  not 
declaring' 
himself  to  be 
so. 


Auctioneer's 
commission. 


discredit  to  the  law  of  England  if  the  innocent  agent  of 
the  plaintiff's  fraud  were  bound  to  pay  the  money  over  to 
him.  For  if  he  did  so  after  notice  he  would  he  liable  to 
an  action  at  the  suit  of  the  purchaser  (r/). 

It  is  still  an  undecided  question,  the  Court  of  Exche- 
quer being  equally  divided  on  the  point,  whether  an 
agent,  who  does  nothing  by  word  or  act  at  an  auction  to 
indicate  that  he  is  contracting  for  himself,  and  who  allows 
the  Auctioneer  to  put  down  his  name  as  the  purchaser,  is 
to  be  fixed  as  such,  there  being  thus  much  of  evidence 
after  the  sale  was  over,  that  he  was  buying  merely  as  an 
agent,  that  the  goods  were  fetched  away  afterwards  by 
the  principal's  carts,  and  made  use  of  by  him  {e). 

Where  an  Auctioneer,  entrusted  with  a  sale,  is  the 
causa  causans  of  the  sale,  he  is  entitled  to  his  commission, 
even  though  before  the  actual  sale  the  vendor  withdrew 
the  property  from  sale  by  him  (/).  Thus,  by  the  terms 
of  an  agreement  between  the  parties,  an  Auctioneer  was 
to  be  entitled  to  a  commission,  if  the  estate  should  be  sold 
by  him.  The  estate  was  not  actually  sold  by  him,  but 
the  vendor  after  the  Auctioneer  had  advertised  the  sale, 
and  had  put  up  the  property  for  sale  by  auction,  wrote 
to  the  plaintiff,  and  withdrew  the  property  from  sale  for 
the  present.  In  the  meantime,  and  before  the  sale  was 
withdrawn,  the  vendor  and  the  afterv/ards  purchaser  were 
in  negotiation  for  the  purchase  of  the  property.  In  an 
action  by  the  Auctioneer  against  the  vendor  for  his  com- 
mission, it  was  held  by  the  Court  of  Common  Pleas,  that 
under  these  circumstances  the  Auctioneer  must  be  held  to 
be  the  causa  causans  of  the  sale,  and  therefore  entitled  to 
his  commission  {g). 


(d)  Stevens  v.  Zee,  Q.  B.,  Nov.  7, 
1853. 

(e)  Williamson  V.  Barton,  Zl  L.  J., 
Ex.  170. 


(/)  Clark  V.  Smythies,  2  F.  &  F. 
83  ;  and  see  Miller  v.  Beale,  27  W. 
R.  403,  M.  R. 

(.9)  Green  v.  Bartlett,  8  L.  T.,  N. 
S.  503. 


(    55     ) 


CHAPTER  III. 


FAIRS  AND  MARKETS  OVERT  ;    HORSE  STEALING  AND  THE 
RECOVERY  OF  STOLEN  HORSES. 


Fairs  and  Maekets  oveet. 
Sales  at  Fairs  and  Markets  overt .   55 

The  General  Eule  of  Law 56 

When  Market  overt  is  held  ....  id. 
Where  Market  overt  is  held  ....  id. 
What   held   to    he   Market   overt 

without  the  City  of  London    . .  id. 
What   held  to    he  Market   overt 

within  the  City  of  London  ....  id. 
Horse  '■'an  ArticW^  within  10  ^• 

11  Vict.  c.U 57 

Fearon  v.  Mitchell id. 

Where  a  Horse  at  a  Fair  is  exempt 

from  Distress   59 

Sale  of  Diseased  Animals  in  ,,, ,  id. 

HoESE  Steaiino. 
Statiiie  of  24:  ^-  25  Fict.  c.  96   . .   59 
Description  in  an  Indictment ....  id. 
When  the  Offence  is  complete  ....    60 

Property  given  up    id. 

Delivery  of  a  Horse  to  a  Stranger  id. 

Delivery  on  Trial    61 

Goods  taken  without  Consent  ....  id. 
Appropriation  of  a  hired  Horse . .  id. 
Larceny  without  Proof  of  Sale  . .  id. 
Taking  ivith  an  Intent  to  use , ...  62 
Possession  Six  Months  after  Loss  id. 
Killing  or  Maiming  Horses    ....  id. 

Other  Animals     id. 

Pouring  Acid  into  a  Mare's  Far .  id. 


"Ifaiming  and  Womiding'^   ....    62 
Use   of  Instrument   need   not   he 

p>-oved  63 

Malice id. 

Drugging  of  Animals  Act id. 

Eecovbey  of  Stolen  Hoeses. 

Sale  in  Market  overt   63 

Statutory  Regulations 64 

Recovery   when  sold  under  these 

Regulations id. 

Owner  must  prove  the  Horse  teas 

stolen     id. 

Sale  out  of  Market  overt id. 

Recovery    when   not    sold    under 

these  Regulations id. 

Proof  of  Compliance  with  Statute .  65 
Rule  that  Owner  must  first  endea- 
vour to  hring  the  Thief  to  Justice  id. 
To  be  taken  ivith  Modifications  . .  id. 
Where    the  Action   is  against  a 

Third  Party     66 

Fvidence  of  Conversion    id. 

Order  for  Restitution id. 

Or  Action  of  Trover id. 

Order  of  Police  Magistrate 67 

Where  no  Special  Damages  can  he 

awarded    id. 

Replevin /or  unlawful  Taking  . .    68 
Wrongful  Sale  by  Agent  of  Horse 

entrusted  to  him id. 


FAIRS  AND  MARKETS  OVERT. 


The  general  rule  of  law  is,  that  all  sales  and  contracts  Sales  at  Fairs 
of  anything  vendible  in  Fairs  or  Markets  overt  (that  is,  and  Markets 
open),  shall  not  only  be  good  between  the  parties,  but 
also  be  binding  on  all  those  that  have  any  right  of  pro- 
perty therein.  And  for  this  purpose,  the  Mirror  informs 
us,  were  tolls  established  in  Markets,  viz.  to  testify  the 
making  of  contracts,  for  every  private  contract  was  dis- 
countenanced by  law  ;  insomuch  that  -  our  Saxon  ancestors 
prohibited  the  sale  of  anything  above  the  value  of  twenty 


56 


FAIRS  AND  MARKETS  OVERT,  ETC. 


The  general 
riile  of  law. 


When  market 
overt  is  held. 


Where  market 
overt  is  held. 


What  held  to 
be  Market 
overt  without 
the  City  of 
London. 

What  held  to 
be  Market 
overt  within 
the  City  of 
London. 


pence  -unless  in  open  Market,  and  directed  every  bargain 
and  sale  to  be  contracted  in  the  presence  of  credible 
witnesses  (a). 

The  general  Rule  of  the  law  of  England  is,  that  a  man 
who  has  no  authority  to  sell  cannot,  by  making  a  sale, 
transfer  the  property  to  another.  And  the  only  exception 
to  this  rule  is  the  case  of  sales  in  Market  overt  (b),  when 
the  purchaser's  title  is  good  against  all  the  world  (c). 

This  exception,  however,  only  applies  to  bond  Jide  sales 
commenced  and  perfected  in  Market  overt ;  that  is,  where 
the  goods  sold  are  actually  in  the  Market,  and  where  both 
the  sale  and  delivery  of  them  take  place  therein  {d).  It 
does  not  extend  to  gifts ;  nor  to  sales  of  pawns  taken  to  any 
pawnbroker  in  London,  or  within  two  miles  thereof ;  nor 
to  sales  of  goods  belonging  to  the  Sovereign  ;  nor  to  sales 
made  between  sunset  and  sunrise  (e). 

Market  overt  in  the  country  is  only  held  on  the  special 
days  provided  for  particular  towns  by  charter  or  pre- 
scription, but  in  London  every  day,  except  Simday,  is 
Market  day  {a). 

The  Market  place,  or  spot  of  ground  set  apart  by 
custom,  or  established  under  powers  conferred  by  a  modern 
Act  of  Parliament  (/'),  for  the  sale  of  particular  goods,  is 
also  in  the  country  the  only  Market  overt,  but  in  the 
city  of  London  by  the  custom  of  London  every  Shop 
{except  pau-JibroJiers)  in  which  goods  are  exposed  publicly 
for  sale  is  Market  overt,  but  for  such  things  only  as  the 
owner  professes  to  trade  in  (a). 

Without  the  city  of  London,  Market  overt  is  an  open, 
public  and  legally-constituted  Market  (g).  Therefore  a 
mere  Repository  for  Horses,  such  as  Eea's  Repository  in 
Southwark,  is  not  Market  overt  {h). 

But  within  the  city  of  London  a  sale  in  an  open  shop 
of  goods  usually  dealt  in  there,  such  sale  being  of  the 
goods  in  bulk  and  not  by  sample,  and  there  not  only 
commenced  but   also    completed  (/),  is  a  sale  in   Market 


(ff)  2  Bla.  Com.  449. 

[b)  See  per  Abbott,  C.  J.,  Djjer 
V.  Tearsoji,  3  B.  &  C.  42. 

(c)  Cundy  v.  Lindsay,  L.  R.,  3 
App.  Cas.  459;  47  L.  J.,  Q.  B. 
481;  38  L.  T.,  N.  S.  573. 

{d)  Chitty  on  Coutr.  10th  ed.  35G. 
(e)  Benj.  on  Sales,  2nd  ed.  8. 
(/)   Ganhj  v.  Ledwidge,  "10  Ir.  R., 
C,  L.  33,  Q.  B. 


{(/)  See  Com.  Dig.  Market;  per 
Jervis,  C.  J.,  Lee  v.  Bayes,  18  C.  B. 
601. 

[h)  Leev.  Bayes,  18  C.  B.  COL 
((')  Crane  v.  London  Lock  Co.,  33 
L.  J.,  Q.  B.  224.  It  will  be  ob- 
served that  the  sale  must  be  of 
goods  usually  dealt  in  at  the  shop. 
Thus  a  scrivener's  shop  is  not  a 
market  overt  for  plate.     So  Smith- 


FAIRS  AND  MARKETS  OVERT.  57 

overt,  thougli  the  premises  are  described  in  evidence  as  a 
warehouse,  and  are  not  sufficiently  open  to  the  street  for 
a  person  on  the  outside  to  see  what  passes  within  {i). 

By  the  Markets  and  Fairs  Clauses  Act  (10  &  11  Yict.  Horse  "an 
c.  14),  s.  13,  every  person,  other  than  a  licensed  hawker,  '^^^j'^^*^^' ??^^" 
is  prohibited  from  selling  or  exposing  for  sale  within  the  vict.  c.  H. 
prescribed  limits,  except  in  his  own  dwelling-place  or  shop, 
an//  articles  in  respect  of  which  tolls  are  by  the  special  act 
authorized  to  be  taken  in  the  Market. 

The  object  of  the  act  was  evidently  to  protect  the  interests 
of  the  Market ;  to  restrain  anyone  from  setting  up  within  the 
limits  a  rival  market;  and  the  substantial  meaning  of  sect.  13 
is,  that  whenever  it  appears  that  the  seller  sells  in  a  shop 
which  is  private  and  permanent  he  is  to  be  within  the 
exception,  but  whenever  a  man  does  not  sell  in  his  private 
shop,  but  sets  up  a  private  market  of  his  own,  the  section 
imposes  a  penalty ;  and  whether  or  not  the  place  of  sale  is 
the  seller's  own  private  dwelling-place  or  shop  is  a  question 
which  must  be  decided  upon  a  consideration  of  all  the 
elements  of  the  case  (y).  The  section  includes  Horses 
under  the  word  article,  when  sold  by  a  licensed  Auctioneer 
by  auction  in  the  yard  belonging  to  a  dwelling-house  not 
his  own,  and  within  the  prescribed  limits  {k).  But  where 
a  special  act  enlarged  the  exception  to  a  sale  in  an//  shop 
attached  to  ai///  dwelling-house,  and  an  Auctioneer  sold 
goods  in  his  auction  room,  which  was  attached  to  a  dwell- 
ing-house, but  not  his  own  dwelling-house,  it  was  held 
that  this  came  within  the  exception  (/).  A  skittle-ground 
covered  with  a  roof  and  enclosed,  but  having  a  door  open- 
ing upon  the  street,  let  for  two  days,  for  the  sale  of  goods 
mentioned  in  a  special  act,  is  not  the  lessee's  shop,  and 
therefore  does  not  come  within  the  exception  (;;?).  But 
seciis,  where  a  shed  is  built  out  in  front  of  the  seller's  shop 
on  land  belonging  to  himself  (»). 

Where  an  Auctioneer  sold  sheep,  cattle  and  Horses  at  Fearon  v. 
a  building  called  the  "Agricultural  Hall,"  of  which  he  Mitchell 

field  was  held  not  to  be  a  market  S.   1344;  30  L.  J.,  M.  C.   105;  8 

overt  for  clothes,  nor  Cheapside  for  W.  R.  693. 

horses,  nor  Aldridg-e's  for  carriages;  (/)    Wiltshire  \.  TFiUctt,  II  C.B., 

see  Benj.  on  Sales,  2nd  ed.  7.  N.  S.  240 ;  31  L.  J.,  M.  C.  8  ;   10 

(i)  Zi/ons  V.  De  Fass,  11  A.  &  E.  W.  R.  445  ;  5  L.  T.,  N.  S.  355. 

326.  {ill)  Hooper  v.  Kenshole,  L.  R.,  2 

[j)  Pope  V.  Whalleu,  6  B.   &  S.  Q.  B.  D.  127;  46  L.  J.,  M.  C.  160; 

303;  llJur.,N.  S.  444;  34  L.  J.,  36  L.  T.,  N.  S.  111. 

M.  C.  76  ;   11  L.  T.,  N.  S.  769.  («)  AshicortliY.  Hey  worth,  L.  R., 

[k)  Llandaff  and  Canton  Districts  4  Q.  B.  316 ;  38  L.  J.,  M.  C.  91 ; 

Market  Co.  v.  Lyndon,  6  Jui-.,  N.  20  L.  T.,  N.  S.  439. 


58'  FAIRS  AND  MARKETS  OVERT,  ETC. 

was  proprietor,  and  whicli  was  capable  of  holding  one 
hundred  head  of  cattle,  and  which  was  moreover  con- 
tiguous to  a  yard  capable  of  holding  1,400  sheep;  it 
was  held  that  these  premises  were  not  the  Auctioneer's 
dwelling-place  or  shop,  notwithstanding  that  his  dwelling- 
house  was  only  separated  from  the  hall  by  the  yard  (o). 
And,  "  under  that  state  of  facts,"  said  Cockburn,  C.  J., 
"  it  is  impossible  to  say  that  the  sale  took  place  in  the 
dwelling-place  of  the  respondent ;  for  the  place  is  entirely 
separated  from  his  dwelling-house ;  and  assuming  (con- 
trary to  my  opinion)  that  a  distinction  was  intended  by 
the  use  of  the  phrase  '  dwelling-place,'  instead  of  '  dwell- 
ing-house,' which  occurs  in  some  of  the  other  statutes, 
and  that  '  dwelling-place'  may  apply  to  somewhat  larger 
and  more  extensive  premises  than  the  term  *  dwelling- 
house'  would  apply  to ;  yet  I  do  not  think  that  in  any 
sense  of  the  term  can  those  premises  be  said  to  be  the 
dwelling-place  of  the  respondent,  separated  as  they  are 
from  the  place  in  which  he  lives.  Then,  is  it  his  shop  ? 
I  am  of  opinion  that  it  is  not.  It  cannot,  in  any  proper 
sense  of  the  term,  be  called  a  shop.  I  agree  that  there 
may  be  cases  in  which  the  term  '  shop,'  in  its  popular  sense, 
would  not  be  applicable  to  the  premises  in  which  things 
were  sold  or  exposed  for  sale,  and  yet,  by  a  liberal  and 
rational  construction  of  the  act,  the  premises  might  be 
considered  as  within  the  exception  of  •'  shop.'  Take,  for 
instance,  the  place  of  business  of  a  Horsedealer  who  has 
stables  in  which  he  keeps  Horses  for  sale,  either  as  his  own 
or  on  commission.  Although  tolls  are  payable  for  the  sale 
of  Horses  in  the  market,  it  would  be,  perhaps,  too  much 
to  say  that  the  Horsedealer  is  not  at  liberty  to  sell 
Horses  on  his  own  premises,  as  not  being  within  the  ex- 
ception of  '  shop '  in  the  statute.  I  think  we  might  say 
that,  on  fair  construction,  the  Horsedealer's  premises  were 
'  a  shop'  within  that  term  as  used  in  sect.  13,  But  each 
case  must  depend  on  its  particular  circumstances.  Alv 
though,  as  I  have  said,  the  premises  of  a  Horsedealer 
might  come  within  the  exception,  it  is  a  very  different 
thing  when  we  have  to  deal  with  an  extensive  area  like 
the  present,  which  is,  in  fact,  nearly  as  extensive  as  the 
Market-place  itself.  It  is  true  that  the  auction  itself  took 
place  in  a  building,  but  the  sheep  and  other  things,  the 
subject  of  the  sale,  were  exposed  for  sale  in  this  large 

(o)  Fearon  v.   Mitchell,  L.  E.,  7  Q.    B.    090  ;    41  L.  J.,  M.  C.   170  ; 
27  L.  T.,  N.  S.  33. 


FATES  AND  MARKETS  OVERT.  59 

3'-ard  and  kept  there.  To  say  that  this  could  be  a  '  shop ' 
within  the  meaning  of  this  section  would  be,  as  it  appears 
to  me,  quite  unreasonable.  I  own  my  individual  opinion 
is  rather  strong  against  an  Auctioneer's  premises  being  a 
'  shop  '  at  all  within  the  meaning  of  the  section,  but  it  is 
not  necessary  to  determine  that.  Assuming  that  an  Auc- 
tioneer's premises  might  be  a  shop  for  the  purpose  of 
selling,  so  as  to  come  within  the  exception,  it  seems  to  me 
impossible  to  say  that  these  extensive  premises,  being  in 
the  open  air  and  capable  of  holding  so  many  hundred 
sheep,  can  in  any  sense  of  the  term  be  brought  within  the 
description  of  a  shop"  (;;). 

A  Horse  which  brings  goods  to  Market  to  be  sold  is,  as  where  a 
well  as  the  goods  themselves,  exempt  from  distress,  for  the  Horse  at  a 
sake  of  public  utility  (q) .  W  dSr?sf 

The  Contagious  Diseases  (Animals)  Act,  1878  (41  &  42  ^^  ,     » 
Yict.   c.  74),  s.   32,   Ord.  442,  renders   the  exposure  for  diseased 
sale  of  diseased  animals  unlawful,  but  it  does  not  render  the  animals  in. 
sending  of  diseased  animals  to  a  public  Market  an  action- 
able wrong,  in  the  absence  of  any  warranty  of  soundness 
or  of  any  evidence  of  fraud  or  misrepresentation  (r). 

HORSE  STEALING. 

By  24  &  25  Vict.  c.  96,  s.  10,  it  is  enacted,  that  "  who-  Stat.  24  &  25 
soever  shall  steal  any  Horse,  Mare,  Gelding,  Colt  or  Filly,  ^^^^^  *^*  ^^• 
or  any  bull,  cow,  ox,  heifer  or  calf,  or  any  ram,  ewe,  sheep 
or  lamb,  shall  be  guilty  of  felony:"  and  by  sect.  11,  it  is 
enacted,  that  "  whosoever  shall  wilfully  kill  any  animal 
with  intent  to  steal  the  carcase,  skin  or  any  part  of  the 
animal  so  killed,  shall  be  guilty  of  felony  (s). 

In  an  indictment  for  Horse-stealing  under  7  &  8  Geo.  4,  Description  in 
c.  29,  s.  25,  the  phraseology  of  which  section  has  been  ^^^^  ^^  ' 
followed  in  this  respect  by  24  &  25  Yict.  c.  96,  s.  10,  it 
was  held,  that  the  animal,  whether  a  Horse,  Mare,  Geld- 
ing, Colt  or  Filly,  might,  be  described  as  a  "  Horse," 
although  the  statute  specified  the  particular  species  and 
gender  (f) ;  and  the  construction  thus  given  to  the  former 

(p)  Fearon  v.  Mitchell,  L.  R.,  7  Cas.  13  ;  48  L.  J.,  C.  P.  281  ;  40 

Q.  B.  294,  295;  see  also  J/'ifo^t- v.  L.  T.,  N.  S.  73;  27  W.  R.   114. 

Bavies,  L.  R.,  1  Q.  B.  D.  59  ;  45  Decided  under  32  &  33  Vict.  c.  70, 

L.  J.,  M.  C.  30  ;  33  L.  T.,  N.  S.  s.  57,  repealed. 

502 ;  24  W.  R.  343.  (,s)  Repealing-  but   substantially 

{q)  See  Francis  v.  Wijait,  3  Burr.  re-enacting-  7  &  8  Geo.  4,  c.  29,  s. 

1502,    and    the    authorities    there  25. 

cited.  (t)  Rex  v.  Aldrielge,  4  Cox,  C.  C. 

(?•)    Ward  V.  Ilobhs,  L.  R.,  4  App.  14  3. 


60 


FAIRS  AND  MARKETS  OVERT,  ETC. 


When  the 
offence  is 
complete. 


Property- 
given  up. 


Delivery  of  a 
Horse  to  a 
strang-er. 


statute  would  probably  make  it  unnecessary  to  amend  in 
a  like  case  an  indictment  under  the  present  statute.  Now, 
upon  any  similar  objection  being  taken,  not  covered  as  in 
this  case  by  an  express  decision,  the  indictment  might  be 
amended  under  14  &  15  Vict.  c.  100,  s.  1. 

If  a  Horse  in  a  close  is  taken  with  intent  to  steal  him, 
but  the  thief  is  caught  before  he  get  out  of  the  close,  the 
offence  is  complete  (?()•  And  where  the  prisoner  went 
into  the  stable  of  an  inn,  and  pointing  to  a  Mare  said  to 
the  ostler,  "that  is  my  Horse,  saddle  him,"  and  the  ostler 
did  so,  and  the  prisoner  tried  to  mount  the  Mare  in  the 
inn  yard,  but  failing  to  do  so  directed  the  ostler  to  lead 
the  Mare  out  of  the  yard  for  him  to  mount,  and  the  ostler 
led  her  out,  but  before  the  prisoner  had  time  to  mount  her 
a  person  who  knew  the  Mare  came  up  and  the  prisoner 
was  secm'cd ;  it  was  held,  that  if  the  prisoner  caused  the 
Mare  to  be  led  out  of  the  stable  intending  to  steal  her, 
that  was  a  sufficient  taking  to  constitute  a  felony  (.r) . 

If  the  owner  of  goods  gives  up  the  possession  of  his 
goods,  at  the  same  time  intending  to  part  with  the  entire 
property  in  them,  it  is  no  larceny,  although  he  may  be 
defrauded  in  the  bargain  {//). 

A  person  selling  a  Horse  at  a  Fair  should  take  care 
how  he  delivers  his  Horse  to  a  stranger  without  receiving 
payment  for  him,  because  whatever  false  statements  and 
pretences  the  stranger  may  make  use  of,  if  the  seller  part 
with  him  on  a  promise  being  made  that  he  shall  be  paid 
for  him  at  a  certain  place,  and  the  Horse  is  ridden  oif 
without  his  receiving  the  money,  he  cannot  get  him  back 
again,  neither  can  he  indict  the  stranger  for  tricking  him, 
but  his  only  remedy  is  an  action  for  the  price,  which  it 
might  be  useless  to  bring  against  so  worthless  a  party. 
Thus,  where  a  man  was  indicted  for  obtaining  a  Filly  by 
false  pretences,  it  appeared  that  the  prisoner  pretending  to 
be  a  gentleman's  servant,  that  he  lived  at  Brecon,  and  that 
he  had  bought  twenty  Horses  at  Brecon  Fair,  got  posses- 
sion of  a  Filly  there  from  a  person  who  had  her  on  sale, 
saying  that  if  the  prosecutor  would  take  a  Horse  he  de- 
livered to  him  to  the  Cross  Keys  he  would  meet  him  and 
pay  the  money.  The  prisoner  never  made  his  appearance, 
and  the  Horse  left  was  good  for  nothing.  It  was  held 
that  as  the  prosecutor  parted  with  the  Filly  because  the 


{ii)   1  Hale,  508. 

(.*■)  Hex  V.  rUman,  2  C.  &  T.  423. 


(y)  Per    Coleridge,    J. 
Sheppard,  9  C.  &  P.  123. 


Beg. 


HORSE  STEALING.  61 

prisoner  promised  to  pay  him,  and  not  on  account  of  any 
of  the  false  pretences  charged,  the  prisoner  was  entitled 
to  an  acquittal  (s). 

Where  W.  let  a  Horse  on  hire  to  C,  who  fetched  the 
Horse  every  morning  from  W.'s  stable  and  returned  it 
after  the  day's  work  was  done,  and  the  prisoner  went  to 
C.  one  day  just  as  the  day's  work  was  done  and  fraudu- 
lently obtained  the  Horse  by  saying,  falsely,  "  I  have  come 
for  W.'s  Horse ;  he  has  got  a  job  on  and  wants  it  as  quickly 
as  possible;"  and  the  same  evening  the  prisoner  was  found 
three  miles  off  with  the  Horse  by  a  constable,  to  whom  he 
stated  it  was  his  father's  Horse  and  that  he  was  sent  to 
sell  it.  This  was  held  as  against  W.  to  be  a  larceny, 
though  as  against  C.  it  would  have  been  an  obtaining 
by  false  pretences  (a) . 

If  instead  of  delivering  a  Horse  on  the  completion  of  Delivery  on 
a  bargain,  the  owner  allows  the  party  to  ride  him  by  way  *^'^^^- 
of  trial,  and  he  rides  away  in  pursuance  of  an  intention 
to  defraud,  the  property  is  unchanged,  and  the  felony  is 
complete  {b). 

If  the  owner  does  not  consent  to  the  goods  being  taken.  Goods  taken 
and  the  person  when  he  bargains  for  them  does  not  intend  ^'it^^out  con- 
to  pay  for  them,  but  means  to  get  them  into  his  possession, 
and  dispose  of  them  for  his  own  benefit  without  paying  for 
them,  it  is  a  larceny  (c). 

If  a  Horse  be  hired  for  the  day  by  a  person  intending  Appropria- 
at  the  time  of  hiring  to  appropriate  it,  ancl  it  is  accordingly  *ip^  "^  ^ 
taken  away  and  sold,  a  felony  is  committed,  because  the    "^*^      °^^^' 
owner  did  not  intend  to  relinquish  his  property  in  the 
Horse,  but  only  the  temporary  possession  (d).     But  where 
a  Horse  is  hired  for  a  particular  purpose  the  selling  him 
after  that  purpose  is  accomplished  will  not  constitute  a 
iiciv  felonious  taking  (e). 

If  goods  are.  delivered  to  a  person  on  hire,  and  he  takes  Larceny 
them  away  animo  furancJi,  he  is  guilty  of  larceny,  although  without  proof 
no  actual   conversion   of  them   by   sale  or   otherwise   is 
proved.     Thus,  where  A.  hired  a  horse  and  gig  with  the 
felonious  intention  of  converting  them   to  his  own  use, 
and  afterwards  offered  them    for  sale,  but   no  sale  took 

{£)  Rex  V.  Bale,  7  C.  &  P.  352  ;  (c)   Gilbert's  case,  1   Mood.  C.  C. 

R.  V.  llarveij,  1  Leach,  467.  186. 

{(i)  Ecff.  Y.  Kendall,  30  Ij.T.3i5;  (d)  Rex  v.  Fear,  1  Leach,   521; 

12  Cox,  C.  C.  598,  C.  C.  R.  Rex  v.   Pafc/i,  Ibid.   238  ;    Rex;  v. 

(A)  See  Dickinson,  Q.  S.  220.  Fratt,  1  Mood.  C.  C.  185. 

(e)  Rex  V.  Fa)i/cs,  R.  &  R.  4tl. 


G2 


FAIRS  AND  MARKETS  OVERT,  ETC. 


Taking  with 
an  intent  to 
use. 


Possession  six 
months  after 

loss. 


Kilhng  or 

maiming 

Horses. 


Other  ani- 
mals. 


Pouring  acid 
into  a  Mare's 
ear. 


' '  Maiming 
and  wound- 


place  ;  it  was  lield  nevertlieless  that  lie  was  guilty  of 
larceny  (*/). 

A  taking  with  the  bare  intent  to  use  goods,  though 
unlawfully,  will  be  only  a  trespass  if  the  Jury  are  satisfied 
that  such  was  the  original  intention.  Thus,  where  two 
persons  took  two  Horses  from  a  stable,  rode  them  to  a 
place  at  a  distance,  and  there  left  them,  proceeding  on 
foot,  and  the  Jury  found  that  they  took  the  Horses  merely 
to  forward  them  on  their  journey,  and  not  to  make  any 
further  use  of  them,  this  was  held  not  to  be  a  larceny  {<j). 
And  if  a  person  stealing  other  property,  takes  a  Horse  not 
with  the  intent  to  steal  it,  but  only  to  get  off  more  con- 
veniently with  the  other  property  which  he  has  stolen, 
such  taking  of  the  Horse  is  not  a  felony  {h). 

Where  a  man  is  found  in  possession  of  a  thing  after  a 
lapse  of  six  or  seven  months  from  the  time  when  it  was 
lost,  and  there  is  no  other  evidence  against  him  but  that 
possession,  he  ought  not  to  be  called  on  to  account  for  it. 
Thus,  where  a  Mare,  which  had  been  lost  in  December, 
was  not  found  in  the  prisoner's  possession  till  the  June  or 
July  following,  it  was  held  that  his  possession  was  not 
sufficiently  recent  to  put  him  on  his  defence  (/). 

By  24  &  25  Yiet.  c.  D7,  s.  40  (A-),  the  malicious  kill- 
ing, maiming  or  wounding  of  any  cattle  is  felony.  And 
the  word  "  cattle,"  which  alone  is  mentioned  in  the  act, 
has  been  held  under  former  acts  to  include  Horses  (/),  as 
well  as  oxen,  &c.,  pigs  {m)  and  asses  {n). 

By  section  41  of  the  same  statute,  the  malicious  killing, 
maiming  or  wounding  of  other  animals  is  made  punishable 
by  imprisonment  or  fine. 

Where  a  person  had  poured  nitrous  acid  into  a  Mare's 
ear,  and  some  had  run  into  her  eyes  and  blinded  her,  and 
the  injuries  produced  to  the  ear  were  ulcers  not  wounds, 
though  such  ulcers  would  have  tm-ned  to  wounds,  a  con- 
viction for  maiming  was  held  right  (o). 

The  distinction  between  maiming  [p)  and  wounding  [q) 


(/)  Ecg.  V.  Jaiison,  4  Cox,  C.  C. 
82,  overruling  Eeg.  v.  lirooks,  8  C. 
&  P.  295. 

iff)  Rex  V.  PhilUps,  2  East,  P.  C. 
c.  16,  s.  98. 

[h)  Rexv.  Crump,  1  C.  &  P.  658. 

(;■)  Per  Maule,  J.,  Set/,  v.  Cooper, 
16  Jur.  750. 

{k)  Repealing  but  re-enacting  7 
&  8  Geo.  4,  c.  30,  s.  16. 


(0  Rex  V.  Tatei/,  2  W.  Bla.  721. 

{m)  Rex  V.  Chappie,  R.  &  P.  77. 

(«)  Rex  V.  Whitneij,  1  Mood.  C. 
C.  3. 

(o)  Oweti's  case,  1  Mood.  C.  C. 
205. 

{p)  R.  V.  Jeans,  1  C.  &  K.  539. 

{q)  R.  V.  JIai/H-ood,  Puss.  & 
Pyan,  16. 


HORSE  STEALING.  63 

appears  to  "be  that  the  former  implies  permanent  injury, 
while  the  latter  does  not  necessarily  do  so. 

It  is  not  necessary  under  this  statute  to  prove  that  any  Use  of  in- 
instrument  has  been  used;  where  the  roots  of  a  Horse's  ^*'^^Jf^*^"f*v 
tongue  were  lacerated,  and  the  tongue  was  protruding  from  proved, 
his  mouth,  and  there  was  only  evidence  to  show  that  the 
injury  had  been  done  by  the  prisoner's  hand,  it  was  held 
that  an  offence  against  the  act  had  been  committed  {>•). 

To  support  an  indictment  under  these  sections,  it  is  un-  Malice, 
necessary  to  give  evidence  of  Malice  against  any  particular 
person  (s),  yet  an  evil  intent  in  the  prisoner  must  appear. 
Thus,  in  a  case  in  which  the  prisoner,  a  groom,  adminis- 
tered sulphuric  acid  to  his  Horses,  Parke,  J.,  left  it  to 
the  Jury  to  say,  whether  he  had  done  it  with  the  intent 
feloniously  to  kill  them,  or  under  the  impression  that  it 
would  improve  their  appearance  (there  being  some  evidence 
of  a  practice  of  that  kind  among  grooms),  and  that  in  the 
latter  case  they  ought  to  acquit  him  {t). 

Where,  however,  the  act  is  cruel  and  wanton  the  law 
will  imply  malice.  Thus,  where  a  man  caused  the  death  of 
a  Mare  from  internal  injuries  not  intending  by  his  act  to 
kill,  maim,  or  wound  her,  and  acting  recklessly  and  not 
caring  whether  she  was  injured  or  not,  though  without  any 
ill-will  or  spite,  either  towards  the  owner  of  the  animal, 
or  the  animal  herself,  and  without  any  motive  except  the 
gratification  of  his  own  depraved  tastes,  he  was  found 
gudty  of  maliciously  killing  the  Mare  contrary  to  the 
Statute  {i(). 

By  39  Yict.  c.  13  (The  Drugging  of  Animals  Act,  1876),  Drugging  of 
the  practice  of  administering  poisonous  drugs  to  Horses  and  ^^"^  ^  ' 
other  animals  by  disqualified  persons  and  without  the 
knowledge  and  consent  of  the  o^vner  of  such  animals  is 
made  punishable  by  fine  or  imprisonment.  The  act  does 
not  extend  to  the  owner  of  the  animal,  nor  anyone  acting 
under  his  authority,  nor  does  it  exempt  a  person  from  pun- 
ishment under  any  other  act,  so  that  he  be  not  punished 
more  than  once  for  the  same  offence. 

KECOVERY  OF  STOLEN  HORSES. 

Although  as  a  general  rule  the  purchaser  of  stolen  goods  Sale  in  Mar- 
in  Market  overt  acquires  a  title  to  them,  this  is  not  the  case        o"^ert. 

(>•)  a.  V.  HullocJc,  37  L.  J.,  M.  C.  91 ;  30  L.  T.,  N".  S.  405  ;  22  W.  R. 

47 ;  L.  R.,  1  C.  C.  R.  115.  553  ;  12  Cox,  C.  C.  607. 

(*)  H.  V.  Tlvetj,  1  C.  &  K.  704.  {()  H.  v.  Mogg,  4  C.  &  P.  364. 

See  also  Reg.  v.  Fcmbliton,  L.  R.,  («)  i?.  v.  Welch,  45  L.  J.,  M.  C. 

2C.  C.  R.  119;  43  L.  J.,  M.  C.  17. 


64 


FAIRS  AND  MARKETS  OVERT,  ETC. 


Statutory 
regulations. 


Kecovery 
when  sold 
under  these 
regulations. 


Owner  must 
prove  the 
Horse  was 
stolen. 


Sale  out  of 
market  overt. 


Recovery 
when  not  sold 
under  these 
regulations. 


with  regard  to  stolen  Horses.  For  a  purcliaser  gains  no 
property  in  a  Horse  which  has  been  stolen,  unless  he  buys 
it  in  a  Fair  or  Market  overt,  according  to  the  directions  of 
the  statutes  of  Philip  and  Mary  (.r),  and  Elizabeth  (i/). 

By  the  statutes  of  Philip  and  Mary,  and  Elizabeth,  it 
is  enacted,  that  the  Plorse  which  is  for  sale  shall  be  openly 
exposed  in  the  time  of  such  Fair  or  Market,  for  one  whole 
hour  together,  between  ten  in  the  morning  and  sunset,  in 
the  public  place  used  for  such  sales,  and  not  in  any  pri- 
vate yard  or  stable ;  and  afterwards  brought  by  both  the 
vendor  and  vendee  to  the  bookkeeper  of  such  Fair  or 
Market ;  that  toll  be  paid  if  any  be  due,  and  if  not,  one 
penny  to  the  bookkeeper,  who  shall  enter  down  the  price, 
colour  and  marks  of  the  Horse,  with  the  names,  additions 
and  abode  of  the  vendee  and  vendor,  the  latter  being  pro- 
perly attested  (z). 

The  sale  of  a  Horse  under  these  statutory  regulations 
does  not  take  away  the  property  of  the  owner,  if  within 
six  months  after  the  Horse  is  stolen  he  puts  in  his  claim 
before  some  Magistrate  where  the  Horse  shall  be  found, 
and  within  forty  days  more  proves  it  to  be  his  property  by 
the  oath  of  two  witnesses,  and  tenders  to  the  person  in  pos- 
session such  price  as  he  bond  fide  paid  for  him  in  Market 
overt  (r/). 

Unless,  however,  it  is  proved  that  the  Horse  was  stolen  a 
Magistrate  has  no  authority  to  restore  it ;  and,  therefore, 
where  a  complaint  was  made  to  a  Magistrate  by  A.  the 
owner,  that  his  Horse  had  been  stolen  by  B.,  without  actual 
proof  of  its  having  been  stolen,  it  was  held  that  an  officer, 
although  armed  with  a  warrant  against  B.,  was  not  justified 
imder  the  31  Eliz.  c.  12,  s.  4,  in  taking  the  Horse  out  of 
the  possession  of  the  bond  fide  purchaser  from  B.  (b). 

Where  Horses  or  other  stolen  goods  are  sold  out  of 
Market  overt,  the  owner's  property  is  not  altered,  and  he 
may  take  them  wherever  he  finds  them  (c) . 

We  have  seen  that  the  sale  of  a  stolen  Horse,  even  in 
Market  overt,  is  void  if  certain  statutory  regulations  have 
not  been  observed,  and  in  such  case  the  owner  does  not 
lose  his  property,  but  at  any  distance  of  time  may  seize 
or  bring  an  action  for  his  Horse,  wherever  he  happens  to 
find  him  {c).     But,  in  a   case  (d)  in  which  no  evidence 


(^)  2  &  3  Ph.  &  M.  c.  7. 

(V)  31  Eliz.  0.  12. 

(z)  2  Ph.  &  M.  c.  7,  and  31  Eliz. 

12. 

{(f)  31  Eliz.  c.  12,  s.  4  ;  Kel.  48. 


{b)  Joseph  V.  Adkins,  2  Stark.  N. 
P.  C.  76. 

[c)  2  Bla.  Com.  449. 

[d]  North  V.  Jackson,  2  F.  &  F. 
198. 


RECOVERY  OF  STOLEN  HORSES.  65 

was  given  of  a  compliance  with  the  statutory  regulations, 
a  bo)id  fide  purchaser  of  a  horse  from  a  person  who  had 
bought  it  (as  the  second  pm-chaser  knew)  at  a  fair,  with- 
out any  evidence  that  he  knew  that  it  was  obtained  dis- 
honestly, although  it  had  been  purchased  on  credit,  and 
not  paid  for,  was  held  entitled  to  maintain  trover  against 
the  original  owner  for  retaking  it. 

The  onus  of  showing  that  the  formalities  required  by  Proof  of  com- 
the  statute  have  been  observed  lies  on  the  buyer.  In  pliance  with 
Moran  v.  Pitt  {e)  the  defendant's  Mare,  which  he  had 
turned  out  in  a  public  park,  was  found  out  of  the  park 
and  was  sold  at  public  auction  by  the  "  pinner"  ;  and  after 
an  intermediate  sale  she  was  sold  in  Market  overt  by  the 
plaintiff  and  subsequently  taken  possession  of  by  the 
defendant.  No  proof  was  given  that  the  formalities  re- 
quii'ed  by  the  statute  had  been  complied  with ;  and  the 
Com-t  of  Queen's  Bench,  in  the  absence  of  such  proof, 
declined  to  infer  that  such  formalities  had  been  observed, 
and  held  that  the  plaintiff  could  not  maintain  an  action 
for  the  Mare  against  the  defendant,  the  true  owner. 

It  has  been  held,  that  where  a  party  has  good  reason  to  Rule  that 
believe  that  his  Horse  has  been  stolen,  he  cannot  maintain  owner  must 
Trover  against  the  person  who  bought  it  of  the  supposed  your  to  brino- 
thief,  unless  he  has  done  everything  in  his  power  to  bring  the  thief  to 
the  thief  to  justice  {/).     But  where  the  owner  of  the  stolen  J^^stice. 
property  had  prosecuted  the  felon  to  conviction,  and  before 
that  time  had  given  notice  of  the  felony  to  the  defendant, 
who  had  purchased  bond  fide,  but  not  in  Market  overt,  and 
the  defendant  after  such  notice  had  sold  the  property  in 
Market  overt,  it  was  held  that  the  owner  might  recover 
from  the  defendant  the  value  of  his  property  in  Trover  (g). 

Though  the  decisions  themselves  in  the  cases  of  Gimson  To  be  taken 
V.    Wood  fall  and  Peer   v.  Hmnphrey  have  not  been  ex-  ^ithmodifi- 

CtltlOUS 

pressly  overruled,  yet  the  general  rule  upon  which  they 
rest  can  now  only  be  taken  with  some  modifications.  It 
is  a  true  principle,  that  where  a  criminal  and  consequently 
an  injurious  act  towards  the  public  has  been  committed, 
which  is  also  a  civil  injury  to  a  party,  that  party  shall  not 
be  permitted  to  seek  redress  for  the  civil  injury  to  the 
prejudice  of  public  justice,  and  to  waive  the  felony  (Ji). 

[e)  42  L.  J.,  Q.  B.  47;  28  L.  T.,  [h)  Although  this  is  the  rule,  it 

N.  S.  554  ;  21  W.  R.  554.  becomes  a  different  question  when 

(/)  Gimson  v.  Woodfall,  2  C.  &  we  have  to  consider  how  it  is  to 

P.  41.  be  enforced;  per  Cockbum,  C.  J., 

[g)  Peer  v.  Humphrey,  2  A.  &  E.  Wells  v.  Ahrcihams,  L.  R.,  7  Q.  B. 

495.  557;  41  L.  J.,  Q.  B.  306. 

O.  F 


66 


FAIRS  AND  MAllKETS  OVERT,  ETC. 


Wliere  the 
action  is 
against  a 
third  party. 


Evidence  of 
conversion. 


Order  for 
restitution. 


Or  action  of 
trover. 


But  tills  rule  of  public  policy  applies  only  to  proceedings 
between  the  plaintiff  and  the  felon  himself,  or  at  the  most 
the  felon  and  those  with  whom  he  must  be  sued  (A),  and 
therefore  it  is  not  applicable  where  the  action  is  against  a 
third  party,  who  is  innocent  of  the  felony. 

Thus,  it  was  held  that  an  action  of  Trover  was  main- 
tainable to  recover  the  value  of  goods  which  had  been 
stolen  from  the  plaintiff  and  which  the  defendant  had 
innocently  purchased,  although  no  steps  had  been  taken  to 
bring  the  thief  to  justice  (//).  Thus,  too,  in  a  case  where 
A.  had  bond  fide  purchased  a  stolen  Horse  at  a  public 
auction  (not  being  a  Market  overt),  and  had  sent  it  for 
sale  to  a  Repository  for  Horses  kept  by  B.,  and  there  it 
was  found  by  the  owner,  who  demanded  it  of  B.  in  the 
presence  of  A.,  and  B.  refused  to  give  it  up  without  the 
authority  of  A. ;  it  was  held  in  an  action  of  Trover  against 
A.  and  B.,  that  in  this  case  it  was  not  necessary  in  the 
first  instance  to  prosecute  the  felon,  and  that  there  was 
sufficient  evidence  of  a  joint  conversion ;  inasmuch  as, 
though  a  servant  or  agent,  who  has  received  goods  from 
his  master  or  principal,  may,  on  a  demand  made  by  the 
true  owner  of  the  goods,  give  a  qualified  refusal  to  deliver 
them  up,  without  being  liable  to  an  action  of  Trover ;  yet 
when  a  bailee  sets  up  or  relies  upon  the  title  of  his  bailor, 
in  answer  to  such  demand,  his  refusal  is  evidence  of  a 
conversion  by  him  {I). 

If  goods  be  stolen  from  any  common  person,  and  he 
prosecutes  the  offender  to  conviction,  he  will  be  entitled 
under  24  &  25  Yict.  c.  96,  s.  100  (A:),  to  an  order  of 
restitution  from  the  Court  before  whom  the  trial  took 
place,  and  this  notwithstanding  any  intervening  sale  in 
Market  overt  (/). 

Or  the  goods  may  be  recovered  in  Trover  from  the 
purchaser  of  them  in  Market  overt,  upon  a  conversion  by 
him  subsequent  to  the  conviction  of  the  felon,  without  any 
order  for  restitution  having  been  made.  For  the  effect  of 
24  &  25  Yict.  c.  96,  s.  100  {!:),  is  to  revest  the  property  in 
stolen  goods  in  the  original  owner  upon  conviction  of  the 
felon  im). 


{h)  White  V.  Spettlgue,  13  M.  & 
W.  606 ;  Stone  v.  Marsh,  6  B.  &C. 
551  ;  Harsh  v.  Keating,  1  Bing.  N. 
C.  198  ;  per  Crowder,  J.,  Lee  v. 
Bayes,  18  C.  B.  602  ;  and  see  Oshorn 
V.  Gillett,  L.  E.,  8Ex.  88;  44  L.  J., 
Ex.  53. 


[i)  Lee  V.  Bayes,  18  0.  B.  599. 

[k)  Taken  from  7  &  8  Geo.  4, 
c.  29,  s.  57. 

{1)  2  Steph.  Com.  64. 

[m]  Scattert/ood  v.  Sylvester,  19 
L.  J.,  Q.  B.  447. 


RECOVERY  OF  STOLEN  HORSES.  67 

This  enactment  applies  to  cases  of  false  pretences  as 
well  as  felony,  and  the  fact  that  the  prisoner  parted  with 
the  goods  to  a  bond  fide  pawnee  will  not  disentitle  the 
original  owner  to  the  restitution  of  the  goods  {n).  It  also 
applies  to  property  received  by  a  person  knowing  it  to 
have  been  stolen  or  obtained  by  false  pretences.  The 
order  of  restitution  is  strictly  limited  to  property  identified 
at  the  trial  as  being  the  subject  of  the  charge ;  it  does 
not,  therefore,  extend  to  property  in  the  possession  of 
innocent  third  persons,  which  was  not  produced  and 
identified  at  the  trial  as  being  the  subject  of  the  indict- 
ment (o). 

Where  stolen  cattle  were  sold  in  Market  overt  at  about 
10  o'clock  in  the  morning,  and  later  on  in  the  day  resold 
likewise  in  Market  overt,  both  purchases  being  bond  fide, 
it  was  held,  that,  upon  the  conviction  of  the  thief,  the 
judge  had  jurisdiction  at  the  trial  to  order  restitution  to 
the  rightful  owner  [p). 

And  by  the  30  &  31  Yict.  c.  35,  s.  9,  provision  is  made 
upon  conviction  of  the  thief,  and  restitution  of  the  goods, 
for  the  payment  to  an  innocent  purchaser  from  the  thief, 
out  of  any  moneys  taken  from  the  thief  on  his  apprehension, 
of  the  price  such  purchaser  has  paid  for  the  stolen  goods. 

Under  2  &  3  Vict.  c.  71,  the  Metropolitan  Police  Ma-  Order  of 
gistrates  have  power  to  order  that  any  goods  stolen  or  ^.^lH^  Magis- 
f raudulently  obtained  be  delivered  up  to  the  owner  {q) . 

And  if  the   order  is  immediately  complied  with,  no  Where  no 
special  damages  can  be  awarded  for  the  detention.     Thus,  ^^^^^l. 
in  the  following  case,  A.  hired  a  Horse  and  gig  of  B.,  be  awarded, 
and  the  same  day  pledged  it  with  C,  an  innocent  party, 
for  value.     After  some  inquiries  made,  B.  demanded  the 
restitution  of  them  from  C,  who  offered  to  restore  them  on 
being  satisfied  of  B.'s  right  to  recover.     A  Magistrate's 
order  was  then  obtained  by  B.,  under  2  &  3  Yict.  c.  71, 
s.  40,  compelling  C.  to  deliver  the  goods  to  B.,  which 
order  was   immediately   complied   with   by  C.     A.   was, 
subsequently  to  this  order,  tried  and   convicted   on   the 
evidence  of  B.  and  C  of  stealing  the  Horse  and  gig,  and 
after  such  conviction  B.  entered  a  plaint  in  the  Sheriff's 
Court  against  C.  for  special  damage  arising  from  the  de- 

(«)  Eeg.y.Stancliffe,llGoi!.,G.G.  [i))  Reg.  v.  Uomn,  G  Ir.  R.,  0. 

318.  L.  293.  C.  C.  E. 

(o)  Beg.  V.  Goldsmith,  12  Cox,  C.  (?)  See  2  &  3  Vict.  c.  71,  ss.  27, 

C.  594 ;  Reg.  v.  Smith,  12  Cox,  C.  C.  40. 


697. 


f2 


'68  FAIRS  AND  MARKETS  OVERT,  ETC. 

tention  of  the  goods  prior  to  sucli  restitution.     It  was  held 
by  Mr.  Russell  Guruey  that  there  was  no  evidence  of  a 
conversion   by  C.  so  as  to   enable  B.  to  recover  in  this 
action  (r) . 
Eepicvin  for  An  action  of  Replevin  may  be  maintained  for  any  un- 

imlawful  lawful  taking  of  goods,  as  upon  a  mistaken  charge  of 
aang.  felony,  and  is  not  confined  to  the  case  of  goods  distrained. 

Thus,  where  there  was  a  dispute  between  the  defendant 
L.  and  the  plaintiff  as  to  the  ownership  of  a  Horse,  one 
H.,  having  obtained  possession  of  it  at  the  plaintiff's  re- 
quest, was  charged  by  L.  with  stealing  it.  The  defendant 
C.  was  a  policeman  of  the  borough  of  Liverpool,  appointed 
imder  5  &  (3  Will.  4,  c.  7G,  s.  76 ;  and  the  charge  having 
been  made  to  him,  he  apprehended  H.  and  took  jDOSsession 
of  the  Horse.  The  charge  of  felony  was  afterwards  dis- 
missed by  the  police  magistrate,  but  the  defendant  C,  was 
ordered  to  give  up  the  Horse  to  the  defendant  L.  The 
plaintiff  brought  an  action  of  Replevin  against  the  defen- 
dants C.  and  L.  for  taking  and  detaining  his,  the  plaintiff's, 
Horse,  and  it  was  held  that,  though  unusual  in  such  a 
case,  the  action  was  maintainable  («). 
■Wrongful  It   was   held  by  Wightman,  J.,  in  the  case  of   R.  v. 

sale  by  Agent  Jjai{/Ii  [f),  that  a  person,  who  was  employed  to  take  a 
entrusted  to  Horse  to  a  particular  place,  and  sold  it  on  the  way,  was 
liim.  rightly  indicted  under  the  2nd  section  of  the  Fraudulent 

Trustees  Act  of  1S57  (20  &  21  Vict.  c.  54),  which  section, 
though  repealed  together  with  the  rest  of  the  act  by  24  & 
25  Vict.  c.  95,  has  been  re-enacted  and  extended  by  24  & 
25  Vict.  c.  96,  s.  76. 

(>•)  Dossett  V.  Riimill  and  Gower,  [t)  Livei-pool     Winter     Assize, 

19  L.  T.  339.     (Sheriff's  Court.)  Dec.  1,  1857. 

(s)  Mellor\.  Leather,  17  Jur.  709. 


(     69     ) 


CHAPTER  IV. 


WHAT  DISEASES  OR  BAD  HABITS  CONSTITUTE  UNSOUNDNESS 
OR  VICE. 


Unsoundness  and  Vice. 

Present  State  of  the  Law    70 

Definition  of  Soundness 71 

A  Sound  Horse    id. 

Mule  as  to  Ihisoundness   id. 

The  Term  ^^ Natural  usefulness"  .  72 
Important   Decision   as    to    Un- 
soundness    id. 

Temporary  Diseases     73 

Acute  Diseases 74 

Rule  as  to  Vice     id. 

How  Unsoundness  or  Vice  should 

be  left  to  a  Jury id. 

Diseases,    Defects,    oe    Axteea- 

TIONS     in    StEUCTUEE,    AND     BaD 

Habits. 

Backing  and  Gibbing 75 

Biting id. 

Blindness id. 

Cataract    id. 

Remittent  Ltflammation 76 

Opacity  of  the  Lens  held  to  be 
an  Unsoundness    id. 

Blood  and  Bog-Spavin 77 

Bone-Spavin     id- 
Held  to  be  an  Unsoundness  . . , .  id. 

Broken-backed 78 

Broken-doicn    id. 

Broken-knees id. 

Broken-ivind    id. 

Bronchitis     79 

Canker : id. 

Capped  Hocks id. 

Cataract    id. 

Chestfounder     id. 

Chinked  in  the  Chine 80 

Clicking    id. 

Cloudiness     id. 

Contraction   id. 

When  held  to  be  an  Unsound- 
ness        81 

Corns     id. 

Cough    82 

Held    to    be    an     Unsoundness 

ichcH  tcmiwrary   id. 

Confirmed  by  a  later  Decision . .   83 


Crib-biting   84 

When  not  an  Unsoundness  ....  id. 

Held  to  be  a  Vice 85 

Curb id. 

Curby  Hocks  not  an   Unsound- 
ness       86 

Cutting 87 

Held  not  to  be  an  Unsoundness .  id. 

Dropsy  of  the  Skin id. 

Dropsy  of  the  Heart    id. 

Enlarged  Glands 88 

Enlarged  Hock     id. 

Ewe  Keck id. 

False  Quarter   id. 

Farcy     id. 

Water  Farcy    89 

Founder     id. 

Gibbing     id. 

Glanders   id. 

Infectious  to  Ifankind     id. 

The  Contagious  Diseases  {Ani- 
mals) Act 90 

Glaucoma id. 

Grease id. 

Grogginess     id. 

Grunting 91 

Gutta  Serena    id. 

Hereditary  Disease id. 

Kicking    92 

Kidney -dropping     id. 

Lameness id. 

Temporary   Lameness   an    Un- 
soundness   id. 

Laminitis 93 

Lampas     94 

Liver  Disease   id. 

Lungs  hcpatizcd   id. 

Mailcnders  and  Sallenders id. 

Mange id. 

Navicular  Joint  Disease id. 

Nerved  Horse   id. 

Held  to  be  Unsound 95 

Nose,  Chronic  Discharge id. 

Not  lying  doivn    96 

Opacity  of  the  Lens id. 

Ossification  of  the  Cartilages id. 

Overreach id. 


70 


"WHAT  DISEASES  CONSTITUTE  INSOUNDNESS  OR  VICE. 


Tnrotkl  Gland  ulcerated 97 

Foil-evil   id. 

Fumiced  Feet    id. 

Quidding id. 

Quittor     id. 

Fat-tails 98 

Fearing     id. 

Fhenmatism id. 

Fing-hone id. 

Foaring     99 

Fecisions  on  the  Subject id. 

Foiling 100 

Funning  aicag id. 

Saddle-galls id. 

Fimple  on  a  Horse's  Skin   ....  101 
Question  for  the  Jury id. 

Sallenders id. 

Sandcrack     id. 

Scab 102 

Statute  of  Hen.  8     id. 

Shivering id. 

Shying id. 

Shying  a  result  of  short-sighted- 
ness       id. 

Sidebones 103 

Slipping  the  Collar id. 

Spavin id. 

Speedy-cut    id. 

Splint    id. 

Decision  on  the  Subject    104 


Sprai)!  and  Thickening  of  the  Back 

Sinews 104 

Star-gazer    , .  105 

Ewe-necked id. 

Strangles id. 

Stringhalt     id. 

Held  to  be  cm  Unsoundness ....  id. 
Thickening  of  the  Back  Sinews. .  107 

Thick-wind id. 

Thinness  of  Sole id. 

Held  not  an  JJnsoiindness    ....  id. 

Thoroughpin     108 

Thrush id. 

Tripping id. 

Vicious  to  clean    109 

Vicious  to  shoe id. 

Wall-eyed     id. 

Warbles    id. 

Warts  id. 

Water-farcy     id. 

Weak-foot    id. 

Weaving   110 

Wheezing id. 

Whistling     id. 

Wilremhaunch id. 

Wind-galls id. 

Wind-sucking Ill 

Wolf's-tooth    id. 

Yellou-s id. 


UNSOUNDNESS  AND  VICE. 

Present  state  In  buying  and  selling  Horses,  it  is  of  tlie  utmost  import- 
of  the  law.  ancB  to  ascertain  what  constitutes  Unsoundness,  and  what 
habits  are  to  be  considered  Vices.  Until  comparatively 
lately  there  had  been  much  perplexity  on  these  j)oints ;  no 
correct  rule  as  to  unsoundness  had  been  laid  down,  and 
a  difference  of  opinion  existed  among  the  Judges  whether 
or  not  a  temporary  disease  was,  during  its  existence,  a 
breach  of  a  warranty  of  soundness.  The  law  on  these 
subjects  has  been  in  a  great  measure  settled  by  the 
Judges  of  the  Court  of  Exchequer,  where  Mr.  Baron  Parke 
laid  down  a  rule  with  regard  to  JJtisov.ndness,  by  which, 
so  far  as  the  nature  o*f  the  subject  mil  admit,  all  future 
cases  will  be  governed,  it  being  the  result  of  the  deliberate 
consideration  of  the  Court  (a).     The  same  learned  judge 


{a)  Kiddell  v.  Barnard,  9  M.  & 
W.  670  ;  Coates  v.  Stephens,  2  M.  & 
Rob.  157.  These  cases  have  been 
followed  in  America  in  Kornegay  v. 


White,  10  Ala.  255;  Fobcrts  v.  Jen- 
kins, 1  Foster  (N.  H.)  116;  Thomp- 
son V.  Berfrand,  23  Ark.  730. 


UNSOUNDNESS  AND  VICE.  71 

also  in  anotlier  case  expressed  an  opinion  as  to  what 
constitutes  a  Vice  {b),  and  keeping  this  in  view  a  correct 
estimate  may  be  formed  of  what  will  be  considered  a 
breach  of  a  warranty  of  "  freedom  from  Yice." 

It  is  a  difficult  matter  without  the  use  of  negatives  to  Definition  of 
explain,  fully  and  briefly,  the  meaning  of  the  word  Soundness. 
*'  Sound,"  as  applied  to  Horses.  Chief  Justice  Best,  in 
the  case  of  Best  v.  Osborne  {c)  held  that  "  sound  "  meant 
perfect.  In  Kiddell  v.  Buvnard  {d),  Mr.  Baron  Parke 
said,  "  The  word  '  sound '  means  what  it  expresses, 
namely,  that  the  animal  is  sound  and  free  from  disease 
at  the  time  he  is  warranted."  And  in  the  same  case  Mr. 
Baron  Alderson  said,  "  The  word  'sound'  means  sound; 
and  the  only  qualification  of  which  it  is  susceptible  arises 
from  the  purpose  for  which  the  warranty  is  given." 

We  may  define  a  Horse  to  be  "  Sound  "  w/ien  he  is  A  Sound 
free  from  liereditary  disease,  is  in  the  possession  of  his  natural  Horse. 
and  constitutional  health,  and  has  as  much  bodily  perfection 
as  is  consistent  tcith  his  natural  formation. 

The  rule  as  to  Unsoundness  is,  that  if,  at  the  time  of  Rule  as  to 
sale,  the  Horse  has  any  disease,  which  either  actually  Unsoundness, 
does  diminish  the  natural  usefulness  of  the  animal,  so  as 
to  make  him  less  capable  of  work  of  any  description  ;  or 
which,  in  its  ordinary  progress,  will  diminish  the  natural 
usefulness  of  the  animal :  or  if  the  Horse  has,  either  from 
disease  (whether  such  disease  be  congenital  or  arises  sub- 
sequently to  its  birth  {e)  ),  or  from  accident,  undergone 
any  alteration  of  structure,  that  either  actually  does  at 
the  time  or  in  its  ordinary  effects  will  diminish  the  natural 
usefulness  of  the  Horse,  such  a  Horse  is  Unsound  {f). 
This  very  much  resembles  the  definition  of  Unsoundness 
given  in  an  excellent  work,  on  the  Construction  of  the 
Horse  and  the  Treatment  of  his  Diseases,  by  the  late  Mr. 
Youatt,  published  by  the  Society  for  the  Diffusion  of 
Useful  Knowledge,  and  which  will  be  used  as  an  autho- 
rity in  the  description  of  those  diseases  and  bad  habits  to 
which  the  Horse  is  subject.  But  in  that  work  Unsou)icl- 
ness  is  referred  to  disease  only ;  namely,  to  that  alteration 
of  structure  which  is  connected  wit*h  or  will  produce  disease, 
and  lessen  the  usefulness  of  the  animal ;  and  any  alteration 

(i)  ScJioIeJeldy.  Bobb,  2M.  &Eob.  {e)  nolijday  v.  Sforgan,  28  L.  J., 

210.  Q.  B.  9  ;  see  post. 

(c)  BestY.  Osborne,  R.  &  M.  290.  (/)  Per    Parke,    B.,    Kiddell  v. 

(flf)  Kiddell  V.  Burnard,  9  M.  &  Burnard,  9  M.  &  W.  670;  Coates  v. 
W.  670.  Stephens,  2  M.  &  Rob.  137;   Smart 

V.  Allison,  Appendix. 


72 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


The  term 
"  Natural 
usefulness." 


Important 
decision  as  to 
XJnsoixndness. 


of  structure  from  accident  is  not  compreliended  within  the 
definition  there  given.  This,  however,  is  an  important 
omission,  because  when  the  Court  of  Exchequer  laid  down 
the  rule  as  to  unsoundness,  Mr.  Baron  Alderson  on  this 
point  said,  "  It  is,  however,  right  to  make  to  the  definition 
of  Unsoundness  the  addition  my  brother  Parke  has  made, 
namely,  that  the  disqualification  for  work  may  arise  either 
from  disease  or  accident"  {g). 

The  term  "  Natural  usefuhwss"  must  be  borne  in  mind. 
One  Horse  may  possess  great  speed,  but  is  soon  knocked 
up  ;  another  will  work  all  day,  but  cannot  be  got  beyond 
a  snail's  pace ;  one  with  a  heavy  forehead  is  liable  to 
stumble,  and  is  continually  putting  to  hazard  the  neck  of 
his  rider ;  another  with  an  ii^itable  constitution  and  a 
washy  make,  loses  his  appetite,  and  begins  to  scour  if  a 
little  extra  work  is  exacted  from  him.  The  term  Unsound- 
ness cannot  be  applied  to  any  of  these ;  it  would  be 
opening  far  too  widely  a  door  to  disputation  and  endless 
wrangling.  The  buyer  can  discern,  or  ought  to  know, 
whether  the  form  of  the  Horse  is  that  which  will  render 
him  likely  to  suit  his  purpose,  and  he  should  try  him 
sufficiently  to  ascertain  his  natural  strength,  endurance 
and  manner  of  going  (//). 

The  following  is  a  most  important  case  on  Unsoundness 
in  animals : — An  action  of  Assumpsit  was  brought  on  the 
warranty  of  three  bullocks,  and  under  the  direction  of 
Mr.  Justice  Erskine  at  the  trial,  a  verdict  was  found  for 
the  plaintiff.  In  refusing  a  rule  for  a  new  trial,  Mr. 
Baron  Parke  said,  "  The  rule  I  laid  down  in  Coates  v. 
Stejdiens  (/)  is  correctly  reported,  that  is  the  rule  I  have 
always  adopted  and  acted  on  in  cases  of  Unsoundness  : 
although,  in  so  doing,  I  differ  from  the  contrary  doctrine 
laid  down  by  my  brother  Coleridge  in  Bolden  v.  Brog- 
den{j):— 

"  I  think  the  word  '  sound '  means  what  it  expresses, 
namely,  that  the  animal  is  sound  and  free  from  disease  at 
the  time  he  is  warranted  sound.  If,  indeed,  the  disease 
were  not  of  a  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  sligJtt  pimple  on  his  skin,  it 
would  not  amount  to  an   Unsoundness ;  but  even  if  such 


{ff)  Kiddell  v.  Barnard,  9  M.  & 
W.  671. 

(A)  Lib.  U.  K.  "The  Horse," 
361. 


(;)  Coates  V.  Stephens,  2  M.  &  Rob. 
137;  and  see  " Kule  as  to  Unsound- 
ness," ante,  p.  71. 

{j)  Bolden  v.  Brogden,  2  M.  & 
Rob.  113. 


UNSOUNDNESS  AND  VICE.  73 

a  thing  as  a  pimple  were  on  some  part  of  tlie  body  wliere 
it  might  have  that  effect,  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 
shghtness  of  the  disease  and  the  facility  of  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  a  month ;  and  it  would  be  difficult  to  say  where 
to  stop.  Of  course,  if  the  disease  be  slight,  the  Unsound- 
ness is  proportion  ably  so,  and  so  also  ought  to  be  the 
damages  :  and  if  they  were  very  inconsiderable,  the  Judge 
might  still  certify  under  the  statute  of  Elizabeth  (A-),  to 
deprive  the  plaintiff  of  costs." 

"  But  on  the  question  of  law,  I  think  the  direction  of 
the  Judge  in  this  case  was  perfectly  correct,  and  that  this 
verdict  ought  not  to  be  disturbed.  Were  this  matter  pre- 
sented 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." 

And  Mr.  Baron  Alderson  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  impeding  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  definition  of  Unsoundness  the  addition  my  brother 
Parke  has  made,  namely,  that  the  disqualification  for 
work  may  arise  either  from  disease  or  aeeident ;  and  the 
doctrine  laid  down  by  him  on  this  subject,  both  to-day 
and  in  the  case  of  Coates  v.  Stephens  (/),  is  not  new  law; 
it  is  to  be  found  recognized  by  Lord  Ellenborough  and 
other  Judges  in  a  series  of  cases  "  {ni). 

The  rule  as  to   Unsoundness  applies  to  cases  of  disease  Temporary 
and  accident,  which  from  their  nature  are  only  tempo-  "^^^^^ses. 
rary,  it  not  being  necessary  that  the  disorder  should  be 

{k)   43  Eliz.  c.  G,  s.  2.  {m)  Eiddell  v.  Burmrd,  9  M.  & 

\l)  Coates  V.  Stephens,  1  M.  &  Rob.       W.  670. 
137. 


74 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Acute  dis- 
eases. 


Rule  as  to 
Vice. 


How  Un- 
soundness or 
Vice  should 
he  left  to  a 
Jury. 


permanent  or  incurable.  And  this  is  laid  down  as  law  by 
Lord  Ellenboroiigh  in  Elton  v.  Brogden  {n) ,  and  Elton 
V.  Jordan  (o) ;  also  by  Mr.  Baron  Parke  in  Coates  v. 
Stephens  (p),  and  by  the  Court  of  Exchequer  in  Kiddell 
V.  Barnard  {q),  although  Mr.  Justice  Coleridge  in  Bolden 
V.  Brofjden  (r)  was  of  a  different  opinion. 

It  will  be  unnecessary  to  take  into  consideration  acute 
diseases,  such  as  fevers,  inflammation,  &c.,  because  all 
Horses  are  without  dispute  unsound,  during  the  time  they 
are  affected  by  them. 

A  Viee  is  a  bad  habit,  and  a  bad  habit  to  constitute  a 
vice  must  either  be  shown  in  the  temper  of  the  Horse, 
so  as  to  make  him  dangerous,  or  diminish  his  natui-al 
usefulness ;  or  it  must  be  a  habit  decidedly  injurious  to 
his  health  is). 

The  Soundness  or  Unsoundness  of  a  Horse  is  a  question 
peculiarly  fit  for  the  consideration  of  a  Jury,  and  the 
Court  will  not  set  aside  a  verdict,  on  account  of  there 
being  a  preponderance  of  evidence  the  other  way  {t)  ; 
and  they  should  consider  whether  the  effect  said  to  proceed 
from  the  alleged  Unsoundness,  is  such  an  effect  as  in  the 
eye  of  the  law  renders  a  Horse  unsound.  It  is  also  a 
question  for  them,  whether  a  Horse  warranted  sound  was 
at  the  time  of  delivery  rendered  unfit  for  immediate  use  to 
an  ordinary  person,  on  account  of  some  disease  {u). 

And  in  case  of  Vice  they  should  consider,  whether  the 
effect  alleged  to  proceed  from  a  certain  habit,  is  such  an 
effect  as  the  law  holds  to  be  a  Vice  in  a  Horse. 


DISEASES,   DEFECTS    OR    ALTERATIONS    IN    STRUCTURE,    AND 
BAD    HABITS. 

We  shall  now  consider,  in  alphabetical  order,  as  the 
most  convenient  method,  the  various  diseases,  defects  or 
alterations  in  structure,  and  bad  habits,  to  which  the 
Horse  is  liable ;  and  with  the  assistance  of  decided  cases, 
and  guided  by  the  rules  which  have  been  laid  down  by 


(ii)  Elton  V.  Brogden,  4  Camp. 
281. 

(o)  Elton  V.  Jordan,  1  Stark.  N. 
P.  C.  127. 

[p)  Coates  V.  Stephens,  2  M.  & 
Rob.  137. 

(q)  KiddcU  V.  Bimiard,  9  M.  & 
W.  670. 

(»•)  Bolden  v.  Brogden,  2  M.  & 
Rob.  113. 


{s)  ScJwleJield  V.  Robh,  2  M.  & 
Rob.  210 ;  and  see  Crib-biting-, 
post. 

(0  Leu-is  V.  Pcalce,  7  Taunt.  153; 
S.  V.  2  Marsh.  43 ;  per  Patteson, 
J.,  Baijlis  V.  Lawrence,  11  Ad.  &  E. 
926. 

(«)  See  Saddle-galls,  post ;  and 
Alnsley  v.  Brown,  there  cited. 


DISEASES,  DEFECTS,  ETC.  75 

tlie  Courts,  an  attempt  will  be  made  to  fix  in  eacli  in- 
stance, which  of  these  does,  or  does  not,  amount  to  an 
Unsoundness  or  a  Vice.  Such  conclusions,  however,  unless 
founded  on  decided  cases,  are  merely  stated  as  opinions 
formed  by  the  application  of  the  rules  already  mentioned ; 
and  from  the  difficulty  there  often  is  in  ascertaining  where 
Soundness  ends  and  Unsoundness  begins,  people,  in  doubt- 
ful cases,  must  necessarily  be  guided  in  a  great  measure 
by  circumstances. 

Backing  and  Gibbing  are  closely  allied,  and  are  generally  Backinj^  and 
the  result  of  bad  breaking,  at  the  time  when  the  Horse  is  Cribbing, 
first  put  to  the  collar  and  refuses  to  start.  When  the 
habit  becomes  confirmed,  the  Horse  swerves,  gibs  and 
backs,  as  soon  as  he  thinks  he  has  had  enough  work,  or 
has  been  improperly  checked  or  corrected,  or  when  he 
begins  to  feel  the  pressure  of  the  collar  painful.  It  is 
impossible  permanently  to  cure  a  Horse  of  this  bad  habit 
when  it  has  become  fixed  {v) ;  and  as  it  is  both  dangerous 
and  diminishes  a  Horse's  natural  usefulness,  it  is  a  breach 
of  a  warranty  of  freedom  from  Vice.  In  an  American 
case,  where  these  vices  were  proved  to  have  appeared  in  a 
Horse  on  trial,  three  or  four  days  after  purchase,  this  was 
held  to  be  evidence  that  they  existed  at  the  time  of  pur- 
chase {lo). 

Biting  when  dangerous  is  a  Vice.  Biting, 

The  Crystalline  Lens  is  generally  the  seat  of  disease  in  Blindness, 
the  eye  of  a  Horse ;  it  is  so  called  from  its  resemblance  to 
a  piece  of  crystal  or  transparent  glass,  and  on  it  all  the 
important  uses  of  the  eye  mainly  depend.  It  is  of  a  thick 
jelly-like  consistence,  convex  on  each  side,  but  there  is  more 
convexity  on  the  inner  than  on  the  outer  side.  It  is  in- 
closed in  a  delicate  transparent  bag  or  capsule,  and  is  placed 
between  the  aqueous  and  the  vitreous  humours,  and  received 
within  a  hollow  in  the  latter,  with  which  it  exactly  corre- 
sponds. It  has,  from  its  density  and  its  double  convexity, 
the  chief  concern  in  conveying  the  rays  of  light  which  pass 
into  the  pupil.  The  Lens  is  very  apt  to  be  affected  from 
long  or  violent  inflammation  of  the  conjunctiva,  and  either 
its  capsule  becomes  cloudij,  and  imperfectly  transmits  the 
light,  or  the  substance  of  the  Lens  becomes  opaque  (x). 

The  confirmed   Cataract,  or  the  Opaque  Lens  of  long  Cataract. 
standing,  will  exhibit  a  pearly  appearance,  which  cannot 

(f)  Lib.  XJ.  K.    "The  Horse,"  {w)  FiJiIei/  y.  Quirk,  ^ 'Minn.  IM. 

334.  [x)  Lib.  tr.  K.  "The  Horse,"  94. 


4  O  WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 

be  mistaken,  and  will  frequently  be  attended  with  a  change 
of  form,  a  portion  of  the  Le)is  being  forced  forward  into 
the  pupil.  Although  the  disease  may  not  have  proceeded 
so  far  as  this,  yet  if  there  be  the  slightest  cloudiness  of  the 
Le)is  either  generally,  or  in  the  form  of  a  minute  spot  in 
the  centre,  and  with  or  without  lines  radiating  from  that 
spot,  the  Horse  is  to  be  condemned  ;  for  in  ninety-nine 
cases  out  of  a  hundred  the  disease  will  proceed,  and  Cataract, 
or  complete  Opacity  of  the  Lens  and  absolute  Blindness  will 
be  the  result  ix).  Cataract  is  an  Unsoundness  {>/). 
Remittent  In-  That  Injf animation  of  the  eye  of  the  Horse,  which  usually 
flaimiiatiuu.  terminates  in  Blindness  of  one  or  both  eyes,  has  the  pecu- 
liar character  of  remitting  or  disappearing  for  a  time,  once 
or  twice,  or  thrice,  before  it  fully  runs  its  course.  The  eye, 
after  an  attack  of  inflammation,  regains  so  nearly  its  former 
natural  brilliancy,  that  a  man  well  acquainted  with  Horses 
will  not  always  recognize  the  traces  of  former  disease. 
After  a  time,  however,  the  inflammation  retiu-ns,  and  the 
result  is  unavoidable  (;:). 
Opacity  of  the  Blindness  is  undoubtedly  an  Unsoundness;  but  to  con- 
Lens  held  to  stitute  a  breach  of  warranty  in  cases  of  Cloudiness  of  the 
Eye  or  Opacity  of  the  Lens,  after  the  sale,  there  must 
either  be  proof  of  an  attack  of  inflammation  before  sale, 
or  Veterinary  Surgeons  must  be  produced  who  will  dis- 
tinctly state  that,  from  the  appearance  of  the  eye,  there 
must  have  been  inflammation  before  the  time  of  sale.  The 
following  case  is  in  point : — ■ 

A  Horse  was  bought  by  the  plaintiff  in  April,  war- 
ranted sound  and  quiet.  He  was  sent  on  the  18th  of 
June  to  be  examined  by  an  eminent  Veterinary  Surgeon, 
who  detected  an  "  Opacify  of  the  crystalline  Lens"  in  the 
near  eye,  and  pronounced  it  his  decided  opinion  that  the 
defect  must  have  been  of  long  standing,  and  that  in  fact 
it  was  chronic ;  to  produce  which  state,  it  must  have  re- 
quired a  great  many  successive  attacks  of  inflammation. 
It  might  have  been  produced  in  six  months,  and  it  was  a 
sort  of  thing  which  few  dealers  would  have  been  likely 
to  find  out.  Another  Veterinary  Surgeon  had  examined 
the  Horse,  and  did  not  see  the  defect,  but  could  not  swear 
that  it  did  not  then  exist.  On  this  evidence  a  verdict  was 
found  for  the  plaintiff  {a). 

(.r)  Lib.  IT.  K."  The  Horse,"  94.  („-)  Lib.   U.   K.    "The  Horse," 

\v)  IDggs  v.  Thmlc,  before  Chief  363. 
Baron  Pollock,  Guildhall,  Feb.  18,  ('/)  Brings  v.  Balccr,  before  Chief 

1850.  Justice  Tindal,  Nov.  29,  1845. 


DISEASES,  DEFECTS,  ETC.  77 

Attaclied  to  the  extremities  of  most  of  the  tendons,  and  Blood  and 
between  the  tendons  and  other  parts,  are  little  bags  con-  Bog-spavin, 
taining  a  mucous  substance  to  lubricate  the  tendons  so  as 
to  prevent  friction.  From  violent  exertion  these  little 
bags  are  liable  to  enlargement,  of  which  Wind-galls  (/;) 
and  Thoroughpins  (c)  are  instances.  There  is  one  of  these 
bags  inside  the  bending  of  the  hock ;  this  sometimes 
becomes  considerably  increased  in  size,  and  the  enlarge- 
ment is  called  a  Bog-spavin.  When  the  vein,  which  passes 
over  this  bag,  is  distended  with  accumulated  blood,  it  is 
called  a  Blood-spavin,  and  is  therefore  the  consequence  of 
Bog-spavin,  with  which  it  is  very  often  confounded  (d) ; 
they  generally  produce  lameness,  and  constitute  Un- 
soundness. 

Bone-spavin  is  an  affection  of  the  bones  of  the  hock  Bone-spavin, 
joint.  When  an  undue  weight  and  concussion  are  thrown 
on  the  inner  splint  bone,  they  cause  an  inflammation  of 
the  cartilaginous  substance,  which  unites  it  to  the  shank 
bone ;  the  consequence  of  which  is,  that  the  cartilage  is 
absorbed  and  bone  deposited,  so  that  the  union  between 
the  splint-bone  and  shank  becomes  bong  instead  of  carti- 
laginous, and  the  degree  of  elastic  action  between  them  is 
destroyed.  A  Splint  in  the  form  of  a  tumour  appears 
in  the  inside  of  the  hind-leg,  in  front  of  the  union  of 
the  head  of  the  splint-bone  with  the  shank,  and  is  called 
a  Bone-spavin.  It  almost  invariably  produces  lameness, 
and  the  enlargement  rapidly  spreads  with  quick  and  hard 
work  {c),  so  as  to  interfere  with  the  flexion  of  the  hock. 

Bone-spavin,  whether  it  produce  lameness  apparent  at  the  Held  to  be  an 
time  of  sale  or  not,  is  an  Unsoundness ;  and  the  following  unsoundness, 
veterinary  evidence  was  given  in  a  case  which  was  tried. 

Mr.  Nice,  a  Veterinary  Surgeon,  stated  for  the  plaintiff, 
that  eleven  days  after  sale  he  had  seen  the  Horse,  which 
then  had  a  confirmed  Bone-spavin,  and  that  in  his  opinion 
it  was  not  a  curable  disease.  Mr.  Sewell,  of  the  Yeterinary 
College,  had  examined  him  about  a  month  after  sale,  and 
said  that  at  that  time  he  had  a  confirmed  Bone-spavin, 
which  could  not  have  occurred  subsequent  to  the  time  of 
sale. 

For  the  defendant,  Mr.  Child,  a  Veterinary  Surgeon, 
was  called,  who  said  that  there  was  a  bony  deposit  in  the 
interior  of  the  hock,  but  that  it  did  not  interfere  with  its 

{b)  Wind-galls,  post.  119. 

(c)  Thoroughpins,  post.  {e)  Lib.   U.   K.    "The   Horse," 

('/)  Lib.  U.  K.   "The  Horse,"       270,  3G5. 


78 


AVHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Broken - 
backed. 


Broken- 
down. 

Broken- 
kuees. 


Broken-wind. 


flexion.  It  was  what  is  called  a  Bone-spavin,  tliougli  tlie 
term  was  very  indefinite ;  that  the  deposit  generally,  but 
not  invariably,  increases  (/ ) ;  and  in  the  incipient  stages  it 
requires  skill,  and  is  often  difficult  to  determine  ;  that  there 
might  be  a  deposit  to  a  considerable  extent  without  pro- 
ducing lameness;  that  he  had  known  Horses  rejected  for 
Bone-spavin  as  unsound,  which  had  not  become  lame,  and 
had  one  himself  which  was  rejected  three  years  ago,  and 
had  not  become  so.  Another  witness,  a  Farrier,  said,  "  I 
do  not  think  Bone-spavin  is  an  Unsoundness  myself,  with- 
out lameness  ;  but  Bone-spavin  is  in  our  profession  a  known 
Unsoundness,  whether  it  produce  lameness  or  not."  The 
plaintiff  obtained  a  verdict  {(j) . 

Many  old  Horses,  which  have  been  put  to  hard  service, 
especially  before  they  have  gained  their  full  strength, 
have  some  of  the  bones  of  the  back  or  loins  anchylosed, 
being  united  together  by  bony  matter,  instead  of  liga- 
ment. When  this  exists  to  any  considerable  extent,  the 
Horse  is  not  pleasant  to  ride ;  he  turns  with  difficulty  in 
his  stall ;  he  is  unwilling  to  lie  down ;  or  when  down,  to 
rise  again ;  and  he  has  a  curious  straddling  action.  Such 
Horses  are  said  to  be  Broken-hacked,  or  Chinked  in  the 
chine  (li).  Where  this  impairs  the  natural  usefulness  of 
the  Horse,  it  is  such  an  alteration  of  structure  as  con- 
stitutes Unsoundness. 

For  Broken-down,  see  "  Sprain  and  Thickening  of  the 
Back  Sinews  "  (i). 

Broken-knees  do  not  constitute  Unsoundness  after  the 
wounds  are  healed,  unless  they  interfere  with  the  action 
of  the  joint ;  and  a  Horse  may  fall  from  mere  accident,  or 
through  the  fault  of  the  rider  (/.•). 

Brokcn-uind  is  the  rupture  or  running  together  of  some 
of  the  air-cells.  It  is  easily  distinguished  from  Thick- 
wind  (/)  ;  in  Thick-wind  the  breathing  is  rapid  and 
laborious,  but  the  inspiration  and  expiration  are  equally 
so,  and  occupy  precisely  the  same  tim«.  In  Broken-tvind 
the  inspiration  is  j)erformed  by  one  effort,  the  expiration 
by  two,  occupying  double  the  time,  which  is  plainly  to  be 
distinguished  by  observing  the  flanks.  The  reason  is  that 
when  the  lungs  are  expanded,  the  air  will  run  in  easily 


(/)  Reported  decreases. 

[g)  Watson  v.  Denton,  7  C.  &  P. 
86. 

(/*)  Lib.  U.  K.  "  The  Horse," 
165. 


(/)  Sprain  and  Thickening  of  the 
Back  Sinews,  post. 

{k)  Lib.  U.  K.  "The  Horse," 
361. 

{I)  Thick-wind,  post. 


DISEASES,  DEFECTS,  ETC.  79 

enough,  and  one  effort  of  the  respiratory  muscles  is 
sufficient  for  the  purpose  ;  but  when  these  cells  have  run 
into  each  other,  the  cavity  is  so  irregular,  and  contains  so 
many  corners  and  blind  pouches,  that  it  is  exceedingly 
difficult  to  force  it  out  again,  and  two  efforts  can  scarcely 
effect  it.  This  disease  is  also  accompanied  by  a  dry  and 
husky  cough  of  a  peculiar  sound,  and  is  the  consequence 
of  Thick- wind  (;;?),  and  of  those  alterations  of  structure 
consequent  on  inflammation  (n).  It  is  most  decidedly  an 
UiisoiDidness  (o). 

The  division  of  the  windpipe  just  before  it  enters  the  Bronchitis, 
lungs,  and  the  numerous  vessels  into  which  it  immediately 
afterwards  branches  out,  are  called  the  Broncliial  tubes, 
and  the  inflammation  of  the  membrane  that  lines  them 
is  called  JJroiic/iifis.  It  is  Catarrh  (p),  extending  to  the 
entrance  of  the  lungs,  and  is  characterized  by  quicker  and 
harder  breathing  than  Catarrh  usually  presents ;  and  by  a 
peculiar  wheezing,  which  is  relieved  by  the  coughing  up  of 
mucus  (q).     It  is  decidedly  an  Unsoundness. 

Canker  is  a  separation  of  the  horn  from  the  sensible  Canker. 
part  of  the  foot,  and  the  sprouting  of  fungous  matter 
instead  of  it,  occupying  a  portion  of  or  even  the  whole  of 
the  sole  and  frog.  It  is  the  occasional  consequence  of 
bruise,  puncture,  corn  {r),  quitter  («),  and  thrush  {t).  It  is 
extremely  difficult  to  cure  (u),  and  is  an  Unsoundness. 

Capped  hocks  may  be  produced  by  lying  on  an  unevenly-  Capped  hocks, 
paved  stable,  with  a  scanty  supply  of  litter,  or  by  kick- 
ing (,r),  in  neither  of  which  cases  would  they  constitute 
Uusoinuliiess,  though  in  the  latter  they  would  be  an  indica- 
tion of  Vice ;  but  in  the  majority  of  instances  they  are 
either  the  consequence  of  sprain  in  the  hock,  or  are  ac- 
companied by  enlargement  of  it,  when  they  would  be  an 
Unsoundness  (y). 

A  Horse  with  a  Cataract  is  Unsound.    See  Blindness  (s).  Cataract. 

The  muscles  of  the  breast  are  occasionally  the  seat  of  Chest- 
a  singular  and  somewhat  mysterious  disease.      The  old  ^*^^™*^^^- 

(w)  Thick-wind,  post.  [t)  Thrush,  post. 

(«)  Lib.  U.  K.   "The  Horse,"  (m)  Lib.  U.K.  "The  Horse,"  308. 

194.  [x)  Kicking,  post. 

(o)    Willan  V.  C'«/-/£')-,  before  Mr.  [y]  Lib.  U.  K.   "The  Horse," 

Baron  Martin,  Lancaster  Spr.  Ass.  361.  See,  however,  App. to  Lib. U.K. 

1853.  "TheHorse,"  Ed.  1862, 522, where 

( j»)  See  Cough,  post.  an  opinion  is  given  that  it  is  not  an 

[q)  Lib.  U.  K.    "  The  Horse,"  unsoundness,  on  the  ground  that  it 

189.  is  never  occasioned  by  strains,  and 

{r)  Corns,  post.  is  therefore  no  more  than  a  blemish. 

(s)  Quittor,  post.  (~)  Blindness,  ante. 


80 


"WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Chinked  in 
the  Chine. 
Clicking. 
Cloudiness. 


Contraction. 


Farriers  called  it  Anticor  and  Chcdfonnder.  The  Horse 
has  considerable  stillness  in  moving,  evidently  not  refer- 
able to  the  feet.  There  is  a  tenderness  about  the  muscles 
of  the  breast,  and  occasional  swelling,  and  after  a  while 
the  muscles  of  the  chest  waste  considerably  {(i).  It  is 
evidently  an  UnnoHndness,  and  was  formerly  supposed  to 
proceed  from  rheumatism  ;  but  now,  according  to  later 
opinions  {h),  Chestfounder  is  pronounced  to  be  the  result 
of  navicular  disease,  which,  preventing  the  forelegs  from 
being  exercised  to  the  same  extent  as  before,  produces  an 
absorption  of  the  muscles  of  the  chest.  Anh'cor  is  dis- 
tinguished from  Chesffoimder,  and  declared  to  be  an  abscess 
of  the  breast  of  the  brisket. 

But  where  an  action  was  brought  on  the  warranty  of 
a  Horse,  and  the  plaintiff  obtained  a  verdict  on  the  ground 
that  the  Horse  was  Chestfoinidcrcd,  the  Court  of  Common 
Pleas  refused  to  grant  a  new  trial  on  the  grounds  that 
there  was  no  known  disease  to  constitute  such  an  Unsound- 
ness, or  that  the  defendant  was  taken  by  surprise,  the 
plaintiff  having  before  trial  refused  to  inform  him  of  the 
cause  or  nature  of  the  Unsoundness  (c). 

For  Chinlied  in  the  Chine,  see  Broken-backed  {d). 

As  to  Clicking,  see  Overreach  {e). 

Cloudiness  of  the  Eye  is  an  Unsoundness,  as  it  is  almost 
quite  sure  to  proceed  to  complete  Opacity  of  the  Lens, 
Cataract  and  Blindness  (/). 

In  Contraction  the  foot  loses  its  healthy  circular  form ; 
it  increases  in  length,  and  narrows  in  the  quarters,  par- 
ticularly at  the  heel ;  the  frog  is  diminished  in  width ; 
the  sole  becomes  more  concave  ;  the  heels  higher,  and 
lameness,  or  at  least  a  shortened  and  feeling  action,  en- 
sues. It  seems  there  is  nothing  in  the  appearance  of  the 
feet  which  would  enable  a  person  to  decide  when  Con- 
traction is,  or  is  not,  destructive  to  the  natui'al  usefulness 
of  the  animal ;  but  it  is  indicated  by  his  manner  of  going, 
and  his  capability  for  work.  Lameness  usually  accom- 
panies the  beginning  of  Contraction ;  it  is  the  invariable 
attendant  on  rapid  Contraction,  but  it  does  not  always 
exist  when  the  wiring  in  is  slow  or  of  long  standing. 
Contraction  may  be   caused    by  neglect   of    paring,   by 


(a)  Lib.  U.  K.  "The  Horse," 
171. 

{b)  Lib.  U.  K.  "The  Horse," 
Ed.  1862,  App.  491. 


(c)  Alterburt/ 
Moore,  32. 

{d)  Broken-backed,  ante. 
{e)    Overreach,  post. 
(/)  Blindness,  ante. 


Fairmanner,    8 


DISEASES,  DEFECTS,  ETC.  81 

suffering  tlie  slioes  to  remain  on  too  long,  by  the  want  of 
natural  moisture  on  account  of  the  feet  being  kept  too 
dry,  or  by  the  removal  of  the  bars,  or  by  Thrushes  (g), 
which,  however,  are  much  oftener  the  consequence  than 
the  cause  of  it.  The  Contraction,  however,  which  is 
connected  with  permanent  lameness,  though  increased  by 
the  circumstances  just  mentioned,  usually  derives  its 
origin  from  a  cause  which  acts  violently  and  suddenly, 
namely,  an  inflammation  of  the  little  plates  covering  the 
Coffin  bone,  and  not  sufiiciently  intense  to  be  charac- 
terized as  Acute  founder  {//).  The  contracted  heel  can 
rarely  or  never  permanently  expand,  as  neither  the 
lengthened  and  narrowed  Coffin  bone  can  resume  its 
natural  shape,  nor  can  the  portion  of  the  frog  which  has 
been  absorbed  be  restored  (/) . 

Contraction  of  the  hoof,  when  produced  by  inflamma-  When  held  to 
tion,  or  accompanied  by  disease  in  the  foot,  or  any  ^^  unsoimd- 
alteration  in  its  natural  structure,  though  it  may  not 
cause  lameness  at  the  time  of  sale,  yet,  if  lameness  be 
afterwards  produced  by  it,  is  an  Unsoundness.  This  was 
held  in  the  following  case,  which  was  tried  before  Chief 
Baron  Pollock : — It  appeared  that  the  plaintiff,  who  was 
a  Horsedealer,  bought  a  Mare  at  Lincoln  Fair,  warranted 
sound,  for  37/.  On  her  way  up  to  town,  she  gradually 
became  dead  lame  on  her  off  foreleg.  She  was  brought 
by  easy  stages  to  London,  and  examined  by  various 
Yeterinary  Surgeons,  who  at  once  asserted  that  her  lame- 
ness proceeded  from  a  Contraction  of  the  hoof  of  the  off 
forefoot,  which  might  have  existed,  and  probably  did 
exist,  before  sale,  though  the  disease  had  not  developed 
itself  in  lameness,  and  that  at  all  events  there  must  have 
been  a  strong  predisposition  to  Unsoundness.  The  defen- 
dant wrote  a  letter  offering  to  take  her  back ;  however, 
it  was  miscarried,  and  the  Mare  was  sold  by  auction  for 
251.  An  action  was  brought  for  the  balance,  and  on  this 
evidence  the  Jury  gave  a  verdict  for  the  plaintiff  (J). 

In  the  angle  between  the  bars  and  the  quarters,  the  Corns. 
horn  of  the  sole  has  sometimes  a  red  appearance,  and  is 
more  spongy  and  soft  than  at  any  other  part.  The  Horse 
flinches  when  this  portion  of  the  horn  is  pressed  upon, 
and  there  is  an  occasional  or  permanent  lameness.  This 
disease  of  the  foot  is  termed  Corns,  bearing  this  resem- 

(g)  Thrush,  post.  292. 

{h)  Founder,  post.  (J)   Greemvay  v.    Ilarshall,   Ex. 

(i)  Lib.  U.  K.    "The  Horse,"       Sittings,  Dec.  9,  1845. 
O.  G 


82 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Cough. 


Held  to  be 
■unsoundness 
Tvlien  tem- 
porary. 


blance  to  the  corn  of  the  human  being,  that  it  is  produced 
by  pressure  and  is  a  cause  of  lameness,  but  differing  from 
it  in  that  the  horn,  answering  to  the  skin  of  the  human 
foot,  is  thin  and  weak,  instead  of  being  thickened  and 
hardened.  When  it  is  neglected,  so  much  inflammation 
is  produced  in  that  part  of  the  sensible  sole  that  suppu- 
ration follows,  which  is  succeeded  by  quitter  (A-),  and 
the  matter  either  undermines  the  horny  sole  or  is  dis- 
charged at  the  coronet.  The  cause  is,  pressure  on  the 
sole  at  that  part,  by  the  irritation  of  which  a  small  quan- 
tity of  blood  is  extravasated.  The  horn  is  secreted  in  a 
less  quantity,  and  is  of  a  more  spongy  nature,  and  the 
extravasated  blood  becomes  inclosed  in  it.  The  portion 
of  the  foot  in  which  they  are  situated  will  not  bear  the 
ordinary  pressure  of  the  shoe,  and  any  accidental  addi- 
tional pressure  from  the  growing  down  of  the  horn  or 
the  introduction  of  dirt  or  gravel  will  cause  serious  lame- 
ness. They  render  it  necessary  to  wear  a  thick  and  heavy 
shoe  or  a  bar  shoe  to  protect  the  weakened  and  diseased 
part  (/). 

Cor)is  are  hardly  ever  found  on  the  hind  feet ;  in  any 
situation  they  are  very  seldom  radically  cured,  and  mani- 
festly constitute  Unsoundness. 

A  Cough  from  catarrh  or  common  cold  is  a  complaint 
of  frequent  occurrence,  generally  subdued  without  much 
difficulty,  but  often  becoming  of  serious  consequence 
when  neglected.  It  is  accompanied  by  a  little  increase 
of  pulse,  a  slight  discharge  from  the  nose  and  eyes,  a 
rough  coat,  and  a  diminished  appetite.  If  the  inflam- 
mation increases  the  complaint  degenerates  into  bron- 
chitis (;»),  catarrhal  fever,  thick- wind  (w),  and  broken- 
wind  (o). 

Although  it  was  laid  down  differently  by  Mr.  Justice 
Coleridge  in  Bolden  v.  Brogden  {p),  it  may  now  be 
considered  as  settled  law  that  a  Cough  at  the  time  of 
sale,  whether  permanent  or  temporary,  is  a  breach  of  a 
■vyarranty  of  soundness,  and  the  subsequent  recovery  of 
the  Horse  is  no  defence  to  an  action  on  the  warranty  (q), 
but    may  be  proved  in   reduction   of  damages  (r).      The 


(k)  Quitter,  post. 

(0  Lib.  U.  K.  "The  Horse," 
362. 

()w)  Bronchitis,  ante,  p.  79. 

(w)  Thick-wind,  post. 

(o)  Broken-wind,  ante,  p.  78 ; 
Lib.  U.  K.  "The  Horse,"  188. 


{p)  Bolden  V.  Brogden,  2  M.  & 
Rob.  113. 

{q)  Coates  V.  Stephens,  2  M.  & 
Eob.  157. 

(r)  Kiddell  v.  Burnard,  9  M.  & 
W.  670. 


DISEASES,  DEFECTS,  ETC.  83 

law  on  the  subject  of  temporary  diseases  was  laid  down 
by  Lord  Ellenborougb  nearly  seventy  years  ago,  and  with 
regard  to  a  Cough  his  Lordship  said,  "I  have  always 
held  and  now  hold  that  a  warranty  of  soundness  is  broken 
if  the  animal  at  the  time  of  sale  had  any  infirmity  upon 
him  which  rendered  him  less  fit  for  present  service.  It  is 
not  necessary  that  the  disorder  should  be  permanent  or 
incurable.  While  a  Horse  has  a  Cough  I  say  he  is  un- 
sound, although  that  may  be  either  temporary,  or  the 
Cough  may  prove  mortal  (s).  Any  infirmity  which  renders 
a  Horse  less  fit  for  present  use  and  convenience  is  Unsound- 
ness^^ (t). 

In  a  later  case  an  action  was  brought  on  the  warranty  of  Confirmed  by 
a  Horse,  which,  immediately  on  being  taken  home  after  ^.  l^^er  deci- 
sale,  was  found  to  have  a  Cough.     The   Cough   became  ^^^"" 
worse,  and  on  the  Horse  being  examined  by  a  Veterinary 
Surgeon  eighteen  days  afterwards,  he  was  pronounced  un- 
sound from  diseased  bronchial  tube  and  chronic  inflamma- 
tion. Cough  being  an  incident  of  that  disease.     However, 
it  appeared  that  at  the  time  of  the  trial  the  Cough  had 
been  cured.     Mr.  Baron  Parke,  in  summing  up,  said  to 
the  Jmy,  "  I  have  always  considered  that  a  man  who  buys 
a  Horse  warranted  sound,  must  be  taken  as  buying  for 
immediate  use,  and  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  Unsoundness  is,  that  if  at  the  time  of 
sale  the  Horse  has  any  disease  which  either  actually  does 
diminish  the  natural  usefulness  of  the  animal,  so  as  to 
make  him  less  capable  of  work  of  any  description,  or  which 
in  its  ordinary  progress  will  diminish  the  natural  usefulness 
of  the  animal ;  or  if  the  Horse  has,  either  from  disease  or 
accident,  undergone  any  alteration  of  structure  that  either 
actually  does  at  the  time,  or  in  its  ordinary  effects  will, 
diminish  the  natural  usefulness  of  the  Horse,  such  a  Horse 
is  Unsound.''^ 

"  If  the  Cough  actually  existed  at  the  time  of  the  sale 
as  a  disease  so  as  actually  to  diminish  the  natm'al  useful- 
ness 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 

(•■«)  MonY.£roffden,4:Ca,mv.28l.  (t)  Elton  v.  Jordan,  1   Stark.  N. 

P.  C. 127. 

g2 


Unsoundness. 


84  WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 

sale,  you  will  find  for  the  plaintiff.  I  am  not  now  deliver- 
ing an  opinion  formed  on  the  moment  on  a  new  subject, 
but  it  is  the  result  of  a  full  previous  consideration,  as  I 
find  I  differ  from  the  law  as  laid  down  by  a  learned 
Judge"  (ti).    The  Jury  found  a  verdict  for  the  plaintiff  {v). 

Crib-biting.  Crih-hiting,  being  an  unnatural  sucking  in  of  the  air, 

must  be  to  a  certain  degree  injurious  to  digestion,  must 
dispose  to  colic,  and  so  interfere  with  the  strength  and  use- 
fulness and  health  of  the  Horse.  Some  Crib-biters  are 
good  goers,  but  they  probably  would  have  possessed  more 
endui-ance  had  they  not  acquired  this  habit ;  and  it  is  a 
fact  well  established,  that  as  soon  as  a  horse  begins  to  be- 
come a  Crib-bifer,  he,  in  more  than  nine  cases  out  of  ten, 
begins  to  lose  condition.  He  is  not  to  the  experienced  eye 
the  Horse  he  was  before.  The  wear  of  the  front  teeth, 
and  even  the  frequent  breaking  of  them,  makes  a  Horse 
old  before  his  time,  and  sometimes  renders  it  difficult  or 
almost  impossible  for  him  to  graze  (ic). 

When  not  an  Crib-biting  which  has  not  yet  produced  disease  or  altera- 
tion of  structure  is  not  an  Unsoundness,  but  is  a  Vice  under 
a  warranty  that  a  Horse  is  "  sound  and  free  from  vice." 
Thus,  where  an  action  was  brought  on  the  warranty  of  a 
Horse  which  had  been  sold  for  ninety  guineas,  the  question 
was,  whether  Crib-biting,  which  was  the  Vice  in  question, 
was  such  a  species  of  Unsoundness  as  to  sustain  the  action. 
The  Horse  had  been  warranted  sound  generally.  Some 
eminent  Veterinary  Surgeons  were  called  as  witnesses,  who 
stated  that  the  habit  of  Crib-biting  originated  in  indiges- 
tion ;  that  a  Horse  by  this  habit  wasted  the  saliva  which 
was  necessary  to  digest  his  food,  and  that  the  consequence 
was  a  gradual  emaciation.  They  said  that  they  did  not 
consider  Crib-biting  to  be  an  Unsontidness,  but  that  it  might 
lead  to  Unsoundness ;  that  it  was  sometimes  an  indication 
of  incipient  disease,  and  sometimes  produced  Unsoundness 
where  it  existed  in  any  great  degree.  Upon  this  Mr.  Jus- 
tice Burrough  said,  "  This  Horse  was  only  proved  to  be  an 
incipient  Crib-biter.  I  am  quite  clear  that  it  is  not  in- 
cluded in  a  general  warranty,"  and  the  plaintiff  was  ac- 
cordingly nonsuited  {x). 

(m)  Mr.  Justice  Coleridge  in^o^  1862,  p.  523. 

den  V.  Brogden,  2  M.  &  Kob.  113.  (.r)  Broennenhurgh     v.    HaycocJc, 

{v)   Coates  v.    Stephens,    2   M.  &  Holt's  Rep.   630 ;  and  see   IFash- 

Rob.  157.  burn    v.    Cuddihi/,    8    Gray,    430; 

(«■)  Lib.  U.  K.    "The  Horse,"  Walker  v.   Hohington,   43  Vt.  608 

362.     See  also  App.  to  U.  K.  Ed.  (American  Cases). 


DISEASES,  DEFECTS,  ETC.  85 

In  a  later  case  a  Horse  was  bouglit  waiTanted  "  sound  Held  to  be  a 
and  free  from  vice,"  and  an  action  was  brought  against  the  ■^'^^• 
vendor  on  the  ground  of  its  being  a  Crib-hiter  and  Wind- 
sucker  {>/) .  Veterinary  Surgeons  were  examined  who  said 
that  the  habit  of  Crib-biting  was  injurious  to  Horses ;  that 
the  air  sucked  into  the  stomach  of  the  animal  distended  it, 
and  impaired  its  powers  of  digestion,  occasionally  to  such 
an  extent  as  greatly  to  diminish  the  value  of  the  Horse, 
and  render  it  incapable  of  work.  Some  of  the  witnesses 
gave  it  as  their  opinion  that  Crib-biting  was  an  Unsound- 
ness ;  it  was  not  however  shown  that  in  the  present  instance 
the  habit  of  Crib-biting  had  brought  on  any  disease,  or 
had,  as  yet,  interfered  with  the  power  or  usefulness  of  the 
Horse. 

Mr.  Baron  Parke  told  the  Jury,  that  to  constitute  Un- 
soundness there  must  either  be  some  alteration  in  the 
structure  of  the  animal,  whereby  it  is  rendered  less  able 
to  perform  its  work,  or  else  there  must  be  some  disease. 
Here  neither  of  those  facts  had  been  shown.  If,  how- 
ever, the  Jury  thought  that  at  the  time  of  the  warranty 
the  Horse  had  contracted  the  habit  of  Crib-biting,  he 
thought  that  was  a  Vice,  and  that  the  plaintiS  would  be 
entitled  to  a  verdict  on  that  head.  The  habit  complained 
of  might  not  indeed,  like  some  others  (for  instance,  that 
of  kicking  (;:),  show  Vice  in  the  temper  of  the  animal, 
but  it  was  proved  to  be  a  habit  decidedly  injurious  to  its 
health,  and  tending  to  impair  its  usefulness,  and  came, 
therefore,  in  his  lordship's  opinion,  within  the  meaning 
of  the  term  Vice,  as  used  on  such  occasions  as  the  pre- 
sent [a).  And  in  the  case  of  Paul  v.  Hardwick,  some  of 
the  most  eminent  Veterinary  Surgeons  gave  evidence  that 
Crib-biting  was,  in  their  opinion,  at  all  events,  a  Vice 
within  the  meaning  of  a  warranty  that  a  Horse  was 
free  from  vice,  and  the  plaintiff  had  a  verdict  on  that 
ground  {b). 

From  sudden  or  over  exertion,  the  ligaments  which  tie  Curb, 
down  the  tendons  in  the  neighbourhood  of  joints  may  be 
extended,  and  inflammation,  swelling  and  lameness  may 
ensue,  or  the  sheaths  of  the  tendons  in  the  neighbourhood 

{y)  Windsucker,  post.  Chitty  on  Contracts,  11th  ed.  429. 

{z)  Kicking,  post.  And  see    the  American   cases   of 

[a]  ScJiolefield  v.  Eohb,  2   M.   &  IFaskburu  v.Cuddi/uj,  8  Gray,  438; 

Rob.  210.  Dean    v.   Morley,    33   Iowa,    120; 

{b)  Paul  V.  Hardwick,  Sittings  at  Walker  v.  Ilohmgton,  43  Vt.  608. 
Westminster,  H.  T.    1831,    MS.; 


86 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Curby  Hocks 
not  an  Un- 
soundness. 


of  joints,  from  their  extent  of  motion  in  these  situations, 
may  be  susceptible  of  injmy.  A  Curb  is  an  affection  of 
this  kind.  It  is  an  enlargement  at  the  back  of  the  hock, 
about  three  or  four  inches  below  the  point  of  the  hock. 
Any  sudden  action  of  the  limb  of  more  than  usual  violence 
may  produce  it,  and  therefore  Horses  are  found  to  "  throw 
out  curbs"  after  a  hardly-contested  race,  an  extraordinary 
leap,  a  severe  gallop  over  heavy  ground,  or  a  sudden 
check  in  the  gallop.  Young  Horses  are  particularly 
liable  to  it,  and  Horses  that  are  Cowhoched,  or  whose  hocks 
and  legs  resemble  those  of  the  Cow,  the  hocks  being  turned 
inward  and  the  legs  forming  a  considerable  angle  out- 
wards ;  for  in  hocks  so  formed  the  annular  ligament  must 
be  continually  on  the  stretch  to  confine  the  tendon  {c). 

A  Horse  with  a  Curb  is  manifestly  Unsound.  But  as 
Curbs  do  not  necessarily  produce  lameness,  it  is  considered 
that  Horses  with  Curbs  may  be  passed  as  sound  on  a 
special  warranty  being  given,  that,  should  the  Curb  cause 
lameness  within  a  reasonable  time  (which  time  should  be 
fixed) ,  the  seller  should  be  responsible. 

But  if  a  Horse  throw  out  a  Curb  immediately  after 
sale,  it  is  no  breach  of  a  warranty  of  soundness,  even  if 
he  had  Cuvbij  /locks  at  the  time  of  sale.  Thus,  where  an 
action  was  brought  on  a  breach  of  warranty  of  sound- 
ness, it  appeared  that  the  plaintiff  before  sale  had  objected 
to  the  Horse  because  he  had  Ciwhy  hocks.  However,  he 
bought  him  on  a  general  warranty  of  soundness  being 
given,  and  about  a  fortnight  after  sale  the  Horse  sprung 
a  Curb.  At  the  trial  Veterinary  Surgeons  were  called 
by  the  plaintiff,  who  stated  that  the  term  Curby  hocks 
indicated  a  peculiar  form  of  the  hock,  which  was  con- 
sidered to  render  a  Horse  more  liable  to  throw  out  a  Curb, 
but  did  not  of  itself  occasion  lameness.  Lord  Abinger, 
0.  B.,  told  the  Jury,  "  that  a  defect  in  the  form  of  the 
Horse,  which  had  not  occasioned  lameness  at  the  time  of 
the  sale,  although  it  might  render  the  animal  more  liable 
to  become  lame  at  some  future  time,  was  no  breach  of 
the  warranty."  And,  on  a  motion  for  a  new  trial,  the 
Court  of  Exchequer  refused  a  rule,  Mr.  Baron  Alderson 
saying,  "  Dickenson  v.  Follett  (d)  is  expressly  in  point 
for  the  defendant,  and  the  law  as  laid  down  by  me  on 


(c)  Lib.  U.  K.  "The  Horse," 
2G7.  See  also  App.  to  U.  K.  Ed. 
1862,  p.  509. 


[d)  Dickenson  v.  FoUett,  I  M.  & 
Eob.  299 ;  and  see  Cutting,  post. 


DISEASES,  DEFECTS,  ETC.  87 

that  occasion  has  not  been  questioned  in  any  subsequent 
case"  (c). 

Cuffing,  like  Speedy  cut,  arises  from  badness  of  struc-  Cutting, 
ture,  and  being  neither  a  disease  nor  a  bad  habit,  cannot 
be  pronounced  a  breach  of  a  warranty  of  Soundness  and 
freedom  from  Vice;  and  although  it  may  be  a  greater 
detriment  to  the  Horse  than  some  kinds  of  Unsoundness  or 
Vice,  yet  if  the  wounds  occasioned  by  it  did  not  actually 
exist  at  the  time  of  sale,  the  purchaser  has  no  legal  remedy 
against  the  buyer.  This  is  a  case  to  which  the  legal  maxim 
caveat  emptor  particularly  applies ;  the  purchaser  should 
examine  the  Horse,  and  if  there  appear  any  probability 
of  Cutting  a  special  warranty  should  be  taken  against  it. 
It  is  always  a  great  annoyance,  and  the  effects  produced 
by  it  are  sometimes  most  serious.  Many  Horses  go  lame 
for  a  considerable  period  after  Cutting  themselves  severely ; 
and  others  have  dropped  from  sudden  agony  and  en- 
dangered themselves  and  their  riders.  Cutting  renders  a 
Horse  liable  to  serious  injury  of  the  legs,  and  indicates 
that  he  is  either  weak  or  has  an  awkwardness  of  gait  in- 
consistent with  safety  (/). 

In  the  only  decided  case  on  the  subject,  it  was  held  that  Held  not  to 
mere  Badness  of  shape,  though  rendering  the  Horse  in-  be  an  Un- 
capable  of  work,  is  not  Unsoundness.     It  appeared  that  at  ^^^^  ^^®^* 
the  time  of  sale  there  existed  neither  lameness  nor  wound. 
And  Mr.  Justice  Alderson  said,  "  The  Horse  could  not  be 
considered  unsound  in  law  merely  from  Badness  of  shape. 
As  long  as  he  was  uninjured  he  must  be  considered  sound. 
Where  the  injury  is  produced  by  the  badness  of  his  action, 
that  injury  constitutes  the  Unsoundness^^  (g). 

There  are  two  kinds  of  Dropsy,  which  must  both  be  Dropsy  of  the 
considered ;  namely,  Dropsy  of  the  skin  and  Drop)sy  of  Skin. 
the  heart.  Dropsical  swellings  often  appear  between  the 
forelegs  and  on  the  chest ;  they  are  effusions  of  fluid 
underneath  the  skin.  They  accompany  various  diseases, 
particularly  when  the  animal  is  weakened  by  them,  and 
sometimes  appear  when  there  is  no  other  disease  than  the 
debility,  which,  in  the  spring  and  fall  of  the  year,  accom- 
panies the  changing  of  the  coat  {h) . 

When  the  pericardium  or  the  heart  itself  becomes  in-  Dropsy  of  the 
flamed,  the  secretion  of  the  pericardium  is  much  increased,  Heart. 

[c)  Broivn  v.  Elkington,  8  M.  &  [g)  Dickenson  v.  FoUett,  1  M.  & 

"W.  132.  Eob.  299. 

(/)  Lib.  U.  K.  "The  Horse,"  {h)  Lib.  U.  K.   "The  Horse," 

363,  and  App.  Ed.  1862,  p.  523.  171. 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Enlarged 
Glands. 


Enlarged 
Hock. 


Ewe  neck. 
False  Quarter. 


Farcy. 


and  so  much  fluid  accumulates  as  to  obstruct  the  beating 
of  the  heart.  This  is  called  Dropsy  of  the  heart  {h),  and 
each  of  these  diseases  is  an  Unsoundness  {i). 

Simple  Catarrh  will  occasionally,  and  severe  affection 
of  the  chest  ■will  generally,  be  accompanied  by  a  swelling 
of  the  Glands  under  the  jaw,  and  this  does  not  subside 
for  a  considerable  time  after  the  cold  or  fever  has  appa- 
rently been  cured.  If  the  Enlargement  is  considerable, 
and  especially  if  tender,  and  the  gland  at  the  root  of  the 
ear  partakes  of  it,  and  the  membrane  of  the  nose  is  redder 
than  it  should  be,  the  commencement  or  lurking  of  some 
insidious  disease  is  to  be  feared  (A') ;  and  a  Horse  under 
such  circumstances  is  Unsound. 

When  the  Hock  is  enlarged,  the  structure  of  this  com- 
plicated joint  is  so  materially  affected,  that  although  the 
Horse  may  appear  for  a  considerable  time  to  do  ordinary 
work  well,  he  will  occasionally  fail  even  as  to  that,  and  a 
few  days'  hard  work  will  always  lame  him  (/).  A  decided 
case  of  Enlarged  hock  is  an  Unsoundness,  unless  it  is  a 
mere  blemish,  the  result  of  external  injuries. 

For  Eu-e  Neck  see  Star-gazer  {ni). 

Where  the  coronary  ligaments  by  which  the  horn  of  the 
coronet  is  secreted,  is  either  divided  by  a  cut  or  bruise,  or 
eaten  through  by  caustic,  there  will  be  a  division  of  the 
horn  as  it  grows  down,  either  in  the  form  of  a  permanent 
Sandcrack  {n),  or  of  one  portion  of  the  horn  overlapping 
the  other.  This  is  not  only  a  very  serious  defect,  and  a 
frequent  cause  of  lameness,  but  it  is  exceedingly  difficult 
to  remedy  (o)  ;  and  must  be  considered  Unsoundness. 
Sometimes  the  horn  grows  down  whole,  but  the  ligament 
is  unable  to  secrete  that  which  is  perfectly  healthy,  and 
therefore  there  is  a  narrow  strip  of  horn  of  a  different  and 
lighter  colour. 

Farcy,  which  is  a  disease  of  the  absorbents  of  the  skin, 
'     an    Unsoundness.      It   is   immediately  connected  with 


IS 


Glanders  ( p)  ;  they  will  run  into  each  other,  or  their 
symptoms  will  mingle  together ;  and  before  either  arrives 
at  its  fatal  termination,  its  associate  will  almost  invariably 
appear.     An  animal  inoculated  with  the  matter  of  Farcy 


(h)  Lib.  TJ.  K.  "  The  Horse,  "171. 

(i)  See  Eaves  v.  Dixon,  2  Taunt. 
343. 

(k)  Lib.  U.  K.  "The  Horse," 
363. 

{I)  Lib.  U.  K.  "The  Horse," 
363.     See  also  Lib.  U.   K.,  Ed. 


1862,  App.  523;  and  see  Capped 
Hocks,  ante,  p.  79. 

{»i)  Star-gazer,  post. 

(ii)  Sandcrack,  post. 

(o)  Lib.  U.  K.  "The  Horse," 
301. 

(p)  Glanders,  post. 


DISEASES,  DEFECTS,  ETC.  89 

will  often  be  afflicted  with  Glanders,  while  the  matter  of 
Grlanders  will  frequently  produce  Farcy.  They  are  dif- 
ferent types  or  stages  of  the  same  disease.  There  is,  how- 
ever, a  very  material  difference  in  their  symptoms  and 
progress;  and  this  most  important  of  all,  that  while 
Glanders  are  generally  incurable,  Farcy,  in  its  early  stage 
and  mild  form,  may  be  successfully  treated  ( 17) . 

Water  Farcy,  confounded  by  name  with  the  common  "Water  Farcy. 
Farcy,  is  a  dropsical  (r)  affection  of  the  skin,  either  of  the 
chest  or  of  the  limbs  generally  [q),  and  is  also  an  Unsound- 
ness. 

Inflammation  of  the  Foot,  or  Acute  Founder,  is  generally  Founder, 
caused  by  suffering  a  Horse  to  stand  in  the  cold  or  wet 
after  being  hard  ridden  or  driven,  and  is  called  "  Fever  in 
the  feet."  This  fever  is  not  easily  subdued ;  and,  if  it  be 
subdued,  it  sometimes  leaves  after  it  some  fearful  conse- 
quences. The  loss  of  the  hoof  is  not  an  unfrequent 
one  (.s).  A  Horse,  therefore,  which  either  has  "  Fever  in 
the  feet,"  or  has  been  at  all  injured  by  it,  is  Unsound. 

For  Gibbing,  see  Backing  and  Gibbing  it).  Gibbing. 

The  most  formidable  of  all  the  diseases  to  which  the  Glanders. 
Horse  is  subject  is  Glanders.  It  is  described  by  writers 
fifteen  hundred  years  ago ;  and  it  was  then,  and  is  now, 
not  only  a  loathsome,  but  an  incurable,  disease.  The 
most  early  and  unquestionable  symptom  of  Glanders,  is  an 
increased  discharge  from  one  or  both  nostrils ;  different 
from  the  discharge  of  Catarrh,  because  it  is  usually  lighter 
and  clearer  in  its  colour,  and  more  glutinous  or  sticky. 
It  is  not  discharged  occasionally  and  in  large  quantities 
like  the  mucus  of  Catarrh,  but  it  is  constantly  running  from 
the  nostril  (») .  It  need  hardly  be  said  that  a  Glandered 
Horse  has  on  him  the  worst  sort  of  Unsoundness. 

It  is  a  disease  not  only  infectious  to  beasts  (r),  but  also  Infectious  to 
to  man.     Thus,  in  the  spring  of  1853  a  whole  family  in  iQ^i^^^ii*!- 
Sligo  died  of  Glanders.     The  father  first  caught  it  from  a 
Horse  bought  at  a  fair  in  Mayo,  and  then  his  wife  and 
four  children  took  it  and  all  died  in  great  agony.     There- 

{q)  Lib.  U.  K.   "The  Horse,"  bins,  10  Gush.  (Mass.)  520),  it  was 

128,  131.  held  that  the  moment  symptoms  of 

(>•)  Dropsy,  ante,  p.  87.  glanders  appear  in  a  Horse  he  is 

[s]  Lib.   U.   K.    "The  Horse,"  unsound;  and  that  whether  or  not 

290.  the  symptoms  are  in  fact  the  seeds 

{t)  Backing  and  Gibbing,  ante,  of  the  disease  is  to  be  proved  by 

p.  75.  the  future  history  of  the  horse. 

[u)  Lib.  U.  K.    "The   Horse,"  (v)  ^eeBaird^r.  Graham,  UOourt 

12i  ;  and  see  Farcy,  ante.     In  an  of  Sess.  615  (Sco.). 
American  case  {Woodbury  v.  Rob- 


90 


WHAT  DISEASES  CONSTITUTE  UNSOUKDNESS  OR  VICE. 


Contagious 
Diseases 
(Animals) 
Act. 


Glaucoma. 


Grease. 


Grogginess. 


fore,  knowingly  to  bring  a  Griandered  Horse  into  a  public 
place  is  held  to  be  an  indictable  offence  («•). 

By  the  Contagious  Diseases  (Animals)  Act,  1878  (41  & 
42  Yict.  c.  74),  sect.  32,  sub-ss.  xxsii.,  xxxiii.,  the  Privy 
Council  may  from  time  to  time  make  such  general  or  special 
orders  as  they  may  think  fit,  subject  and  according  to  the 
provisions  of  the  act,  for  applying  all  or  any  of  the  pro- 
visions of  the  act  to  Horses,  Asses,  and  Mules,  and  to 
glanders  and  farcy,  and  other  diseases  thereof ;  and  for 
extending  for  all  or  any  of  the  purposes  of  the  act  the 
definition  of  disease  in  the  act,  so  that  the  same  shall  for 
those  purposes  comprise  any  disease  of  animals  in  addition 
to  the  diseases  mentioned  in  the  act.  Accordingly,  by 
Order  442,  Horses,  &c,  are  to  be  deemed  "  animals,"  and 
glanders  and  farcy  "diseases;"  and  it  shall  not  be  lawful  to 
expose  a  diseased  Horse  in  a  sale-yard  or  other  public  or 
private  place  where  Horses,  &c.  are  commonly  exposed  for 
sale.  And  provisions  are  also  made  against  placing  a 
diseased  Horse  in  a  lair,  &c.  adjacent  to  a  market  or  fair, 
and  also  with  regard  to  the  carriage  and  pastming  of 
diseased  Horses. 

Glaucoma  is  a  dimness  or  obscurity  of  sight  from  an 
opacity  of  the  vitreous  humour.  It  is  difficult  to  ascertain, 
and  is  only  to  be  discovered  by  a  very  attentive  examina- 
tion of  the  eye.  It  prevents  a  Horse  from  appreciating 
objects,  and  is  therefore  an  Unsoundness  {x). 

Swelled  legs,  although  distinct  from  Grease,  are  apt  to 
degenerate  into  it.  It  is  an  inflammation  of  the  skin  of 
the  heel ;  sometimes  of  the  fore,  but  of tener  of  the  hind, 
foot.  The  skin  of  the  heel  of  the  Horse  somewhat  differs 
from  that  of  any  other  part.  There  is  a  great  deal  of 
motion  in  the  fetlock,  and  to  prevent  the  skin  from 
excoriation  or  chapping,  it  is  necessary  that  it  should  be 
kept  soft  and  pliable ;  therefore,  in  the  healthy  state  of 
the  part,  the  skin  of  the  heel  has  a  peculiar  greasy  feel. 
Under  inflammation,  the  secretion  of  this  greasy  matter  is 
stopped,  the  heels  become  red,  dry  and  scurfy ;  and  being 
almost  constantly  in  motion,  cracks  soon  succeed ;  these 
sometimes  extend,  and  the  whole  surface  of  the  heel 
becomes  a  mass  of  soreness,  ulceration  and  fungus  (y) . 
"When  this  disease  renders  a  Horse  unfit  for  immediate 
work,  it  must  be  considered  an  Unsoundness. 

The  peculiar  knuckling  over  of  the  fetlock- joint  and 

{w)  Req.  V.  Senson,  1  Dears.  &       B.,  Westminster,  Feb.  10,  1857. 
Pearce,  C.  C.  24.  (y)  Lib.  U.   K.   "The   Horse," 

(.r)  Settle  V.  Garner,  cor.  Martin,       276. 


DISEASES,  DEFECTS,  ETC.  91 

tottering  of  tlie  whole  of  tlie  fore  leg,  known  by  the  name 
of  Grof/gincss,  and  which  is  so  often  seen  in  old  and  over- 
worked Horses,  is  seldom  an  affection  of  either  the  fetlock 
or  pastern  joints  simply,  although  these  have  their  full 
share  in  the  mischief  that  has  been  produced.  It  is  some- 
times difficult  to  fix  on  any  particular  joint ;  at  other  times, 
it  seems  to  be  traced  to  a  joint  deep  in  the  foot,  where  the 
flexor  tendon  runs  over  the  navicular  bone.  It  seems 
usually  to  be  a  want  of  power  in  the  ligaments  of  the 
joints,  generally  produced  by  frequent  and  severe  sprains, 
or  by  ill-judged  and  cruel  exertion,  and,  in  the  majority 
of  cases,  admits  of  no  remedy,  esf)ecially  as  dissection  often 
discovers  ulceration  within  the  joints  and  of  the  membrane 
which  lines  the  cartilage,  and  even  of  the  cartilage  itself, 
which  it  was  impossible  to  reach  or  to  remove  (s) .  "When 
it  exists  in  such  a  degree  as  to  diminish  the  natural  useful- 
ness of  the  Horse,  it  must  be  considered  an  Unsoundness. 

Grunting  is  an  Unsoundness ;  see  Eoaring  {a).  Grunting. 

Gutta  serena,  commonly  called  Glass-eye,  is  a  species  of  Gutta  serena. 
Blindness.  The  pupil  is  unusually  dilated  ;  it  is  immove- 
able, bright  and  glassy.  It  is  a  i^alsy  of  the  optic  nerve, 
or  its  expansion,  the  retina,  and  is  usually  produced  by 
determination  of  blood  to  the  head.  It  may  be  caused  by 
improper  treatment  of  the  Staggers,  where  the  pressure  on 
the  base  of  the  brain  has  been  so  great,  that  the  nerve  has 
been  injured  and  its  function  destroyed  [IS).  It  is  an 
Unsoundness. 

There  is  scarcely  a  malady  to  which  the  Horse  is  subject  Hereditary 
which  is  not  Kcreditary.  Contracted  feet,  Curb,  Spavin,  <ii«ease. 
Hearing,  Thick- wind,  Blindness,  notoriously  descend  from 
the  father  and  dam  to  the  Foal,  which  from  them  inherits 
its  constitution  and  endurance  (c).  It  would  no  doubt  be 
a  matter  of  great  difficidty  to  maintain  an  action  on  a 
breach  of  warranty  of  soundness  on  the  sale  of  a  Horse, 
on  the  groimd  of  Hereditary  disease  alone,  but  it  is  pre- 
sumed to  be  just  possible  that  if  some  general  decay  of 
the  system  or  such  like,  developing  itself  after  sale,  could 
be  proved  to  be  Hereditary,  the  purchaser  might  have  his 
action ;  and  the  following  case  appears  somewhat  in 
point : — The  plaintiff  bought  a  hundred  sheep  warranted 
sound ;  about  two  months  after  sale  fifty  of  them  died  of 

(::)  Lib.  U.   K.    "The   Horse,"  (4)  Lib.   U.   K.    "The  Horse," 

252.     See  also  Lib.    U.  K.  App.  116.    And  see  Patent  Defects,  post. 

Ed.  1862,  p.  507.  (e)  Lib.  U.   K.    "  The   Horse," 

[a]  Roaring,  post.  35,  221. 


92 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Kickint 


Kidney- 
dropping 


Lameness. 


Temporaiy 
lameness  an 
Unsoundness. 


the  Goggles,  which  was  stated  by  farmers  and  others  con- 
veisant  with  sheep  to  arise  from  "breeding  in  and  in  from 
relations;"  and  that  sheep  so  disordered  will  thrive  and 
seem  to  be  in  sonnd  health  until  they  be  about  two  or 
three  years  old ;  that  there  were  no  means  of  discovering 
by  the  appearance  or  otherwise  when  sheep  are  affected ; 
that  it  is  generally  fatal,  and  no  cure  or  prevention  known 
for  it,  and  that  it  was  reputed  among  farmers  an  Unsound- 
ness. Chief  Justice  Abbott  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  subse- 
quent cause."  And  on  this  direction  a  verdict  was  found 
for  the  plaintiff  (<■/). 

KicJiing,  either  in  the  stable  or  in  harness,  is  a  bad  and 
dangerous  habit,  and  therefore  a  Vice.  Some  Horses, 
particularly  Mares,  from  fidgetiness  and  irritability,  get 
a  habit  of  kicking  at  the  stall ;  and  this  taking  place 
generally  at  night  disturbs  the  other  Horses,  and  produces 
swelled  hocks  or  some  more  serious  injury.  It  shows  Vice 
in  the  temper  of  the  animal  (e) ,  and  it  is  very  seldom  that 
a  confirmed  Kicker  can  be  cured  (/). 

A  Kidney-droppev  will  appear  quite  well  at  starting,  but 
after  travelling  a  short  distance  he  will  come  to  a  dead 
stand-still,  and,  if  not  supported,  will  drop  down  on  the 
spot.     A  Kidney- dropper  is  worthless  and  Unsound  (g). 

Lameness,  whether  temporary  or  permanent,  is  an 
Unsoundness ;  because  however  temporary  it  may  be  or 
however  obscure,  it  lessens  the  utility  of  the  Horse  and 
renders  him  unsound  for  the  time.  How  far  his  soundness 
may  be  afterwards  affected  must  depend  on  the  circum- 
stances of  the  case  {h). 

The  law  as  laid  down  in  Coates  v.  Stephens  (i)  and 
Kiddle  v.  Burnard{k),  with  regard  to  temporary  diseases, 
is  the  same  as  was  formerly  held  by  Lord  Ellenborough, 
and  will  be  seen  in  the  following  cases : — A  Horse,  sold 
warranted  sound,  was  proved  to  have  been  lame  at  the 
time  of  sale ;  this  the  defendant  admitted,  but  undertook 

[d)  JoViff  V.   Bendcll,   R.    &  M.  (/;)  Lib.  U.  K.    "The  Horse," 

136.  364. 

{e)  Lib.   U.   K.    "The   Horse,"  {%)  Coates  v.    Stephens,    2   M.    & 

336.  Rob.     137,    overruling    Boldcn    v. 

(/)  Scholejicld  v.  Bohb,  2  M.  &  Brogden,  2  M.  &  Rob.  113. 

Rob.  210.  (A)  Kiddell  v.   Burnard,  8  M.  «fc 

((/)  See  Eastmau''s  case,  Lambeth  W.  070. 
Police  Court,  Nov.  11,  1853. 


DISEASES,  DEFECTS,  ETC,  93 

to  prove  that  the  lameness  was  of  a  temporary  nature,  and 
that  the  Horse  had  afterwards  recovered,  since  which  he 
had  been  perfectly  sound :  however.  Lord  Ellenborough 
said,  "  I  have  always  held  and  now  hold,  that  a  warranty 
of  soundness  is  broken  if  the  animal  at  the  time  of  sale 
had  any  infirmity  upon  him,  which  rendered  him  less  fit 
for  present  service.  It  is  not  necessary  that  the  disorder 
should  be  permanent  or  incurable.  While  a  Horse  has  a 
Cough  I  say  he  is  Unsound,  although  that  may  either  be 
temporary  or  may  prove  mortal.  The  Horse  in  question 
having  been  lame  at  the  time  of  sale,  when  he  was  war- 
ranted to  be  sound,  his  condition  subsequently  is  no  defence 
to  the  action"  (/).  And  in  another  case,  on  the  trial  of  an 
action  on  the  warranty  of  a  Horse  where  the  evidence  was 
very  contradictory,  but  a  witness  of  the  defendant's  ad- 
mitted that  he  had  bandaged  one  of  the  fore  legs  of  the 
Horse,  but  not  the  other,  because  the  one  was  weaker  than 
the  other.  Lord  Ellenborough  said,  "  To  constitute  Un- 
soundness, it  is  not  essential  that  the  infirmity  should  be  of 
a  permanent  nature ;  it  is  sufficient  if  it  render  the  animal 
for  the  time  unfit  for  service :  as,  for  instance,  a  Cough, 
which  for  the  present  renders  it  less  useful,  and  may  ulti- 
mately prove  fatal.  Any  infirmity  which  renders  a  Horse 
less  fit  for  present  use  and  convenience  is  Unsoundness'^  {ni). 
In  a  previous  case  it  was  said  to  have  been  held  that  a 
warranty  that  a  Horse  is  sound,  is  not  false  because  the 
Horse  labours  under  a  temporary  injury  from  an  accident 
at  the  time  the  defendant  warranted  it  sound.  But  the 
waiTanty  there  appears  to  have  been  a  qualified  one, 
because  when  bargaining  the  plaintiff  observed,  that  the 
Mare  went  rather  lame  on  one  leg.  The  defendant  re- 
plied, that  it  had  been  occasioned  by  her  taking  up  a  nail 
at  the  Farrier's,  and,  except  as  to  that  lameness,  she  was 
perfectly  sound  (»). 

Lnminitis  is  an  inflammation  of  the  LcnnincB  of  the  Laminitis. 
feet,  namely,  of  the  connecting  medium  between  the 
cofiin  bone  and  the  interior  of  the  hoof,  there  being  nu- 
merous fleshy  plates  which  support  the  foot.  The  coronary 
ring  is  contracted,  the  soles  become  convex,  the  Horse  puts 
his  heels  to  the  ground  first  and  goes  short,  and  lameness 
ensues,  Laminitis  is  such  an  alteration  in  structure  as  is 
without  doubt  Unsoundness  (o), 

(?)  Eltony. Broffden,4:  Ca.m-p.  281,  («)  Garment  v.  Sars,  2  Esp.  673. 

(»»)  Elton    V.    Jordan,    1    Stark.  [o)  See  IfaU  v.  Rogerson,  Appen- 

N.  P.  C.  127.  dix  ;  Smart  v.  Allison,  Appendix. 


94 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Lampas. 


Liver  disease. 

Lungs 
hepatized. 


Mallenders 
and  Sallen- 
ders. 


Mange. 


Navicular 
Joint  disease. 


Nerved 
Horse. 


Some  of  the  lower  bars  of  the  paLate  occasionally  swell, 
and  rise  to  a  level  with  and  even  beyond  the  edge  of  the 
teeth ;  they  are  very  sore,  and  the  Horse  feeds  badly  on 
account  of  the  pain  he  suffers  from  the  pressure  of  the  food 
on  the  bars(;;).  This  is  called  Lampas,  and  being  easily 
cured,  and  not  dangerous,  it  is  only  Unsoundness  while  it 
interferes  with  the  Horse's  usefulness. 

A  diseased  Liver  is  of  course  an  Unsoundness  {q). 

All  diseases  of  the  Lungs  constitute  Unsoundness.  The 
various  symptoms  were  discussed  in  the  case  of  Hyde  v. 
Daris  (q). 

At  the  bend  of  the  knee,  as  well  as  in  the  inside  of  the 
hock,  or  a  little  below  it,  there  is  sometimes  a  scurfy  erup- 
tion, called  Mallenders  in  the  fore  leg  and  Sallenders  in  the 
hind  leg.  They  seldom  produce  lameness,  but  if  no  means 
are  taken  to  get  rid  of  them,  a  discharge  proceeds  from 
them  which  it  is  afterwards  difficult  to  stop  (r).  They 
must  be  considered  Unsoundness. 

The  3Ian(je  is  a  pimpled  or  lumpy  eruption  of  the  skin, 
followed  by  blotches  covered  with  scurf  ;  these  change  into 
scabs,  and  occasionally  extend  over  the  whole  carcase ;  it  is 
one  of  the  most  contagious  diseases  to  which  the  Horse  is 
exposed  (s).     A  Mangy  Horse  is  decidedly  Unsound. 

The  Navieular  Joint  disease  is  Unsoundness,  as  it  produces 
lameness,  which  is  rarely  cured.  It  proceeds  from  sudden 
concussion,  or  from  rapid  and  overstrained  motion.  Horses 
which  have  irregular  and  undue  exercise  are  most  liable  to 
it,  and  particularly  those  whose  feet  are  contracted  (f). 
An  action  was  brought  for  the  breach  of  an  alleged  war- 
ranty ;  the  Unsoundness  in  question  was  what  is  termed 
"  Navicular  disease,"  which  was  stated  to  be  an  inflamma- 
tion in  a  joint  on  the  inside  of  the  hoof,  and  to  be  of  such 
a  nature  that  it  might  be  alleviated  by  proper  treatment, 
so  far  as  to  render  a  Horse  fit  for  gentle  work,  and  to  make 
him  appear  sound  for  a  short  time  and  on  soft  ground ; 
but  could  seldom,  if  ever,  be  permanently  cured,  so  as  to 
qualify  him  for  hard  work  {u).  The  "  Navicular  disease" 
is  an  Unsoundness,  and  is  iucm-able  {j:). 

A  Horse  on  whom  the  operation  of  Nervinej  has  been 

[p)  Lib.  U.  K.   "Tlie  Horse,"  379;  and  see  Scab,  post. 

134.  (0  Bywater  v.  Bichardson,   1  A. 

{q)  See  Hyde  v.  Davis  and  Buclc-  &  E.  508. 

ingham  v.  Rogers,  Appendix.  («)  Bywater  v.  Richardson,   1  A. 

(>•)  Lib.  U.  K.   "The  Horse,"  &  E.  508. 

273.  (•*■)  Matthews  v.  Farker,  Appea- 

(.s)  Lib.  U.  K.   "  The  Horse,"  dix. 


DISEASES,  DEFECTS,  ETC.  95 

performed  may  be  improved,  may  cease  to  be  lame,  may 
go  well  for  many  years ;  but  there  is  no  certainty  of  his 
continuing  to  do  so,  and  he  is  Unsound  {y). 

This  was  decided  in  the  following  case,  soon  after  Held  to  be 
Neurotomy  had  been  first  introduced  by  Veterinary  Sur-  Unsound, 
geons.  An  action  was  brought  on  the  warranty  of  a 
Horse  which  had  been  Nerved.  Several  eminent  Farriers 
were  called,  who  stated  that  the  operation  of  Nerving 
consisted  in  the  division  of  a  nerve  leading  from  the  foot 
up  the  leg ;  that  it  was  usually  performed  in  order  to  re- 
lieve the  Horse  from  the  pain  arising  from  a  disease  in 
the  foot,  the  nerve  cut  being  the  vehicle  of  sensation  from 
the  foot ;  that  the  disease  in  the  foot  would  not  be  affected 
by  the  operation,  and  would  go  on  increasing  or  not,  ac- 
cording to  its  character ;  that  Horses  previously  lame 
from  the  pain  of  such  a  disease  would,  when  Nerved,  fre- 
quently go  free  from  lameness,  and  continue  so  for  years ; 
that  the  operation  had  been  found  successful  in  cavalry 
regiments,  and  Horses  so  operated  on  had  been  for  years 
employed  in  active  service ;  but  that  in  their  opinion  a 
Horse  that  had  been  Nerved,  whether  by  accident  or  de- 
sign, was  Unsound,  and  could  not  be  safely  trusted  for  any 
severe  work,  and  that  it  was  an  organic  defect  {z). 

It  appeared  that  the  Horse  in  question  had  not  ex- 
hibited any  lameness.  But  Chief  Justice  Best  told  the 
Jury,  "  that  it  was  difficult  to  say  that  a  Horse  in  which 
there  was  an  organic  defect  could  be  considered  sound ; 
that  Sound  meant  Perfect,  and  a  Horse  deprived  of  an 
useful  nerve  was  imperfect,  and  had  not  that  capacity  of 
service  which  is  stipulated  for  in  a  warranty."  And  the 
Jury  returned  a  verdict  for  the  plaintiff  {a) . 

The  most  frequent  disease  of  the  Nose  is  an  increased  Nose,  Chronic 
and  thickened  discharge  from  it.  It  may  properly  be  <iischarge. 
called  a  Nasal  gleet.  There  is  a  continued  and  often  a 
profuse  discharge  of  the  fluid  secreted  to  lubricate  the 
membrane  lining  the  Nose,  when  every  symptom  of  Catarrh 
and  fever  has  passed  away,  and  an  almost  incredible 
quantity  of  thickened  mucus,  of  different  colours ;  green, 
if  the  Horse  is  at  grass ;  or,  if  he  be  stabled,  white,  straw- 
coloured,  brown,  or  even  bloody,  and  sometimes  evidently 
mingled  with  matter  or  pus  ;  and  either  constantly  running, 
or  snorted  out  in  masses  many  times  in  the  day,  often 

[y)  Lib.  U.  K.  "The  Horse,"  (2)  Besty.  Osborne,  R.  &  M.  290. 

364.  («)  Ibid. 


the  Carti 
lasses 


96  WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 

continuing  several  montlis,  and  sometimes  eventually  de- 
stroying the  Horse  (6).  Such  a  disease  is  without  doubt 
an  Unsoundness. 

Not  lying  It  occasionally  happens   that  a  Horse  will  seldom  or 

^^"^^-  never  Lie  down  in  the  stable.     He  sometimes  continues 

in  apparent  good  health,  and  feeds  and  works  well ;  but 
generally  his  legs  swell,  or  he  becomes  fatigued  sooner 
than  other  Horses  (c) .  It  is  a  bad  habit,  and  when  de- 
cidedly injurious  to  his  health,  and  so  tending  to  impair  his 
usefulness,  it  is  a  Vice. 

Opacity  of  Opacity  of  the  crystalUne  Lens  of  the  eye  is  an  Unsound- 

theLens.        ^^^^^^     See  Blinducss  (r/). 

Ossification  of  The  Slide  Cartilages  occupy  a  considerable  portion  of 
the  external  side  and  back  part  of  the  foot,  the  expansion 
of  the  upper  part  of  which  they  are  designed  to  preserve. 
These  cartilages  are  subject  to  inflammation,  and  the 
result  of  that  inflammation  is,  that  the  cartilages  are 
absorbed,  and  bone  is  substituted  in  their  stead.  This 
Ossification  of  the  Cartilages  frequently  accompanies  Ring- 
bone (e)  ;  but  it  may  exist  without  any  affection  of  the 
pastern  joint.  It  is  oftenest  found  in  Horses  of  heavy 
draught.  It  arises  not  so  much  from  concussion  as  from 
a  species  of  sprain  ;  for  the  pace  of  such  heavy  Horses 
is  slow.  The  cause,  indeed,  is  not  well  understood,  but 
of  the  effect  the  instances  are  very  numerous,  a  few  heavy 
di'aught  horses  arriving  at  old  age  without  this  change 
of  structure  (/) .  Like  Eingbone  (^7),  it  is  an  Unsound- 
ness [It). 

Overreach.  This    very  disagreeable  noise  known  by  the  name  of 

"  Clicliing,  Oi-erreach,"  &c.  arises  from  the  toe  of  the 
hind  foot  knocking  against  the  shoe  of  the  fore  foot  («'). 
It  is  not  altogether  free  from  clanger,  as  a  Horse  may 
lame  himself  by  it ;  or,  if  the  fore  and  hind  shoes  become 
locked,  he  will  be  suddenly  thrown.  As  to  the  effects  of 
a  neglected  tread  or  Overreach,  see  False-quarter  (/.■)  and 
Uuittor  (/).  This  defect,  like  Cutting  («?),  arises  from  the 
bad  formation  of  the  Horse  {ni)  and  is  therefore  neither  an 

(b)  Lib.  XJ.  K.   "The  Horse,"  [h)  See  Simpson  v.  Fotts,  Ap^en- 
121.                                                              dix. 

(f)  Lib.  U.  K.   "The  Horse,"  (i)  Lib.  U.  K.    "The  Horse," 

341.     See  App.  to  Lib.  U.  K.  Ed.  341. 

1862,  p.  521.  (k)  False -quarter,  ante,  p.  88. 

(d)  Blindness,  ante,  p.  75.  (0  Qi^iittor,  post. 

(c)  Ringbone,  post.  (m)  Brown  v.  Elkington,  8  M.  & 
(/)  Lib.  U.  K.  "The  Horse,"  W.  132;  Dickenson  \.  Follett,  1  M. 

310.  &  Rob.  299. 

{g)  Ringbone,  post. 


DISEASES,  DEFECTS,  ETC.  97 

Unsoundness  nor  a  Vice;  but  if  suspected,  a  special  warranty 
should  be  taken  against  it. 

The  Parotid  Gland  is  placed  in  the  hollow  which  ex-  Parotid 
tends  from  the  root  of  the  ear  to  the  angle  of  the  lower  ^V^^^  "^*'®' 
jaw.  In  bad  Strangles,  and  sometimes  in  violent  cold,  it 
will  swell  to  a  great  size  and  ulcerate ;  or  an  obstruction 
will  arise  in  some  part  of  the  duct,  and  the  accumulating 
fluid  will  burst  the  vessel,  and  a  fistulous  ulcer  will  be 
formed,  very  difficult  to  heal.  Such  a  disease  is  an  Un- 
soundness (n). 

The  point  of  juncture  between  the  head  and  the  bone  Poll-evil, 
nearest  the  skull  is  called  the  Atlas,  and  is  the  seat  of  a 
very  serious  and  troublesome  ulcer  termed  Poll-evil, 
caused  by  the  horse  rubbing  and  sometimes  striking  his 
Poll  against  the  lower  edge  of  the  manger,  or  hanging 
back  in  the  stall,  and  bruising  the  part  with  the  halter ; 
or  from  a  violent  blow  on  the  Poll,  carelessly  or  wantonly 
inflicted,  or  perhaps  by  unnecessary  tight  reining ;  the 
consequence  is  inflammation,  and  a  swelling  appears,  hot, 
tender  and  painful.  The  swelling  increases,  and  matter  is 
formed,  which  spreads  around  and  eats  into  the  neighbour- 
ing parts  (o).     This  disease  is  an  Unsoundness. 

The  sensible  and  horny  little  plates  of  the  foot,  which  Pumiced 
have  been  elongated  and  partially  separated  during  the  ^^  " 
intensity  of  an  attack  of  inflammation,  will  not  always 
perfectly  unite  again,  or  will  have  lost  much  of  their 
elasticity ;  and  the  coffin  bone,  no  longer  supported  by 
them,  is  let  down  and  presses  upon  the  sole,  which  yields 
to  i,his  unnatural  weight,  and  becomes  convex  or  rounded, 
and  thus,  coming  in  contact  with  the  ground,  it  gets 
bruised  and  injured  {p).  This  is  called  Pumiced-feet ;  it  is 
incm-able,  and  is  decidedly  an  Unsoundness. 

A  Horse  will  sometimes  partly  chew  his  hay,  and  suflter  Quidding. 
it  to  drop  from  his  mouth.     This  is  called  Quidding,  and 
proceeds  either  from  irregular  teeth  or  sore  throat,  but 
ceases  when  these  are  remedied  {q) .   It  would  be  a  symptom 
of  Unsoundness  while  the  sore  throat  lasted. 

Quittor  is  an   Unsoundness.     It  has  been  described  as  Quitter. 
being  the  result   of    neglected   or    bad  tread   or   Over- 
reach (r)  ;  but  it  may  be  the  consequence  of  any  wound 
in  any  part  of  the  foot.     In  the  natural  process  of  ulcera- 
tion matter  is  thrown  out  from  the  wound ;  this  precedes 

(«)  Lib.  U.  K.  "The  Horse,"  (p)  Ibid.  291. 

148.  (y)  Ibid.  342. 

(o)  Ibid.  153.  {r)  Overreach,  ante,  p.  96. 

O.  H 


98  WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 

the  actual  liealing  of  tlie  part.  The  matter  which  is 
thrown  out  in  wounds  of  the  foot  is  usually  pent  up  there, 
and  increases  in  quantity,  and  thus  m^ges  its  way  in  every 
direction  ;  it  forces  the  fleshy  little  plates  of  the  coffin 
bone  from  the  horny  ones  of  the  crust,  or  the  horny  sole 
from  the  fleshy  sole,  or  even  eats  deeply  into  the  internal 
parts  of  the  foot.  These  Pipes  or  Sinuses  rim  in  every 
direction,  and  constitute  the  essence  of  Quiff  or  (s). 
Rat -tails.  On  the  back  part  of  the  leg  are  sometimes  excrescences 

called  by  Farriers  Raf-faih,  from  the  appearance  they 
give  the  hair.  They  generally  yield  to  mild  treatment  (f), 
and  as  they  are  unlikely,  from  their  situation,  to  impede 
the  natural  usefulness  of  the  Horse,  it  is  only  in  a  bad  case 
that  they  can  be  considered  Unsouiidjiess. 
Rearing.  Iieari)i(/,   which    is   unprovoked   by   the   bruising   and 

laceration  of  the  mouth,  is  an  inveterate  and  dangerous 
bad  habit  {u),  and  a  Vice. 
Rheumatism.  In  the  case  of  Couch  V.  Calbrcfh  (jc)  it  was  held,  by  the 
Supreme  Court  of  South  Carolina,  that  in  questions  of 
unsoundness,  where  the  disease  is  chronic,  like  rheumatism, 
it  is  not  necessary  to  show  that  the  symptoms  existed  at 
the  time  of  sale,  for  subsequent  incidents  and  appearances 
may  show  that  the  disease  existed  before  the  sale,  although 
the  symptoms  had  not  then  been  observed. 
Ring--bonc.  Ring-bone   commences    in    one    of    the   pasterns,   and 

usually  about  the  pastern  joint ;  but  it  rapidly  spreads, 
and  involves  not  only  the  pastern  bones,  but  the  carti- 
lages of  the  foot.  The  pastern  first  becomes  connected 
together  by  bone,  instead  of  ligament,  and  thence  results 
what  is  called  an  Anchylosed  or  Fixed  joint.  Its  motion 
is  lost,  and  the  disease  proceeds  to  the  cartilages  of  the 
foot  and  to  the  union  between  the  lower  Pastern  and 
the  Coffin  and  Navicular  bones  ;  the  motion  of  these  parts 
is  impeded  or  lost,  and  the  whole  of  this  part  of  the  foot 
becomes  one  mass  of  spongy  bone.  When  the  bony 
tumour  is  small  and  on  one  side  only,  there  is  Httle  or  no 
lameness,  yet  from  the  action  of  the  foot,  and  the  stress 
upon  the  part,  the  disease  has  a  great  tendency  to  spread, 
after  there  has  been  the  slightest  enlargement  either  of 
the  pasterns  or  round  the  coronet  [y) .     The  law  respecting 


(«)  Lib.   U.   K.  "The  Horse,"  (.c)  11  Rich.  Law,  S.  C.  9. 

302.  iy)  Lib.  U.  K.   "The  Horse," 

{t)  Ibid   275.  254,  365. 

\i,)  Ibid.  337. 


DISEASES,  DEFECTS,  ETC.  99 

Bone-spavin  (z)  appears  on  principle  to  be  exactly  appli- 
cable to  Ring-bone,  the  slightest  appearance  of  which  must 
be  considered  an  Unsoundness,  whether  it  produce  lameness 
or  not. 

Roaring  is  so  called  from  a  peculiar  sound  uttered  by  Roaring. 
a  Horse  with  this  disease,  when  briskly  trotted  or  gal- 
loped, particularly  up  hill.  In  moderate  exercise  it  is 
scarcely  or  not  at  all  perceived ;  but  in  brisk  exercise  it 
may  be  heard  at  the  distance  of  several  yards.  The  most 
general  cause  of  Roaring  is  a  tough  and  viscid  substance 
which  is  thrown  out  in  the  shape  of  fluid,  and  adheres  to 
the  side  of  the  larynx  and  upper  part  of  the  windpipe, 
materially  obstructing  the  passage,  and  sometimes  run- 
ning across  it  in  bands.  Some  Roarers,  on  dissection, 
are  found  to  have  the  shape  of  the  larynx  and  windpipe 
materially  deformed,  crooked,  and  compressed,  and  others 
have  presented  no  appearance  of  disease.     Roaring  is  no  • 

unusual  consequence  of  Strangles  («),  and  it  may  proceed 
from  tight  reining  [h).  Lord  Mansfield  and  Lord  Ellen- 
borough  seemed  to  think  that  Roari)ig  was  not  necessarily 
Unsoundness ;  but  required  proof,  in  each  particular  case, 
that  it  was  symptomatic  of  disease,  or  affected  the  Horse 
so  as  to  render  him  less  serviceable  for  a  permanency,  as, 
otherwise,  it  might  merely  be  a  bad  habit.  There  can  be 
no  doubt,  however,  that  every  Roarer  is  inconvenienced  by 
it  when  in  rapid  action,  and  it  would  be  difficult  to  say,  in 
any  case,  that  it  is  merely  a  bad  habit  acquired,  without 
some  previous  inflammation  or  alteration  of  structure.  In 
practice  Roaring  is  always  very  properly  considered  an 
Unsoundness. 

The  following  cases  show  the  opinions  expressed  in  Decisions  on 
courts  of  law  with  regard  to  Roaring.  An  action  was  *^^  subject, 
brought  on  the  warranty  of  a  Horse,  which  soon  after  sale 
had  turned  out  a  Roarer.  Mr.  Field,  a  Veterinary  Sur- 
geon of  experience,  stated  that  Roaring  is  occasioned  by  the 
circumstance  of  the  neck  of  the  icindjjipe  being  too  narrow  for 
accelerated  respiration,  and  that  the  disorder  is  frequently 
produced  by  sore  throat  or  other  topical  inflammation,  and 
that  the  disorder  is  of  such  a  nature  as  to  incommode  a 
Horse  very  much  when  pressed  to  his  speed.  And  Lord 
EUenborough  said,  "If  a  Horse  be  affected  by  any 
malady  which  renders  him   less   serviceable   for  a   per- 

(;)  Bone-spavin,  ante,  p.  77.  (/')  Lib.   U.  K.    "The   Horse," 

(ft)  Strangles,  post.  IGO. 

ii2 


100 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


manency,  I  have  no  doulot  that  it  is  an  Unsoundness.  I 
do  not  go  by  the  noise,  but  by  the  disorder"  (c). 

And  in  a  previous  case,  where  an  action  had  been 
brought  on  the  Avarranty  of  a  Horse,  whicli  had  turned 
out  a  Roarer,  Lord  Ellenborough  said,  "  It  has  been  held 
by  very  high  authority  (Sir  James  Mansfield,  C.  J.),  that 
Roaring  is  not  necessarily  Unsoundness,  and  I  entirely 
concur  in  that  opinion.  If  the  Horse  emits  a  loud  noise, 
which  is  offensive  to  the  ear,  merely  from  a  bad  habit 
which  he  has  contracted,  or  from  any  cause  which  does 
not  interfere  with  his  general  health  or  muscular  powers, 
he  is  still  to  be  considered  a  sound  Horse.  On  the  other 
hand,  if  the  Roaring  proceeds  from  any  disease  or  organic 
infirmity,  which  renders  him  incapable  of  performing  the 
usual  functions  of  a  Horse,  then  it  does  constitute  Un- 
soundness. The  plaintiff  has  not  done  enough  in  showing 
that  this  Horse  was  a  Roarer.  To  prove  a  breach  of  the 
warranty,  he  must  go  on  to  show  that  the  Roaring  was 
symptomatic  of  disease."    The  defendant  had  a  verdict  {d), 

Rolling.  Rolling  is  a  pleasant  and  safe  amusement  for  a  Horse 

at  grass,  but  cannot  be  indulged  in  the  stable  without  the 
chance  of  his  being  dangerously  entangled  with  the  collar, 
and  being  cast.  Yet,  although  the  Horse  is  cast,  and 
bruised,  and  half-strangled,  he  will  roll  again  on  the  fol- 
lowing night,  and  continue  so  to  do  as  long  as  he  lives  {e). 
Now  this  is  a  bad  habit,  and  a  Horse  may  have  his  health 
and  usefulness  impaired  by  being  often  cast,  or  half- 
strangled  and  lamed  ;  it  must  render  a  Horse  less  valuable, 
and  when  inveterate  may  perhaps  be  considered  a  Vice. 

Eunniiig  Some  headstrong  Horses  will  occasionally  endeavour  to 

away.  -^^-^^  with  the  best  rider.     Others,  with  their  wonted  saga- 

city, endeavour  thus  to  dislodge  the  timid  or  unskilful. 
Some  are  hard  to  hold,  or  bolt  only  during  the  excitement 
of  the  chase  ;  others  will  Run  awaij,  prompted  by  a  vicious 
propensity,  alone.  There  is  no  cure  here;  and  being  a 
bad  and  dangerous  habit,  it  is  a  Vice  (/). 

Saddle-galls.  When  the  Saddle  has  been  suffered  to  press  long  upon 
the  withers,  a  tumom^  will  sometimes  be  formed,  hot  and 
exceedingly  tender.  In  neglected  Fistulous  withers  the 
ulcer  may  be  larger  and  deeper,  and  more  destructive  than 
in  Poll-evil  {g).      It  may  burrow  beneath  the  shoulder- 


Eames,    2    Stark. 


(e)    Onslow 
N.  P.  C.  81. 

{(I)  Basseit   v.    CoUis,    2 
522. 


Camp. 


(f)  Lib.  U.  K.   "  The  Horse," 
3-12. 

(/)  Ibid.  337. 

(V)  Poll-e\-il,  ante,  p.  97. 


DISEASES,  DEFECTS,  ETC.  IQl 

blade,  and  the  matter  may  appear  at  the  point  of  the 
shoulder  or  the  elbow  ;  or  the  bones  of  the  withers  may 
become  carious.  On  other  parts  of  the  back,  tumours  and 
very  troublesome  ulcers  may  be  produced  by  the  same 
cause.  These  little  tumours  resulting  from  the  pressure 
of  the  saddle  are  called  Warbles ;  and  when  they  ulcerate, 
they  frequently  become  Siffasfs  {/i).  If  the  smallest 
Warble  is  in  such  a  situation  as  to  prevent  the  putting 
on  of  a  saddle  or  harness,  it  is  a  breach  of  a  Warrant//  of 
Soundness  (i). 

On  this  point  Mr.  Baron  Parke  expressed  an  opinion  in  Pimple  on  a 
Kiddell  v.  Barnard  {/:),  where  he  said,  "  If  the  disease  were  Horse's  skin, 
not  of  a  nature  to  impede  the  natural  usefulness  of  the 
animal  for  the  purpose  for  which  he  is  used,  as,  for  in- 
stance, if  a  Horse  had  a  slight  Pimple  on  his  skin,  it  would 
not  amoimt  to  Unsoundness ;  but  even  if  such  a  thing  as  a 
Fbnple  were  on  some  part  of  the  body  where  it  might  have 
that  effect,  for  instance,  on  a  part  which  would  prevent 
the  putting  a  saddle  or  bridle  on  the  animal,  it  would  be 
different." 

It  is  a  question  for  the  Jury  whether  the  Horse  in  such  Question  for 
case  is  fit  for  immediate  use.  Thus,  where  an  action  was  *^®  '^^^^'^'' 
brought  for  the  price  of  a  Horse  warranted  sound,  and 
the  defendant  endeavoured  to  show  that  he  had  a  tender 
place  on  his  neck,  which  when  touched  made  him  plunge, 
it  being  situated  where  the  mane  is  usually  grasped  by  a 
person  when  mounting,  and  that  he  was  therefore  unsafe 
and  unfit  for  use  while  it  lasted ;  Mr.  Justice  Wightman 
summed  up  and  said  to  the  Jury,  "  I  take  your  opinion 
whether  you  are  satisfied  that  the  Horse  when  put  into 
the  defendant's  stable  was  rendered  unfit  for  immediate 
use  to  an  ordinary  person  on  account  of  some  disease." 
The  Jury  held  that,  when  delivered,  he  was  quite  fit  for 
present  use  (/). 

Salienders  constitute  Unsoundness.     See  Mallenders  {ni).    Sallenders. 

Sander acli,  as  its  name  imports,  is  a  Crack  or  division  of  Sandcrack. 
the  hoof  downwards,  and  into  which  Sand  and  dirt  are  very 
apt  to  insinuate  themselves ;  or  it  is  so  called,  as  some  say, 
because  it  most  frequently  occurs  in  Sandy  districts,  the 
heat  of  the  sand  applied  to  the  feet  giving  them  a  disposi- 

(A)  Lib.  IT.   K.   "The  Horse,"  W.  670. 
169.  {I)    Ainslei/    v.     Broicn,     before 

(i)  The  same  principle  is  appli-  Mr.  Justice  "Wightman,  Newcastle 

csXAe  to  Bruised  Shoulder.  Spring  Assizes,  18-15. 

{k)  Eiddcll  V.  Burneird,   9  M.  &  {m)  See  Mallenders,  ante,  p.  94. 


102 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Scab. 


Statute  of 
Hen.  8. 


Shivering 


Shying. 


Shying  the 
result  of 
short-sight- 
edness. 


tion  to  crack.  It  occurs  both  in  the  fore  and  hind  feet, 
and  indicates  a  brittleness  of  the  crust,  which  is  sometimes 
natural,  but  oftener  the  consequence  of  mismanagement  or 
disease,  particularly  of  Fahc  Quarter  {n) ;  and  where  the 
horn  has  grown  down  whole,  but  leaves  a  narrow  strip  of 
horn  of  a  different  and  lighter  colour,  this  indicates  that 
there  has  been  a  Sandcracl-,  and  that  a  disposition  to  it  may 
possibly  remain  (o).  Sandcrack  is  an  Uii ■soundness  ;  but  as 
in  the  case  of  a  Cm*b  {})),  if  a  Horse,  without  any  indica- 
tion of  having  previously  had  the  disease,  throw  out  a 
ScDidcraeJc  immediately  after  sale,  it  is  )io  breach  of  a  war- 
ranty of  Sou)idness. 

The  Scab  is  a  disease  which  constitutes  a  breach  of  war- 
ranty of  Soundness,  and  there  is  a  form  of  declaration  in 
the  Liber  PlacifaHdi  {q),  in  a  case  where,  in  consequence  of 
the  existence  of  such  disease,  an  action  was  brought  on  a 
warranty  given  at  Leeds  in  1649. 

By  the  statute  32  Hen.  8,  c.  13,  s.  9,  intituled  "  The 
Bill  for  the  Breed  of  Horses,"  no  person  shall  have  or 
put  to  pasture  any  Horse,  Gelding  or  Mare  infected  with 
Scab  or  Mange,  in  any  Common  or  Common  Fields,  on 
pain  of  forfeiting  lO.S'.,  which  offence  shall  be  inquirable 
in  the  leet,  as  other  common  annoyances  be,  and  the  for- 
feiture shall  be  to  the  lord  of  the  leet.  This  statute  was, 
however,  repealed  by  the  19  &  20  Yict.  c.  64. 

Shicering  is  a  disease  known  among  the  London  Dray 
Horses.  The  Horse  constantly  shivers,  and  frequently 
cannot  lie  down ;  he  is  unable  to  back,  and  consec^uently 
can  only  be  used  in  the  team  and  not  in  the  shafts.  This 
would  no  doubt  be  a  breach  of  a  warranty  of  Soundness. 

Shoulder,  Bruised.     See  ante,  101,  n.  (?'). 

Shying  is  often  the  result  of  cowardice,  playfulness  or 
want  of  work.  Shying  on  coming  out  of  the  stable  is 
a  habit  which  proceeds  from  the  remembrance  of  some 
ill-usage  or  hurt,  which  the  animal  has  received  in  coming 
out  of  the  stable,  and  can  rarely  or  never  be  cured  (;•). 
When  confirmed,  it  is  a  bad  and  dangerous  habit,  and 
therefore  a  Vice. 

Shying  sometimes,  however,  results  from  defective  sight. 
An  unusual  convexity  in  the  formation  of  the  cornea  of 
the  eye  will  produce  short-sightedness,  and  if,  as  is  often 


(«)  False-quarter,  ante,  p.  88. 
(o)  Lib.  U.  K.    "The  Horse," 
301. 

(p)  Curb,  ante,  p.  85. 


(q)  Lib.  Plac.  30. 
(r)  Lib.  U.   K.    "The   Horse," 
344. 


DISEASES,  DEFECTS,  ETC.  103 

the  case,  tliere  is  thereby  iuduced  a  habit  of  shying,  such 
shying  is  an  Unsoundness,  although  there  is  no  disease,  and 
although  it  is  the  natural  result  of  a  congenital  malforma- 
tion of  the  eye  {s). 

Side-bones  is  the  same  disease  as  Ossification  of  the  carti-  Side-bones. 
lages(i^).     A  lameness  is  caused,  which   is  removed   by 
absolute  rest  for  a  length  of  time,  but  quick  work  on  a 
hard  road  soon  brings  it  back  again.     It  is  an  Unsoundness, 
whether  it  produces  lameness  or  not  (u). 

Many  Horses  are  very  clever  at  Slipping  the  collar  at  Slipping  the 
night ;  they  gorge  themselves  with  food,  and  run  the  risk  '^°ll^'^^"- 
of  being  kicked  and  lamed  by  other  Horses  {v) .     As  this 
may  be  prevented  either  by  carefully  and  accurately  fixing 
his  collar,  or  by  keeping  him  in  a  loose  box,  it  cannot  in 
practice  be  considered  a  Vice. 

Spavin  is  an  Unsoundness.    See  Blood  and  Bog-spavin  («'),  Spa\an. 
and  Bone-spavin  (x). 

The  inside  of  the  leg,  immediately  under  the  knee,  and  Speedy-cut. 
extending  to  the  head  of  the  inner  splint-bone,  is  subject 
to  injury  from  what  is  termed  the  Speed //-cut,  which  takes 
place  when  a  Horse  with  high  action,  and  in  the  fast  trot, 
violently  strikes  this  part  either  with  his  hoof,  or  the  edge 
of  his  shoe.  Sometimes  a  bony  enlargement  is  the  result ; 
at  others,  great  heat  and  tenderness ;  and  the  pain  from 
the  blow  seems  occasionally  to  be  So  great,  that  the  Horse 
drops  as  if  he  were  shot  (//).  Speed ij-cut,  like  Cutting  (;:), 
is  the  consequence  of  defective  shape ;  and  therefore, 
where  a  Horse  is  sound  at  the  time  of  sale,  lameness  from 
a  Speed//-cut  immediately  afterwards  is  no  breach  of  a 
Warrant//  of  Soundness. 

A  Splint,  like  a  Bone-spa L-i)i  (a),  is  an  excrescence  or  Splint. 
bony  deposit  on  the  leg  of  a  Horse,  and  the  danger  in 
both  cases  is  the  probability  of  their  interfering  with  his 
action ;  the  Bone-sparin,  by  preventing  the  proper  ilexion 
of  the  joint,  and  the  Splint,  by  pressing  on  the  sinews  of 
the  leg.  Lameness  is  thus  produced  by  each  ;  by  Bone- 
spavin  nearly  always,  by  a  Spjlint  sometimes.  It  entirely 
depends  on  the  situation  of  the  bony  tumour  on  the  inside 

(?)  RoJidaij  y.  Morgan,  28  L.  J.,  («)  Blood  and  Bog-spavin,  ante, 

Q.  B.  9.     See  ante,  p.  71.  p.  77. 

{t)  Ossification  of  the  Cartilages,  {x)  Bone-spavin,  ante,  p.  77. 

ante,  p.  96.  (y)  Lih.   U.   K.    "The  Horse," 

(«)  Simpson  V.  Fotts,  Appendix.  245. 

\v)  Lib.  U.   K.    "The   Horse,"  {--)  Cutting,  ante,  p.  87. 

344.  [ft)  Bone-spavin,  ante,  p.  77. 


104 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Decision  on 
the  subject. 


Sprain  and 
Thickening 
of  the  Back 
Sinews. 


of  the  shank-bone,  whether  a  Splint  is  to  be  considered 
an  Unsoundness  {b).  If  it  is  not  in  the  neighbourhood  of 
any  joint,  so  as  to  interfere  with  its  action,  and  if  it  does 
not  press  upon  any  ligament  or  tendon,  it  can  be  no 
cause  of  Unsoundness.  And  although  it  is  often  very 
unsightly,  it  does  not  lessen  the  capabilities  and  value  of 
the  animal  (e) . 

In  an  action  on  the  Warranty  of  a  Horse  "to  be  sound 
wind  and  limb  at  this  time,"  the  breach  of  which  was 
lameness,  produced  by  a  Splint,  it  was  given  in  evidence 
that  a  Splint  might  or  might  not  be  the  efficient  cause  of 
lameness,  according  to  its  position,  its  size  and  extent ; 
that  the  Splint  in  this  instance  was  in  a  very  bad  situation, 
as  it  pressed  upon  one  of  the  sinews  of  the  leg  and  was 
calculated  to  produce,  when  the  Horse  was  worked,  inflam- 
mation of  the  sinew  and  consequent  lameness. 

Lord  Chief  Justice  Tindal  said,  "  It  now  appears  that 
some  Splints  cause  lameness  and  others  do  not,  and  that 
the  consequences  of  a  Splint  cannot  be  apparent  at  the 
time,  like  those  of  the  loss  of  an  eye  or  any  other  blemish 
or  defect  visible  to  a  common  observer.  We  therefore 
think  that  by  the  terms  of  this  written  warranty,  the  par- 
ties meant  that  this  was  not,  at  that  time,  a  Splint  which 
would  be  the  cause  of  future  lameness,  and  that  the  Jury 
have  found  that  it  was.  We  therefore  think  that  the 
Warranty  was  hrohen"  {d). 

The  Back  Sinews  are  inclosed  in  a  sheath  of  dense  cellu- 
lar substance,  to  confine  them  in  their  situation  and  to 
defend  them  from  injury.  Between  the  tendon  and  the 
sheath  there  is  a  mucous  fluid  to  prevent  friction ;  but 
when  the  Horse  has  been  overworked,  or  put  to  sudden 
and  violent  exertion,  the  tendon  presses  upon  the  delicate 
membrane  lining  the  sheath,  inflammation  is  produced, 
and  a  different  fluid  is  thrown  out,  which  coagulates,  and 
adhesions  are  formed  between  the  tendon  and  the  sheath, 
and  the  motion  of  the  limb  is  more  difficult  and  painful. 
At  other  times,  from  violent  or  long-continued  exertion, 
some  of  the  fibres  which  tie  the  tendons  down  are  ruptured. 


{b)  See  App.  to  Lib.  U.  K.  Ed. 
1862,  524,  where  Professor  Spooner 
gives  it  as  his  opinion  that  situation 
has  less  to  do  with  the  lameness 
occasioned  by  splint  than  the  cha- 
racter of  the  sphnt.  He  considers 
that  the  test  of  its  being  an  un- 
soundness or  not  is,  whether  there 


is  tenderness  or  not  on  its  being 
pressed. 

{(■)  Lib.  IT.  K.  "The  Horse," 
365. 

{(1)  3[argetsoH  v.  Wright,  1  M.  & 
So.  622.  See  also  Smith  v.  O^Brien, 
11  L.  T.,  N.  S.  316;  and  post, 
pp.  136,  137. 


DISEASES,  DEFECTS,  ETC.  105 

A  slight  injury  of  this  nature  is  called  a  Sprain  of  the  hack 
sinews  or  tendons,  and  when  it  is  more  serious  the  Horse  is 
said  to  have  Broken  cloicn{e). 

A  Thickening  of  the  back  sinews,  which  indicates  a  pre- 
vious and  violent  sprain,  is  an  Unsoundness,  because  an 
alteration  of  structure  has  taken  place,  which  must  impair 
the  natural  usefulness  of  the  Horse. 

When  the  muscle,  whose  office  it  is  to  raise  the  neck  and  Star-gazer. 
elevate  the  head,  is  too  powerful  in  its  action,  the  top  of 
the  Horse's  head  is  pulled  hack  and  the  muzzle  protruded, 
the  Horse  cannot  possibly  carry  his  head  well ;  he  is  what 
is  technically  called  a  Star-gazer,  heavy  in  hand,  boring 
upon  the  bit  and  unsafe. 

Inseparable  from  this  is  another  sad  defect,  so  far  as  the  Ewe-necked, 
beauty  of  the  Horse  is  concerned ;  he  is  Ewe-necked,  that 
is,  he  has  a  neck  like  a  ewe,  hollowed  above,  projecting 
below,  and  the  neck  rises  low  out  of  the  chest,  sometimes 
lower  even  than  the  points  of  the  shoulders  (/).  These 
being  defects  in  the  formation  of  a  Horse  are  neither  Un- 
soundness nor  Vice. 

Strangles  are  peculiar  to  young  Horses,  almost  all  of  Strangles. 
which  have  it  once.  It  is  quite  different  from  Grlanders  (g), 
though  they  have  sometimes  been  confounded.  In  its 
early  stage  it  resembles  a  common  cold  and  is  accompanied 
with  sore  throat.  It  is  not  dangerous,  and  is  Unsoundness 
onJi/  during  the  time  the  Horse  is  ill  with  it  (A). 

String-halt  is  a  singular  and  very  unpleasant  action  of  String-halt. 
the  hind  leg,  arising  from  an  irregular  communication  of 
nervous  energy  to  some  muscle  of  the  thigh,  observable 
when  the  Horse  first  comes  out  of  the  stable,  and  gradually 
ceasing  on  exercise.  It  is  probably  so  called  from  its  re- 
semblance to  the  sort  of  "halt"  produced  by  a  "string" 
tied  to  the  leg  of  a  pig,  and  held  in  the  hand  of  the  person 
driving  it.  It  has  often  been  found  in  those  Horses  that 
have  a  more  than  common  degree  of  strength  and  endur- 
ance, and  is  almost  entirely  confined  to  well-bred  Horses  (/) . 

There   has   always,  until   lately,  been   a  difference  of  Held  to  be 
opinion  whether  String-halt  constitutes  Unsoundness ;  how-  anXJnsound- 
ever,  in  Thompson  v.  Patteson  it  was  held  to  be  so,  and  as  ^®^^" 
the  case  has  not  been  reported,  it  will  now  be  given  at 
some  length.     It  was  tried  before  Mr.  Justice  Cresswell 

{e)  Lib.   U.   K.   "The  Horse,"  (A)  Lib.   U.  K.   "The  Horse," 

246.  123  ;  Story  on  Contracts,  309. 

(/)  Ibid.  155.  {i)  Lib.  U.  K.   "  The  Horse," 

[g)  Glanders,  ante,  p.  89.  365. 


106  WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 

at  the  Liverpool  Summer  Assizes,  1846,  and  was  an  action 
of  Assumpsit  on  the  warranty  of  a  Horse,  the  breach  of 
which  was  Wilremhauncli  or  ^tring-Jialt  and  Spavin. 

The  pLaintiff  and  defendant  were  both  Horsedealers, 
and  it  appeared  that  the  plaintiff  met  the  Horse  in  ques- 
tion coming  to  Chester  Fair,  and  at  that  time  there  was  a 
kick  apparent  on  one  hock.  The  plaintiff  mounted  and  , 
tried  him,  but  said  he  had  got  a  String-halt ;  this  the  de- 
fendant denied,  saying  there  was  nothing  but  the  previous 
kick.  The  horse  was  eventually  bought  for  52/.,  the  de- 
fendant warranting  him  "sound,  except  a  kick  on  the 
hock."     The  Horse  was  String-halted  on  both  legs. 

Veterinary  Surgeons  and  other  witnesses  were  called  on 
both  sides,  who  all  agreed  that  there  was  String-halt,  but 
differed  in  their  opinion  as  to  the  existence  of  a  Spavin. 

To  prove  String-halt  unsoundness,  Mr.  Howarth  of  Man- 
chester, a  Veterinary  Surgeon,  described  it  to  be  a  spasmodic 
affection  of  the  ahdndor  muscle  of  the  hind  leg,  a  nerve 
coming  through  the  trunk  being  affected.  He  said  that  a 
Horse  affected  by  it  loses  his  condition  and  is  not  able  to 
do  so  much  work. 

Mr.  Ellis,  of  Liverpool,  a  Veterinary  Surgeon,  stated 
that  String-halt  is  a  disease  of  the  sciatic  nerve,  rendering 
a  Horse  less  fit  for  work  and  impeding  him  in  backing, 
and  that  he  had  practical  experience  showing  it  to  be  a 
disease. 

Mr.  Bretherton,  of  Liverpool,  a  Veterinary  Surgeon  of 
twenty-four  years'  practice,  said  that  String-halt  is  caused 
by  pressure  on  the  sciatic  nerve,  that  it  increases  by  work, 
and  is  Unsoundness.  He  had  seen  Horses  become  quite 
useless  from  it,  but  that  more  aggravated  cases  were  seen 
in  the  country  than  any  submitted  to  the  Veterinary  Col- 
lege. He  had  seen  Ilorses  in  his  father's  stables  quite 
useless  from  it,  but  that  at  first  it  is  only  observable  when 
the  Horse  is  turning  round. 

The  defendant  called  Mr.  Gregson,  a  Veterinary  Sur- 
geon, who  had  attended  the  Horse,  and  did  not  consider 
String-halt  Unsoundness.  But  on  being  cj^uestioned  by 
the  Judge  he  admitted  that  it  frequently  gets  worse,  and 
that  when  very  bad  it  impedes  the  action  of  the  Horse, 
making  him  less  competent  for  work. 

Mr.  Taylor,  another  Veterinary  Surgeon,  said  that 
String-half  does  not  impair  a  Horse's  condition.  He 
had  examined  the  Horse  in  question  and  considered  him 
Sound. 


DISEASES,  DEFECTS,  ETC.  107 

Upon  this  his  Lordship  said,  "  It  is  a  question  for  the 
Jury  whether  String-half  produces  those  effects  which  in 
the  eye  of  the  law  renders  him  Unsound."  And  in  sum- 
ming up  shortly  afterwards  his  Lordship  said  to  the  Jury, 
"  You  have  heard  the  evidence  as  to  Strincj-halt ;  if  you 
are  satisfied  that  it  is  a  disease  calculated  to  impair  the 
natural  usefulness  of  the  Horse  you  must  find  for  the 
plaintiff,  it  being  admitted  that  the  Horse  had  it."  The 
Jury  found  a  verdict  for  the  plaintiff. 

For    Thicliening   of   the   Back    Sinews   see   Sprain    and  Thickening 
Thickening  of  the  Back  Sinews  (/.:) .  _        Sinews^"""^ 

Thick-wind  consists  of  short,  frequent  and  laborious  -Ph'  1  "  '  l 
breathings,  especially  when  the  Horse  is  in  exercise ;  the 
inspirations  and  expirations  often  succeeding  each  other 
so  rapid  as  evidently  to  express  distress,  and  occasionally 
almost  to  threaten  suffocation.  Some  degree  of  it  fre- 
quently exists  in  round- chested  and  fat  Horses,  and  heavy 
draught -horses  are  almost  invariably  Thick-winded,  aud 
so  are  almost  all  Horses  unused  to  exercise  or  violently 
exercised  on  a  full  stomach.  The  principal  cause,  how- 
ever, of  Thick-wind  is  previous  inflammation,  and  par- 
ticularly inflammation  of  the  bronchial  passages.  Thick- 
wind  is  often  the  forerunner  of  Broken- wind  (/),  and 
when  it  proceeds  from  inflammation  it  is  an  Unsound- 
ness {m). 

Thinness  of  Sole  which  does  not  afford  sufficient  pro-  Thinness  of 
tection  to  the  inner  or  sensible  sole  makes  a  Horse  liable  to  ^'-•1<'- 
lameness. 

In  a  case  tried  at  Liverpool  before  Mr.  Justice  Cress-  Held  not  an 
well,  it  appeared  that  a  Horse,  whose  feet  were  Thin-  "linsoimdness. 
soled,  was  sold  warranted  sound.  Some  time  after  sale 
he  went  lame,  and  an  action  was  brought  on  the  warranty. 
Witnesses  were  called  for  the  defendant,  who  stated  that 
the  mere  fact  of  a  Horse's  feet  being  formed  in  this 
manner  would  not  of  itself  render  him  Uisound.  And 
Mr.  Justice  Cress  well  in  summing  up  said,  "  The  plaintiff 
must,  in  order  to  recover  in  this  action,  make  out  that  the 
Horse  was  Unsound  at  the  time  of  sale ;  a  defective 
formation,  however,  not  producing  lameness  at  the  time 
of  sale,  is  not,  in  my  opinion.  Unsoundness."  His  lordship 
then  referred  to  the  case  of  Brown  v.  Elkington  {n),  where 

{k)  Sprain  and  Thickening  of  the  193  ;  Atlcinson  v.  Eorridge,  Appen- 

Back  Sinews,  ante,  p.  104.  dix. 

[1)  Broken-Avind,  ante,  p.  78.  («)  Brown  v.  Elkington,   8  M.   & 

(w)  Lib.  U.  K.  "The  Horse,"  W.  132. 


108 


WHAT  DISEASES  CONSTITUTE  UNSOUNDNESS  OR  VICE. 


Lord  Abinger,  C.  B.,  held  that  Curby-liocks  (o)  not 
producing  lameness  at  the  time  of  sale  were  not  a  breach 
of  warranty  of  soundness,  though  a  Curb  was  afterwards 
thrown  out.  And  his  lordship  then  said,  "  This  case 
shows  that  the  mere  fact  of  the  Horse  in  question  being 
Thin-soled  at  the  time  of  sale,  is  not  sufficient  to  constitute 
a  Breach  of  the  warranty  of  Soundness ;  and  therefore 
unless  you  are  of  opinion  that  that  peculiar  formation  had 
produced,  at  the  time  of  sale,  actual  lameness,  you  will 
find  for  the  defendant,"  which  the  Jury  accordingly 
did(i;). 

ThoroughpLn.  In  the  neighbourhood  of  the  joints  are  several  bags, 
containing  a  mucous  fluid,  for  the  purpose  of  lubricating 
the  parts,  and  these  sometimes  become  inflamed  and  en- 
larged, as  in  Wind-galls  {q).  A  similar  enlargement  is 
found  above  the  hock,  between  the  flexor  of  the  foot  and 
the  extensor  of  the  hock,  on  both  sides  of  which  it  pro- 
jects in  the  form  of  a  round  swelling.  It  is  called  a 
Thoronghpln,  and  is  an  indication  of  considerable  work, 
but,  unless  it  be  of  great  size,  it  is  rarely  attended  with 
lameness  ((/).  It  constitutes  Unsoundness  when  it  causes 
lameness,  or  perhaps  when  it  is  so  large  as  to  render  it 
likely  that  lameness  will  soon  ensue ;  however,  in  such  a 
case  it  would  be  very  conspicuous,  and  a  special  warranty 
against  it  had  better  be  taken. 

Thrush.  A  TJtrush  is  the  inflammation  of  the  lower  surface  of 

the  inner  or  sensible  frog,  and  the  secretion  or  throwing 
out  of  pus,  almost  invariably  accompanied  by  a  slight 
degree  of  tenderness  of  the  frog  itself,  or  of  the  heel  a 
little  above  it,  and  if  neglected,  leading  to  diminution  of 
the  substance  of  the  frog,  and  separation  of  the  horn  from 
the  parts  beneath,  and  the  production  of  fungus  and 
Canker  (r),  and  ultimately  a  diseased  state  of  the  foot, 
destructive  of  the  present  and  dangerous  to  the  future 
usefulness  of  the  Horse  (s).  A  Thrush  is  an  Unsound- 
ness. 

TrippiBg.  Tripping  arises  from  a  heavy  forehead,  and  from  the 

fore  legs  being  too  much  under  the  Horse,  so  that,  like 
Cutting  (;*),  it  is  a  consequence  of  malformation;  it  also 
may  indicate  tenderness  of  the  foot,   Grrogginess  (?<),  or 


(o)  Ciu-by-hocks,  ante,  p.  86. 

{p)  Bailey  v.  Forrest,  2  C.  &  K. 
131. 

{q)  Lib.  U.  K.  "The  Horse," 
265. 


(>■)  Canker,  ante,  p.  79. 
(*)  Lib.   IT.  K.   "The  Horse," 
3G6. 

{t)  Cutting,  ante,  p.  87. 
(«)  Grogginess,  ante,  p.  90. 


DISEASES,  DEFECTS,  ETC.  109 

old  lameness  (tr).  As  it  arises  from  such  causes  it  cannot 
be  called  a  bad  habit,  and  is  therefore  not  a  Vice,  but  in 
some  cases  it  indicates  an  alteration  of  structure. 

A  great  many  Horses,  perfectly  quiet  in  other  respects,  Vicious  to 
are  Vicious  to  clean,  and  this  probably  is  the  consequence  clean, 
of  great  sensibility  in  the  skin,  and  of  maltreatment  at 
some  time  or  other ;  and  although  it  may  be  gradually 
overcome  by  kindness  {a),  yet,  when  it  exists  in  such  a 
degree  as  to  be  dangerous,  it  is  a  Vice. 

The  same  may  be  said  of  being  Vicious  to  sJioe  as  where  Vicious  to 
a  Horse  is  Vicious  to  clean,  except  that  it  is  much  less  shoe, 
common;  however,  when  it  is  dangerous  to  shoe  such  a 
Horse,  he  must  be  considered  to  have  a  Vice  (i/) . 

Horses  perfectly  white  or  cream-coloured  have  the  iris  Wall-eyed. 
icJiite  and  the  pujv'l  red.  When  Horses  of  other  colours, 
and  they  are  usually  pied  ones,  have  a  ickife  iris  and  a 
black  pupil,  they  are  said  to  be  Wall-eyed.  Yulgar 
opinion  has  decided  that  a  Wall-eijed  Horse  is  never 
subject  to  blindness,  but  this  seems  altogether  erroneous, 
as  there  appears  to  be  no  difference  of  structure  which  can 
produce  this  exemption  {z) . 

As  to  Warbles  see  Saddle-galls  {a).  Warbles. 

Warts  are  tumours  of  variable  size,  arising  first  from  the  Warts. 
cuticle,  and  afterwards  connected  with  the  true  skin  by 
means  of  the  vessels  which  supply  the  growth  of  the 
tumours.  They  are  found  sometimes  on  the  eyelids,  on 
various  parts  of  the  skin,  and  on  the  prepuce  (b).  Unless, 
however,  they  exist  to  such  an  extent  as  to  impede  any  of 
the  natural  functions,  or  in  such  a  situation  as  to  prevent  a 
saddle,  bridle,  or  harness  being  put  on  a  Horse,  they  are 
not  Unsoundness  (c). 

For  Water-farcy  see  Farcy  [d).  Water-farcy. 

Weak-foot  often  arises  from  disease,  but  in  many  in-  Weak-foot, 
stances  from  the  natural  construction  of  the  foot.  In  the 
slanting  of  the  crust  from  the  Coronet  to  the  toe,  an  angle 
is  formed,  amounting  probably  to  not  more  than  forty 
instead  of  forty-five  degrees  ;  and  after  the  horse  has  been 
worked  for  a  year  or  two,  the  line,  instead  of  being 
straight,  becomes  a  little  indented  or  hollow  midway 
between  the  Coronet  and  the  toe.     Horses  with  these  feet 

(«')  Lib.  U.  K.  "The  Horse,"  {a)  Saddle-galls,  ante,  p.  100. 

344.  [b)  Lib.  U.  K.   "The  Horse," 

{x)  Ibid.  338.  381. 

(V)  See  Lib.  U.  K.  "The  Horse,"  (c)  Kiddell  v.  Burnard,  9  M.  &  W. 

App.  Ed.  1862,  521.  G70. 

{:)  Ibid.  93.  {il)  Farcy,  ante,  p.  88. 


110 


WHAT  DISEASES  CONSTITLTE  UNSOUNDNESS  OR  VICE. 


Weaving'. 


Wlieezliio". 


AVliistling'. 


Wilrem- 
haunch. 

"Wind- galls. 


can  never  stand  miicli  work.  They  will  be  subject  to 
Corns  {('),  to  Bruises,  to  Convexity  of  the  sole,  to  Punctures 
in  nailing,  to  breaking  away  of  the  Crust,  to  Inflammation 
of  the  foot,  and  to  Sprain  and  injury  of  the  pastern,  the 
fetlock,  and  the  flexor  tendon  (/).  When  it  is  the  result 
of  disease,  it  is  such  an  alteration  of  structure  as  constitutes 
UnsoKudiicss. 

Wearing  is  a  motion  of  the  head,  neck  and  body  from 
side  to  side,  like  the  shuttle  of  a  weaver  passing  through 
the  web,  and  hence  the  name  given  to  this  peculiar  and 
incessant  action.  It  indicates  an  impatient,  irritable 
temper,  and  a  dislike  to  the  confinement  of  the  stable ;  a 
Horse  which  is  thus  incessantly  on  the  fret  ^\^\\.  seldom 
carry  flesh,  or  be  safe  to  ride  or  drive  {g).  This  being  a 
bad  habit  is  a  Vice,  when  it  either  injures  a  Horse's 
health,  or  makes  him  dangerous. 

The  Wheezer  utters  a  sound  not  unlike  that  of  an 
asthmatic  person  when  a  little  hurried.  This  is  a  kind  of 
Thick- wind  {It),  caused  by  the  lodgment  of  some  mucous 
fluid  in  the  small  passages  of  the  lungs,  and  it  frequently 
accompanies  Bronchitis.  Wheezing  can  be  heard  at  all 
times,  even  when  the  Horse  is  at  rest  in  the  stable,  and 
thus  differs  from  Roaring  (?),  which  is  confined  to  the  in- 
creased breathing  during  considerable  exertion  (/r).  It  is 
an  U) isoundn ess  ( /) . 

The  Whistler  utters  a  shriller  sound  than  the  Wheezer, 
but  only  when  in  exercise,  and  that  of  some  duration,  as 
a  sudden  motion  will  not  always  produce  it.  It  seems  to 
be  referable  to  some  contraction  in  the  windpipe  or 
larynx.  The  sound  is  a  great  nuisance  to  the  rider,  and 
the  Wliistler  very  speedily  becomes  distressed  {m) .  This 
is  an  Unsoundness  {n). 

WilremJiauneh  is  the  Lancashire  name  for  String-halt  (o). 

There  are  few  Horses  perfectly  free  from  Wind-galls, 
but  they  do  not  interfere  with  the  action  of  the  fetlock  or 
cause  lameness,  except  when  they  are  numerous  or  large. 
Like  Thoroughpin  {p),  they  do  not  constitute  Unsoundness 
unless  they  cause  lameness,  or  perhaps  when  they  are  so 


{e)  Corns,  ante,  p.  81.  [l)   Onsloiv  v.  Eames,  2  Stark.  N. 

(/)  Lib.  U.  K.   "The  Horse,"  P.  C.  81. 

310.  (w)  Lib.  U.  K.  "The  Horse," 

{g)  Ibid.  345.  196. 

(//)  Thick-wind,  ante,  p.  107.  (w)  Onshiu  v.  Eames,  2  Stark.  N. 

(i)  Roaring,  ante,  p.  99.  P.  C.  81. 

(/.)  Lib.   U.   K.   "The  Horse,"  (o)  String-halt,  ante,  p.  105. 

190.  [p)  Thoroughpin,  ante,  p.  108. 


DISEASES,  DEFECTS,  ETC.  Ill 

large  and  numerous  as  to  make  it  likely  tliey  will  soon 
cause  it  (^). 

In  an  action  wliicli  was  brought  on  the  warranty  of  a 
Horse,  the  breach  of  which  was  Wind-galls,  a  verdict 
was  found  for  the  plaintiff  (>•).  The  Wiiul-fjalls  had  pro- 
bably produced  lameness,  as  there  appeared  not  to  have 
been  any  dispute  about  the  Unsoundness,  but  only  about 
the  form  of  action. 

Wind-sucMng  bears  a  close  analogy  to  Crib-biting  (s)  ;  it  Wind-suck- 
arises  from  the  same  causes,  and  the  same  results  follow,  ^^s- 
The  Horse  stands  with  his  neck  bent,  his  head  drawn  in- 
Avard,  his  lips  alternately  a  little  opened  and  then  closed, 
and  a  noise  is  heard  as  if  he  were  sucking  [t) .    It  is  a  Vice. 

In  some  few  instances  the  second  teeth  do  not  rise  im-  Wolf's  tootli. 
mediately  under  the  temporary  or  middle  teeth,  but  some- 
what by  their  side.  The  tootli  is  pushed  out  of  its  place 
to  the  fore  part  of  the  first  grinder,  and  remains  for  a  con- 
siderable time  under  the  name  of  a  Wolfs  tooth,  causing 
swelling  and  soreness  of  the  gums,  and  frequently  wound- 
ing the  cheeks.  This  is  easily  remedied  by  drawing  the 
tooth  (?^),  and  though  an  Unsoundness  while  it  lasts,  no 
dispute  would  be  likely  to  arise  in  practice  respecting  it. 

The  Yellows,  otherwise  the  Jaundice,  is  the  introduction  Yellows. 
of  bile  into  the  general  circulation,  and  which  is  usually 
caused  by  some  obstruction  in  the  ducts  or  tubes  which 
convey  the  bile  from  the  liver  to  the  intestines.  It  ex- 
hibits itself  by  a  yellowness  of  the  eyes  and  mouth,  and 
any  part  of  the  skin  not  covered  with  hair  (.r) .  It  is,  while 
it  lasts,  an  Unsoundness. 

{q)  Lib.  U.  K.   "The  Horse,"  340. 

366.  (k)  Lib.  U.  K.   "The  Horse," 

(>•)  Stziart  V.  JFiUcins,  Doug.  18.  140.     See,    however,    Lib.    U.   K. 

14  Crib-biting,  ante,  p.  84.  App.  Ed.  1862,  487. 

(0  Lib.  U.   K.   "The   Horse,"  {x)  Ibid.  213. 


(     112    ) 


CHAPTER  V. 

WARRANTY  ;    SALE    AND    WARRANTY    BY    AN    AGENT  ;    AND 
PATENT   DEFECTS. 


Waeeanty. 

Waryantij  required  in  biii/biff  a 
Horse 113 

Warranty  of  Title id. 

Not  implied  by  Law  of  England .     id. 

Ilmv  it  may  be  inferred    id. 

Rule  of  Law  11-1 

Where  the  Consideration  fails  ..     id. 

3Iode  of  trying  a  disputed  Title    id. 

Reason  for  requiring  a  Warranty  115 

Layer  should  protect  himself  by 
one 116 

What  constitutes  a  Warranty  . .     id. 

Article  named  in  a  Sold  Note  . ,     id. 

Buyer  entitled  to  Article  com- 
mercially knoicn  by  the  Name.    id. 

A  Sound  Price  not  tantamount 
to  a  Warranty   117 

A  General  Warranty    id. 

A  Qualified  Warranty id. 

A  Limited  Warranty    id. 

A  Special  Warranty 118 

A  Written  Warranty   id. 

A  Special  Agreement     id. 

Form  of  Warranty     id. 

Effect  of  a  Written  Warranty.,     id. 

Warranty  may  be  gathered  from 
Letters     119 

The  Parties  are  bound  by  it  alone    id. 

It  cannot  be  extended  by  Lmplica- 
tion id. 

A  Warranty  is  Several  though 
the  Contract  be  entire     id. 

A  Warranty  applies  to  the  Time 
of  Sale     id. 

Warranting  a  future  Event  ....    120 

Buying  for  a  particular  Purpose    id. 

Must  be  reasonably  Jit  for  the 
Purpose id. 

A  Carriage  Horse 121 

Latent  undiscoverable  Defects    , .     id. 

Quiet  in  Harness    id. 

Unfitness  must  be  clearly  proved.  122 

General  Rule id. 

Warrantor'' s  Liability 123 

Sale  avoided  by  Fraud id. 


Sale  and  Waeeanty  by  an  Agent. 

An  Agent  cannot  delegate  his 
Authority 123 

Nor  exceed  it 124 

Agency  determines  by  PrincipaVs 
Death id. 

Difference  between  a  remunerated 
and  an  unremunerated  Agent .    id. 

Agent  acting  ivithout  proper  Au- 
thority         id. 

His  Personal  Responsibility  ....     id. 

Where  he  cannot  be  sued  on  the 
Contract id. 

But  is  liable  in  Damages 125 

Principal  answerable  for  his 
Fraud id. 

Misrepresentation  collateral  to 
the  Contract    id. 

Damage  caused  by  his  Negligence    id. 

Undisclosed  Principal    id. 

Person  described  as  Agent  may  be 
proved  to  be  Principal   12G 

Principal  cannot  be  proved  to  be 
an  Agent    127 

Their  respective  Rights  of  Action 
on  a  Contract id. 

Warranty  by  a  Servant  as  Spe- 
cial Agent id. 

Warranty  by  a  Servant  as  Gene- 
ral Agent    128 

Evidence  of  Usage  not  to  icar- 
rant     130 

Warranty  by  a  Servant  after 
Sale     id. 

Warranty  by  a  Servant  forbid  to 
give  one id. 

Warranty  by  a  Stranger  forbid 
to  give  one 131 

Master  unwilling  to  stand  by  his 
Servant's  Warranty id. 

Rule  as  to  a  Servant  binding  his 
Master     132 

Warranty  by  a  Person  entrusted 
to  deliver id. 

Agent  employed  to  take  a  War- 
ranty       id. 

Action  against  a  pretended  Agent    id. 


WARRANTY.  113 


Patent  Defects. 

Kot  covered  hy  a  Warranty  ....  133 

In  xchat  they  consist id. 

How  far  the  loss  of  an  Eye  is 

patent id. 

"  Briffht  JEye" 134 

Convexity  of  Eye   id. 


Where  the  Buyer  knows  the  De- 
fect    134 

Where  Defects  are  discussed  ....  id. 
Conclusion  to  be  drawn  from  the 

Cases   136 

Suspected  Defects    137 

Furchase  without  Inspection ....  id. 


WARRANTY. 

In  buying  a  Horse,  as  well  as  in  making  an  Exchange,  Warranty 
the  maxim  caveat  emptor  is  the  Rule  of  law,  and  a  party  required  m 
who  has  got  an  unsound  Horse  has  in  neither  case  any  HOTget 
remedy  unless  there  be  evidence  either  of  express  Warranty 
or  of  Fraud.     For  in  the  general  sale  of  a  Horse  the  seller 
only  warrants  it  to  be  an  animal  of  the  description  it  ap- 
pears to  be,  and  nothing  more  ;  and  if  the  purchaser  makes 
no  inquiries  as  to  its  soundness  or  qualities,  and  it  turns 
out  to  be  unsound  or  restive  or  unfit  for  use,  he  cannot  re- 
cover as  against  the  seller,  as  it  must  be  assumed  that  he 
purchased  the  animal  at  a  cheaper  rate  {a). 

According  to  the  Roman  law  ib),  and  in  France  (c)  and  Warranty  of 
Scotland,  and  partially  in  America  {d),  there  is  always  an  *^*^^- 
implied  contract  that  the  vendor  has  the  right  to  dispose 
of  the  article  which  he  sells. 

But  by  the  law  of  England  there  is  no  implied  "War-  Not  implied 
ranty  of  title  in  the  contract  of  sale  of  a  personal  chattel ;  ^a^i^d^ 
and,  in  the  absence  of  fraud,  a  vendor  is  not  liable  for  a       ° 
defect  of  title,  unless  there  be  an  express  warranty,  or  an 
equivalent  to  it,  by  declaration  or  conduct ;  and  the  ques- 
tion in  each  case,  where  there  is  no  Warranty  in  express 
terms,  will  be,  whether  there  are  such  circumstances  as  to 
be  equivalent  to  such  a  Warranty  (e). 

But  a  wide  construction  has  been  put  upon  "  the  cir-  How  it  may 
cumstances  which  may  be  held  to  be  equivalent  to  an  ^^  inferred, 
express  Warranty."  Indeed  Lord  Campbell  has  said,  that 
if  by  the  law  of  England  the  maxim  caveat  emptor  applies 
on  a  sale  of  personal  property,  the  exceptions  have  well- 
nigh  eaten  up  the  rule  (/').  And  this  dictum  was  quoted 
with  approval  by  Erie,  C.  J.,  in  Eicholz  v.  Bannister  (g). 
Thus,  it  seems  that  executory  contracts  must  be  brought 

(«)  Jones  Y.  Bright,  3  M.  &  P.  175.  {e)  Per  Parke,  B.,  Morley  v.  At- 

[b]  Domat,  book  1,  tit.  2,   s.  2,  tenborough,    18    L.    J.,    Ex.     148  ; 
art.  3.  Eicholz  v.  Bannister,  11  Jur.,  N.  S. 

(c)  Code  Civil,  chap.  4.  s.  1,  art.  15. 

1603.  (/)  Sims  V.   Marryat,    17  Q.  B. 

((/)  1  John's  Rep.  274  (Amer.) ;  281. 

Story  on  Sales,  4th  Ed.  367.  [g)   11  Jur.,  N.  S.  15. 

O.  I 


114  warranty;  sale  axd  warranty  by  agent,  etc. 

witliin  the  excoption  {//).  And  a  Warranty  may  be  in- 
ferred from  usage  of  trade,  or  from  the  nature  of  the  trade 
"being  such  as  to  lead  to  the  conclusion  that  the  person 
carrying  it  on  must  be  understood  to  engage  that  the 
purchaser  shall  enjoy  that  which  he  buys  as  against  all 
persons  ;  as  where  articles  are  bought  in  a  shop  professedly 
carried  on  for  the  sale  of  goods  (/). 

Rule  of  la-n-.  Nevertheless  it  must  still  be  taken  as  a  rule  of  law, 
that,  with  regard  to  the  sale  of  ascertained  chattels,  there 
is  not  any  implied  warranty  of  either  title  or  quality, 
unless  there  are  some  circumstances  beyond  the  mere 
fact  of  a  sale,  from  which  it  may  be  imj)lied  (A-).  The 
case  of  Morley  v.  Attenhorough  (J),  recognized  and  affirmed 
by  subsequent  decisions  (/;?),  establishes  the  rule  with  re- 
spect to  title;  and  with  respect  to  quality  it  is  no  less  firmly 
established  {n).  And  in  a  more  recent  case  (o)  Mr.  Baron 
Martin  said,  "  That  in  his  view  of  the  law,  where  there  is 
no  Warranty,  the  rule  caveat  emptor  applies  to  sales,  and 
except  there  be  deceit,  either  by  a  fraudulent  concealment 
or  fraudulent  misrepresentation,  no  action  for  Unsoundness 
lies  by  the  vendee  against  the  vendor  upon  the  sale  of  a 
Horse  or  other  animal." 

Where  the  If  it  be  shown  that  it  was  the  understanding  of  both 

faiir'^^^^^^^^  parties,  that  the  bargain  should  be  put  an  end  to  if  the  pur- 
chaser should  not  have  a  good  title,  it  would  seem  that  the 
purchaser  may  recover  back  his  money  as  on  a  consideration 
which  has  failed  (/). 

Mode  of  try-        A  dispute  respecting  the  title  of  different  parties  to  a 


mg 
title 


a  disputed  j£orse  may  be  decided  by  an  interpleader  issue.     Thus,  a 

{h)  Morley    V.    Attcuhorouyh,    18  but  ouly  to  transfer  such  interest 

L.   J.,   Ex.    148  ;   EichoJz  v.  Bcoi-  as  he  might  have   in   the  chattel 

nister,    11    Jur.,    N.    S.    lo.     And  sold."    Aid  see  Campbell  on  Sales, 

Mr.  Benjamin,  in  his  work  on  Sales  328. 

(2nd  ed.  pp.  522,  .523),  goes  still  fur-  (/)   Sbn!<  \.  Marryaf,  17  Q.  B.  281. 

ther   and  says:    "The   exceptions  (A)  i^ff^/ v.  C'oHr/«-,  2  C.  B.,  N.  S. 

have  become  the  rule,  and  the  old  40  ;  Baguelcy  v.  Haivley,  L.  R.,  2 

rule  has  dwindled  into  the  excep-  C.   P.   625;  36  L.  J.,   C.  P.   328. 

tion,  by  reason,  as  Lord  Campbell  See  Broom's  Maxims,  4th  Ed.  768. 

said,  of  its  having  been  well-nigh  (/)  Morley  v.  Attcnborough,  18  L. 

eaten  away;"    and  then  proceeds  J.,  Ex.   148;    Eichohy.  Bannister, 

to  lay  do-rni  the  following  rule  as  in  11  Jur.,  N.  S.  15. 

accordance  with  these  cases,  viz.  :  (»i)  Hall  v.  Cornier,  2  C.  B.,  N". 

"A  sale  of  personal  chattels  implies  S.  40.     See  Broom's  Maxims,  4th 

an  affirmation  by  the  vendor  that  Ed.  768. 

the  chattel  is  his,  and,  therefore,  («)   Chanter  v.  Hopkins,  4  M.  & 

he  warrants  the  title,  unless  it  be  W.  399. 

shown   by   the  facts    and   circum-  (o)   Hill  v.  Balls,  2  H.  &  N.  304. 

stances  of  the  .sale  that  the  vendor  See  also  Oshorne  v.  Hart,  23  L.  T., 

did  not  intend  to  assert  ownership,  N.  S.  851 ;   19  W.  R.  331 — Ex. 


WAKKAXTY.  lie 

question  was  tried  wliether  certain  Race  horses  named  ^gis, 
Ninnyhammer,  and  War  Eagle,  were  the  property  of  the 
plaintiff  when  they  were  seized  in  execution  by  the  sheriff 
of  Cambridgeshire,  at  Newmarket,  under  a  fi.  fa.,  conse- 
quent on  a  judgment  obtained  by  the  defendant  against  a 
gentleman  named  Carew,  and  the  Jury  found  a  verdict  for 
the  plaintiff  (7;). 

But  an  interpleader  order  will  not  be  granted  where  the 
respective  claims  are  not  co-extensive.  Thus,  where  the 
defendant,  the  proprietor  of  a  Horse  Repository,  sold  there, 
by  public  auction,  a  Horse  to  the  plaintiff,  warranted  quiet 
to  ride  and  in  harness,  but  subject  to  a  condition  by  which, 
if  considered  by  the  buyer  incapable  of  working  from  any 
infirmity  or  disease,  it  might  be  returned  on  the  second 
day  after  the  sale,  and  the  matter  determined  by  veterinary 
surgeons  according  to  the  terms  provided  for  in  such  con- 
dition ;  and  the  horse  was  accordingly  returned  by  the 
plaintiff,  who  demanded  to  have  back  the  money  he  had 
paid  for  the  purchase,  and  this  being  refused  he  brought 
an  action  against  the  defendant  for  breach  of  warranty ; 
and  the  person  who  had  placed  the  Horse  at  the  Repository 
for  sale  claimed  of  the  defendant  the  proceeds  of  the  sale, 
stating  that  the  Horse  had  left  the  Repository  perfectly 
sound.  It  was  held  that  the  defendant  was  not  entitled  to 
an  interpleader  order  {q). 

The  reason  laid  down  for  requiring  a  Warranty  of  Reason  for 
soundness  in  buying  a  Horse  is,  that  it  is  well  known  ^umng  a 
they  have   secret   maladies   which   cannot  be   discovered  ^  ^' 

by  the  usual  trials  and  inspections,  and  that  a  Warranty 
prevents  the  piu'chaser  from  being  damnified  by  those 
latent  Defects  against  which  no  prudence  can  guard ;  as 
it  differs  from  the  case  of  a  manufactured  article,  where  a 
merchant,  by  providing  proper  materials  and  workman- 
ship, may  prevent  Defects  (/•).  And  the  late  Mr.  Youatt 
said,  "  A  man  should  have  a  more  perfect  knowledge  of 
Horses  than  falls  to  the  lot  of  most  of  men,  and  a  perfect 
knowledge  of  the  vendor  too,  who  ventures  to  buy  a  Horse 
without  a  Warranty"  (s).  But  the  same,  nnitatis  mutandis, 
may  very  justly  be  said  of  a  person  who  ventures  to  give 
a  Warranty  on  the  sale  of  a  Horse. 

{p)  Ford  V.   Sykes,  before  Lord  (r)  1    Rol.    Abr.    90 ;    Jones   v. 

Campbell,  C.  J.,  Cambridge  Spring  Bright^  5  Bing.  544. 

Assizes,  1853.  (s)  Lib.   U.  K.   "The   Horse," 

{q)   Wright  v.  Freeman,  48  L.  J.,  368. 


C.  P.  276;  40  L.  T.,  N.  S.  134. 


i2 


116 


WARRANTY  ;  SALE  AND  WARRANTY  BY  AGENT,  ETC. 


Buyer  should 
protect  him- 
self by  one. 

What  con- 
stitutes a 
Warranty. 


Article  named 
inaSoldNote. 


Buyer  entitled 
to  article  com- 
mercially 
known  by  the 
name. 


If  a  buyer,  however,  means  to  protects  himself  from 
hidden  defects,  he  must  take  a  Warranty,  and  he  is  not 
protected  otherwise,  unless  he  can  make  out  fraud  [t) . 

It  is  much  better  both  for  the  buyer  and  seller  when 
the  latter  states  whether  he  professes  to  warrant  or  not ; 
because  where  nothing  has  been  said  on  that  point,  a  con- 
siderable degree  of  doubt  must  frecjuently  rest  upon  the 
case  and  then  it  is  only  by  interpreting  the  expressions 
used  at  the  time  of  sale  that  even  an  opinion  can  be 
formed  as  to  whether  a  Warranty  were  ever  intended. 
No  particular  words  are  necessary  to  constitute  a  War- 
ranty ;  if  a  man  says,  "  This  Horse  is  sound,"  that  is  a 
Warranty  {u)  ;  and  it  is  not  necessary  that  the  seller 
should  say,  "  I  warrant ;"  it  is  sufficient  if  he  says  that 
the  article  is  of  a  particular  quality  or  is  fit  for  a  parti- 
cular purpose  (r).  The  general  Rule  laid  down  by  Mr. 
Justice  Bayley  is,  that  whatever  the  vendor  represents  at 
the  time  of  sale  is  a  Warranty  {cc).  Therefore  if  a  person 
at  the  time  of  sale  say,  "  You  may  depend  upon  it  the 
Horse  is  perfectly  quiet  and  free  from  Vice,"  it  is  a 
Warranty  (//) . 

If  an  article  sold  is  described,  the  description  amounts 
to  a  Warranty  or  a  condition  precedent  that  it  shall  be  an 
article  of  the  kind  described  (s) . 

Words,  however,  of  expectation  and  estimate  only  do 
not  amount  to  a  Warranty  (a). 

So  it  was  held  that  a  Sold  Note  amounted  to  a  War- 
ranty that  the  article  delivered  should  be  as  named  in  the 
note,  the  contract  being  a  sale  of  a  certain  known  article 
of  commerce  {b). 

And  w^hen  goods  are  sold  under  a  certain  denomination, 
the  buyer  is  entitled  to  have  such  goods  delivered  to  him 
as  are  commercially  known  under  this  denomination, 
though  he  may  have  bought  after  inspection  of  the  bulk, 
and  without  Warranty  (c). 


{t)  Ormrod  v.  Euth,  14  M.  &  W. 
661. 

[u)  Per  Best,  C.  J.,  Salmon  v. 
Ward,  2  C.  &P.  211. 

(i)  Per  Best,  C.  J.,  Jones  v. 
Brigld,  3  M.  &  P.  173.  See  also 
RandaU  v.  Kcwson,  L.  R.,  2  Q.  B. 
D.  102;  46  L.  J.,  Q.  B.  259;  36 
L.  T.,  N.  S.  164  ;  25  W.  R.  313— 
C.  A. 

{x)    Wood  V.  Smith,  4  C.  &  P.  45. 

(y)    Cave  v.  Cnhtun),  3  M.  &  R.  2. 


[z)  Bowes  V.  Shand,  L.  R.,  2  App. 
Cas.  455;  46  L.  J.,  Q.  B.  561. 

(a)  JiPConnel  v.  Murphy,  L.  R., 
5  P.  C.  203;  28  L.  T.,  N.  S.  713. 

(i)  Henderson  v.  Blahe,  Q.  B. 
1852;   3M.  Dig.  326. 

(f)  Joslinq  V.  Kingsford,  32  L.  J., 
C.  P.  94.  See  also  AUen  v.  Lahe, 
18  Q.  B.  560  ;  Wieler  v.  Schilizzi, 
17  C.  B.  619;  Carter  v.  Crick,  28 
L.  J.,  Ex.  238. 


WARRANTY.  117 

There  was  at  one  time  a  general  opinion  that  a  Sound  A  sound  price 
price  given  for  a  Horse  was  tantamount  to  a  Warrant y  ^*^*  tanta- 
of   Soundness ;    but  Lord  Mansfield  considered  the  doc-  "Warranty, 
trine  to  be  so  loose  and  unsatisfactory  that  he  rejected  it, 
and  laid  down  the  following  Rule :  "  There  must  either 
be  an  crpress   Warranty  of   Soundness,  or  Fraud  in  the 
seller,  to  maintain  an  action"  [d). 

A  General  Warranty  is  an  unconditional  undertaking  A  General 
that  a  Horse  or  any  other  article  really  is  what  the  War-  Warranty, 
rantor  professes  it  to  be. 

A  Warranty  may  be  either  General  or  Qualified.     If  a  A  Qualified 
person  at  the  time  of  his  selling  a  Horse  say,  "  I  never  Warranty, 
warrant,  but  he  is  sound  so  far  as  I  knou;^'  it  is  a  Qualified 
Warranty,  and  an  action  for  breach  of  Warranty  may  be 
maintained  upon  it  by  the  purchaser,  if  it  can  be  proved 
that  the  seller  kneu^  of  the  Unsoundness  (e). 

By  the  conditions  of  sale  at  Eepositories  and  public  A  Limited 
Auctions,  a  specified  short  time  is  usually  allowed,  within  Warranty. 
which  the  purchaser  must  give  notice  of  any  breach  of 
Warranty.  If  he  neglect  to  do  this,  he  has  no  remedy, 
unless  such  condition  has  been  rendered  inoperative  by 
Fraud  or  Artifice.  And  in  a  case  where  a  warranty  was 
to  last  till  the  noon  of  the  following  day,  when  the  sale 
was  to  become  complete,  Mr.  Justice  Littledale  said,  "  The 
Warranty  here  was  as  if  the  vendor  had  said,  '  after 
twenty-four  hours  I  do  not  warrant ;'  such  a  stipulation  is 
not  unreasonable"  (/). 

In  the  case  of  Chapman  v.  Gwyther  {g)  the  seller  of  a 
Horse  signed  the  following  Warranty  : — 

"June  5th,  1865.  Mr.  C.  bought  of  Mr.  G.  G.  a  bay 
Horse  for  ninety  pounds.     Warranted  Sound. 

£90.  G.  G. 

"  Warranted  Sound  for  one  month. — G.  G." 

The  Court  of  Queen's  Bench  held  that  the  latter  words 
limited  the  duration  of  the  Warranty,  and  meant  that  the 
Warranty  was  to  continue  in  force  for  one  month  only ; 
and  that  the  complaint  of  Unsoundness  must  therefore  be 
made  by  the  purchaser  within  one  month  of  the  sale. 

The  pm-chaser,  however,  may  return  the  Horse  at  any 

{(I)  ParMnson  v.  Lee,  2  East,  323.  and  see  Best  v.  Oshonie,  2  C.  &  P. 

(e)  Wood  V.  Smith,  4  C.  &  P.  45.  74;  HinchcUffe  y .  Baru-icJc,  L.  R.,  5 

See  also  Pinder  v.  Button,  7  L.  T.,  Ex.  D.  177;  49  L.  J.,  Ex.  495;   42 

N.  S.  269.  L.  T.,  N.  S.  492. 

(/)  By  water  v.  Richardson,  1  A.  (c/)  L.  R,.,  1  Q.  V,.  4G3;  35  L.  J 

&  E.  508  ;  5.  C.  3  N.   &  M.  748  ;  Q.  B.  142  ;   14  L.  T.,  N.  S.  477. 


118 


■WARRANTY  ;    SALE  AND  WAKRAKTY  BY  AGENT,  ETC. 


A  Special 
Warranty. 


A  Written 
Warranty. 


A  Special 
Agreement. 


Form  of 
Warranty. 


Effect  of  a 

Written 

Warranty. 


time  within  that  specified  in  the  Warranty,  even  though 
he  has  notice  of  the  breach  of  "Warranty  before  he  removes 
the  Horse,  and  the  Horse,  through  an  accident,  becomes 
dejDreciated  in  value  (//). 

When  there  is  any  suspicious  place  apparent  to  the 
parties,  which  they  discuss,  or  if  the  seller  knows  of  some 
defect  and  does  not  wish  to  answer  for  any  Unsoundness 
which  may  proceed  from  it,  he  should  give  a  Warranty 
specially  excepting  his  liability  for  any  unsoundness 
which  may  proceed  from  the  defect  in  question  (/) ;  or 
expressly  state  what  he  warrants :  as  where  a  Mare  was 
waiTanted  to  be  "a  good  hunter,  and  to  have  one 
eye"  (k).  But  where  the  purchaser  requires  the  vendor 
to  be  answerable  for  some  defect,  he  should  take  a  Special 
Warranty  against  the  effects  which  may  be  likely  to  pro- 
ceed from  it. 

The  buyer  should  always  take  care  to  distinguish  be- 
tween a  Warranty  and  a  Representation  (/) ;  however,  he 
is  safe  if  he  take  a  Written  Warranty,  and  refuse  to  believe 
any  Representation  the  seller  will  not  commit  to  paper. 
A  Written  Warranty  should  comprehend  not  only  Sound- 
ness, but  freedom  from  Vice,  and  also  Quietness  and  Age,  if 
necessary. 

Also  any  Special  terms  which  may  have  been  agreed 
upon  at  the  time  of  sale  ;  for  instance,  an  agreement  to  take 
back  the  Horse,  in  case  he  does  not  suit  or  is  unsound, 
should  be  made  a  part  of  the  Written  Warranty  or  Agree- 
ment upon  which  the  sale  is  effected  {)n). 

The  following  form  of  Receipt  and  Warranty  will  be 
found,  for  general  purposes,  short  and  comprehensive  : — 

"  Received  of  P.  J.  D.  fifty  pounds  for  a  grey  Gelding, 
warranted  only  six  j^ears  old,  Sound,  free  from  Yice,  and 
quiet  to  ride  or  drive  either  in  single  or  double  harness. 

£50.  R.  F." 

Where  the  whole  matter  passes  in  parol,  all  that  has 
passed  may  sometimes  be  taken  together  as  forming  parcel 
of  the  contract,  though  not  alwaj's,  because  matter  talked 
of  at  the  commencement  of  a  bargain  may  be  excluded  by 


(A)  Ucacl  V.  Taitcrsall,  L.  E.,  7 
Ex.  7;  41  L.  J.,  Ex.  4  ;  25  L.  T., 
N.  S.  631  ;  see  also  lUnclicllffe  v. 
Barwick,  L.  R.,  5  Ex.  D.  177;  49 
L.  J.,  Ex.  495;  42  L.  T.,  N.  S. 
492  ;  Elphick  v.  Barnes,  L.  E.,  5  C. 
P.  D.  387;  49  L.  J.,  C.  V.  GOS  ;  2;i 
W.  R.  139. 


(()  Junca  V.  Cowley,  4  B.  &  C. 
445  ;  *S'.  C.  6  D.  &  E.  533 ;  and 
Hemming  v.  Parrjf,  6  C.  &  P.  580. 

{k)  Higgs  v.  ThraJe,  before  Chief 
Baron  Pollock,  Feb.  18,  1850. 

(/)  See  post,  p.  138. 

<„>)  Bin/ne  y.  Whale,  7  East,  274. 


WARRANTY.  119 

the  language  used  at  its  termination ;  but  if  the  contract 
be  in  the  end  reduced  to  writing,  nothing  which  is  not 
found  in  the  writing  can  be  considered  as  a  part  of  the 
contract  {n). 

A  Warranty  may  be  gathered  from  Letters  which  have  Warranty 
passed  between  the  parties.     But  where  it  is  sought  to  ™^Z^!^jjr. 
import  a  Warranty  into  a  contract  for  sale  contained  in  Letter.    ^^^ 
Letters,  which  are  ambiguous  in  their  terms,  it  is  competent 
to  the  party  soaght  to  be  charged  to  give  evidence  of  all 
the  surrounding  facts  and  circumstances,  for  the  purpose  * 
of  showing  that  a  Warranty  v»^as  not  contemplated  by  the 
parties  (o). 

The  Parties  are  bound  by  the  Written  Warranty  alone,  The  Parties 
unless  some  Fraud  can  be  shown ;  and  even  if  there  be  a  are  bound  by 
Eepresentation  it  does  not  avail.  If  a  man  brings  me 
a  Horse,  and  makes  any  Eepresentation  whatever  of  his 
quality  and  soundness,  and  afterwards  we  agree  in  writing 
for  the  purchase  of  the  Horse,  that  shortens  and  corrects 
the  Representation  ;  and  whatever  terms  are  not  contained 
in  the  contract  do  not  bind  the  seller,  and  must  be  struck 
out  of  the  case  (p). 

Upon  a  contract  for  the  sale  of  goods  with  a  particular  It  cannot  be 
express  Warranty,  the  Court  will  not  extend  such  War-  f^tended  by 
ranty  by  implication,  as  the  Maxim,  Expression  facit  cessare 
taciturn,  applies  to  such  case  {q).  Thus,  if  a  man  sell  a 
Horse,  and  warrant  him  to  be  sound,  the  vendor  knowing 
at  the  time  that  the  purchaser  wants  him  for  the  purpose 
of  carrying  a  lady,  and  the  Horse,  though  sound,  proves 
to  be  unfit  for  that  particular  purpose,  this  would  be  no 
breach  of  Warranty  [q) . 

When  several  Horses  are  sold  at  an  entire  price,  and  a  A  Warranty 
Warranty  is  given  as  to  all,  the  contract  of  sale  is  entire,  ^^^^^^'^l 
but  the  AVarranty  is  several  (r).  _  contract  be 

A  Warranty  only  extends  to  the  state  of  a  particular  entire, 
commodity  at  the  time  of  sale,  unless  the  Warrantor  ex-  A  Warranty 
pressly  fixes  some   future  period  to  which  he  undertakes  ^PP^^*^^  „*g  *^® 
to  extend   it  (i).     Thus   Blackstone  says,   "A  Warranty 
can  only  reach  to  things  in  being  at  the  time  of  the  War- 
ranty, and  not  to  things  in  future ;  as  that  a  Horse  is 
sound  at  the  time  of  buying  him,  not   that  he  icill  be 

(«)  Per   Abbott,  C.  J.,  Kaln   v.  {q)  Dic/:son   v.  Zizinia,    10  C.  B. 

Old,  2  B.  &  C.  627.  602  ;   see  also  Anthony  v.  Hahtcad, 

(o)  Stttdey  V.  Bailey,    31   L.  J.,  37  L.  T.,  N.  S.  433. 

Ex.  483.  (/■)  Sec    Story    on    Sales,     191  ; 

[p)  Per  Gibbs,  J.,   I'kh'ii/iy   v.  Symonds  v.  Carr,  1  Camp.  361. 

Bauson,  4  Taunt.  785.  (>)  Edoi  y .  Parlc'inson ,'Dovig.l^2  a.. 


120 


WARRANTY  ;    SALE  AND  WARRANTY  BY  AGENT,  ETC. 


Warranting  a 
future  Event. 


Buying  for  a 

particular 

Purpose. 


Must  be 
reasonably  fit 
fur  the  pur- 
pose. 


sound  two  years  hence  {t).  And  in  a  case  in  the  Year 
Book  in  the  reign  of  Edward  the  Fourth,  Choke,  J.,  says, 
"If  I  sell  a  Horse  and  warrant  him  to  travel  thirty  leagues 
a  day,  and  he  fail  to  do  it,  I  am  not  liable  to  an  action  of 
Deceit,  for  the  "Warranty  is  void,  because  a  person  only 
warrants  such  a  thing  as  was  at  the  time  of  "Warranty,  and 
not  a  thing  which  is  to  come  "  (»). 

There  is  no  doubt,  however,  that  a  Future  Event  may 
be  warranted  if  there  be  an  express  undertaking  to  that 
effect  [x)  ;  and  it  makes  no  difference  whether  the  War- 
ranty be  made  at  the  time  of  sale  or  tjefore  sale,  so  long 
as  the  sale  is  made  upon  the  faith  of  the  Warranty  (.?/), 
For  where  a  seller  informed  a  buyer  that  one  of  two 
Horses  he  was  about  to  sell  him  had  a  Cold,  but  agreed  to 
deliver  both  at  the  end  of  a  fortnight  sound  and  free 
from  blemishes,  and  at  the  expiration  of  that  time  both 
Horses  were  delivered,  but  one  had  a  Cough  and  the 
other  a  Swelled  Leg,  which  was  apparent  at  the  time  of 
sale,  the  seller  brought  an  action  to  recover  the  price, 
and  a  verdict  was  found  for  the  buyer.  The  Court  of 
Common  Pleas  refused  to  disturb  it  or  grant  a  new  trial, 
as  the  Warranty  did  not  apply  to  the  time  of  sale  but  to 
a  future  period  (2) . 

On  the  sale  of  goods,  if  the  parties  agree  to  the  specific 
chattels,  there  is  no  implied  Warranty  on  the  part  of  the 
seller  that  the  goods  shall  be  fit  for  the  Particular  pur- 
pose {a)  for  which  they  are  required,  but  only  that  they 
must  be  merchantable,  that  is  to  say,  fit  for  some  pur- 
pose {h). 

If  a  person  sell  a  commodity  for  a  Particular  purpose 
he  must  be  understood  to  warrant  it  reasomiljhj  fit  and 
proper  for  such  purpose  {c).  If  a  man  sells  a  Horse 
generally,  he  warrants  no  more  than  that  it  is  a  Horse  ; 
the  buyer  puts  no  question,  and  perhaps  gets  the  animal 
cheaper.  But  if  he  asks  for  a  Horse  to  carry  a  lady,  or 
a  child,  or  to  drive  in  a  particular  carriage,  he  who  knows 
the  qualities  of  the  animal  and  sells,  undertakes  on  every 
principle  of  honesty  that  it  is  fit  for  the  purpose  indicated ; 
but  if  it  should  turn  out  that  the  Horse  w^as  vicious,  or 


{t)  3  Bla.  Com.  165. 
(m)  Tear  Book,  9  Edw.  4,  p.  6. 
\x)  Edenx.  Parkinson,  Doiig.  732a. 
{y)  Fasley  v.  Freeman,  3  T.  R.  59. 
(s)  Liddard  v.    Kain,    9    Moore, 
356  ;  «S.  C.  2  Bing.  183. 


(«)  Per  Parke,  B.,  Sutton  v.  Tem- 
ple, 12  M.  &  W.  55. 

(/;)  Per  Best,  C.  3.,JonesY.  Bright, 
5  Bing.  544. 

((■)  Per  Abbott,  C.  J.,  Gray  v. 
Cox,  4  B.  &  C.  115. 


WARRANTY.  121 

had  never  been  in  harness,  the  buyer  would  be  entitled  to 
recover,  on  proving  that  the  Horse  was  unfit  for  the  pur- 
pose for  which  it  was  sold,  although  it  might  be  fit  for 
several  other  purposes.  The  selling  upon  demand  for  a 
Horse  with  particular  qualities,  is  an  affirmation  that  he 
possesses  those  qualities  (c) . 

And  in  Chanter  v.  Ilophins  {d),  Mr.  Baron  Parke  said,  A  Carriage 
"  Suppose  a  party  offered  to  sell  me  a  Horse  of  such  a  °^^^' 
description  as  would  suit  my  carriage,  he  could  not  fix  on 
me  a  liability  to  pay  for  it,  unless  it  were  a  Horse  fit  for 
the  purpose  it  was  wanted  for ;  but  if  I  describe  it  as  a 
particular  bay  Horse,  in  that  case  the  contract  is  performed 
by  his  sending  that  Horse"  {c). 

Nor  is  there  any  exception  as  to  latent  undiscoverable  Latent  undis- 
defects.  In  Randall  v.  Neicson  (/),  the  plaintiff  ordered  ^overable 
and  bought  of  the  defendant,  a  coach-builder,  a  pole  for 
his  carriage.  The  pole  broke  in  use,  and  the  Horses 
became  frightened  and  were  injured.  In  an  action  for 
the  damage,  the  Jury  found  that  the  pole  was  not  reason- 
ably fit  for  the  carriage,  but  that  the  defendant  had  been 
guilty  of  no  negligence.  On  motion  by  the  defendant 
for  judgment,  the  Court  ( g)  ordered  judgment  to  be 
entered  for  the  defendant,  on  the  ground  that  the  answers 
of  the  Jury  amounted  to  a  finding  of  a  latent  defect  in 
the  wood  of  the  pole,  which  no  care  or  skill  could  discover, 
and  that  the  principle  of  the  decision  in  Readhead  v.  Mid- 
land Rail.  Co.  (//)  extended  to  the  sale  of  an  article  for  a 
specific  purpose.  The  plaintiff  appealed.  And  the  Court 
of  Appeal  held  that  the  limitation  as  to  latent  defects, 
introduced  by  Readhead  v.  Midland  Rail.  Co.  {i),  does  not 
apply  to  the  sale  of  a  chattel,  and  that  the  plaintiff  was 
entitled  to  recover  the  value  of  the  pole,  and  also  for 
damage  to  the  Horses,  if  the  Jury  on  a  second  trial  should 
be  of  opinion  that  the  injury  to  the  Horses  was  the  natural 
consequence  of  the  defect  in  the  pole. 

Proof  that   a   Horse  is  a  good  drawer  only  will  not  Quiet  in 

Harness. 

(c)    Per    Best,    C.    J.,    Jones    v.  164. 
Bright,  5  Bing.  544  ;  -S.  C.  3  M.  &  (y)  Blackburn  and  Lush,  JJ. 

P.  162 ;  see  also  Jones  v.  Just,  L.  R.,  \h)  L.  R.,  4  Q.  B.  379. 

3  Q.  B.  197;  37  L.  J.,  Q.  B.  89  ;  (t)  L.  E.,  4   Q.  B.   379.      This 

18  L.  T.,  N.  S.  208.  case  decided  that  the  contract  made 

{(l)  4  M.  &  W.  406.  by  a  carrier  of  passengers  is  to  take 

[e)   Chanter  v.  Hopkins,  4  M.  &  due  care  to  carry  the   passengers 

W.    406.      See    also    Chalmers    v.  safely,  and  is  not  a  warranty  that 

Harding,  17  L.  T.,  N.  S.  571.  the  carriage  in  which   he  travels 

(/■)  L.  R.,  2  Q.  B.  D.   102  ;  46  shall  be  in  all  respects  perfect  for 

L.  J.,  Q.  B.  259  ;  36  L.  T.,  N.  S.  its  purpose. 


122 


warranty;  sale  and  warraniy  v.y  ag?:nt,  etc. 


Unfitness 
must  be 
clearly 
proved. 


General  rule. 


satisfy  a  Warranty  that  he  is  "  a  good  drawer  and  pulls 
quietly  in  harness."  And  the  Coiu-t  of  King's  Bench 
held  that  it  was  quite  clear  these  were  convertible  terms, 
because  no  Horse  can  be  said  to  be  a  good  dratcer  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  (A-).  And 
where  a  Horse  was  warranted  "  sound  and  quiet  in  all 
respects,"  Lord  Abinger,  0.  B.,held  it  to  include  the  being 
quiet  in  harness  (/).  But  where  the  Warranty  was  as 
follows,  viz.,  "  Eeceived  from  A.  the  sum  of  00/.  for  a 
black  Horse  rising  five  years,  quiet  to  ride  and  drive,  and 
warranted  sound  up  to  this  date,  or  subject  to  the  examina- 
tion of  a  veterinary  surgeon;"  it  was  held  that  there  was 
no  Warranty  that  the  Horse  was  quiet  to  ride  and  drive  {m) . 

But  in  setting  up  a  Breach  of  such  a  Warranty,  it 
must  be  clearly  proved  that  the  Horse  at  the  time  of  sale 
was  unfit  for  the  purpose  for  which  ho  was  bought ;  and 
if  he  has  gone  quietly  with  persons  of  ordinary  skill, 
there  will  be  a  strong  presumption  that  he  answers  his 
Warranty.  In  the  following  case  it  appeared  that  a 
Horse  warranted  "  a  thoroughbroke  Horse  for  a  Gig," 
kicked  and  broke  the  Gig,  &c.  the  first  time  he  was 
driven  by  the  pui"chaser.  This  was,  however,  two  months 
after  sale,  but  in  the  meantime  other  persons  had  driven 
him,  and  he  had  always  answered  his  Warranty.  It  was 
decided  that  this  was  no  breach,  because  as  the  Horse  had 
previously  behaved  as  he  had  been  warranted,  his  bad 
conduct  must  be  attributed  and  have  been  owing  to  the 
purchaser's  want  of  skill  in  driving  (n).  And  in  the  case 
of  Buckingham  v.  Reeve,  Pollock,  C.  B.,  said,  "  A  Horse 
put  into  a  new  harness  and  an  unaccustomed  carriage  once 
or  twice  might  kick,  and  yet  be  deserving  of  a  Warranty 
of  being  quiet  in  harness"  {u). 

The  general  rule,  then,  is  this  : — Where  the  purchase 
is  of  a  defined  and  well-known  article,  the  vendor  per- 
forms his  part  of  the  contract  by  sending  that  article, 
and  it  is  the  vendee's  concern,  whether  it  answers  the 
j)urpose  for  which  he  wanted  to  use  it  or  not.  And  if 
a  man  purchase  goods  of  a  tradesman,  without  in  any  way 


(^■)   Colthercl  v.  Puncheon,  2  D.  &  T.,  N.  S.  433. 

R.  10.  («)  Geddes  v.  Pennington,  5  Dow, 

[I)  Smith  V.  Parsons,  8  C.   &  P.  164. 

199.  (o)  Buckingham  v.   Reeve,  N.  P. 

[ill)  A/'fhoug  V.  Enhtcad,  37  L.  Ex.  Dec.  1,  1857. 


WAKHANTY.  123 

relying  upon  the  skill  and  judgment  of  the  vendor,  the 
vendor  is  not  responsible  for  their  turning  out  contrary  to 
his  expectation.  But  if  the  tradesman  is  informed  at  the 
time  that  the  order  is  given  of  the  purpose  for  which  the 
article  is  wanted,  and  the  buyer  relies  upon  the  seller's 
judgment,  the  seller  impliedly  warrants  that  the  thing  fur- 
nished shall  be  reasonably  fit  and  proper  for  the  purpose 
for  which  it  is  required  ( 7;)  ;  and  it  seems  that  the  liability 
of  the  vendor  in  this  latter  case  is  the  same,  whether  he  be 
also  the  manufacturer  of  the  article  or  not,  and  whether 
the  vendee  has  or  has  not  had  an  opportunity  of  inspecting 
the  goods  purchased ;  provided  the  defect  be  one  which 
cannot  be  discovered  on  inspection,  but  only  on  trial  [p). 

In  all  cases  of  Warranty  as  to  the  quality  of  the  thing  Warrantor's 
sold,  as,  for  instance,  where  a  Horse  is  warranted  sound  or  l^^tiility. 
the  like,  the  Warrantor  undertakes  that  it  is  true  at  the 
time  of  making  it ;  and  the  law  annexes  a  tacit  contract 
that  if  it  be  otherwise  than  warranted,  the  vendor  shall 
make  compensation  to  the  buyer  (y) ;  and  the  seller  will  be 
liable  for  any  latent  defect,  according  to  the  old  law  con- 
cerning Warranties  (/•),  that  is,  as  Lord  Mansfield  laid 
down,  for  all  faults,  known  or  unknown  to  the  seller  (s), 
inconsistent  with  the  Warranty  given. 

But  where  a  Horse  is  sold  with  a  Warranty,  any  Fraud  Sale  avoided 
at  the  time  of  sale  will  avoid  the  sale,  though  it  is  not  on  -^  ^^aud. 
any  point  included  in  the  Warranty  {t).  A  sale,  however, 
is  not  avoided  by  some  immaterial  Representation  in  the 
Warranty  proving  untrue.  For  Lord  Eldon,  in  delivering 
Judgment  in  the  ease  of  an  appeal  to  the  House  of  Lords, 
held,  where  a  Horse  was  sold  under  a  Warranty  of  Sound- 
ness, but  with  a  misrepresentation  as  to  the  place  from 
which  he  was  brought,  "  that  if  the  Warranty  was  answered, 
a  misrepresentation  as  to  the  place  from  which  the  Horse 
Avas  procured  would  not  suffice  to  set  aside  the  sale"  [u). 

SALE  AND  WARRANTY  BY  AN  AGENT. 

An  Agent  is  always  incompetent,  without  special  autho-  An  Agent 
rity  for  that  purpose,  to  appoint  another  person  to  act  in  cannot  dele- 

[p)  Chit,    on    Contr.,    Uth    ed.  (/■)  2'(»-A-e/iso>i  v.  Zt-e,  2  East,  321.                   ^' 

417;  BiggcY.  Farkinson,   31  L.  J.,  {s)  Stuart  \.  TFilkins,  Doug.  19. 

Ex.   301,   303;   3Iallan  v.   Ilaclloff,  {t)  Steivard  v.  Coesvclt,  1  C.  &  P. 

5  N.  R.  54.  23. 

{q)  Archbold's  N.  P.  40;  Fiehler  (u)  Geddcs  v.  Fennington,  5  Dow, 

V.  SlaH-in,  1  H.  Bla.  17.  163. 


124 


warranty;  sale  and  warranty  by  agent,  etc. 


Nor  exceed  it. 


Agency  de- 
termines by 
Principal's 
Death. 

Difference 
between  a  re- 
munerated 
and  an  un- 
remnnerated 
Agent. 


Agent  acting 
■without 
proper  autho- 
rity. 


His  Personal 
responsibility. 


Where  he 
cannot  be 
sued  on  the 
Contract. 


his  stead,  the  Maxim  of  the  law  being,  Delegatus  non  potest 
delegare  {x) . 

An  Agent  employed  for  a  particular  pm'pose  has  no 
right  to  exceed  his  authority.  Thus  a  Servant  or  other 
person  authorized  to  Sell  a  Horse,  must  receive  payment 
for  him  in  money ;  he  cannot  exchange  him  for  another  (//) . 

An  Agency  determines  ipso  facto  by  the  death  of  the 
Principal,  and  is  also  capable  of  being  revoked  by  him  in 
his  lifetime,  with  as  little  ceremony  as  it  was  created  (s) . 

There  is  a  difference  between  the  Principal's  rights 
against  a  remunerated  and  against  an  unremunerated 
Agent.  The  former,  having  once  engaged,  may  be  com- 
pelled to  proceed  to  the  task  which  he  has  undertaken  ; 
the  latter  cannot,  for  his  promise  to  do  so  being  induced 
by  no  consideration,  the  Pule,  Ex  niido  p>acto  non  oritur 
actio,  applies.  But  if  he  do  commence  his  task,  and  after- 
wards be  guilty  of  misconduct  in  performing  it,  he  will, 
though  unremunerated,  be  liable  for  the  damage  so  occa- 
sioned ;  since  by  entering  upon  the  business,  he  has  pre- 
vented the  employment  of  some  better  qualified  person  [a) . 

Wherever  a  party  undertakes  to  do  any  act  as  the  Agent 
of  another,  if  he  does  not  possess  any  authority  from  the 
Principal,  and  the  other  does  not  know  it,  or  if  he  exceeds 
the  authority  delegated  to  him,  he  will  be  personally 
responsible  to  the  person  with  whom  he  is  dealing,  for  or 
on  account  of  the  Principal  {Ij)  . 

If  the  Agent  contracts  in  such  a  form  as  to  make  him- 
self personally  responsible,  he  cannot  afterwards,  whether 
his  Principal  were  or  were  not  known  at  the  time  of  the 
contract,  relieve  himself  from  that  responsibility  [c) .  And 
where  a  contract  is  signed  by  one  who  professes  to  be  sign- 
ing "as  Agent,"  but  w^ho  has  no  Principal  existing  at  the 
time,  and  the  contract  would  be  wholly  inoperative  unless 
binding  upon  the  person  who  signed  it,  he  is  personally 
liable  on  it  {cl). 

Where  it  clearly  and  expressly  appears,  that  a  person 
really  acting  as  Agent  fairly  contracts  as  such  Agent  in 
the  name   of   his  Principal,  and  professes   to  make  that 


(.r)  2  Steph.  Com.  59. 

(y)  Thompson  Y.  Davenport,  9  B. 
&  C.  78. 

(;)  2  Steph.  Com.  57. 

{a)  See  Smith's  Merc.  Law,  112; 
£atfe  V.  JFest,  22  L.  J.,  C.  P.  176. 


(b)  Story's  Commentaries,  226 ; 
Harper  v.   Williams,  4  Q.  B.  232. 

((•)  Uiggins  v.  Senior,  8  M.  &  W. 
845. 

[(1)  Kelner  v.  Baxter,  L.  R.,  2 
C.  P.  174;  36  L.  J.,  C.  P.  94. 


SALE  AND  WAllRANTY  BY  AN  AGENT.  125 

Principal    liable,   the   Agent   cannot   bo   sued   upon   the 
contract  (e). 

But  he  may  be  sued  so  as  to  make  him  liable  in  But  is  liable 
Damages,  for  the  loss  sustained  by  the  person  with  whom  ^'^  damages. 
he  has  entered  into  the  contract  (c). 

The  Rule  of  law  is,  that,  if  an  Agent  is  guilty  of  fraud  Principal  an- 
in  transacting  his  Principal's  business,  the   Principal  is  hiTrraud 
responsible  (/) ;   but  the  Agent  must  be  acting  within  the 
scope  of  his  authority  and  in  the  course  of  his  employ- 
ment {g). 

Nor  is  there  any  difference  in  its  effect  between  a  mis-  Misrepresen- 
representation  made  by  an  Agent,  which  is  collateral  to  tation  coi- 
the  contract,  and  one  which  is  embodied  in  the  contract,  contract" 
the  fraud  of  the  Agent  in  either  case,  if  committed  in  the 
course  of  his  employment,  rendering  the  contract  voidable 
as  against  the  Principal,  without  its  being  shown  that  he 
was  privy  to  it  (A). 

A  master  sent  his  Servant  with  a  Horse  to  a  Fan-,  at  Damas-e 
such  a  distance  that  the  Servant  was  obliged  to  put  the  ^^^?^  ^^  ^^^ 
Horse  up  for  the  night ;  and  the  Servant  put  him  up  in  a      °  ° 
stable  belonging  to  a  tenant  of  his  master.     The  Horse 
was  glandered,  and  the  tenant  brought  an  action  against 
the  master  for  damages  sustained  by  him  in  consequence 
of  the  loss  of  Horses  and  cattle  by  infection.     It  was  held 
by  the   Court  of   Session   in  Scotland,  that  placing  the 
Horse  in   the  tenant's   stable  was   an   act   done   by  the 
Servant  in  the  proper  execution  of  his  duty,  and  for  which 
the  master  was  liable,  upon  proof  merely  of  the  Servant's 
knowledge  of  the  disease  {i). 

If  a  person  sells  goods,  supposing  at  the  time  of  the  con-  Undisclosed 
tract  that  he  is  dealing  with  a  Principal,  but  afterwards  Principal, 
discovers  that  the  person  with  whom  he  has  been  dealing 
is  not  the  Principal,  but  Agent  for  a  third  person,  though 
he  may  in  the  meantime  have  debited  the  Agent  with  it, 
he  may  afterwards  recover  the  amount  from  the  real  Prin- 

(e)  Lewis  v.  Nicholson,  21  L.  J.,  Stock  Bank,  L.  E.,  2  Ex.  259,  265 ; 

Q.  B.  316.  Swift   V.    Winterbotham,    L.    R.,    8 

(/)  See  per  Parke,  B.,  Murray  Q.   B.   244,   254;  Mackay  v.   Com- 

V.  Mann,   2  Ex.   539 ;    Cornfoot  v.  mercial  Bank    of  New    Brunswick, 

Fowke,  6  M.  &  W.  358;  MackayY.  L.  R.,   5  P.  C.  394,  411,  412;  43 

Commercial  Bank  of  New  Briinsivick,  L.  J.,  P.  C.  31;   Chit.  Contr.  10th 

L.  R.,  5  P.  C.  394  ;  43  L.  J.,  P.  C.  ed.  627  ;  and  see  Swire  v.  Francis, 

31.  L.  R.,  3  App.  Cas.  106;  47  L.  J., 

[g)  Coleman  v.  Riches,   16  C.  B.  P.  C.  18  ;    IFeir  v.  Barnett,  L.  R., 

104  ;    Udell  v.  Atherton,   7  H.  &  N.  3  Ex.  D.  32. 
172.  (»)  Balrdv.  Graham,  14  Court  of 

(/()     Barwiek    v.    English    Joint  Sess.  (Sco.)  615. 


126  •  WARRANTY  ;    SALE  AND  WARRANTY  B\  AGENT,  ETC. 

cipal ;  subject,  however,  to  this  qualification,  that  the  state 
of  the  account  between  the  Principal  and  the  Agent  is  not 
altered  to  the  prejudice  of  the  Principal  (/>•).  So  that  a 
vendor,  who  has  given  credit  to  an  Agent,  believing  hinj  to 
be  the  Principal,  cannot  recover  against  the  undisclosed 
Principal,  if  the  Principal  has  bond  fide  paid  the  Agent  at 
a  time  when  the  vendor  still  gave  credit  to  the  Agent  and 
knew  of  no  one  else  as  a  Principal  (/).  On  the  other  hand, 
if  at  the  time  of  the  sale  the  seller  knows  that  the  person 
who  is  nominally  dealing  with  him  is  not  Principal  but 
Agent,  and  also  knows  who  the  Principal  really  is,  and 
notwithstanding  all  that  knowledge  chooses  to  make  the 
Agent  his  debtor,  then,  according  to  the  cases  of  Addison 
V,  Gandaspqni  [m)  and  Paterson  v.  Gandascqui  («)  the  seller 
cannot  afterwards,  on  the  failure  of  the  Agent,  turn  round 
and  charge  the  Principal,  having  once  made  his  election  at 
the  time  when  he  had  the  power  of  choosing  between  the 
one  and  the  other"  (o).  But  the  mere  knowledge  at  the 
time  of  the  contract  that  there  is  a  Principal,  if  his  name 
be  not  disclosed,  will  not  prevent  the  seller  from  resorting 
to  the  Principal  though  he  had  debited  the  Agent  (o).  The 
seller,  however,  must  make  his  election  within  a  reasonable 
time.  Accordingly,  when  nine  months  had  elapsed  after 
the  discovery  of  the  Principal,  and  no  election  had  been 
made  by  the  seller,  it  was  held  that  he  could  not  recover  [p). 
The  insertion  of  the  Agent's  name  alone  in  the  contract, 
though  the  Principal  is  disclosed  at  the  time,  and  the  sub- 
sequent demand  of  payment  from  the  Agent,  does  not 
necessarily  amount  to  an  election  to  give  credit  to  the 
Agent,  and  to  him  alone,  but  the  principal  may  be  sued  {q). 
The  question  whether  credit  was  given  to  the  Agent  or  to 
the  Principal  being  for  the  jury,  for  whose  guidance  in 
resolving  it,  evidence  of  custom  and  usage  will  be  admis- 
sible (r). 
Person  Where  a  person  describes  himself  in  a  written  instru- 

A^c^ent'may^e  ^^^^  ^^  ^^®  Agent  of  an  unnamed  Principal,  it  is  com- 

proved  to  be 

^    '  (/■)   Thompson  \.  Davenport,  9  B.  (o)   Thompson  y.  Davenport,  9  B. 

6  C.  86,  per  Lord  Tenterdcn,  C.  J.       &  C.  86. 

(/)  Armstrong   v.   Stokes,  L.  E,.,  {p)    Smethurst    v.    Mitchell,     28 

7  Q.  B.  598  ;  41  L.  J.,  Q.  B.  253 ;       L.  J.,  Q.  B.  241. 

26  L.  T.,N.  S.  872;  and  see  Evans  (r/)   Calder  v.   Dohell,    L.    E.,    6 

on  Agency,  442.  C.  P.    (Ex.   Ch.)    486.;    40  L.   J., 

(;«)    Addison    v.     Gandasequi,     4  C.  P.  224. 

Taunt.  574.  {r)   Curtis  v.   Williamson,  L.  R., 

(«)    Paterson   v.    Gandasequi,     15  10  Q.  B.   57,  59;  44  L.  J.,   Q.  B. 

East,  G9.  27;  31  L.  T.,  N.  S.  078. 


SALE  AND  WARRANTY  RY  AN  AGENT.  127 

petent  for  the  party  with  wliom  he  contracts  to  show  that, 
although  described  as  Agent,  he  is  in  fact  the  Principal  (s) . 
But  there  is  a  distinction  between  cases  where  an  Agent  in 
effecting  a  contract  for  the  purchase  of  goods  does  not  dis- 
close the  existence  of  a  Principal  at  all  and  cases  where  he 
discloses  that  he  has  a  Principal  but  does  not  give  his 
name ;  and  it  has  been  held  by  Bowen,  J.,  on  further  con- 
sideration, that  in  the  latter  class  of  cases  the  vendor  may 
have  recourse  to  the  Principal  though  he  has  bond  fide  paid 
the  Agent  for  the  goods,  unless  there  has  been  such  con- 
duct on  the  vendor's  part,  e.  g.  delay  in  applying  to  the 
Principal,  as  might  justify  the  Principal  in  concluding  that 
the  vendor  was  not  looking  to  his  credit  but  to  that  of  the 
Agent  it) . 

Although  the  Pule  of  law  is,  that  where  a  contract  is  PiinGipal 
made  by  an  Agent,  the  Principal  may  come  in  and  take  f^^^^o*  be 
the  benefit  of  it,  that  doctrine  cannot  be  applied  where  an^Ao-eut. 
the  Agent  contracts  as  Principal  (?r).     Thus,  Lord  Ellen- 
borough  said,  "  If  one  partner  makes  a  contract  in  his  in- 
dividual capacity,  and  the  other  partners  are  willing  to 
take   the   benefit   of   it,  they  mAist  be  content  to  do  so, 
according  to  the  mode  in  which  the  contract  was  made"  {x). 
Thus,  in  Assumpsit  on  a  charter-party  executed,  not  by  the 
plaintiff,   but   by   a   third   person,   who  in   the   contract 
described  himself  as  "owner"  of  the  ship,  it  was  held, 
that  evidence  was  not  admissible  to  show  that  such  person 
contracted  merely  as  the  plaintiff's  Agent  {y). 

The  Eule  of  law  is,  that  the  agent  who  makes  the  con-  Their  respeo- 
tract  may  bring  an  action  on  the  contract  in  respect  of  his  artion^n*a°* 
privity,  and  the  Principal  in  respect  of  his  interest  {z) .  Contract. 

If  the  Agent  is  appointed  only  for  a  particular  purpose,  "Warranty  by 
and  is  invested  with  limited  powers,  or,  in  other  words,  is  Servant  as 
a  special  Agent ;  then  it  is  the  duty  of  persons  dealing  T^gn/ 
with  such  Agent  to  ascertain  the  extent  of  his  authority  ; 
and  the  Principal  will  not  be  bound  by  any  act  of  the 
Agent  not  warranted  expressly  by,  or  by  fair  and  neces- 
sary implication  from,  the  terms  of  the  authority  delegated 

(«)  Can-  V.  Jackson,   7  Ex.   382.  117. 
See  also  Pake  v.  Walker,  L.  R.,  5  («)  Humble  v.  Hunter,   12  Q.  B. 

Ex.  173;   39  L.  J.,  Ex.    109;   22  315. 
L.  T.,  N.  S.  547.  (x)  Lucas  v.  Be  la  Com;   1  M.  & 

(0  Irvhie  ^  Co.  v.  Watson  S;  Sons,  S.  249. 
L.  R.,   5  Q.  B.  T>.  102;  49  L.  J.,  (y)  Hi(mh?c  v.  Hunter,  12  Q.  B. 

Q.  B.  239;  41  L.  T.,  N.  S.  51—  310. 
Bowen,  J.     Affirmed  W.  N.   1880,  [z)  Si/kes  v.  OiJes,  5  M.  &  W.  650, 


128 


warranty;  sale  and  warranty  by  agent,  etc. 


Warranty  by 
a  Servant  aa 
general 
Asrent. 


to  him  (a).  Therefore  the  Servant  of  a  private  owner 
entrusted  to  sell  a  Horse  on  one  particular  occasion,  not 
at  a  fair  or  public  mart,  is  not  by  law  authorized  to  bind 
his  master  by  a  Warranty  ;  and  the  buyer  who  takes  such 
a  Warranty,  takes  it  at  the  risk  of  being  able  to  prove 
that  the  Servant  had  in  fact  his  master's  authority  to  give 
it.  But  the  existence  of  this  authority  may  be  inferred  ; 
c.  g.,  it  was  held  in  an  action  for  the  breach  of  a  Warranty 
on  the  sale  of  a  Horse  by  the  Servant  of  a  private  owner, 
that  a  letter  from  the  plaintiff's  attorney  to  the  defendant 
referring  to  the  alleged  Warranty  and  averring  a  breach 
of  it,  and  an  answer  from  the  defendant  merely  denying 
the  breach  of  it,  afforded  evidence  whence  the  Jury  were 
justified  in  finding  that  the  Servant  had  authority  in  fact 
to  warrant  (b). 

It  is  still  an  undecided  question  whether  a  special 
Agent  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  possession  of  the 
Horse,  and  appearing  to  be  the  owner,  to  have  all  the 
powers  of  an  owner  in  respect  of  the  sale,  is  or  is  not 
authorized  to  bind  his  master  by  a  Warranty  (c). 

But  wherever  a  general  authority  is  given  by  a  Prin- 
cipal to  an  Agent,  this  implies  and  includes  a  right  to  do 
all  subordinate  acts  incident  to  and  necessary  for  the  ex- 
ecution of  that  authority ;  then,  if  notice  is  not  given  to 
the  person  with  whom  the  Agent  deals  that  the  Principal 
has  limited  his  authority,  the  Principal  is  bound  (d).  In 
accordance  then  with  this  principle  of  law  a  Servant  em- 
ployed by  a  Horsedealer  as  his  general  Agent  to  carry  on 
his  business,  has  an  implied  authority  to  warrant  the 
Horses  sold  by  him  for  his  Principal  as  sound  without  any 
special  authority  for  that  purpose.  And  where  a  War- 
ranty has  been  so  given.  Lord  Ellenborough  said,  "  If 
the  Servant  was  authorized  to  sell  the  Horse  and  to  re- 
ceive the  stipulated  price,  I  think  he  was  incidentally 
authorized  to  give  a  Warranty  of  Soundness.  It  is  now 
most  usual  on  the  sale  of  Horses  to  require  a  Warranty  ; 
and  the  Agent  who  is  employed  to  sell,  when  he  warrants 
the  Horse  may  fairly  be  presumed  to  be  acting  within  the 


(«)  Chit.  Contr.  11th  Ed.  198. 

(b)  Miller  v.  Laivton,    15  C.  B., 
N.  S.  834. 

(c)  Brady  v.  Todd,  9  C.  B.,  N.  S. 


604.     See  also  Miller  v.  Lawton,  15 
C.  B.,  N.  S.  834. 

{d)    Per    M.    of    K.,     CoUen    v. 
Gardner,  21  Beav.  543. 


SALE  AND  WARRANTY  BY  AN  AGENT.  129 

scope  of  his  authority.  This  is  the  common  and  usual 
manner  in  which  the  business  is  done,  and  the  Agent  must 
be  taken  to  be  vested  with  powers  to  transact  the  business 
with  which  he  is  entrusted  in  the  common  and  usual 
manner"  {e). 

The  case  of  Howard  v.  Sheicard  (/)  very  clearly  illus- 
trates the  rule  that  the  Agent  or  Servant  of  a  Horsedealer 
has  an  implied  authority  to  bind  his  Principal  or  Master 
by  a  Warranty.  In  that  case  it  ajDpeared  that  the  defen- 
dant was  a  Horsedealer,  and  that  in  March,  1866,  the 
plaintiff,  being  at  a  riding-school,  asked  the  proprietor  "  if 
he  knew  of  a  horse  that  would  be  likely  to  suit  him,"  and 
that  David  Sheward,  the  brother  of  the  defendant,  who 
happened  to  be  present,"  and  who  was  a  Horsedealer,  and 
occasionally  acted  in  the  sale  of  Horses  for  the  defendant, 
said  he  thought  the  latter  had  one.  After  some  conversa- 
tion the  Horse  in  question  was  brought  to  the  riding- 
school,  and  there  ridden  by  the  plaintiff  and  approved  of 
by  him ;  and  David  Sheward,  in  answer  to  questions  as  to 
the  character  and  soundness  of  the  animal,  said,  "I'll  gua- 
rantee the  Horse  is  sound."  Ultimately  the  horse, — which 
had  at  the  plaintiff's  request  been  previously  examined  by 
a  Veterinary  Surgeon,  who  gave  a  certificate  that  it  was 
sound, — was  purchased  by  the  plaintiff  for  315/.,  which 
sum  he  paid  to  the  defendant.  The  Horse,  proving  to  be 
unsound,  was  re-sold  by  the  plaintiff,  and  this  action  was 
brought  to  recover  the  dift'erence  in  price.  On  the  part  of 
the  defendant  it  was  contended  that  the  Servant  of  a 
Horsedealer  (assuming  David  Sheward  to  have  been  the 
defendant's  Servant  for  this  purpose)  has  no  implied 
authority  to  warrant  on  his  Master's  behalf  ;  and  evidence 
was  offered  to  show  that  it  was  not  the  custom  with 
Horsedealers  to  warrant  where  the  Horse  had  been 
examined  by  a  competent  Yeterinary  Surgeon  and  pro- 
noimced  sound.  Erie,  0.  J.,  declined  to  receive  the  evi- 
dence, and  said  that  he  should  rule  that  David  Sheward 
had  authority  to  warrant ;  and  the  Jury,  finding  that  he 
had  done  so,  and  that  the  Horse  was  unsound,  returned  a 
verdict  for  the  plaintiff,  damages  127/.  10s.,  and  leave  was 

[e)  Alexander  v.  Gibson,  2  Camp.  Alexander  v.  Gibson  must  be  taken 

555.      It  appears  to  be  taken  foi*  to  he  oYeT\raled.\)j Brady  y.  Todd [c), 

granted  in  Chit.  Contr.  7tli  ed.  201,  ante,  and,  therefore,  such  a  reading 

that  the  master  in  this  case  was  a  of  the  case  does  not  affect  the  state- 

Horsedealer,  but  it  is  not  so  ex-  ment  of  the  law  in  the  text, 
pressed  in  the    Report.       If    the  (/)  L.  R.,  2  C.  P.  148;  36  L.  J., 

master   were    not   a   Horsedealer,  C.  P.  42. 

O.  K 


130 


warranty;  sale  and  warranty  by  agent,  etc. 


E\idence  of 
ixsage  not  to 
warrant. 


Warranty  by 
a  Servant 
after  Sale. 


Warranty  by 
a  Servant  for- 
bid to  give 
one. 


reserved  to  tlie  defendant  to  move  to  enter  a  nonsuit  or 
for  a  new  trial.  The  rule  was  refused.  And  Willes,  J., 
in  tlie  course  of  Hs  judgment,  said,  "  David  Sheward  did 
not  negative  the  fact  that  this  was  an  ordinary  transaction 
as  between  his  brother  and  himself.  It  must  be  assumed, 
therefore,  that  he  negotiated  the  sale  as  his  brother's 
Servant  or  Agent.  It  was  not  an  isolated  instance,  though 
if  it  had  been  I  do  not  conceive  tliat  it  would  have  made 
any  difference ;  but  it  appeared  that  David  Sheward  had 
before  assisted  the  defendant  in  the  sale  of  Horses.  Is  it, 
then,  part  of  the  business  of  a  Horsedealer  to  warrant 
Horses  wliich  he  sells  ?  No  doubt  it  is  where  a  sufficient 
price  is  given.  Upon  the  whole  I  think  there  was  clear 
evidence  of  authority  to  warrant.  It  arose  out  of  the 
general  character  of  the  transaction,  and  any  person 
dealing  with  the  Agent  of  a  Horsedealer  has  a  right  to 
assume  it." 

It  was  also  decided  in  Howard  v,  Sheward  (/)  that  evi- 
dence of  the  alleged  usage  amongst  Horsedealers  not  to 
warrant  where  the  Horse  has  been  examined  by  a  Yete- 
rinary  Surgeon,  was  not  admissible  to  rebut  the  inference 
of  authority  to  warrant. 

What  an  Agent  says  as  a  Warranty  or  Representation 
at  the  time  of  Sale  respecting  the  thing  sold,  is  evidence 
against  the  Principal ;  but  not  what  he  has  said  at  an- 
other time,  whether  to  the  purchaser,  or  to  a  stranger, 
unless  it  is  a  statement  accompanying  an  act  done  in  the 
course  of  his  agency  {g).  And  Lord  Ellenborough  said, 
"  If  the  Servant  is  sent  with  a  Horse  by  his  master,  and 
which  Horse  is  offered  for  sale,  and  gives  the  direction 
respecting  his  sale,  I  think  he  thereby  becomes  the  ac- 
credited agent  of  his  master,  and  what  he  has  said  at  the 
time  of  sale,  as  part  of  the  transaction  of  selling,  respecting 
the  Horse,  is  evidence  ;  but  an  acknowledgment  to  that 
effect,  made  at  another  time,  is  not  so  :  it  must  be  confined 
to  the  time  of  actual  sale,  when  he  was  acting  for  his 
master.  I  think,  the  master  having  entrusted  the  Servant 
to  sell,  he  is  entrusted  to  do  all  he  can  to  effectuate  the 
sale ;  and  if  he  does  exceed  his  authority  in  so  doing  he 
binds  his  master  "  (Ji). 

If  the  Servant  of  a  Horsedealer,  with  express  directions 
not  to  warrant  do  warrant,  the  master  is  bound ;  because 

(/)  L.  E.,  2  C.  P.  148.  5  Esp.  133  ;  1  Tayl.  Evid.  4th  ed. 

{g)  PerErskine,  J.,  Allen  v.  Ben-       526. 
Stone,  8  C.  &  P.  760  ;  Peto  v.  Hague,  [It)  Helijer  v.  Eaiche,  5  Esp.  72. 


SALE  AND  WARRANTY  BY  AN  AGENT.  131 

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  (i). 
And  if'  a  person  keeping  Livery  stables,  and  having  a 
Horse  to  sell,  directs  his  Servant  not  to  warrant  him,  and 
the  Servant  does  nevertheless  warrant  him,  the  master  is 
liable  on  the  Warranty,  because  the  Servant  was  acting 
within  the  general  scope  of  his  authority,  and  the  public 
cannot  be  supposed  to  be  cognizant  of  any  private  conver- 
sation between  the  master  and  Servant  [k).  And  where 
the  owner  of  a  Horse  sold  by  a  Lwery-sfable  keeper  with  a 
"Warranty  went  to  the  buyer  and  requested  to  have  the 
Horse  back,  stating  that  he  did  not  authorize  the  War- 
ranty of  Soundness,  and  the  buyer  refused  to  give  it  up, 
saying,  "  I  know  nothing  of  you,  I  bought  the  Horse  of 
Mr.  Osborne  ;"  such  a  refusal  was  held  to  be  no  waiver  of 
the  Warranty  (/}. 

But  if  the  owner  of  a  Horse  were  to  send  a  Stranger  WaiTautyby 
to  a  Fair,  with  express   directions   not   to  warrant   the  ^  ^i^- w^^^- 
Horse,  and  the  latter  acted  contrary  to  the  orders,  the  one.        ° 
pm'chaser  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  (ju). 

But  if  the   master,  under  such  circumstances,   is   un-  Master  un- 
willing to  stand  to  the  Warranty  given  by  his  Servant,  ^^^^^?l\- 
he  is  bound  to  take  back  the  Horse  and  return  the  money  Servants? 
if  it  has  been  paid  {m).     And  on  this  point  Lord  Abinger,  Warranty. 
C.  B.,  said,  "Put  the  ordinary  case  of  a  Servant  employed 
to  sell  a  Horse,  but  expressly  forbid  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  imsound  Horse,  when  he  discovers  the  Horse   to  be 
unsound,  is  not  entitled  to  rescind  the  contract  ?     This 
would  be  to  say,  that  though  the  Principal  is  not  bound 
by  the  false  Pepresentation  of  an  Agent,  yet  he  is  entitled 
to  take  advantage  of  that  false  Representation,  for  the 
purpose  of  obtaining  a  contract  beneficial  to  himself,  which 
he  could  not  have  obtained  without  it  («) . 

(0  Per  Bayley,  J.,   Fichering  v.  (?)  Best  v.  Osborne,  2  C.  &  P.  74. 

Busk,  15  East,  45;  Brady  y.  Todd,  \ni)  Per  Ashurst,  J.,  i^i^ww  v.ifcur- 

9  C.  B.,  N.  S.  604.  rhon,   3  T.  R.   761 ;  and   Scotland 

{k)  VerAahnrfit,  J.,  Fcnnv.  Rar-  {Bank)  v.  Watson,  I  Dow,  45. 

rison,  3  T.  R.  760;  see  also  Howard  [n)   Cornfoot  v.  Fowke,  6  M.  (SbW. 

T.  SJieicard,  L.  R.,  2  C.  P.  148.  381. 

k2 


132 


wahranty;  sale  and  warranty  by  agent,  etc. 


Rule  as  to  a 
Servant  bind 
ing  hia 

Master. 


Warranty  by 
a  Person  en- 
trusted to 
deliver. 


The  general  Eule  tlien,  in  selling  a  Horse  by  a  Servant 
or  Agent,  appears  to  be  the  following  : — That  the  master 
or  owner  is  bound  by  a  Warranty  given  by  his  Servant 
or  Agent  at  the  time  of  sale,  icithout  his  consent,  and 
even  against  his  express  directions,  if  his  Servant  is  his 
general  Agent  to  carry  on  his  business.  But  the  master 
will  not  be  bound  by  the  "Warranty  of  the  Servant,  unless 
the  authority  to  give  that  Warranty  can  be  proved  either 
to  have  been  expressly  or  impliedly,  i.  e.,  by  implication 
of  law,  granted  by  the  master. 

Although  a  Warranty  given  by  a  person  entrusted  to 
sell  prima  facie  binds  the  Principal,  the   Warranty  of   a 
person  entrusted  merely  to  deliver  the  thing  sold  is  not 
prima  facie   binding    on    the    Principal,    but    an    express 
authority  must  be  shown  :  and  therefore  where  a  Horse 
had  been  sold  by  A.  to  B.,  and  A.'s  Servant,  on  deliver- 
ing the  Horse  to  B.,  made  certain  statements,  and  signed 
a  receipt  for  the  price  of  the  Horse,  containing  a  War- 
ranty, it  was  held,  in  an  action  on  the  Warranty,  that 
A.  was   not  bound   by   the   statement  or  receipt  of   the 
Servant,  as  no   express  authority  to  give  the  Warranty 
was  shown  (o) .     And  where,  on  the  purchase  of  a  Horse, 
the  vendor  had  given  a  Warranty  of  Soundness  generally, 
and  the  Servant  who  "was  sent  with  the  receipt  to  the 
Agent  of   the  other   party  inserted   at   his  request,  but 
without  a  special  or  general  authority  from  his  master, 
"  Warranted    sound   to  the   Eegiment,"   and  the  Horse 
was  sound  when  delivered  in  London,  but  was  in  a  violent 
Fever,  of  which  he  soon  afterwards  died,  when  he  reached 
Tewkesbury,  where  the  Eegiment  was  quartered ;   it  was 
held,  that  the  master  was  not  bound  by  this  alteration  of 
the   Warranty,   notwithstanding    the    money   afterwards 
came  to  his  hands  {p). 

If  an  Agent  is  employed  to  receive  a  Horse,  pay  for  it, 
ployed  to  take  ^^-^^  ^g^j^Q  r^  Warranty,  he  has  no  authority  to  receive  it 
a  Warranty.     ^.^^^^^^  ^  Warranty  (<?) . 

An  action  in  substance  for  the  price  of  a  Horse  may  be 
brought  by  the  seller  against  a  pretended  Agent,  as  in  the 
following  case.  It  was  stated  in  the  declaration,  that  in 
consideration  that  the  plaintiff  would  send  a  Pony  to  the 
defendant  he  would  sell  and  deliver  it  to  A. ;  the  defendant 
undertook  that  he  was  authorized  by  A.  to  purchase  it  on 


Aarent  em- 


Action 
ag-ainst  a  pre- 
tended Agent 


(o)    Woodm  V.  Bnrford,    2  Cr.    & 
M.  391  ;  S.  C.  4  Tyrw.  264. 

[p)  Strode Y,  Dt/so>i,  1  Smith, 400. 


(q)  Jordan  v.  Norton,  14  M.  &  W. 
155. 


PATENT  DEFECTS.  133 

his  behalf;  that  the  plaintiff  sent  the  Pony  to  the  de- 
fendant, and  was  willing  to  sell  it  to  A.,  but  that  the 
defendant  had  no  authority  from  A.  to  purchase  it  {>•). 

PATENT   DEFECTS. 

A   general   Warranty   does   not    cover   Patent   defects,  Not  covered 
being  such  as  are  obvious  to  the  buyer.     As  if  a  Horse  ^y  ^  W*^" 
warranted  perfect  be  minus  an  Eye   or  a  Tail  (s),  or  a  ^^"^  ^' 
House  warranted  to  be  in  perfect  repair,  be  without  Roof 
or  Windows  (if),  or,  "  as  if  one  sells  Purple  to  another,  and 
saith  to  him  that  this  is  Scarlet,  this  Warrant  is  to  no  pur- 
pose, for  that  the  other  may  perceive  this,  and  this  gives  no 
cause  of  action  to  him.     To  warrant  a  thing  that  may  be 
perceived  by  sight  is  not  good"  {u). 

From  these  examples  the  proper  principle  regarding  In  what  they 
Patent  defects  may  clearly  be  drawn ;  they  must  be  such  ''°^'^^s*- 
Defects  as  a  man,  unless  he  is  perfectly  incompetent  to 
conduct  business,  cannot  help  observing.  For  where  a 
person  sees,  or  has  the  opportunity  of  seeing,  goods  before 
purchase,  Caveat  emptor  is  the  Pule  of  law  ;  and  a  man 
who  does  not  perceive  the  loss  of  an  Eye  or  Tail  in  a 
Horse,  or  the  absence  of  the  Poof  or  Windows  from  a 
House,  or  does  not  distinguish  between  Purple  and 
Scarlet  by  the  light  of  day,  cannot  expect  the  law  to 
give  him  any  assistance,  as  every  man  making  a  bargain 
is  expected  to  have  ordinary  perception.  Whether  a 
defect  is  Patent  or  not,  or  the  purchaser  has  used  ordinary 
care,  is  a  question  for  the  consideration  of  the  Jury. 

Although  the  loss  of  an  Eye  is  a  breach  of  a  Warranty  How  far  the 
of  Soundness  {x),  it  has  been  laid  down,  that  "  where  one  i^pa^iiT 
buys  a  Horse  upon  warranting  him  to  have  both  his  Eyes, 
and  he  have  but  one  Eye,  he  is  remediless ;  for  it  is  a  thing 
which  lies  in  his  own  conusance,  and  such  Warranty  or 
affirmation  is  not  material  nor  to  be  regarded"  {y).  But 
this  seems  to  assume  that  the  Eye  has  entirely  disappeared, 
or  has  been  so  obvious! y  damaged,  that  it  must  lie  in  the 
conusance  of  the  buyer ;  and  nothing  is  said  with  regard  to 
a  loss  of  sight,  where  there  is  little  apparent  injury  to  the 
Eyes;  for  a  Horse  may  appear  to  the  majority  of  people 

(?•)  Price  V.  Morgan,  2  M.  &  W.  507. 
55.  («)  Bailey  v.  Merrell,  3  Bulst.  95. 

(»)  2   Bla.    Com.    165 ;    and  per  \x)    Butterfield   v.    Burroughs,    1 

Hank,  J.,  Year  Book,   13  Hen.  4,  Salk.  211. 
p.  1.  (?/)  Year  Book,  13  Hen.  4,  p.  1 ; 

{t)  Bger  v.  Hargrave,   10  Vesey,  Bayleij  v.  Merrell,  Cro.  Eliz.  389, 


134 


warranty;  sale  and  warranty  by  agent,  etc. 


"  Bright 
Eye." 


Convexity  of 
Eye. 


Where  the 
Buyer  knows 
the  Defect. 


Where  De- 
fects are  dis- 
cussed. 


perfect  in  his  Eyes,  and  yet  have  lost  the  sight  of  one  or 
both.  Such  is  the  case  in  Gutta  serena,  vulgarly  called 
"  Glass-ei/e"  (s),  which  is  a  Palsy  of  the  optic  nerve  or 
retina,  and  being  difficult  of  detection  can  certainly  never 
be  considered  a  Patent  defect. 

This  point  seems  to  have  been  taken  in  an  old  case, 
where  it  is  said,  "  Lou  jeo  vend  chivaU  que  ad  null  Oculus 
la  null  action  gist;  auter/nent  lou  H  ad  un  counterfeit  faux 
et  Bright  Eye."  "  Where  I  sell  a  Horse  that  has  no 
Eye,  there  no  action  lies;  otherwise  where  he  has  a 
counterfeit,  false  and  Bright  Eye^^  {a).  Thus  it  appears 
that  a  distinction  is  here  made  between  a  Horse  having 
no  eye  at  all,  and  having  a  counterfeit,  false  oi  B rigid  one. 
And  probably  by  Brig/it  Eye  is  meant  Glass-eye  or  Gutta 
serena ;  and  the  words  "  counterfeit"  and  "  false"  may  be 
an  attempt  of  the  Reporter  to  explain  an  expression  which 
he  did  not  understand.  Because,  putting  a  false  Eye  into 
a  Horse  is  very  far  in  advance  of  the  sharpest  practices  of 
the  present  day,  or  of  any  former  period. 

Thus,  too,  in  a  case  in  which  a  convexity  in  the  forma- 
tion of  the  cornea  of  the  Eye  made  a  Horse  short-sighted, 
and  thence  induced  in  him  a  habit  of  shying,  Lord  Camp- 
bell said  that  this  was  not  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  was  so  formed  as  to  produce 
short-sight ;  the  most  prudent  man  could  not  be  expected 
to  do  that"  {b). 

But  if  a  person  purchase  a  Horse  hiowing  it  to  be  Blind, 
he  cannot  sue  the  seller  on  a  general  warranty  of  sound- 
ness, although  he  had  warranted  the  animal  to  be  sound  in 
every  respect  (f) . 

AVhere  the  buyer  observes  some  Defects,  and  they  are 
discussed  by  both  parties  before  sale,  and  a  Warranty  is 
given ;  if  an  action  is  afterwards  brought  for  a  breach  of 
the  Warranty,  it  is  a  question  for  the  Jury  to  say  whether 
the  Horse  is  sound  in  the  terms  of  the  Warranty,  saving 
those  manifest  and  visible  Defects  which  were  known  to 
the  parties.  And  then  if  he  is  sound  with  these  exceptions, 
they  must  consider  whether  the  effect  which  might  be  pro- 
duced by  any  of  those  Defects  was  contemplated  or  not. 


(z)  Gutta  serena,  ante,  p.  91. 
(ffl)  Soiitherne   v.   Eowe,    2    Rol. 
Rep.  5. 


(i)  Hohjdmj  V.  Morcjan,  28  L.  J., 
Q.  B.  9. 

(e)  Marfjction  v.  Wyi'jht,  5  M.  & 
P.  610. 


PATENT  DEFECTS.  135 

that  is,  whether  under  the  circumstances  of  the  case  the 
seller  undertook  that  they  should  not  impede  the  natural 
usefulness  of  the  Horse.  This  appears  in  the  following 
case : — where  an  action  was  brought  for  a  breach  of  War- 
ranty on  the  sale  of  a  Racehorse,  the  terms  of  which  were, 
"And  the  said  Mr.  Wright  (the  defendant)  doth  hereby 
warrant  the  said  Horse  to  be  sound  wind  and  limb  at  this 
time,"  two  subjects,  namely.  Crib-biting  (d)  and  a  Splint  (e) 
on  the  off-fore  leg,  were  discussed  by  the  parties  at  the 
time  of  the  bargain,  and  after  that  discussion,  the  War- 
ranty in  question  was  given.  The  Horse  soon  became 
lame  and  afterwards  broke  done.  On  the  case  being  tried, 
the  Jury  returned  a  verdict  for  the  plaintiff. 

Chief  Justice  Tindal,  in  making  a  rule  for  a  new  trial 
absolute,  said,  "  It  is  laid  down  in  the  older  books,  that 
where  Defects  are  apparent  at  the  time  of  a  bargain,  they 
are  not  included  in  a  Warranty,  however  general  the 
terms  may  be,  because  they  can  form  no  subject  of  deceit 
or  fraud ;  and  formerly  the  mode  of  proceeding  for  a 
breach  of  Warranty  was  by  an  action  of  Deceit  grounded 
on  an  express  fraud,  and  the  averment  in  the  declaration 
was  warraniizando  vendklitP 

"  Although,  however,  certain  exceptions  may  be  grafted 
on  a  contract  of  Warranty,  yet  in  this  case  no  fraud  or 
deceit  can  be  attributed  to  the  defendant,  as  the  Horse's 
defect  was  manifest,  the  Splint  not  only  being  apparent 
but  made  the  subject  of  discussion  before  the  bargain  was 
made.  If  a  person  purchase  a  Horse,  knowing  it  to  be 
blind,  he  could  not  sue  the  seller  on  a  General  Warranty 
of  soundness,  although  he  had  warranted  the  animal  to 
be  sound  in  every  respect.  The  Splint  was  known  to 
both  the  plaintiff  and  the  defendant,  and  the  learned 
judge  left  it  to  the  Jury  to  say  whether  the  Horse  was  fit 
for  ordinary  purposes.  His  direction  would  have  been 
less  subject  to  misapprehension,  if  he  had  left  it  to  them  in 
the  terms  of  the  Warranty  to  say  whether  the  Horse  was, 
at  the  time  of  the  bargain,  sound  wind  and  limb,  saving 
those  manifest  and  visible  defects  which  were  known  to 
the  parties  ;  the  Jury  might  then  have  considered  whether 
the  effect  which  might  be  produced  by  the  Splint  was 
contemplated  or  not "  (./). 

When  the  case  was  again  tried  the  Jury  found  for  the 

{d)  Crib-biting,  ante,  p.  84.  (/")  Maryetson  v.  Wrighl,  5  M.  & 

[e)  Splint,  ante,  p.  103.  P.  610. 


136  warranty;  sale  and  warranty  by  agent,  etc. 

plaintiff,  as  they  tliought  the  Horse  unsound  at  the  time 
of  the  contract  from  the  Sj)lint,  which  was  in  a  very  had 
situation,  pressing  upon  one  of  the  sinews,  and  which 
would  naturally  produce  lameness  when  the  Horse  was  put 
to  work  (g). 

In  a  more  recent  case,  in  which  the  defendant  sold  a 
Horse  to  the  plaintiff  with  a  generally  written  Warranty 
of  soundness,  but  at  the  same  time  pointed  out  a  Splint 
which  it  had,  and  the  Horse  subsequently  became  lame  from 
,  the  Splint,  it  was  held  that  the  lameness  was  a  breach  of 
the  Warranty.  Pollock,  C.  B.,  in  his  judgment,  said, 
"  The  rule  is  asked  for  on  the  ground  that  when  you  point 
out  a  Splint  to  the  purchaser,  you  except  it  out  of  the 
Warranty ;  it  may  be  so,  if  the  Horse  be  blind,  or  have 
any  other  patent  defect,  wliich  is  to  be  seen  and  is  clear ; 
but  here  it  may  well  be  that  the  defendant  warranted  that 
the  Splint  should  not  grow  into  a  lameness.  A  person 
buying  a  Horse  is  often  no  judge  of  Horses,  and  may  say, 
I  don't  want  to  see  the  defects  or  blemishes  of  the  Horse, 
as  I  really  know  nothing  about  them  ;  I  want  and  must 
have  a  written  Warranty.  I  do  not  see  why  this  Warranty 
should  not  be  taken  thus  :  '  I  show  you  this  Splint,  and  I 
warrant  the  Horse  perfectly  sound  notwithstanding.'  It 
may  have  been  excepted  in  the  Warranty,  but  there  is  no 
exception  at  all.  I  think  the  defendant  is  liable  on  his 
Warranty.  This  entirely  agrees  with  the  decision  in  ITctr- 
getson  v.  Wright  (g).  Some  Splints  cause  lameness  and 
others  do  not.  A  Splint,  therefore,  is  not  one  of  those 
patent  defects,  against  which  a  Warranty  is  inoperative." 
Bramwell,  B.,  in  the  same  case,  in  giving  judgment  for 
the  plaintiff  based  his  decision  upon  the  broader  ground, 
that  where  the  Warranty  is  a  written  one,  it  cannot  be 
modified  by  parol  evidence  to  the  effect  that  the  defect 
existed  at  the  time,  and  was  therefore  excluded  from  the 
Warranty  (//). 
Conclusion  to  The  conclusion  then  to  be  drawn  from  the  recent  cases 
be  drawn  from  on  this  subject  appears  to  be; — that  the  patent  defects, 
the  cases.  which  the  Warranty  does  not  cover,  and  to  which  the  doc- 
trine of  Caveat  emptor  applies,  must  be  so  manifest  and 
palpable,  as  to  be  necessarily  within  the  knowledge  and 
apprehension  of  the  purchaser,  and  also  such  defects  as 
at  the  time  of  sale  either  are,  or  will  inevitably  produce, 

(r/)  Margetson  v.  Wright,  1  M.  &  {h)  Smith   v.    O'Brien,   11  L.  T., 

Sco.  627.  N.  S.  346. 


PATENT  DEFECTS.  137 

an  Unsoundness.  And  as  Mr.  Baron  Bramwell's  opinion, 
that  parol  evidence  is  inadmissible  to  modify  the  written 
Warranty  to  the  extent  of  proving  the  existence  of  patent 
defects  at  the  time  of  the  Warranty  being  given  (i),  appears 
to  be  well  founded,  the  written  Warranty  must  be  taken 
to  contain  all  the  terms  of  the  contract,  and  evidence  as  to 
Patent  Defects  will  only  be  receivable  in  cases  where  the 
Warranty  is  not  in  writing. 

Where  the  "buyer  suspects  some  Defect  and  wishes  to  Suspected 
examine  and  try  the  Horse  for  it,  but  the  seller  objects  Defects. 
and  says,  *'  I  will  warrant  him,"  he  is  liable  for  the  De- 
fect. For  where  an  action  o)i  the  Case  was  brought  when 
a  Horse  warranted  sound  had  turned  out  "  Shoulder- 
tied,"  it  was  contended  that  an  action  would  not  lie, 
because  the  defect  was  visible.  But  Sir  Henry  Montague, 
C.  J.,  said,  "  This  was  the  ground,  that  the  plaintiff  wished 
to  have  ridden  the  Horse,  but  the  defendant  said,  '  I  will 
warrant  him  sound.'  "  And  Noy,  J.,  said,  "  That  is  the 
distinction,  where  the  Defect  is  visible"  (/«•). 

Where  there  is  no  opportunity  of  inspecting  the  com-  Turchase 
modity,  the  Maxim  Caveat  emptor  does  not  apply ;  and  gpecUon.^"^" 
the  intention  of  both  parties  must  be  taken  to  be,  that  it 
shall  be  saleable  in  the  Market  under  the  denomination 
mentioned  between  them  (/).  This  has  been  laid  down 
with  regard  to  Horses  some  centuries  ago,  for  we  find  in 
the  Year  Book  it  is  said  by  Thirning,  J.,  "  If  I  buy  a 
Horse  of  you  in  a  different  place  from  where  the  Horse  is, 
through  the  confidence  I  have  in  you,  and  you  warrant 
him  sound  in  all  his  parts,  when  he  is  Blind,  I  shall  have 
a  good  action  of  Deceit  against  you"  {ni).  Therefore,  at 
the  present  day,  if  A.  in  London  were  to  buy  a  Carriage 
Horse  of  B.  in  Yorkshire  warranted  sound,  and  the  Horse 
on  its  arrival  were  found  to  have  some  Patent  defect,  such 
as  the  want  of  an  ear  or  tail,  A.  would  not  be  bound  to 
take  it,  because  being  maimed,  it  could  not  be  said  to 
answer  the  description  of  the  Horse  he  ordered;  and  by 
taking  a  Warranty  he  has  done  everything  in  his  power  to 
protect  himself  (»). 

(/)  Smiih  V.  O'Brien,   11   L.  T.,  (;w)  Year  Book,  13  Hen.  4,  p.  1. 

N.  S.  346.  (w)  ^ee  Gardiner  \.  (?;•«■?/,  4  Gamp. 

(k)  Dorrington  v.  Edwards,  2  Rol.  145.     See  also  Jones  v.  Just,  L.  R., 

188.  3  Q.  B.  197;    37  L.  J.,  Q.  B.  89; 

{I)  Gardiner  v.   Gray,  4   Camp.  18  L.  T.,  N.  S.  208. 
145. 


(     138    ) 


CHAPTER  VI. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION. 


"Waeeanty  distinguished  feom 
Representation. 
Jieprescnfation  intended  as  a  JVar- 

ranty 138 

Recommendation  of  the  Seller   . .     id. 

^'iJflrDiation  as  to  Value    id. 

Distinction  between  a  IVarrantij 

and  a  Representation id. 

Where  a  Representation  amounts 

to  a  Warranty  139 

Question  to  be  put  to  the  Jury  . .   140 


Rule  as  to  Warranty  and  Repre- 
sentation      141 

Mere  Expression  of  Opinion ....  id. 
Selling  according  to  Pedigree  . .  id. 
Partly  a  Warranty  and  partly  a 

Representation    id. 

The  Jury  must  decide  between  a 

Warranty  and  Representation  142 

Percival  v.  Oldacre 143 

Judgment  in  Behn  v.  Burncss. .  id. 
Counterfeit  Trade  Marks 145 


Representa- 
tion intended 
as  a  "War- 
ranty. 


Recommen- 
dation of  the 
seller. 


Aifirmation  as 
to  value. 


Distinction 
between  a 
Warranty  and 
a  Representa- 
tion. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION. 

It  is  sometimes  not  very  easy  to  determine  wliether  an 
action  for  breach  of  Warranty  should  he  brought  against 
the  vendor  of  a  chattel,  or  whether  the  proper  remedy  be 
by  an  action  for  Misrepresentation,  the  Bule  of  law  being 
that  every  afhrmation  at  the  time  of  sale  of  personal 
chattels  is  a  AVarranty,  provided  it  appears  to  have  been 
so  intended  {a) . 

In  many  cases,  however,  even  the  positive  Recom- 
mendation of  the  seller  is  not,  from  the  nature  of  the  case, 
to  be  regarded  as  a  Warranty,  but  merely  as  an  expression 
of  his  belief  or  opinion  on  a  matter  of  which  he  can  have 
no  certain  knowledge,  and  on  which  the  purchaser  is  gene- 
rally capable  of  forming  an  opinion  {b)  ;  the  Eule  being, 
Commendatio  simf)lex  non  ohlicjat. 

Therefore  a  simple  Affirmation  or  Assertion  by  the  ven- 
dor, as  to  the  value  or  quality  of  his  goods,  does  not 
amount  to  a  Warranty,  unless  it  be  made  and  received  as 
such,  although  the  purchaser  may  liave  bought  the  goods 
on  the  faith  of  such  Eecommendation  ih). 

The  distinction  between  a  Warranty  and  Bej)resentatio)i 
is  pointed  out  in  a  note  to  the  case  of  Goram  v.  Sweeting  (c), 


[(i)  Smith's  Leading  Cases,  7tli 
ed.  174  ;  Pouer  v.  Barham,  4  A.  & 
E.  473  ;  Shephard  v.  Kain,  5  B.  & 
Aid.  240 ;  Freeman  v.  Baker,  2  N. 
&  M.  446. 


{b)  Chandelor  v.  Lojms,  Cro.  Jac. 
4;  Rol.  Abr.  101. 

{c)  Goram  v.  Sweeting,  2  Wms. 
Saund.  200  c  ;  and  see  per  Martin, 
B.,  Benham  v.  United  Guaruntee  Co., 
7  Ex.  753. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION.  139 

and  was  also  laid  down  by  Chief  Justice  Best,  in  the  fol- 
lowing case.  An  action  of  Assumpsit  was  brought  on  the 
Warranty  of  a  Horse ;  no  direct  evidence  was  given  of 
what  took  place  when  the  contract  was  made,  but  letters 
passed  between  the  x^laintiff  and  defendant,  in  which  the 
plaintiff  writes,  "  You  well  remember  that  you  represented 
the  Horse  to  me  as  five  years  old ;"  to  which  the  de- 
fendant answers,  "  The  Horse  is  as  I  represented  it." 
Chief  Justice  Best  said,  "  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  Warranty  and  a 
Representation,  because  a  Representation  must  be  loioicn  to 
be  wrong.  The  plaintiff  in  his  letter  says, '  You  remember 
you  represented  the  Horse  to  me  as  five  years  old.'  To 
which  the  defendant's  answer  is,  '  The  Horse  is  as  I 
represented  it.'  Now  if  the  Jury  find  that  this  occurred 
at  the  time  of  sale,  and  without  any  qualification,  then  I 
am  of  opinion  that  it  is  a  Warranty.  If  it  occurred 
before,  or  if  it  was  qualified,  then  it  must  be  taken  to  be  a 
Representation  and  not  a  Warranty."  His  Lordship  then 
left  the  question  to  the  Jury,  telling  them  "  that  if  they 
found  that  the  defendant  at  the  sale  gave  an  undertaking 
to  the  effect  mentioned  in  the  letters,  then  such  under- 
taking was  a  Warrant)/.''^  The  Jury  returned  a  verdict 
•for  the  plaintiff  {e). 

A  Eepresentation  to  amount  to  a  Warranty  must  be  Where  a  Re- 
shown  not  only  to  have  been  intended  to  form  part  of  amountfto'i 
the  contract,  but  also  to  have  been  made  pending  the  WaiTanty. 
contract.  And  therefore  where  A.  sent  his  Horse  to 
Tattersall's  for  sale  by  auction  without  Warranty,  and 
on  the  day  before  the  sale  found  B.  in  the  stable  exa- 
mining the  Horse's  legs,  and  A.  said  to  him,  "  You  have 
nothing  to  look  for;  I  assm^e  you  he  is  perfectly  sound 
in  every  respect;"  whereupon  B.  replied,  "If  you  say  so, 
I  am  perfectly  satisfied."  Upon  the  faith  of  this  repre- 
sentation (admitted  to  have  been  made  in  good  faith)  B. 
became  the  purchaser.  It  was  held  that  this  was  no 
Warranty,  as  this  representation  was  not  intended  to  form 
part  of  the  contract  of  sale,  nor  was  it  made  pending  the 
contract.  For  the  sale  being  by  auction,  the  negotiations 
between  the  parties  had  not  commenced,  inasmuch  as  the 
contract  began  only  when  the  Horse  was  put  up  for  sale, 

{e)  Salmon  v.  Ward,   2  C.  &  P.  211;  and  see  Cave  v.  Coleman,  3  M. 
&  Ey.  3. 


140  WARRANTY  DISTINGUISHED  FROM  REPRESENTATION. 

and  ended  when  he  was   knocked  down  to  the  highest 
bidder  (/). 

And  in  the  case  of  Chalmers  v.  Harding  (g)  the  plaintiff, 
a  farmer,  having  by  letter  inquired  of  the  defendant,  an 
Agent  for  the  sale  of  agricultural  machines,  the  lowest 
j^rice  for  which  he  could  furnish  a  corn  machine,  the 
defendant  replied  by  letter  as  follows : — "  I  happen  to 
have  a  very  good  second-hand  Wood's  Eeaper,  which  I  can 
offer  you  at  IG/.  IGv.  It  belonged  to  a  gentleman  who 
has  retired  from  farming ;  he  paid  me  35/.  for  it  a  little 
time  ago ;  it  has  only  cut  fifty  acres,  and  it  is  not  one 
penny  the  worse, —  in  fact,  you  would  hardly  know  it 
from  a  new  one.  I  enclose  drawings.  I  have  shown  more 
than  thirty  of  these  machines  in  this  part,  all  of  which  are 
doing  well,  so  that  I  can  confidently  recommend  it.  I  do 
not  recommend  it  for  cutting  meadow  grass,  but  it  will 
cut  wheat,  barley,  oats,  clover,  French  grass,  &c.,  or  any 
grain  crop  efficiently."  In  an  action  to  recover  damages  for 
breach  of  Warranty,  the  machine  having  failed  to  perform 
the  desired  work,  it  was  held  that  the  letter  did  not 
amount  to  a  Warranty  on  a  contract  tliat  the  particular 
machine  would  do  the  specified  work,  but  was  a  mere 
representation  and  a  description  of  Wood's  Patent  Reapers 
generally. 
Question  to  The  proper  question  for  the  Jury  in  a  case  in  which 

Jury'  °  ^  ^^®  effect  of  a  statement  made  during  the  sale  is  the  point 
at  issue,  is  whether  it  is  or  is  not  intended  to  form  part  of 
the  contract.  In  the  case  of  Foster  v.  Smith  (A),  an  agent 
sold  a  Mare  to  C,  and  having  no  express  authority  from 
the  owner  to  warrant  her,  refused  to  do  so,  but  at  the  time 
of  the  sale  told  C.  that  "  if  the  Mare  was  not  all  right  she 
was  not  his."  C.  thereujoon  paid  the  price,  which  was 
received  by  the  owner.  The  Mare  proving  Unsound, 
C.  returned  her  to  the  agent,  and  sued  the  owner  in  the 
County  Court  for  a  return  of  the  money.  Jervis,  C.  J.,  in 
delivering  the  judgment  of  the  Court  of  Common  Pleas, 
said  that  the  proper  question  to  leave  to  the  Jury  in  this 
case  was  whether  it  was  part  of  the  contract  that  the  Mare 
should  be  returned,  if  she  proved  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. 

(/•)  Hoijkins  V.  Tanqueray,  23  L.  (r/)  17  L.  T.,  N.  S.  571. 

J.,"C.  P.  162.  (h)  Foster  v.  Smith,  18  C.  B.  156. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION.  141 

The    Judges    in   the    Exchequer    Chamber    have   laid  Rule  as  to 
down  a  Rule  with  regard  to  Warranty  and  Representation  Warranty  and 
which  appeared  to  them  to  be  supported  so  clearly  by  tion!^^^^^  ^" 
the  early  as  well  as  the  most  recent  decisions,  that  they 
thought  it  unnecessary  to  bring  them  forward  in  review. 
The  judgment  was  pronounced  by  Chief  Justice  Tindal, 
who  said,  "  The  Rule,  which  is  to  be  derived  from  all  the 
cases,  appears  to  us  to  be,  that  where  upon  the  sale  of 
goods  the  purchaser  is  satisfied  without  requiring  a  War- 
rant ij  (which  is  a  matter  for  bis  own  consideration),  he 
cannot  recover  upon  a  mere  Representation  of  the  quality 
by  the  seller,  unless  he  can  show  that  the  Representation 
was  bottomed  in  FramV  {i). 

In  Jenchcine  v.  Slade{k),  where  two  pictures  were  sold,  Mere  expres- 
described  in  a  Catalogue  as  one  by  Claude  Loraine  U).  ^^'^^p^ 

<D  •/  \  J  f   ODinioii 

and  the  other  by  Teniers  [m),  and  they  turned  out  to  be 
copies,  Lord  Kenyon  seemed  to  think  that  the  Represen- 
tation of  a  fact  of  which  the  seller  could  have  no  certain 
knoirkdge,  must  be  taken  as  a  mere  expression  of  opinion, 
as  these  were  very  old  painters,  and  there  was  no  way  of 
tracing  the  pictures. 

And  where  a  man  not  knowing  the  age  of  a  Horse,  but  Selling 
having  a  written  Pedigree,  which  he  received  with  him,  Pe*^^i.^e^  ^ 
said  at  the  time  of  sale  that  he  sold  him  according  to  that 
Pedigree,  knoiring  notlting  further  than  he  learnt  there- 
from, the  mark  being  out  of  his  mouth  when  he  bought 
him,  it  was  held  to  be  710  Warrant//,  and  that  he  was  not 
liable  to  an  action  on  account  of  the  Pedigree  turning  out 
false  {n). 

But  a  written  instrument  may  consist  partly  of  a  War-  Partly  a  War- 
ranty  and  partly  of   a   Representation.     Thus,  where  the  partfy^rEe- 
f  olio  wing  Receipt  was  given  on  the  purchase  of  a  Horse,  presentation. 
"  Received  of  Robert  Dickenson  lOU/.  for  a  bay  Grelding 
got  by  Cheshire  Cheese,  and  warranted  Sound,"  and  an 
action  was  brought  on  an  alleged  breach  of  Warranty,  on 
the  ground  that   he  was  not   bred  in  the  manner  above 
described.  Chief  Justice  Dallas  held  that  the    Warranty 
was  confined  to  the  Soundness,  and  the  statement  that  he 
was  got  by  Cheshire  Cheese  was  a  mere  Representation  (o). 

(i)   Ormrod  v.  Huth,  U  M.  &  W.  («)  Dunlop  v.  Wright,   1   Peake, 

664.  197. 

{k)  Jendwine    v.    Slade,    1    Esp.  (o)  Dickenson    v.    Gapp,    H.    T. 

572.  1821,  cited  in  Btidd  v.  Fairmanner, 

(/)  Claude  Loraine  died  in  1G82.  1  M.  &  Sc.  78. 

{ni)  Teniers  died  in  1694. 


142  WARHANTY  DISTINGUISHED  FROM  REPRESENTATION. 

Also,  wliere  a  Receipt  on  the  sale  of  a  Colt  contained  tlie 
following  words  after  the  date,  name  and  sum,  "  for  a 
grey  four  years  old  Colt  warranted  Sound  in  every  re- 
spect," and  the  Colt  turned  out  to  be  only  three  years  old, 
Chief  Justice  Tindal  nonsuited  the  plaintiff,  who  had 
brought  an  action  on  that  ground,  and  said,  "  I  am  of 
opinion  that  the  first  part  of  the  Receipt  contains  a  Re- 
prcscnfation  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  knoniedge ;  but  in 
the  case  of  a  Warranty  he  is  liable  whether  they  are  within 
his  knowledge  or  not.''  The  Court  of  Common  Pleas  dis- 
charged a  rule  nisi  for  setting  aside  the  nonsuit,  and  Mr. 
Justice  Alderson  said,  "  A  Warranty  must  be  complied 
with  whether  it  is  material  or  not,  but  it  is  otherwise  as 
to  Representation.  If  the  word  ^Warranted'  had  been 
the  last  word,  I  should  have  held  that  it  extended  to  the 
whole"  (p).  However,  in  a  previous  case,  where  the 
plaintiff  larought  an  action  to  recover  the  price  of  a  Horse 
sold  under  the  following  Warranty,  "  A  black  Celding, 
about  five  years  old,  has  been  constantly  driven  in  the 
plough — Warra)ited,"  it  was  held  that  the  terms  of  such 
AVarranty  applied  to  the  Souiubiess  of  the  Horse  rather 
than  to  the  nature  of  his  employment  ( q) . 

So,  also,  in  the  case  of  Anthony  y.  Jlalstead  {r),  the 
following  document,  viz. :  "  Received  from  A.  the  sum  of 
60/.  for  a  black  Horse,  rising  five  years,  quiet  to  ride  and 
drive,  and  w^arranted  sound  up  to  this  date,  or  subject  to 
the  examination  of  a  veterinary  surgeon,"  was  held  not  to 
be  a  Warranty  that  the  Horse  was  quiet  to  ride  and  drive. 
The  Jury  It  is  a  question  for  the  Jury  whether  the  description  of 

must  decide  ^^^  article  in  a  Catalogue,  a  Receipt,  or  a  Bill  of  parcels, 
Warranty  and  amounts  to  a  Warranty,  or  is  merely  a  matter  of  De- 
a  Eepresenta-  script  ion  or  intimation  of  an  opinion,  and  it  should  be 
*^°°-  submitted  to   the  Jury  with    all   the   attendant   circum- 

stances. Thus,  where  a  Pictm'e  had  been  sold  as  a  Rem- 
brandt, an  action  was  brought  on  a  Bill  of  exchange  of 
which  the  Picture  was  the  consideration,  and  it  appeared 
doubtful  on  the  evidence  whether  there  had  been  a  War- 
ranty or  only  a  Representation;  Chief  Justice  Tindal,  in 
summing  up,  said,  "  The  question  is,  whether  you  think 
that   a    Warranty  was   in   fact   given,    and   that   it   was 

{p)  Budd  V.  Fair  manner,  5  C.  &  {q)  Richardson  \.Brmvn,^'iS.oove, 

P.  78.  338  ;  iS.  C.  1  Bing.  344. 

(»•)  37  L.  T.,  N.  S.  433. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION.  143 

broken  ?  For,  if  you  do,  you  must  find  your  verdict  for 
such  sum  as  you  think  to  be  the  real  value  of  the  picture ; 
but  if  there  was  no  express  Warranty,  but  only  a  Repre- 
senfation,  then,  as  there  is  no  evidence  that  the  plaintiff 
did  not  believe  that  the  picture  was  not  a  Rembrandt,  he 
will  be  entitled  to  recover  the  full  amount  of  the  Bill," 
which  the  Jury  found  (s).  But  in  a  case  where  Pictures 
were  sold  with  a  Bill  of  parcels,  containing  the  words 
"  Four  Pictures,  Yiews  in  Venice,  Canaletti,"  the  Jury 
thought  this  a  Warranty,  and  refusing  a  rule  for  a 
new  trial.  Lord  Denman,  C.  J.,  said,  "  It  is  for  the  Jury 
to  say,  under  all  the  circumstances,  what  was  the  effect 
of  the  words,  and  whether  they  implied  a  Warrant!/  of 
genuineness  or  conveyed  only  a  Description  or  an  ex- 
pression of  opinion,  I  think  that  their  finding  was  right ; 
Canaletti  if)  is  not  a  very  old  painter"  {ti). 

So,  too,  in  the  case  of  Percival  v.  Oldacre  {x)  the  plain-  Perdval  v. 
tiff  saw  a  Horse  at  Bank's,  in  Gray's  Inn  Lane,  belong-  (^^'■^"'^>'^- 
ing  to  the  defendant,  which  was  for  sale.  He  afterwards 
saw  the  defendant,  told  him  that  he  had  seen  the  Horse, 
and  asked  him  '  What  about  the  Horse  ?  '  The  defendant 
said  that  he  was  a  good  harness  Horse,  and  that  he  had 
been  bought  to  match  for  Baron  Rothschild  for  85/.,  and 
that  he  was  only  selling  him  because  he  would  not  match. 
The  plaintiff  on  this  went  to  Bank's,  and  bought  the 
Horse  eventually  for  65/.  The  Horse,  on  being  put  in 
harness,  turned  out  to  be  a  kicker,  and  kicked  the  plain- 
tiff's trap  to  pieces.  He  was  afterwards  sent  to  a  stable, 
and  sold  for  40/.,  and  the  action  was  brought  for  the  dif- 
ference. The  Jury  found  a  verdict  for  the  plaintiff  for 
the  25/.  claimed.  In  moving  for  a  new  trial  it  was  con- 
tended that  there  was  no  -evidence  of  Warranty,  but  Erie, 
C.  J.,  said  that  Mr.  Justice  Byles,  who  tried  the  cause, 
was  of  opinion  that  there  was  evidence  to  go  to  the  Jury 
of  a  Warranty,  and  that  the  verdict  therefore  ought  not  to 
be  disturbed. 

In  the  case  of  Belin  v.  Burness  (//)  Mr.  Justice  Williams,  Judgment  in 
in  delivering  the  judgment  of  theExchequer  Chamber,  gave  -^^^'"  ^-  •^"'■' 
the  following  lucid  exposition  of  the  legal  characteristics 


ness. 


(s)  Be  Schwanherg  v.  Buchanan,  5  (?<)  Tower  v.  Barham,  4  A.  &  E. 

C.  &  P.  343.  473. 

it)  Canaletti   died  in   17G8,  and  {x)  Percival  v.  Oldacre,  N.  P.  0. 

Claude  Loraine  and  Teniers  (tlic  P.  Jan.  18,  1865. 

younger),  mentioned  in  Jcudicine  v.  {ij)  Behii  v.  Buriiess,  32  L.  J.,  Q. 

Slade,  died,  the  formex'  in  1682,  the  B.  204,  recognized  and   approved 

latter  in  1694.  by  Erie,  C.  J.,  Mallan  v.  Madloff.  5 

N.  R.  54. 


144  WARRANTY  DISTINGUISHED  FROM  REPRESENTATION. 

of  Representation  as  distinguislied  from  Warranty.  He 
said,  "  Properly  speaking,  a  rej)resentation  is  a  state- 
"  ment  or  assertion  made  by  one  party  to  tlie  other,  be- 
"  fore  or  at  the  time  of  the  conti-act,  of  some  matter  or 
"  circumstance  relating  to  it.  Although  it  is  some  thing 
"  contained  in  a  written  instrument,  it  is  not  an  integral 
"  part  of  the  contract,  and  consequently  the  contract  is 
"  not  broken,  although  the  representation  proves  to  be 
"  untrue  nor  (with  the  exception  of  the  case  of  policies 
"  of  insiu-ance,  or  at  all  events  marine  policies,  which 
"  stand  upon  a  peculiar  and  anomalous  footing)  is  such" 
"  untruth  any  cause  of  action,  nor  has  it  any  efficacy 
*'  whatever,  unless  the  representation  was  made  fraudu- 
"  lently,  either  by  reason  of  its  being  made  with  a  know- 
"  ledge  of  its  untruth,  or  by  reason  of  its  being  made  dis- 
"  honestly,  or  with  a  reckless  ignorance  whether  it  was 
"  true  or  untrue  (2).  If  this  be  so,  it  is  difficult  to  un- 
"  derstand  the  distinction  which  is  to  be  found  in  some 
"  of  the  treatises,  and  is  in  some  degree  sanctioned  by 
"  judicial  authority  (a),  that  a  representation,  if  it  differs 
"  from  the  truth  to  an  unreasonable  extent,  may  affect 
"  the  validity  of  the  contract.  Where,  indeed,  a  repre- 
"  sentation  is  so  gross  as  to  amount  to  sufficient  evidence 
"  of  fraud,  it  is  obvious  that  the  contract  on  that  ground 
"  is  voidable.  Although  representations  are  not  usually 
"  contained  in  the  written  instrument  of  contract,  yet 
"  they  sometimes  are,  but  it  is  plain  that  their  insertion 
"  therein  cannot  alter  their  natiu-e.  A  question,  however, 
"  may  arise  whether  a  descriptive  statement  in  a  "WTitten 
"  statement  is  a  mere  representation,  or  whether  it  is  a 
"  substantive  part  of  the  contract.  This  is  a  question  of 
"  construction,  which  the  Com-t  and  not  the  Jury  must 
"  determine. 

"  But  with  respect  to  statements  in  a  contract  descrip- 
"  tive  of  the  subject-matter  of  it,  or  of  some  material 
"  incident  thereof,  the  true  doctrine  established  by  prin- 
"  ciple  as  well  as  by  authority  appears  to  be,  generally 
"  speaking,  that  if  such  descriptive  statement  was  in- 
"  tended  to  be  a  substantive  part  of  the  contract  {b),  it 
"  is  to  be  regarded  as  a  Warranty,  that  is  to  say,  a 
"  condition  on  the  failure  or  nonperformance  of  which 
"  the  other  may,  if  he  be  so  minded,  repudiate  the  con- 
"  tract  in  tofo,  and  so  be  relieved   from  performing  his 

(2)  EUiotty.ron  Glehen,  18  L.  J.,  («)  Barker  v.  JJ'inclle,  6  El.  &  Bl. 

Q.  B.  221  ;   Wheelton  v.  Ilardisty,       675,  G80. 
27  L.  J.,  Q.  B.  241.  {b)  Foster  v.  Smith,  18  C.  B.  156. 


WARRANTY  DISTINGUISHED  FROM  REPRESENTATION.  14-5 

"  part  of  it  (c),  provided  it  has  not  been  partially  exe- 
"  cuted  in  his  favour.  If,  indeed,  he  has  received  the 
"  whole  or  any  substantial  part  of  the  consideration  for 
"  the  promise  on  his  part,  the  Warranty  loses  the  cha- 
"  racter  of  a  condition,  or,  to  speak  more  properly,  perhaps 
"  ceases  to  be  available  as  a  condition,  and  becomes  a 
"  AVarranty  in  the  narrow  sense  of  the  word,  namely,  a 
"  stipulation  by  way  of  agreement,  for  the  breach  of 
"  which  a  compensation  must  be  sought  in  damages. 
"  Accordingly,  if  n  specific  thing  has  been  sold  with  a 
"  Warranty  of  its  quality,  under  such  circumstances  the 
"  property  passes  by  the  sale ;  the  vendee  having  been 
"  thus  benefited  by  the  partial  execution  of  the  contract, 
"  and  become  the  proprietor  of  the  thing  sold,  cannot 
'*  treat  the  failure  of  the  Warranty  as  a  condition  broken, 
"  unless  there  is  a  special  stipulation  to  that  effect  in  the 
"  contract  {d),  but  must  have  recourse  to  an  action  for 
"  damages  in  respect  of  the  breach  of  Warranty. 

"  But  in  cases  where  the  thing  sold  is  not  specific,  and 
"  the  property  has  not  passed  by  the  sale,  the  vendee 
"  may  refuse  to  receive  the  thing  proffered  to  him  in  per- 
"  formance  of  the  contract,  on  the  ground  that  it  does 
"  not  correspond  with  the  descriptive  statement,  or,  in 
"  other  words,  that  the  condition  expressed  in  the  con- 
"  tract  has  not  been  performed.  Still,  if  he  receives  the 
"  thing  sold,  and  has  the  enjoyment  of  it,  he  cannot 
"  afterwards  treat  the  descriptive  statement  as  a  con- 
"  ditiou,  but  only  as  an  agreement,  for  the  breach  of 
"  which  he  may  bring  an  action  to  recover  damages." 

An  action  lies  by  a  manufacturer  of  goods  against  a  Countei-feit 
person  who  affixes  to  his  own  goods  the  known  and  ^^'^^^  marks, 
accustomed  mark  of  the  former,  and  sells  them  upon  a 
fraudulent  representation  that  they  are  of  the  manufac- 
ture which  such  mark  would  denote  them  to  be  (e)  ;  and 
such  action  is  maintainable  without  any  allegation  or 
proof  of  special  damage  (/).  And  now  by  the  Mer- 
chandize Marks  Act,  18(52  (r/),  a  sale  of  an  article  bearing 
a  trademark  or  description,  imports  a  warranty  of  such 
trademark  or  description,  unless  the  contrary  is  expressed 
in  writing. 

(c)  Wheelton  v.  Hardisty,  27  L.  J.,  {c)  Rodyers  v.  Kowtll,  5  C.  B.  109. 

Q.  B.  241.  (/)  JSlqficld  V.  Payne,  4  B.  &  Ad. 

{d)  J3annerma?iYJFhitc,lO  G.B.,  410. 

N.  S.  844.  («/)  25  &  26  Vict.  c.  88,  ss.  19,  20. 

O.  L 


(     146     ) 


CHAPTER  VII. 


PRAIIDDLENT  CONTRACTS, 


Where  the  Law  does  not  interfere 
Where  several  Persons   eombine 

to  cheat  

Conspiracy  to  cheat  Indictable  . . 
There  must  be  Evidence  of  Con- 
cert       

What  Evidence  has  been  held  In- 
sufficient   

Conspiring  to  obtain  Money  by 

False  Fretences 

Cvnspiriny  to  induce  a  Creditor 

to  forego  his  Claim    

Where  only  one  Ferson  cheats, 

an  Action  lies    

Chandelor  v.  Lopus     

liemarks  on  that  Case    

Form  of  Action 

Foundation  of  the  Action 

In  ivhat  Fraud  consists     

There  must  be  moral  Fraud  .... 

Efect  of  Fraud 

IIoiv  the  Question  of  Fraud  is  to 

be  decided    

Falsehood  must  be  followed  by 

Damage 

A  naked  Lie  no  cause  of  Action  . 
Frcsumptivn     that    Person    de- 
frauded was  influenced  by  the 

Jlisrepresentation 

Due  Caution  must  always  be  ob- 
served   

Hot  Fraud  to  suppress  what  there 

is  no  Duty  to  communicate    . . 

Pequisites  to  an  Action  for  False 

Itepresentation    

Or  on  Breach  of  Warranty  .... 

Caveat  Emptor     

A  visible  Defect  and  a  nude  As- 
sertion      

Dealing  Talk 

Collateral  Fraud  does  not  avoid  a 

Contract  

A  Foolish  Bargain    

Representation  known  to  be  un- 
true      

Made  before  a  Sale  by  Auction  . 
Made  by  a  Bidder  at  an  Atiction 


14C 

147 

(d. 

id. 
id. 
148 
id. 

id. 

id. 
149 

id. 
150 

id. 

id. 

id. 

id. 

id. 
151 


id. 

id. 

id. 

152 
id. 
id. 

id. 
id. 

153 

id. 

id. 
id. 
154 


Pepresentotion  not  known  to  be 

true     

A  well-grounded  Belief    

Delusion  affecting  the  Contract   . 
Pepresentation    to    prevent    In- 
quiries      

Pepresentation  through  a  Third 

Party 

Pepresentation  by  a  Third  Party 
A  Bona  fide  Pepresentation  . . 
Pepresentation  as  to  Credit  .... 
Sale  of  Goods  ''with  all  Faults" 

excludes  latent  Defects 

Unless  there  be  an  express  War- 
ranty   

Or  Fraud  is  used  to  conceal  them 

Plugging,  d,-c 

Ward  V.  Hobbs    

Contract  made  voidable  by  Fraud 
Where  Fraud  is  practised  upon 

the  Buyer  

Except  ivhere  it  works  Injustice  . 
Where  he  continues  to  deal  with 

the  Article 

Where  Fraud  is  practised  upon 

the  Seller    

Pesale  by  the  Buyer  to  an   in- 
nocent Vendee    

Contract  with  intent  to  cheat  the 

Seller 

Preconceived  Design  of  not  Pay- 
ing for  Goods 

Question  for  the  Jury    

Pesale  at  a  reduced  Price 

Unstamped  Agreement  admissi- 
ble to  prove  Fraud 

Payment  by  a  Cheque  which  is 

dishonoured    

Fraud  of  an  Infant  

Of  a  Married  TJ'oman 

Where  a  Contracting   Party  is 

Weak-minded    

Drunkenness    of   a    Contracting 

Party 

Goods  kept  by   the  Party  when 
sober   


154 

id. 
id. 

id. 

155 
id. 
id. 
id. 

156 

id. 
id. 
158 
id. 
id. 

159 
id. 

id. 

id. 

id. 

160 

id. 
id. 
id. 


161 
id. 
id. 


162 
id. 
id. 


FRAUDULENT    CONTRACTS. 

Where  the       J^  many  cases,  wliere  an  attempt  is  made  by  one  man  to 
interfere.^*^      oveiTeacli  another,  the  law  does  not  interfere;  because  when 


FRAUDULENT  CONTRACTS.  147 

it  is  a  mere  struggle  between  mind  and  mind,  caution  and 
■wariness,  if  fairly  exercised,  may  often  be  beld  sufficient  to 
obviate  the  effects  of  cunning  and  duplicity  {a) . 

But  where   several  combine  for  the  pui'pose  of  aiding  Where  several 
and  assisting  each  other  in  outmtting  a  single  individual,  persons  com- 
there  the  parties  stand  on  very  different  terms,  and  that    ^^®  °  ^ 
which  ordinary  prudence  might  othermse  prevent,  becomes 
oftentimes  a  dangerous  and  powerful  Conspiracy,  difficult  to 
be  detected,  and  most  disastrous  in  its  consequences  (a) . 

Where  there  is  CoUu^ion  between  two  or  more  to  cheat  in  Conspiracy  to 
the  sale  of  a  Horse,  an  Indictment  for  a  Conspiracy  maybe  cheat  indict - 
maintained  [b],  because  it  is  such  an  offence  as  affects  the  ^   ^* 
Public,  and  against  which  no  ordinary  care  or  prudence 
can  guard  {c). 

But  no  indictment  lies  for  a  Conspiracy  without  e%idence  There  must  be 
either  direct  or  indirect  {d)  of  concert  between  the  parties  to  evidence  of 
effectuate  a  Fraud.     Thus  in  the  case  of  Rex  v.  Pyu-ell  {e) ,  '^^^^^^   ' 
where  a  false  Warranty  had  been  given,  Lord  Ellenborough 
directed  an  acquittal,  because  one  of  two  defendants,  though 
acting  in  the  sale,  was  not  shown  to  have  been  aware  that 
a  Fraud  was  practised  (/'). 

So  on  an  indictment  against  A.,  B.,  C,  D.,  E.,  F.,  Gr.  and  What  evi- 
H.,  for  conspiracy  to  cheat  M.  by  selling  a  glandered  v^^^^^f? 
Horse  as  a  sound  Horse,  the  e^ddence  Avas  that  A.  having  insufficient, 
previously  cheated  M.  by  selling  him  a  kicking  Horse, 
the  defendants  B.,  C,  D.  andE.  obtained  that  Horse  from 
M.  in  exchange  for  a  glandered  Horse  which  he  sub- 
quently  sold.  A.,  accompanied  by  Gr.,  afterwards  sold  M. 
another  Horse,  in  which  transaction  the  latter  was  again 
defrauded.  Some  evidence  was  given  to  show  that  A.  was 
frequently  in  company  with  some  of  the  other  defendants, 
and  that  he  was  aware  of  a  previous  sale  of  the  glandered 
Horse  by  them,  but  there  was  no  other  evidence  to  connect 
him  with  its  sale  to  M.  It  was  held  by  Mr.  Justice  Cress- 
well,  that  in  the  absence  of  any  evidence  clearly  leading  to 
the  conclusion  that  A.  was  a  party  to  that  sale,  there  was 
no  evidence  of  a  Conspiracy  to  go  to  the  Jury  against 
him(r/). 

(ff)  See  per    Law,   Recorder    of  {d)  Reg.  v.  Read,  6  Cox,  C.  C. 

London,  Reg.  v.  Bailey,  4  Cox,  0.  134. 

C.  397.  (e)  Re.v  v.  Pywell,  1  Stark.  N.  P. 

{h)  Pauley  V.   Freeman,   3  T.  R.  C.  402. 

58  ;  Reg.   v.   Hheppard,  9   C.  &  P.  (/)  See  Reg.  v.  Kenricl;  T)  Q.  B, 

123.  62. 

{<■)  Rex    V.     Wheafh/,     2     Burr.  (-/)  Reg.  v.  Reed,  6  Cox,   C.   C. 

1127,                                ■  135. 

l2 


148 


FRAUDULENT  CONTRACTS. 


Conspiring  to 
obtain  money 
by  false 
pretences. 


Conspiring 
induce  a 
creditor  to 
forego  his 
claim. 


to 


Where  only 
one  person 
cheats,  an 
action  lies. 


Chandelor  v. 
Lopus. 


"Wliere  on  the  sale  of  two  Horses  the  prosecutor  was 
told  by  both  the  defendants  that  certain  Horses  had  been 
the  property  of  a  lady  deceased,  and  were  then  the  pro- 
perty of  her  sister,  that  they  had  never  been  the  property 
of  a  Horsedealer,  and  were  quiet  and  tractable,  all  of 
which  was  absolutely  false,  the  defendants  were  found 
guilty  of  conspiring  to  obtain  money  by  fake  pretences,  as 
they  knew  that  nothing  but  a  full  belief  of  the  truth  of 
the  above  statements  would  have  induced  the  prosecutor 
to  make  the  purchase,  he  having  repeatedly  informed  them 
that  he  wanted  the  Horses  for  his  claughter's  use  [h). 

An  indictment  lies  for  conspiracy,  where  persons  have 
conspii^d  to  induce  a  creditor  by  false  representations  to 
forego  part  of  his  claim.  Thus  an  indictment  was  held 
to  be  good  which  alleged  that  S.  sold  B.  a  Mare  for  39/. ; 
that  while  the  price  was  unpaid  B.  and  C.  conspired  by 
false  and  fraudulent  representations  made  to  S.  that  the 
Mare  was  unsound,  and  that  B.  had  sold  her  for  27/.,  to 
induce  S.  to  accept  27/.,  instead  of  the  agreed-on  price  of 
39/.,  and  thereby  to  defraud  S.  of  12/.  {i). 

If  one  man  alone  sell  an  Unsound  Horse  for  a  Sound 
one,  it  is  a  mere  Private  imposition,  and  no  Indictment 
can  be  maintained,  because  the  buyer  should  be  more  on 
his  guard  {j).  But  if  it  be  such  an  offence,  as,  if  prac- 
tisecl  by  two,  would  be  the  subject  of  an  indictment  for  a 
Conspiracy,  the  vendor  is  civilly  liable  in  an  action  for 
reparation  of  damages  at  the  suit  of  the  piu'chaser,  be- 
cause Collusion  is  not  necessary  to  constitute  Fraud  (/.•). 

Chandelor  v.  Lopus.  (/)  is  a  well-known  case  on  the 
subject  of  Fraudulent  JRepresentation.  It  was  an  action 
on  the  Case  against  a  Jeweller  for  selling  a  Jewel,  affirm- 
ing it  to  be  a  Bezoar  stone,  when  really  it  was  not  one. 
All  the  Justices  and  Barons,  except  Anderson,  held  "  that 
the  bare  affirmation  that  it  was  a  Bezoar  stone,  without 
warranting  it  to  be  so,  was  no  cause  of  action ;  and  that 
although  the  seller  hnew  it  to  be  no  Bezoar  stone,  it  was  not 
material,  because  every  one  in  selling  his  wares  ^dll  affirm 
that  they  are  good,  or  that  the  Horse  which  he  sells  is 
Sound  ;  yet  if  he  does  not  warrant  them  to  be  so,  it  is 
no  cause  of  action,  and  the  Warranty  ought  to  be  made 
at  the  same  time  as  the  sale." 


(A)  Reg.  V.  Kenricl-,  5  Q.  B.  63.  1128. 

(i)  R.  V.  Carlisle,  23  L.  J.,  M.  C.  (/.■)  Paslnj  v.   Freeman,   3  T.   R. 

109.  oS. 

(,/)  Rex   V.     IVheath/,    2     Burr.  (/)   Cha>idelorY.  Lopus,  Cvo.3&cA. 


FRAUDULENT  CONTRACTS.  149 

But  the  opinion  of  Anderson  is  now  held  to  have  been  Remarks  on 
the  correct  one ;  for  he  said,  "  the  Deceit  in  selHng  it  as  *^^*  ^^''®- 
a  Bezoar,  whereas  it  was  not  so,  is  cause  of  action."  And 
the  following  remarks  are  made  upon  this  case  in  Smith's 
Leading  Cases  {>n)  : — "  If  the  plaintiff  in  this  case  were 
to  declare  upon  a  Wan-anty  of  the  stone,  he  would  at 
the  present  day  perhaps  succeed,  the  Rule  of  law  being 
that  every  affirmation  at  the-  time  of  sale  of  personal 
chattels  is  a  WaiTanty,  provided  it  appears  to  have  been 
so  intended  (;«).  If  not,  he  would  at  all  events  succeed 
if  he  were  to  sue  in  tort,  laying  a  scienter,  since  the 
fact  of  the  defendant's  being  a  Jeweller  would  be  almost 
irresistible  evidence  that  he  kneio  his  Representation  to 
be  false.  When  Chandelor  v.  Lopiis  was  decided,  as  the 
action  of  assumpsit  was  by  no  means  so  distinguishable 
from  case,  ordinarily  so  called,  as  at  present, — so  the 
distinction  was  not  clearly  recognized,  which  is  now  how- 
ever clearly  established,  between  an  action  on  a  Warranty 
express  or  implied,  which  is  founded  on  the  defendant's 
promise  that  the  thing  shall  be  as  warranted,  and  in  order 
to  maintain  which  it  is  unnecessary  that  he  should  be  at 
all  aware  of  the  fallacious  nature  of  his  undertaking,  and 
the  action  upon  the  case  for  false  representation,  in  order 
to  maintain  which  the  defendant  must  be  shown  to  have 
been  actually  and  fraudulently  cognizant  of  the  falsehood 
of  his  representation,  or  to  have  made  the  representation 
fraudulently  "without  belief  that  it  was  true ;  actions  of  the 
former  description  then  being  usually  framed  in  tort,  imder 
the  name  of  actions  for  deceit.  However,  the  main  doctrine 
laid  down  in  Cltandelor  v.  Lopus  has  never  since  been  dis- 
puted, viz.,  that  the  plaintiff  must  either  declare  upon  a 
contract,  or,  if  he  declare  in  tort  for  a  misrej)resentation, 
must  aver  a  scienter.  That  such  an  action  is  maintainable 
when  the  scienter  can  be  proved,  though  there  be  no  War- 
ranty, is  now  (notwithstanding  the  dictum  in  Chandelor  v. 
Lopus)  well  established  "  (o). 

Therefore  where  a  person  has  been  cheated  or  deceived  Form  of 
by  Fraud  or  artifice  in  piu^chasing  a  Horse,  his  proper  ^^^^o^- 
remedy  against  the  vendor  is  an  action  for  fraudulent 

[m)  1  Smith's  Leading  Cases,  7th  (o)  Uunlop  v.  TJ'aiiff/i,  Feake,  228; 

ed.  17-1.  Jcnduine  v.    Slade,    2    Esp.    572  ; 

(»)  See  Pouei-  v.  Barham,   4    A.  Dobell  v.  Stevens,  3  B.   &  C.   625  ; 

&  E.    473  ;    Shepherd    v.   Kain,    5  Fletcher  v.  Boushcr,  2  Stark.  N.  P. 

B.  &  Aid.  240  ;   Freeman  v.  Bakir,  C.  561. 
2  N.  &  M.  446. 


150 


FRAUDULENT  CONTRACTS. 


Foundation  of 
the  action. 


In  what  Fraud 
consists. 


There  must 
be  moral 
Fraud. 


Effect  of 
Fraud. 


How  the 
question  of 
Fraud  is  to  be 
decided. 


Falsehood 
must  be 
followed  by 
damao'c. 


misrepresentation  or  deceit  (p).  Because  sucli  action  lies 
where  a  man  does  any  Deceit  to  the  damage  of  another  (q). 

The  foundation  of  this  action  is  Fraud  and  Deceit  in  the 
defendant,  and  Damage  to  the  pLaintiff.  Fraud  without 
Damage  or  Damage  without  Fraud  gives  no  cause  of 
action,  but  where  these  two  concur  an  action  hes  (r). 

Fraud  generally  consists  either  in  the  Misrepresentation 
or  Concealment  of  a  material  fact.  But  what  does  or  does 
not  amount  to  Fraud  depends  very  much  on  the  facts  of 
each  particular  case,  on  the  relative  situation  of  the  parties, 
and  on  their  means  of  information  [s) . 

To  support  the  action  there  must  always  be  proof  of 
3Ioral  Fraud  (f)  :  because  where  there  is  no  Warranty,  the 
Scienter  or  Fraud  is  the  gist  of  the  action.  Thus  it  was 
held  that  an  action  on  the  Case  could  not  be  maintained 
against  the  defendant  for  selling  a  Horse  as  his  own,  when 
in  truth  it  belonged  to  A.  B. ;  because  the  plaintiif  could  not 
prove  that  the  defendant  l-new  it  to  be  the  Horse  of  A.  B., 
for  it  appeared  that  the  defendant  had  bought  it  in  Smith- 
field  Market,  but  had  neglected  to  get  it  legally  tolled  (?^). 

Fraud  gives  a  cause  of  action,  if  it  leads  to  any  sort  of 
damage ;  but  it  avoids  contracts  only  where  it  is  the  ground 
of  the  contract,  and  where,  imless  it  had  been  employed, 
the  contract  would  never  have  been  made(i"). 

The  facts  to  constitute  Fraud  must  be  found  by  the 
Jmy ;  but  whether  certain  facts  as  proved  amount  to  Fraud 
is  a  question  of  law ;  and  therefore  legal  fraud  may  exist, 
when  the  Jmy  have  found  that  the  intention  of  the  de- 
fendant was  not  fraudulent  (?r). 

If  a  person  knowingly  utters  a  falsehood  wdth  intent  to 
deprive  another  party  of  a  benefit  and  acquire  it  to  him- 
self (;r) ,  or  mth  intent  to  induce  another  party  to  do  an  act 
which  results  in  his  loss,  and  damage  nati.u"ally  flows  to  the 
other  party  from  this  belief,  an  action  lies  (v/). 


(;;)  Rex  v.  Whcathj,  2  Burr. 
1128. 

[q)  Com.  Dig-,  tit.  Action  upon 
the  Case  for  a  Deceit,  A.  1. 

(/•)  Per  Croke,  J.,  Bailey  y.  Mer- 
rell,  3  Bulst.  95.  See  Barry  v. 
CrosJicy,  2  J.  &  H.  21. 

(«)  Chit.  Coutr.  10th  ed.  630. 

\t)  Per  Parke,  B.,  Taylor  v. 
Ashton,  11  M.  &  W.  413  ;  per  Lord 
Wensleydale,  Smith  v.  Kay,  7  H. 
L.  Cas.  775. 

(?c)  iSpriiigircll  v.  Allen,  Aleyn, 
91,  cited  in  Williamson  v.  Allison, 


2  East,  448. 

(r)  Per  Lord  Wensleydale,  Smith 
Y..Kay,  7  H.  L.  Cas.  775;  per 
Byles,  J.,  Hotson  v.  Brotvn,  9  C.  B., 
N.  S.  445. 

(«■)  See  per  Piatt,  B.,  Murray  v. 
Mann,  2  Ex.  539  ;  3[ilne  v.  Mar- 
icood,  15  C.  B.  778 ;  Broom's 
Maxims,  4th  ed.  758,  759  ;  Folwill 
V.  Walter,  SB.  &  Ad.  114. 

(.(■)  Barley y.  Walforcl,9  Q.B. 197. 

[y]  Longmeacl  v.  Holliday,  6  Ex. 
766  ;  and  see  Levy  v.  Lanyridge,  4 
M.  &  W.  337. 


FRAUDULENT  CONTRACTS.  151 

But  an  actiou  cannot  be  supported  for  telling  a  bare  A  naked  lie 
Naked  Lie ;   and  that  is  defined  to   be,   sajing  a   thing  ^o  p'^^^^^e  of 
which  is  false,  knowing  or  not  kno^^dng  it  to  be  so,  and  ^°*^°^" 
without  any  design  to  injiu-e,  cheat,  or  deceive  another 
person.     Every  Deceit  comprehends  a  Lie ;  but  a  Deceit 
is  more  than  a  Lie,  on  accoimt  of  the  view  with  which 
it  is  practised,  its  being  coupled  A\dth  some  dealing,  and 
the  injmy  which  it  is  calculated  to  occasion  and  does  occa- 
sion to  another  person  (s) . 

It  it  not  necessary  for  the  person  defrauded  to   give  Presumption 
direct  proof  that  he  was  influenced  by  the  Misrepresenta-  *^^^*  person 
tion.     And  upon  this  point  Lord  Denman,  0.  J.,  said,  "  If  influenced  by 
a  fraudulent  representation  is  published,  it  must  be  pre-  the  Misrepre- 
sumed  that  a  party  who  acts  according  to  such  a  represen-  sentation. 
tation  was  influenced  byit"(r/).     But  this  appears  to  be 
rather  an  inference  for  the  Coui't  than  a  question  for  the 
Jmy,  for  in  the  case  of  Feret  v.  Hillib),  though  the  Jmy 
found  that  the  plaintiff  had  obtained  a  lease  by  fraud  and 
misrepresentation,  yet  the  Court  entered  a  verdict  for  the 
plaintiff  on  the  ground  that  the  Fraud  was  collateral,  and 
that  it  did  not  go  to  the  root  of  the  contract. 

In  considering  the  question  of  Fraud,  the  Comets  have  Due  caution 
endeavom^ed  on  the  one  hand  to  repress  dishonesty,  and  must  always 
on  the  other  they  have  required  that  before  relieving  a 
party  from  a  contract  on  the  ground  of  Fraud,  it  should 
be  made  to  appear  that  in  entering  into  such  contract  he 
exercised  a  due  degree  of  caution,  because  Vigilantibus  non 
dormientibus  snccurruntjura  (c). 

Therefore,  to  constitute  Fraud  there  must  be  an  assertion  Not  Fraud  to 
of  something  false  within  the  knowledge   of  the  person  suppress  what 
asserting  it,  or  the  suppression  of  that  which  is  true,  and  Duty  to 
which  it  was  his  dutij  to  communicate.     So  if  a  person  piu^-  communicate, 
chases  an  article  wliich  is  to  be  manufactm-ed  for  him,  and 
the  manufactiu-er  delivers  it  with  a  patent  defect  wliich 
may  render  it  worthless,  if  the  purchaser  has  had  an  oppor- 
tunity of  inspecting  it,  but  has  neglected  to  do  so,  the 
manufacturer  is  not  guilty  of  Fraud  in  not  pointing  out 
the  defect  {d). 

(z)  TerBuiler,  J.,  Pa.il('>/  V.  Free-  L.    J.,    C.   P.    100;  and  in   S.   v. 

man,  3  T.  R.  56  ;  and  Mionmery  v.  Saddler.'i'    Co.,   per  Blackburn,    J., 

Paul,  1  C.  B.  322.  32  L.  J.,  Q.  B.  343. 

(ff)    Watson  V.  Earl  of  Charlmont,  (c)  See    Chit.    Contr.    10th    ed. 

12  Q.  B.  862.  63U  ;  Shrcusburyv.  Blount,  2  Scott, 

{b)  Feret  v.  Hill,  23  L.  J.,  C.  P.  N.  K.  588. 
185.     But  see  the  comments  upon  (r/)  Horsfallv.  Thomas,  1  H.  &  C. 

this  case  in  Caiiham  v.  Barry,  24  90 ;    Smith   v.   Hughes,    L.    R.,    0 


152 


FRAUDULENT  CONTRACTS. 


Requisites  to 
an  action  for 
False  Repre- 
sentation. 


Or  on  Breacli 
of  Wan-anty. 


Caveat  Emptor. 


A  visible  de- 
fect and  a 
nude  asser- 
tion. 


DeaUn;?  Talk. 


To  support  an  action  for  a  false  representation  or  de- 
ceit three  cii'cumstances  must  combine.  The  representa- 
tion must  he  proved,  first,  io  be  false  in  fact;  sevoudh/,  to 
be  false,  or  not  to  be  true,  to  the  knowledge  and  belief 
of  the  person  making  it ;  and  thirdhj,  that  it  was  the  false 
representation  which  gave  rise  to  the  contracting  of  the 
other  party  {e). 

But  to  support  an  action  ex  contractu,  for  a  breach  of 
Warranty,  it  is  not  necessary  that  all  these  three  circum- 
stances should  concur,  in  order  to  ground  an  action  for 
damages  at  law  or  a  claim  for  relief  in  a  Court  of  Equity ; 
for  where  a  Warranty  is  given,  by  which  the  party  under- 
takes that  the  article  sold  shall,  in  point  of  fact,  be  such  as 
is  described,  no  question  can  be  raised  upon  the  scienter, 
u^Don  the  fraud  or  wilful  misrepresentation  (/). 

If  a  purchaser,  choosing  to  judge  for  himself,  does  not 
avail  himself  of  the  knowledge  or  means  of  knowledge 
open  to  him  or  to  his  Agent,  he  cannot  be  allowed  to  say 
he  was  deceived  by  the  seller's  representations,  the  Rule 
being  Caveat  emptor,  and  the  knowledge  of  his  Agent  being 
as  binding  on  him  as  his  own  knowledge  {g). 

Thus  then  there  are  cases  of  two  sorts,  in  which,  though 
a  man  is  deceived,  he  can  maintain  no  action.  The  first 
class  of  cases  is,  where  the  affirmation  is  that  the  thing- 
sold  has  not  a  Defect  which  is  a  Visible  one ;  there  the 
imposition  and  the  fraudulent  intent  are  admitted,  but 
there  is  no  tort.  The  second  kind  of  cases  is  where  the 
affirmation  is  (what  is  called  in  some  of  the  books)  n.  Nude 
assertion ;  such  as  the  party  deceived  may  exercise  his  own 
judgment  upon.  For  where  it  is  a  mere  matter  of  opinion, 
he  ought  to  make  inquiries  into  the  truth  of  the  asser- 
tion, and  it  becomes  his  own  fault  from  lacJies  if  he  is 
deceived  (//). 

Assertions  of  this  sort  are  what  is  called  ^^ Dealing  Tal/i," 
such  as  is  used  more  or  less  by  Shopkeepers  and  Dealers 
of  every  description.  For  instance,  a  Horsedealer  tells  his 
customer  that  a  Horse  worth  40/.  is  "worth  a  hundred 
guineas,"  or  that  a  bad,  clumsy  goer,  has  "fine  action," 


Q.  B.  597;  40  L.  J.,  Q.  B.  221  ; 
25  L.  T.,  N.  S.  329. 

{e)  Attwood  V.  Small,  6  C.  &  F. 
444,  445  ;  Bch7i  v.  Kemble,  7  C.  B., 
N.  S.  260. 

(/)  Attwood  V.  Small,  G  C.  &  F. 
444,  445  ;  Broom's  Maxims,  4th  ed. 
756. 


iff)  Attwood  V.  Small,  6  C.  &  F. 
232. 

(k)  1  Rol.  Abr.  101 ;  Yelv.  20  ; 
1  Sid.  146  ;  Cro.  Jac.  386  ;  £ailet/ 
V.  Menrll,  3  Bulst.  95  ;  and  per 
Grose,  J.,  Faslsij  v.  Freeman,  3 
T.  R.  54. 


FRAUDULENT  CONTRACTS:  153 

or  is  a  "clever  little  Horse."  And  a  person  who  allows 
himself  to  be  imposed  upon  by  siieb  assertions  has  no 
remedy  against  the  vendor.  Thus  it  appeared  in  the  fol- 
lowing case  that  J.  S.,  who  had  a  tenn  for  years,  affirmed 
to  J.  I).,  that  the  term  was  worth  150/.  to  be  sold,  upon 
which  J.  D.  gave  150/.  and  afterwards  could  not  get  more 
than  100/.  for  it,  and  then  brought  his  action.  It  was 
alleged  that  this  matter  did  not  prove  any  Fraud,  for 
it  w^as  only  a  naked  assertion  that  the  term  was  worth  so 
much,  and  it  was  the  plaintiff's  folly  to  give  credit  to  such 
assertion.  Bnt  if  the  (hfcndant  had  warranted  the  term  to 
be  of  such  a  value  to  be  sold,  and  upon  that  the  plaintiff 
had  bought  it,  it  would  then  have  been  otherwise  (/). 

The  Court  will  not  set  aside  a  deed  on  the  gromid  of  Collateral 
previous  or  collateral  fraud,  unless  the  party  is  deceived  ^'^'^^^  4°^'^ 
with  regard  to  the  execution  of  the  deed  itself,  for  the  ^eed. 
representation  must  be  as  to   matters   material,  and  not 
collateral  only,  to  the  contract  (/•). 

If  the  Folly  of  a  contract  be  extremely  gross,  the  circimi-  A  foolish 
stance  will  tend,  if  there  be  other  facts  in  corroboration,  to  ^^^'S''^^"- 
establish  a  case  for  relief  on  the  ground  of  Fraud ;  but 
mere  folly  and  weakness,  or  want  of  judgment,  will  not 
defeat  a  contract,  even  in  Equity  (/). 

But  a  vendor  is  miquestionably  liable  to  an  action  of  Representa- 
Deceit,  if  he  fraudulently  misrepresents  the  quality  of  the  {jg^j^tTuI''  *° 
thing  sold  to  be  other  than  it  is  in  some  particulars,  which 
the  buyer  had  not  equal  means  with  himself  of  know- 
ing [in)  ;  and  the  mere  possession  of  the  means  of  know- 
ledge by  the  vendee  does  not  necessarily,  under  all 
circumstances,  oust  the  vendor's  liability  for  a  false  and 
fraudulent  representation  (>?). 

Certain  misrepresentations  about  a  Horse  on  Sale  at  a  Made  before 
Repository  were  made  by  the  defendant  to  the  plaintiff,  ^.      .  ^^ 
about  four  o'clock  in  the  afternoon.     On  the  morning  of 
the  next  day  the  defendant  accompanied  the  plaintiff  to 
the   Auction  yard,   and  pointed  out   the   Horse,  saying, 
"  That  is  the  Horse."     On  his  being  put  up  to  auction  the 


(()  Harviij   V.    Young,  Yelv.   20;  (l)  3Illiies  v.  Coiclei/,  8  Vrice,  62Q; 

cited  per  Grose,  J.,  Fasleij  v.  Free-  Prcbhle  v.  Boyhiirst,  1  Swanst.  329; 

man,  3  T.  E.  55.  IJ'illan  v.  Carter,  before  Martin,  B., 

{k)  Feret  v.  Mill,  23  L.  J.,  C.  P.  Lancaster  Spr.  Ass.  1852. 

185;    Canham  v.   Barry,    2-i  L.  J.,  (/«)  Per  Lord  Ellenborough,  C.J. , 

C.   P.    100.     See,   too,   per  Black-  Vernon  v.  F'eys,  12  East,  637. 

burn,   J.,   H.  v.   Saddlers''   Co.,    32  («)  Fcrrier  v.  Peacock,  2  F.  &  F. 

L  J.,  Q.  B.  337,  343.  717. 


154 


FRAUDULENT  CONTRACTS. 


Made  by  a 
bidder  at  au 
Auction. 


Representa- 
tion not 
known  to  be 
true. 


A  well- 
grounded 
belief. 


Delusion 
affecting  the 
Contract. 


Representa- 
tion to  pre- 
vent inquiries. 


plaintiff  iDOUglit  him,  and  lie  turned  out  to  be  unservice- 
able. It  was  held  that  the  plaintiff  was  entitled  to  recover 
damages  from  the  defendant,  as  the  Jiuy  were  satisfied 
that  the  defendant  knew  of  the  falseness  of  the  representa- 
tions, and  that  the  fact  of  the  sale  haA'ing  been  made  by 
an  Auctioneer  made  no  difference  (o). 

Where  the  purchaser  and  his  friend  were  the  only  bid- 
ders at  an  Auction,  the  rest  of  the  company  being  deterred 
from  bidding  by  the  purchaser's  stating  to  them  that  he 
had  a  claim  against,  and  had  been  ill-used  hy,  the  late 
owner  of  the  article,  it  was  held  that  such  pui"chaser  did 
not  acqiure  any  property  against  the  vendor  imder  such 
sale  [j)). 

It  signifies  nothing  A\'liether  a  man  represents  a  thing 
to  be  different  from  what  he  Icnoics  it  to  be,  or  whether  he 
makes  a  representation  which  he  does  not  k)ww  at  the  time 
to  be  true  or  false,  if  in  point  of  fact  it  funis  out  to  be 
false  (q)  ;  because  there  may  undoubtedly  be  a  fraudulent 
Representation,  if  made  dishonestly,  of  that  which  the 
party  does  not  know  to  be  initrue,  if  he  does  not  know  it 
to  be  true,  or  at  least  has  not  good  grounds  for  helieving  it 
to  be  true  (r). 

But  to  render  a  person  liable  to  an  action  for  false  and 
fraudulent  representations,  it  is  not  enough  to  show  that 
the  representations  are  false.  If  he  acted  upon  a  fair  and 
reasonably  well-grounded  belief  that  they  were  true,  he  is 
not  responsible  for  them,  however  unfounded  they  may 
tmni  out  to  be  is). 

It  has  been  held  that  even  the  mere  knowledge  that  the 
other  party  is  labouring  under  a  Delusion  which  materially 
affects  the  Contract,  wdien  the  vendor  suffers  him  to  be 
operated  upon    by   that    Delusion,   makes    the    contract 

void(0. 

The  seller,  however,  is  undoubtedly  liable,  where  he 
makes  such  3Iisrepresentation  as  induces  the  buyer  to  for- 
bear making  those  inquiries,  which  for  his  own  seciu'ity 
and  advantage  he  would  otherwise  have  made  (u). 


(o)  Bardell  v.  Spinhs,  2  C.  &  K. 
646.  But  see  Hopkins  v.  Tanqmray, 
23  L.  J.,  C.  P.  162,  ante,  p.  140. 

(j^j)  Fuller  V.  Abrahams,  3  B.  & 
Bing.  116. 

(-7)  Per  Lord  Mansfield,  C.  J., 
Schneider  v.  Heath,  3  Camp.  508. 

[r)  Per  Parke,  B.,  Taylor  v.  Ash- 
ton,  11  M.  &  "W.  413;  and  per  Lord 


Cairns  in  Eeesc  Hirer  Silrer  Mining 
Co.  V.  Smith,  L.  R.,  4H.  L.  64,  69; 
39  L.  J.,  Ch.  849. 

(.s)  Shreivsbary  v.  Blount,  2  Scott, 
N.  R.  588. 

{t)  mil  V.  Gray,  1  Stark.  N.  P. 
C.  434. 

('()  Per  Lord EUenborough,  C.  J., 
T<  rnon  v.  Keys,  12  East,  367. 


FRAUDULENT  CONTRACTS.  155 

Where  a  Representation  is  made  and  a  Fraud  practised  Eepresenta- 
througli  the  medium  of  a  third  party,  and  damage  has  re-  tjon  through  a 
suited,  the  vendor  is  liable  to  an  action  ;   and  this  was  so      ^"^  ^^  ^' 
held  by  the  Comi:  of  Common  Pleas  upon  the  following 
facts  : — It  appeared  that  the  defendant,  who  was  about  to 
sell   a  Public-house,  falsely  represented  to   B.,  who  had 
agreed  to  piu-chase  it,  that  the  Keceipts  were  worth  180/.  a 
month  ;  and  B.,  to  the  knowledge  of  the  defendant,  had 
communicated  the  Representation  to  the  plaintiff,  who  in 
consequence  became  the  pm'chaser  of  it,  and  afterwards 
found  that  the  receipts  had  not  been  woi-th  so  much  (r). 

Where  a  third  party  makes  a  fraudulent  Representation  Representa- 
with  regard  to  an  article  about  to  be  sold,  he  is  liable  to  *|^"  J'J'  ^ 
the  piu'chaser.  Thus  where  the  plaintiff  ^\'as  about  piu'- 
chasing  a  Horse  from  a  party  who  waiTanted  him  sound, 
and  who,  for  the  corroboration  of  his  statement,  referred 
him  to  the  defendant,  who  warranted  the  Horse  sound  in 
the  wind :  Mr.  Baron  Alderson  said,  "  the  merits  are, 
whether  or  not  the  defendant  made  a  Fraudutcnt  Repre- 
sentation. It  is  proved  that  he  did.  He  comes  here  to 
defend  himself  from  the  charge  of  having  made  a  Fraudu- 
lent Pepresentation  on  the  occasion  of  the  sale."  The 
Jury  found  a  verdict  for  the  j>laintiff  («•) . 

An  action  however  does  not  lie  for  a  false  Representation,  A  boudfdc 
whereby  a  party  being  induced  to  piu-chase  the  subject-  Representa- 
matter  of  the  Pepresentation  even  from  a  third  party,  has 
sustained  damage,  if  the  Representation  appear  to  have 
been  made  bond  fide  mider  a  reasonable  and  well-groimded 
belief  that  the  same  was  true,  as  the  Pule  Caveat  emptor 
applies  (a-). 

A  person  should  be  careful  how  he  gives  credit  to  any  Representa- 
statement  made  by  a  tliird  party  as  to  the  character  and  tjonasto 
ability  of  the  person  ^\itli  whom  he  is  about  to  deal ;   be-     ^^  ^  ' 
cause  under  9  Geo.  4,  c.  14,  s.  6,  "no  action  lies  to  charge  a 
person  upon  or  by  reason  of  any  Representation  ov  Assurance 
made  or  given  relating  to  the  character,  conduct,  ability, 
trade,  or  dealings  of  any  other  person,  to  the  intent  that  , 
such   other   person    may  obtain  credit,    money  or   goods 


[v)  Pllinoi-ev.  IIoodjb'B'mg.'N.G.  (iv)  Mash   v.   Densliam,    1   M.   & 

97  ;  see  also  Swift  v.  Wintcybotiom,  Rob.  4-12. 

L.  R.,  8  Q.  B.  244,  253  ;  42  L.  J.,  (.*:)  Shreivshury  v.  Blount,  2  M.  & 

Q.B.lll;  Swift  v.Jeu-sbiir!/,  L.R.,  G.  475;  S.  C.  2  Snott,  N.  R.  588  ; 

9  Q.  B.  301;    43  L.  J.,  Q.   B.  56;  Haijcmft   v.    Creasy,    2    East,    92; 

Richardson  v.  Sylrcslcr,  L.  R.,  9  Q.  Oniirod  v.  H/ith,  14  M.  &  W.  6G4. 
B.  34;  43L.  J.,Q.  B.  1. 


1-56 


FRAUDULENT  CONTRACTS. 


Sale  of  goods 
"with  all 
faults"  ex- 
cludes latent 
defects. 


Unless  there 
be  an  express 
Warranty. 


Or  Fraud  is 


[tliere]iipoii,  unless  sueli  Representation,  &c.  be  made  in 
n-riting,  signed  by  the  part  j  to  be  charged  there^\ith."  The 
signature  of  an  agent  mil  not  satisfy  this  section  (y) .  And 
one  pai-tner  signing  in  the  name  of  and  by  the  express  au- 
thority of  his  lirm  will  make  himself  only  liable  (s) . 

It  is  now  well  settled  {a)  that  if  goods  are  sold  expressly 
"  mth  all  faults,"  the  seller  is  not  boimd  to  disclose  latent 
defects,  and  is  therefore  not  liable  to  an  action  in  respect 
of  them,  although  he  was  aware  of  them  at  the  time  of  sale, 
unless  there  be  an  express  Warranty  against  some  particu- 
lar defect,  or  luiless  some  ai-tifice  or  fraud  was  practised  to 
prevent  the  vendee  from  discerning  such  defects  ;  there- 
fore, in  effecting  such  a  sale  of  a  Horse,  it  is  best  for  the 
seller  to  say  nothing,  and  let  the  piu'chaser  inspect  the 
Horse,  and  so  judge  for  himself. 

So  far  as  the  description  goes,  there  is  an  express  War- 
ranty against  any  particular  defect,  which  is  excluded  by 
that  description.  Accordingly,  where  an  advertisement  for 
the  sale  of  a  ship  described  her  as  a  "  copper-fastened  ves- 
sel," adding  that  the  vessel  was  to  be  taken  "Avith  all  faults, 
A\ithout  any  allowance  for  any  defects  whatsoever ; "  and 
it  appeared  that  she  was  only  partially  copper-fastened ;  it 
was  held  that  the  vendor  was  liable  on  the  groimd  that  she  • 
was  warranted  to  be  cop2:)er- fastened,  and  that  "  with  all 
faidts"  applies  to  such  faults  only  as  a  copper-fastened  ves- 
sel may  have  (/'>).  But  where  a  vessel,  which  was  described 
as  "teak-built"  was  sold,  "to  be  taken  with  all  faults," 
"  with  any  allowance  for  any  defect  or  error  whatsoever," 
and  it  turned  out  that  she  was  not  "teak-built,"  it  was  held 
that  this  was  a  misdescription  of  the  vessel,  which  came 
within  the  term  "  error,"  and  that  the  vendor  was  not 
liable  as  for  a  breach  of  Warranty  (c) . 

At  one  time  Lord  Keuyon  held  that  a  seller  iras  hound 
to  disclose  to  the  buyer  all  latent  defects  kno^Ti  to  him, 
and  that  bujdng  '■'' ivith  ail  faults"  v^'ithoiit  a  Warranty 
must  be  understood  to  relate  only  to  those  faults  which 
the  buyer  could  have  discovered,  or  with  which  the  seller 
was  unacquainted  {d). 

However,  Lord  Elleuborough  overruled  this   decision, 


{>/)  Swiff.  V.  Jewshunj,  L.  R..,  9 
Q.  B.  301,  Ex.  Ch.,  reversing  6'.  C. 
siibnoin.  Sicift  y.  Wbtterbottom,  "Li. 
R.,  8  Q.  B.  244. 

{z)  3IasoH  V.  WUIinim,  28  L.  T., 
N.  S.  232,  February,  1873. 


(rt)   Chit.  Contr.  10th  ed.  418. 

\b)  Shepherd  v.  Kain,  5  B.  Sc  Aid. 
240. 

(c)    Taylor  v.  Bitllen,  5  Ex.  779. 

(V)  Jlle/n.sh  V.  Motteu.r,  Peak.  Cas. 
115. 


FRAUDULENT  CONTRACTS.  157 

and  said,  "  I  cannot  subscribe  to  the  doctrine  of  that  used  to  con- 
case,  although  I  feel  the  greatest  respect  for  the  Judge  ^^^^  them, 
by  whom  it  Avas  decided.  Where  an  article  is  sold  '  uith 
all  faults,'  I  think  it  is  quite  immaterial  how  many  be- 
longed to  it  within  the  knowledge  of  the  seller,  unless  he 
used  some  artifice  to  disguise  them,  and  to  prevent  their 
being  discovered  by  the  piu^chaser.  The  very  object  of 
introducing  such  stipulations  is  to  put  the  purchaser  on 
his  guard,  and  to  throw  upon  him  the  bmxlen  of  ex- 
amining all  faults,  both  secret  and  apparent.  I  may  be 
possessed  of  a  Horse  I  know  to  have  many  faults,  and  I 
wish  to  get  rid  of  him  for  whatever  smn  he  will  fetch. 
I  desire  my  servant  to  dispose  of  him,  and  instead  of 
giving  a  Warranty  of  soundness,  to  sell  him  '  icith  all 
Faults.'  Having  thus  laboriously  freed  myself  from 
responsibility,  am  I  to  be  liable,  if  it  be  afterwards  dis- 
covered that  the  Horse  was  unsomid  ?  Why  did  not  the 
purchaser  examine  him  in  the  Market,  when  exposed  to 
sale  ?  By  acceding  to  buy  the  Horse  '  u-ith  all  faults,' 
he  takes  upon  himself  the  risk  of  latent  or  secret  faults, 
and  calculates  accordingly  the  price  which  he  gives.  It 
would  be  most  inconvenient  and  unjust,  if  men  could  not, 
by  using  the  strongest  tenns  which  language  affords, 
obviate  disputes  concerning  the  quality  of  the  goods 
which  they  sell.  In  a  contract  such  as  this,  I  think  there 
is  no  fraud,  imless  the  seller  by  positive  means  renders  '  it 
impossible  for  the  purchaser  to  detect  latent  faidts'  "  (e). 

Therefore,  the  meaning  of  a  Horse  being  sold  "  icith 
all  /lis  Faults  "  is,  that  the  pm'chaser  shall  make  use  of 
his  eyes  and  understanding  to  discover  what  Faults  there 
are ;  and  the  seller  is  not  answerable  for  them  if  he  does 
not  make  use  of  any  Fraud  or  Practice  to  conceal 
them  (_/').  But  where,  on  the  sale  of  a  House  in  South 
Audley  Street,  the  seller  being  conscious  of  a  Defect  in 
the  main  wall,  plastered  it  up  and  papered  it  over;  it 
was  held  that  as  the  seller  had  expressly  concealed  it,  the 
purchaser  might  recover  (^7). 

It  would  appear  from  this  case,  that  where  a  Horse  has 
been  sold  ^Ucith  all  Ids  faults,'''  and  artificial  means  have 
been  used  to  conceal  some  Defect,  the  vendor  would  be 
liable  to  the  purchaser  for  such  conduct. 

((')   Bagleliole  v.  Walters,  3  Camp.        784-. 
loG.  {g)  Case  cited  by  Gibbs,  J.,  in 

(/)  Pickering  v.  Doivson,  4  Taunt.       Fickering  v.  Doivson,  4  Taunt.  785. 


158  FRAUDULENT  CONTRACTS. 

Plugging,  &c.  For  instance,  tlie  practice  of  Plugging,  ^'C,  or  perhaps 
the  artificially  filling  up  a  Sandcrack  (//)  or  Thrush  (/) 
(such  devices  being,  without  doubt,  used  to  deceive  the 
purchaser)  would  each  be  a  sufficient  ground  for  an  action 
for  Deceit ;  because  a  man  may  act  a  Lie  or  Frnudulent 
Representation  without  speaking  a  word,  and  .the  injury 
under  such  circumstances  would  be  Damage  as  the  result 
of  a  Fraudulent  Bej)  re  sent  at  ion  coupled  with  dealing.  Thus 
where  a  Ship  was  sold  "  witli  all  her  Faults,^''  but  means 
had  been  taken  Fraudulentlii  to  conceal  some  Defects  in 
her  bottom,  the  vendor  was  held  liable  {j). 

But  where  animals  are  sold  "with  all  Faults,"  it  makes 
no  difference  whether  the  sale  takes  place  in  a  public  market 
or  privately,  provided  that  there  is  no  fraudulent  repre- 
sentation. The  mere  exposure  for  sale  of  animals  in  a 
public  market  is  not  evidence  of  fraudulent  representation. 
Ward  V.  Thus,  in  Ward  v.  Hobhs  (/.•)  the  defendant  sent  for  sale,  to 

Hobbs.  a  public  market,  pigs  which  he  knew  to  be  infected  with 

a  contagious  disease ;  they  were  exposed  for  sale  subject 
to  a  condition  that  no  Warranty  would  be  given,  and  no 
compensation  would  be  made  in  respect  of  any  fault.  No 
verbal  representation  was  made  by  or  on  behalf  of  the 
defendant  as  to  the  condition  of  the  pigs.  The  plaintiff, 
having  bought  the  pigs,  put  them  with  other  pigs,  which 
became  infected ;  some  of  the  pigs  bought  from  the  de- 
fendant, and  also  some  of  those  with  which  they  were  put, 
died  of  the  contagious  disease.  The  plaintiff  having  sued 
to  recover  damages  for  the  loss  which  he  had  sustained, 
the  Court  of  Appeal  held  (reversing  the  judgment  of  the 
Queen's  Bench  Division),  that,  although  the  defendant 
might  have  been  guilty  of  an  offence  against  the  Con- 
tagious Diseases  (Animals)  Act,  1869,  he  was  not  liable  to 
the  plaintiff,  for  that  his  conduct  in  exposing  the  pigs  for 
sale  in  the  market  did  not  amount  to  a  representation  that 
they  were  free  from  the  disease. 
Contractmade  Fraud  does  not  make  a  contract  void,  but  only  voidable, 
voidable  by      ^^  ^|^g  election  of  the  party  defrauded,  who  has  the  option 

(/()  Sandcrack,  ante,  p.  101.  reversing    judgment   of     Queen's 

(J)  Thrush,  ante,  p.  108.  Bench  Division,  L.  R.,  2  Q.  B.  D. 

\j)  Schneider  v.  Hetith,  3  Camp.  331  ;  46  L.  J.,  Q.  B.  473;  37  L.  T., 

508  ;  and  Jones  v.  Bright,  3  M.  &  N.  S.  511  ;  25  W.  R.  585;  affirmed 

p.  175.  by  the  House  of  Lords,   L.  E..,  4 

'ik)    Ward  V. Hobbs,  L.  R.,  3  Q.  B.  App.  Cas.  13;  48  L.  J.,  Q.  B.  281; 

D.150;  47L.J.,Q.B.90;  37L.T.,  40  L.  T.,  N.  S.  73;  27  W.  R.  114. 

N.  S.   654;  26  W.  R.  151— C.  A., 


FRAUDULENT  CONTRACTS,  159 

of  acquiescing  in  it,  or  of  avoiding  it  (/).     But  until  the 
party  defrauded  disaffirms  the  contract  it  remains  good  {m) . 

If  a  party  he  induced  to  purchase  an  article  hy  fraudulent  Where  Fraud 
representations  of  the  seller  respecting  it,  he  may  treat  it  '^^  practised 
as  a  good  contract,  or  the  moment  lie  chooses  to  declare  it  Buyer, 
void,  he  may  recover  the  price  from  the  seller  (o). 

If,  when  it  is  avoided,  nothing  has   occurred  to   alter  Except  where 
the  position  of   affairs,  the  rights   and   remedies    of   the  ^.*^  works  m- 
parties  are  the  same  as  if   it   had   been  void   from   the  ■'"'^  ^°^' 
beginning ;  but  if    any  alteration  has  taken  place,  their 
rights    and   remedies    are    subject    to  the    effect   of    that 
alteration  {p).     Thus  where  the  plaintiff  was  induced  by 
the  Fraud  of  the  defendants  to  become  a  shareholder  in 
a  company,  it  was  held,  that  as  he  had  in  the  interval 
between  the  making  of  the  contract  and  the  discovery  of 
the  Fraud,  received  dividends,  and  otherwise  dealt  with 
the  jiroperty,  he  could  not  treat  the  contract  as  void,  and 
sue  for  money  had  and  received  ;    but,  though  he  could 
not  rescind  the  contract,  inasmuch  as  such  rescission  would 
work  injustice,  yet    he  might    bring   an   action  on   the 
deceit,  and  recover  his  real  damages  {q). 

But  if  after  discovering  the  Fraud  he  continue  to  deal  Where  he 
with  the  article  as  his  own,  he  cannot  recover  back  the  jpl^Q^^fw? 
money  from  the  seller  (r).     And  the  right  to  repudiate  article. 
the  contract  is  not  afterwards  revived  by  the  discovery 
of  another  incident  in  the  Fraud  (r). 

A  sale  of  goods  effected  by  the  Fraud  of  the  buyer  is  }Vhere  Fraud 
not  absolutely  void,  but  the  seller  may  elect  to  treat  it  as  l^^jo^^t^e*^*^ 
a  valid  transaction  (s),  or  has  a  right  to  treat  the  contract  Seller, 
as  a  nullity,  and  recover  the  value  of   the  goods  in  an 
action  of  Trover  (/). 

If  he  does  not  treat  the  sale  as  void  before  the  buyer  Resale  by  the 
has  resold  the  goods  to  an  innocent  vendee  (.s),  or  pledged  ^^g^ent  ^^ 
them  for  a  hond  fide  advance  {u),  the  property  will  pass  Vendee, 
to  the  vendee. 

{!)  Murray  v.  Mann,  2  Ex.  541  ;  (17)   Clarke  v.  Dickson,   27  L.  J., 

TJrquhart  v.  jVarp/icrson,   L.  R.,    3  Q.  B.  223. 
App.  Cas.  831;  Story  on  Sales,  126.  (;•)   Campbell  v.  Fleming,  1   A.  & 

[m)  Dawes  v.  Harness,  L.  R.,  10  E.  40. 
C.  P.   166;  44  L.  J.,   C.  P.   194;  (.s)    White  v.    Garden,   20  L.  J., 

Cloiigh  V.  London  and  North  Western  C.  P.  166. 

Rail.  Co.,  L.  E,.,  7  Ex.  26,  34;   41  (t)  Ferguson  v.    Carrington,  9  B. 

L.  J.,  Ex.  17;  25  L.T.,  N.  S.  708.  &  C.  59;  S.  C.  3  C.  &  P.  457;  load 

.      {0)  Murray  y.  Mann,  2  Ex.  541.  v.  Green,  15  M.  &  W.  216,  221. 

[p)  See  Broom's  Maxims,  4th  ed.  {a)  lungsford  v.  3ferry,   11  Ex. 

293;  and  per  Blackburn,  J.,  R.  v.  577. 
Saddlers'  Co.,  32  L.  J.,  Q.  B.  343. 


160 


FRAUDULENT  CONTRACTS. 


Contract  with 
iuteut  to  cheat 
the  seller. 

Preconceived 
design  of  not 
paying  for 
goods. 


Question  for 
the  Jury. 


Resale  at  a 
reduced  price. 

Unstamped 
agreement 
admissible  to 
prove  Fraud. 


But  the  property  will  not  pass  to  an  innocent  vendee, 
unless  the  relation  of  vendor  and  vendee  existed  between 
the  original  owner  of  the  goods,  and  the  person  who  has 
fraudulently  obtained  them ;  for,  if  there  be  not  a  sale 
between  these  parties  there  is  no  contract,  which  the 
owner  can  either  affirm  or  disaffirm  (.r).  Thus  where  A., 
who  had  formerly  been  B.'s  agent,  and  had  been  known 
to  the  plaintiff  as  such,  after  his  agency  ceased,  obtained 
goods  from  the  plaintiff  in  the  name  of  B.,  which  he 
handed  over  to  the  defendant,  an  auctioneer,  by  whom 
they  were  sold  :  it  was  held,  that  the  plaintiff  might 
maintain  Trover  against  the  defendants,  for  there  was 
never  any  sale  to  A.,  or  any  contract  between  //iiii  and 
the  plaintiffs  {//). 

All  contracts  of  purchase  made  with  the  fraudulent 
intent  to  cheat  the  seller,  and  dispose  of  the  goods  at  a 
swindling  price,  to  raise  money,  are  held  void  (2). 

It  would  appear  that  where  the  buyer  pmx-hases  goods 
with  the  preconceived  design  of  not  paying  for  them,  such 
sale  does  not  pass  the  property  therein  {a).  Thus  where 
some  Sheep  had  been  bought  under  such  circumstances, 
Chief  Justice  Abbott  held  that  if  the  buyer  contracted  for, 
and  obtained  possession  of  the  Sheep  in  question,  with  a 
preconceived  design  of  not  paying  for  them,  that  would  be 
such  a  fraud  as  would  vitiate  the  sale  and  prevent  the  pro- 
perty from  passing  to  him  (o). 

Whether  the  buyer  has  obtained  possession  of  the  goods 
with  such  a  preconceived  design,  is  a  question  for  the 
J  my  {b). 

The  resale  of  the  goods  at  reduced  prices  immediately 
after  the  buyer  has  obtained  possession  of  them,  is  evidence 
that  such  prior  transaction  is  fraudulent  (c). 

A  dociunent  -whieh  piu'ports  to  be  an  agreement,  and 
is  valid  upon  the  face  of  it,  but  which  is  tendered  in  evi- 
dence to  show  the  transaction  with  which  it  is  connected 
to  be  a  Fraud,  is  admissible  in  evidence,  although  wa.- 
stamped  {d). 


(.r)  Kiiiffsford  Y.  Mernj,  26  L.  J., 
Ex.  83. 

(y)  Higgons  v.  Barton,  26  L.  J., 
Ex.  342. 

(r)  Gibson  v.  CtvrutJiers,  8  M.  & 
W.  346. 

(r?)  See  Irving  v.  Motley,  7  Bing. 
551  ;  Load  v.  Green,  15  M.  &  W. 
221  ;  J'erguson  v.    C'arrington,  9  B. 


&  C.  59  ;  see  Chit.  Contr.  11th  ed. 
382. 

(i)  Uarl  of  Bristol  v.  Wilsmore, 
1  B.  &  C.  521. 

(c)  Ferguson  v.  C'arrington,  9  B. 
&  C.  59  ■  S.  C.  3  C.  &  P.  457. 

(d)  Holmes  v.  Sixsmith,  7  Ex. 
802  ;  Reg.  v.  Gompertz,  9  Q.  B. 
824. 


FRAUDULENT  CONTRACTS.  161 

If  a  buyer,  under  terms  to  pay  for  goods  on  delivery,  Payment  by  a 
obtains  possession  of  them  by  giving  a  Cheque,  which  is  Cheque  which 
afterwards  dishonoured,  he  gains  no  property  in  the  goods,  ifonoured 
if  at  the  time  of  giving  the  Cheque,  he  had  no  reasonable 
ground  to  expect  that  it  would  be  paid  {e). 

The  contract  of  an  infant,  however  fair  and  conducive  Fraud  of  an 
to  his  interests  it  may  be,  is  not  binding  on  him,  unless  it  Iiif^nt. 
be  for  necessaries.  By  the  Common  Law,  however,  the 
contracts  of  an  infant,  other  than  for  necessaries,  were  for 
the  most  part  only  voidable.  But  now,  by  the  37  &  38  ^ 
Yict.  c.  62,  s.  1,  all  contracts,  whether  by  specialty  or  by 
simple  contract,  entered  into  by  infants  for  the  repayment 
of  money  lent  or  to  be  lent,  or  for  goods  supplied  or  to  be 
supplied  (other  than  contracts  for  necessaries),  and  all  ac- 
counts stated  wdth  infants,  are  made  absolutely  void ;  pro- 
vided always,  that  the  above  enactment  "  shall  not  invalidate 
any  contract  into  which  an  infant  may,  by  any  existing  or 
future  statute,  or  by  the  rules  of  Common  Law  or  Equity, 
enter,  except  such  as  are  now  by  law  voidable  "  (/) .  And  it 
was  no  answer  at  law  to  a  plea  of  infancy,  that  the  defen- 
dant, at  the  time  of  entering  into  the  contract,  fraudulently 
represented  himself  to  be  of  full  age  ;  and  that  the  other 
party  believing  this  representation,  and  on  the  faith  thereof, 
contracted  with  him  {g).  Nor  did  these  facts  form  the  sub- 
ject of  a  good  replication,  on  equitable  grounds,  to  a  plea  of 
infancy  (li),  although  in  such  a  case  a  Court  of  Equity 
might  grant  relief  against  the  infant  on  the  ground  of 
fraud  (/). 

A  husband  is  not  liable  for  any  fraud  of  the  wife.  Of  a  mamed 
which  is  directly  connected  with  and  dependent  upon  a  Woman, 
contract  (/r).  In  a  case  in  which  an  action  had  been 
brought  against  a  husband  and  wife  for  a  false  and  frau- 
dulent representation  by  the  wife  to  the  plaintiffs,  that 
she  was  sole  and  unmarried  at  the  time  of  her  signing 
a  promissory  note  as  surety  to  them  for  a  third  person, 
whereby  they  were  induced  to  advance  a  sum  of  money 
to  that  person,  it  was  held  that  an  action  would  not  lie. 
And  Pollock,  0.  B.,  said,  "  A.  feme  covert  is  imquestionably 

ie)  Hawse  V.  Crou-e,'R.&M.  Hi;  {i)  Nelsott  v.   StocJcer,  28   L.  J., 

Earl  of  Bristol  v.  Wilsmore,  1  B.  &  C.  760. 
C.  521.  {k)  Liverpool  Adelphi  Loan  Asso- 

{/)  Chit.  Contr.  10th  ed.  138.  ciation  v.    Fairhurst,   9    Ex.    422  ; 

(V)  Johnson  v.  Tije,  1  Sid.  258.  Wrifjht  v.  Leonard,  30  L.  J.,  C.  P. 

{h)  Bartlett  v.    Wills,  31  L.   J.,  3G5. 
Q.  B.  57. 

O.  M 


1G2  FRAHDITLENT  CONTRACTS. 

incapable  of  binding-  herself  by  a  contract ;  it  is  altogether 

void,  and  no  action  will  lie  against  her  husband  or  herself 

for  the  breach  of  it.     But  she  is  undoubtedly  responsible 

for  all  torts  committed  by  her  on  any  person,  as  for  any 

other  personal  wrongs.     But  when  the  fraud  is  directly 

connected  with  the  contract  vnth   the   wife,   and  is  the 

means  of  effecting  it,  and  parcel  of  the  same  transaction, 

the  wife  cannot  be  responsible,  and  the  husband  be  sued 

for  it  together  with  the  wife  "  (/). 

Where  a  con-       Equity  will  give  relief  where   there   is   no  reasonable 

is^oW^nd^'^*^  equality  between  the  contracting  parties,  c.  ^.,  in  a  case  in 

weakminded.    which  the  vendor,  being  an  aged,  illiterate,  weakminded 

man,  though  not  a  person  absolutely  incapable  of  managing 

his  own  affairs,   executed   a  deed   of   conveyance   of  his 

property  for  a  grossly  inadequate  consideration  (m) . 

Drunkenness        AVliere  a  party,  when  he  enters  into  a  contract,  is  in 

h!<^  Trf '^'^'^*"   '^^^""'^  ^  state  of  drunkenness  as  not  to  know  what  he  is 

°  '        doing,  and  particularly  when   it    appears   that  this   was 

known  to  the  other  party,  he   cannot   be   compelled  to 

perform  the  contract  (n). 

Goods  kept  Ly       If  ^  however,  a  man  buys  a  Horse  when  so  cbunk  as  not 

sober*^  ^  ^^'^   ^°  know  what  he  is  doing,  but  keeps  it  after  he  is  sober,  he 

cannot  set  up  his  ch'imkenness  as  an  answer  to  an  action  for 

the  price  (o). 

(;)  See  note  (/,),  ante.  {ii)   Gore  v.  Gibso)/,  13  M.  &  W. 

{>n)  Longmate  v.  Ledger,  G  Jur.,       G2G. 
N.    S.    481.      See    also    Roberts'  (o)  See    Chit.    Contr.     10th    ed. 

Principles  of  Equity,  3rd  ed.  79.  137  ;   Gore  \.  Gibson,  13  M.  &  W. 

626. 


(     1G3     ) 


CHAPTER  VIII. 


BREACH    OF    WARRANTY. 


Beeach  of  Warranty. 
Buyer  neither  hound  to  tender 

the  Horse  nor  give  Notice ....    163 
Seller  not  hound  to  take  hack  the 

Horse id. 

Unless    the   Contract   was    cxe- 

cuiury 164 

Street  v.  Blay id. 

Judgment  of  the  Court  of  King'' s 

Bench id. 

Lord    FJdon'' s    Opinion    dis- 
cussed      165 

Evidence    in     Mitigation     of 

Damages     166 

Unfitness  for  a  particular  pur- 
pose          id. 

An  intermediate  Profit id. 

Ads  of  Ownership  inconsistent 

u-ith  Trial 167 

Confirmed  hy  a  later  Case ....     id. 
Goods  are  returnahle  where  there 

is  Fraud     168 

But  not  for  non-correspondence 
with  Sample id. 


Agreement  that  a  Horse  is  to  be 
returned  if  Unsound 168 

Head  v.  Tattersall 169 

Or  unsnitahle     id. 

Or  unfit  for  a  particular  purpose  170 

Vcrhal  Offer  after  Sale  to   take' 
hack  the  Horse   id. 

Where  Goods  should  he  returned 
immediately    id. 

Or  the  Contract  becomes  com^jlete    id. 

jrhcre  Buyer  should  tender  the 
Horse , id. 

Sale  after  Tender 171 

Not'ice  instead  of  Tender id. 

Length  of  Time  before  Notice  , .     id. 

Seller  should  have  the  Horse  ex- 
amined        172 

Breach  of  IFarranty  no  Defence 
to  an  Act'io7i  on  a  Bill  of  Ex- 
change          id. 

Unless  there  be  a  total  Failure 
of  Consideration     id. 

Sale  hy  Order  of  Court id. 


BREACH  OF  WARRANTY. 

Where  a  Horse  has  been  sold  warranted  Sound,  wliicli 
it  can  be  clearly  proved  was  Unsound  at  the  time  of  Sale, 
the  seller  is  liable  to  an  action  on  the  Warranty,  without 
either  the  Horse  being  returned  or  Notice  given  of  the 
Unsoundness.  And  in  a  case  where  there  was  a  breach  of 
Warranty,  Lord  Loughborough  said,  "  No  length  of  time 
elapsed  after  the  sale  "wdll  alter  the  natiu-e  of  a  contract 
originally  false.  It  is  not  necessary  that  the  Horse  should 
be  retm-ned  to  the  seller  or  that  Notice  should  be  given"  {a). 
Where  a  Horse  warranted  Sound  tiu'ns  out  Unsound, 
the  seller  is  not  bound  to  take  it  back  again ;  nor  can  the 
buyer,  by  reason  of  the  Unsoundness,  resist  an  action  for 

{n)  Fielder  v.  Starkie,  I  H.  Bin.  17;  and  see  Poulton  v.  Lattimore,  9 
B.  &'  C.  26o. 

m2 


Buyer  neither 
bound  to 
tender  the 
Horse  nor 
a:ive  Notice. 


Seller  not 
bound  to  take 
back  the 
Horse. 


164 


BREACH  OF  WARRANTY. 


Unless  the 
coutract  was 
executoiy. 


tlie  price  on  tlie  ground  of  breach  of  Warranty,  except 
in  case  of  fraud  or  express  agreement  authorizing  the  re- 
turn, or  on  a  mutual  rescission  of  the  contract ;  but  he  may 
give  the  breach  of  Warranty  in  evidence  in  reduction  of 
damages  {b) . 

And  it  would  appear  that  where  a  contract  is  executory/ 
only,  as  where  a  Horse  is  ordered  of  a  party,  and  he  con- 
tracts to  supply  one  fit  for  a  certain  purpose,  the  buyer  may 
rescind  the  contract  after  he  has  received  the  Horse,  if  he 
does  not  answer  that  piu-pose,  provided  he  has  not  kept 
it  longer  than  was  necessary  for  trial,  or  exercised  the 
dominion  of  an  owner  over  it,  as  by  selling  it. 
Sired  V.  Dlifif.  This  was  decided  in  Street  v.  Btai/  (c),  and  as  it- is  a  very 
important  and  leading  case,  it  will  be  given  together  with 
a  considerable  portion  of  the  judgment  delivered  by  Lord 
Tenterden.  The  facts  of  the  case  were  these.  The  plain- 
tiff, on  the  2nd  of  February,  sold  a  Horse  to  the  defendant 
for  43/.  with  a  Warranty  of  Soundness.  The  defendant 
took  the  Horse,  and  on  the  same  day  sold  it  to  one  Bailey 
for  45/.  Bailey,  on  the  following  clay,  parted  with  it  in 
exchange  to  one  Osborne ;  and  Osborne,  in  two  or  three 
days  afterwards,  sold  it  to  the  defendant  for  30/.  No 
Warranty  appeared  to  have  been  given  on  any  of  the  three 
last  sales ;  the  Horse  was,  in  fact,  Unsound  at  the  time  of 
the  first  sale,  and  on  the  9th  of  February  the  defendant 
sent  the  Horse  back  to  the  plaintifi:'s  premises,  requiring 
the  plaintiff  to  receive  him  again  as  he  was  then  lame  ; 
but  the  plaintiff  refused  to  accept  him.  The  question  for 
consideration  was,  whether  the  defendant,  under  these  cir- 
cumstances, had  a  right  to  retm-n  the  Horse,  and  thereby 
exonerate  himself  from  the  pa^ymient  of  the  whole  price  ? 

After  taking  time  to  consider,  Lord  Tenterden,  in  de- 
livering the  judgment  of  the  Coiui,  said,  "  It  is  not  neces- 
sary to  decide  whether  in  any  case  the  purchaser  of  a 
speelfc  chattel,  who,  having  had  an  opportmiity  of  exercis- 
ing his  judgment  upon  it,  has  bought  it  with  a  WaiTanty 
that  it  is  of  any  particular  quality  or  description,  and 
actually  accepted  and  received  it  into  his  possession,  can  after- 
wards, upon  discovering  that  the  Warranty  has  not  been 


Judgment  of 
the  Court  of 
Kin  2-' s  Bench 


{li)  According  to  the  law  of 
Scotland,  it  appears  that  there 
"would  be  an  absolute  right  to 
return  the  horse  npon  the  discovery 
of  the  breach  of  warranty,  without 
any  specific  stipulation  to  that 
effect.     Coustoii  v.  Chapman,  L.  R., 


2   H.   L.    (S.    C),   250,  per  Lord 
Chelmsford. 

(c)  Street  v.  Blay,  2  B.  &  Ad. 
456  ;  and  see  Bau-son  v.  CuUis,  10 
C.  B.  523;  and  OUiraut  v.  Bailoj, 
5  Q.  B.  288. 


BREACH  OF  WARRANTY.  1G5 

complied  witli,  of  liis  own  will  only,  without  the  concur- 
rence of  the  other  contracting  party,  retiu-n  the  chattel  to 
the  vendor  and  exonerate  himself  from  the  payment  of  the 
price,  on  the  ground  that  he  has  never  received  that  article 
which  he  stipulated  to  piu-ehase." 

"  There  is  indeed  authority  for  that  position.  Lord  Lord  Eldou's 
Eldon,  in  the  case  of  Curtis  v.  Hannay{d),  is  reported  to  "{Jg^gj'' •^'" 
have  said,  that  he  took  it  to  he  clear  law,  that  if  a  person 
purchases  a  Horse  which  is  warranted  Sound,  and  it  after- 
wards tiu"ns  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  he 
would  have  a  right  to  recover  the  difference  between  the 
value  of  a  Sound  Horse  and  one  with  such  defects  as  ex- 
isted at  the  time  of  the  Warranty  ;  or  he  might  return  the 
Morse  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  retm^hed  in  the  same  state  as  he  was 
in  when  sold,  and  not  by  any  means  diminished  in  value. 
And  Lord  Eldon  proceeds  to  say,  that  if  it  were  in  a  worse 
state  than  it  would  have  been  in,  if  retm-ned  immediately 
after  the  discovery,  the  purchaser  would  have  no  defence  to 
an  action  for  the  price  of  the  article."  "It  is  to  be  im- 
plied (says  Lord  Tenterden)  that  he  would  have  a  defence 
in  case  it  were  returned  in  the  same  state,  and  in  a  reason- 
able time  after  the  discovery.  This  dictum  has  been  adopted 
in  Mr.  Starkie's  excellent  work  on  the  Law  of  Evidence  (r?), 
and  it  is  there  said  that  a  vendee  may  in  such  a  case  re- 
scind the  contract  altogether  by  returning  the  article,  and 
refuse  to  pay  the  price  or  recover  it  back  if  paid." 

"It  is  however  extremely  difficult,  indeed  impossible, 
to  reconcile  this  doctrine  with  those  cases  in  which  it  has 
been  held  that  where  the  property  in  the  specific  chattel 
has  passed  to  the  vendee,  and  the  price  has  been  paid,  he 
has  no  right,  upon  the  breach  of  the  Warranty,  to  return 
the  article  and  revest  the  property  in  the  vendor,  and 
recover  the  price  as  money  paid  on  a  consideration  which 
has  failed,  but  must  sue  upon  the  Warranty,  unless  there 
has  been  a  condition  in  the  contract  authorizing  the  re- 
turn, or  the  vendor  has  received  back  the  chattel  and 
has  thereby  consented  to  rescind  the  contract,  or  has  been 
guilty  of  a  fraud  which  destroys  the  contract  altogether. 

{d)  Curtis  v.  Sannay,  3  Esp.  83.  (e)  Starkie  ou  Evidence,  part  iv. 

p.  645. 


166 


BREACH  OF  WAKRANTY. 


Evidence  in 
mitigation  of 
damages. 


Unfitness  for 
a  particular 
purpose. 


An  intcrme 
diate  profit. 


lu  Wcfiton  V.  Boicncs  (/),  Totcers  v.  Barret i  {(j),  Faijnc  v. 
Whale  {/i),  Power  v.  Well^  (i),  and  Emanuel  v.  Dane  (J), 
the  same  doctrine  was  applied  to  an  Exchange  mth  a 
WaiTanty  as  to  a  Sale,  and  the  vendee  held  not  to  be 
entitled  to  sue  in  Trover  for  the  chattel  delivered  by  way  of 
barter  for  another  received.  If  these  cases  are  rightly 
decided,  and  we  think  they  are,  and  they  certainly  have 
been  always  acted  upon,  it  is  clear  that  the  purchaser 
cannot  by  his  otsti  act  alone,  unless  in  the  excepted  cases 
above  mentioned,  revest  the  property  in  the  seller,  and 
recover  the  price  when  paid,  on  the  ground  of  the  total 
failui^e  of  consideration ;  and  it  seems  to  foUoAv  that  he 
cannot  by  the  same  means  protect  himself  from  the  pay- 
ment of  the  price  on  the  same  ground." 

"  On  the  other  hand  the  cases  have  established,  that  the 
breach  of  the  Wan-anty  may  be  given  in  eATidence  in  miti- 
gation of  damages,  on  the  principle,  as  it  should  seem,  of 
avoiding  circuity  of  action  (/.-)  ;  and  there  is  no  hardship 
in  such  a  defence  being  allowed,  as  the  plaintiff  ought  to 
be  prepared  to  prove  a  compliance  vdih  his  Warranty, 
which  is  part  of  the  consideration  for  the  specific  price 
agreed  by  the  defendant  to  be  paid." 

"  It  is  to  be  observed,  that  although  the  vendee  of  a 
specific  chattel,  delivered  \\'ith  a  Wan-anty,  may  not  have  a 
right  to  retiu'n  it,  the  same  reason  does  not  apply  to  cases 
of  executory  contracts,  where  an  article,  for  instance,  is 
ordered  from  a  manufacturer,  who  contracts  that  it  shall 
be  of  a  certain  quality,  or  fit  for  a  certain  purpose,  and  the 
article  sent  as  such  is  never  completely  accepted  by  the 
pai-ty  ordering  it.  In  this  and  similar  cases  the  latter  may 
retmm  it  as  soon  as  he  discovers  the  defect,  provided  he  has 
done  nothing  more  in  the  meantime  than  was  necessary  to 
give  it  a  fan-  trial"  (/). 

"  The  observations  above  stated  are  intended  to  apply 
to  the  pm'chase  of  a  certain  specific  cJiattel,  accepted  and 
received  by  the  vendee,  and  the  propeiiy  in  which  is  com- 
pletely and  entirely  vested  in  him." 

"  But  whatever  may  be  the  right  of  the  piu-chaser  to 
retiu-n  such  a  waiTanted  article  in  an  ordinary  case,  there 


(/)  Weston  V.  Downes,  Doug.  23. 

{g)  Toiccrs  v.  Barrett,  1  T.  E. 
133. 

(7()  Payne  v.  Wlialc,  7  East,  27-1. 

(i)  Poiver  v.  JFells,  Doug.  34,  n. 

(j)  Etnaniiel  v,  Dane,  3  Camj). 
299. 


{k)  Cormach  v.  GUlis,  cited  7  East, 
480;  Kinffx.  Boston,  7East,  481,n. ; 
and  see  Dawson  v.  CoUis,  10  C.  B. 
532. 

(/)  OJccU  V.  Smith,  1  Stark.  N.  P. 
C.  107. 


BREACH  OF  WARRANTY.  167 

Is  no  authority  to  show  that  he  may  return  it  where  the 
purchaser  has  done  more  than  was  consistent  "with  the 
purpose  of  trial,  where  he  has  exercised  the  dominion  of 
an  owner  over  it,  by  selling  and  parting  with  the  property 
to  another,  and  where  he  has  derived  a  pecimiary  benefit 
from  it.  These  circimistances  concur  in  the  present  case ; 
and  even  supposing  it  might  have  been  competent  for  the 
defendant  to  return  this  Horse,  after  having  accepted  it 
and  taken  it  into  his  possession,  if  he  had  never  parted 
with  it  to  another,  it  appears  to  us  that  he  cannot  do  so 
after  the  re-sale  at  a  profit." 

"  These  are  acts  of  o^Miership  wholly  inconsistent  with  Acts  of 
the  purpose  of  trial,  and  which  are  conclusive  as^ainst  the  o"^^?'^*^'?  ^^- 
defendant  that  the  particular  chattel  was  his  own  ;  and  it  -with  trial. 
may  be  added  that  the  parties  cannot  be  placed  in  the 
same  situation  by  the  return  of  it  as  if  the  contract  had 
not  been  made,  for  the  defendant  has  derived  an  inter- 
mediate benefit  in  consequence  of  the  bargain,  which  he 
would   still  retain.     But   he  is    entitled    to   reduce   the 
Damages,  as  he  has  a  right  of  action  against  the  plaintiff 
for  the  breach  of  Warranty  "  (m). 

In  another  case,  where  the  question  of  return  was  con-  Confirmed  hy 
sidered,  the  law  laid  do^^-n  by  the  Court  of  Queen's  a  later  case. 
Bench  was  confirmed  by  the  Court  of  Exchequer.  And 
Mr.  Baron  Bay  ley  said,  "  One  party  cannot  rescind  the 
contract  unless  the  other  party  agrees  to  it.  The  contract 
of  Warranty  was  open,  and  entitled  the  plaintilf  to  re- 
cover damages  for  the  breach  of  it,  but  did  not  entitle  him 
to  retiu-n  the  Horse,  and  rescind  the  contract.  In  Street 
V.  Bin;/  {m),  the  law  on  this  subject  was  fully  considered 
by  the  Court  of  King's  Bench,  and  it  was  there  laid  do^\-n 
that  a  purchaser  has  no  right  to  return  the  article,  unless 
there  has  been  a  condition  in  the  original  contract  autho- 
rizing the  return,  or  the  vendor  has  subsequently  consented 
to  rescind  the  contract,  or  un-less  the  case  turn  out  to  be 
one  of  fraud.  According  to  Poicerr.  Welles  {n),  if  the  con- 
tract is  still  open,  you  cannot  maintain  an  action  for  Jloncy 
had  and  received  ;  I  take  the  rule  to  be,  that  if  the  contract 
remains  open,  so  as  to  give  the  party  a  right  to  recover 
damages  for  a  breach  of  Warranty,  he  cannot  maintain  an 
action  of  Indebitatus  assiimp'iit  on  the  ground  of  the  failure 
of  consideration." 


(m)  Street  v.  £la>/,  2  B.  i"  Ad.  («)  Foicer  v.  Welles,  Cowp.  818. 

4.56. 


168 


BREACH  OF  WARRANTY, 


Goods  are  re- 
turnable 
where  there  is 
fraud. 


But  not  for 
n  on -corre- 
spondence 
M  ith  sample. 


Agreement 
that  a  Horse 
is  to  be  re- 
turned if 
unsound. 


And  Lord  Lyndluu'st  said,  "  There  was  a  proposition  in 
this  ease  to  rescind  the  contract,  which  the  defendant  was 
at  first  willing  to  accede  to,  bnt  the  agreement  to  rescind 
was  never  completed,  therefore  the  contract  remained  open. 
One  party  alone  could  not,  hy  his  own  act,  rescind  the  con- 
tract. The  case  of  Street  v.  Bla//  (o)  seems  to  have  been 
very  much  considered.  That  case  shows  that  you  cannot 
treat  a  contract  as  rescinded  on  the  groimd  of  the  breach  of 
Warranty,  except  there  was  an  original  agreement  that  the 
party  should  be  at  liberty  to  rescind  in  such  case,  or  unless 
both  parties  have  consented  to  rescind  it.  According  to 
that  decision,  which  is  the  most  recent,  yoiu'  remedy  was  an 
action  for  damages  "  (^;) . 

In  an  unconditional  Warranty,  the  only  gromid  on 
which  goods  are  retm-nable  is  that  of  Fraud.  And  Mr. 
Baron  Parke,  referring  to  the  case  of  Street  v.  JB/a//  (o), 
said,  "  When  a  Horse  is  warranted  sound,  and  turns  out 
otherwise,  the  purchaser  has  no  right  to  retiun  him,  im- 
less  the  Warranty  was  fraudulent ;  his  only  remedy  is  an 
action  on  the  Warranty ;  this  has  been  latehj  settled,  but 
the  general  impression  formerly  among  the  profession,  and 
now  amongst  all  others,  is,  that  the  pui'chaser  is  to  return 
the  Horse  "(^). 

Upon  the  sale  of  specific  goods,  with  a  Warranty  that 
they  are  equal  to  sample,  the  vendee  cannot  refuse  to  re- 
ceive them  on  the  ground  that  they  do  not  correspond  with 
the  sample,  unless  there  be  an  express  condition  to  that 
effect ;  Ijut  he  must  trust  to  a  cross-action,  or  rely  on  the 
non- correspondence  with  sample  as  a  ground  for  reduction 
of  damages  (r). 

But  if  on  the  sale  of  a  Horse  there  be  an  express  War- 
ranty by  the  seller  that  the  Horse  is  sound,  free  from  vice, 
&c.,  yet  if  it  be  accompanied  with  an  undertaking  on  the 
part  of  the  seller  to  take  back  the  Horse  and  repay  the 
piu'chase-money,  and  on  trial  he  shall  be  found  to  have 
any  of  the  defects  covered  by  the  Warranty,  the  buyer 
must  retiu'n  him  as  soon  as  he  discovers  any  of  those 
defects,  imless  he  has  been  induced  to  prolong  the  trial  by 
any  subsequent  misrepresentation  of  the  seller,  because  in 
such  case  a  trial  means  a  reasonable  trial  (s). 


(o)  Street  v.  Bhni,  2  B.  &  Ad. 
456. 

(p)  Gomjxrfz  v.  Denton,  1  Or.  & 
M.  207. 

(y)  miliard  V.  OrbeU,  Ex.  Sit- 
tings, Jan.  11,  1834. 


{>•)  Dan-sou  v.  CoHls,  10  C.  B. 
523 ;  Hayitorth  v.  Hutchinsou,  L. 
E.,  2  Q.  B.  447;  36  L.  J.,  Q.  B. 
370,  per  Cockburn,  C.  J. 

(s)  Adam  v.  Richards,  2  H.  Bla. 
573. 


BREACEl  OF  WARRANTY.  '  169. 

The  right  to  retiirn  a  horse  sold  with  a  Warranty  which 
proves  incorrect,  is  not  taken  away  by  the  fact  that  the 
buyer,  before  removing  him,  might  have  found  out  that 
the  Warranty  was  untrue,  or  by  the  fact  that  the  Horse 
whilst  it  is  in  the  buyer's  possession  is  injui-ed  without  his 
default,  by  an  accident  arising  from  a  defect  inherent  in 
the  Horse  (f).  Thus,  in  Head  v.  Tattersall  (n),  the  plaintiff  Head  v.  Tat- 
bought  a  Mare,  warranted  to  have  been  hunted  with  ^''^'^"'^^• 
certain  packs  of  hounds.  According  to  the  terms  of  the 
sale,  the  Mare,  if  objected  to,  was  to  be  retiu-ned  within  a 
specified  time.  The  plaintiff  paid  for  the  Mare,  but  before 
removing  her  from  the  defendant's  establishment  he  was 
informed  by  some  person  that  the  Warranty  was  incorrect. 
The  Mare,  whilst  she  was  being  taken  away  by  the  plain- 
tiff's groom,  became  restive  and  received  serious  injury. 
The  plaintiff  retm^ned  her  within  the  specified  time.  The 
Warranty  was  in  fact  untrue.  The  plaintiff  brought  an 
action  to  recover  the  price  of  the  Mare,  and  it  was  held 
that  nothing  that  had  happened  took  away  the  plaintifi''s 
right  to  return  the  Mare,  and  that  he  was  entitled  to 
succeed. 

"Wliere  a  Horse  is  bought  on  condition  that  he  is  to  bo  Or  unsuit- 
retm-ned  if  he  does  not  suit,  as  the  contract  for  sale  is  not  ^^^^* 
absolute,  the  Horse  may  be  retm-ned,  and  an  action 
brought  for  the  price,  if  paid,  as  Money  had  and  received 
to  the  use  of  the  plaintiff  (.?•).  But  the  purchaser  must 
not  keep  him  longer  than  is  necessary  for  trial,  nor  ex- 
ercise the  dominion  of  an  owner  over  him,  as  by  selling 
him  (//).  Such  an  action  was  brought  in  the  following- 
case,  to  recover  ten  guineas  which  the  plaintiff  had  paid 
to  the  defendant  for  a  one  Horse  Chaise  and  Harness,  on 
condition  that  it  was  to  be  returned  in  case  the  plaintiff's 
wife  should  not  approve  of  it,  paying  3s.  Qd.  per  diem  for 
the  hire  of  it.  This  contract  was  made  by  the  defendant's 
servant,  but  his  master  did  not  object  to  it  at  the  time. 
The  plaintiff's  wife  not  approving  of  the  Chaise,  it  was 
sent  back  at  the  expiration  of  three  days,  and  left  on  the 
defendant's  premises,  ^^ithout  any  consent  on  his  part  to 
receive  it ;  the  hire  of  3s.  Qd.  jjer  diem  was  tendered  at 
the  same  time,  which  the  defendant  refused,  as  w'ell  as  to 
return  the  money.     A  verdict  was  found  for  the  plaintiff. 

(;:)  Head  V.  Tattersall,  L.  R.,  7  Ex.  4  ;  25  L.  T.,  N.  S.  631. 

Ex.  7  ;  41  L.  J.,  Ex.  4  ;  25  L.  T.,  (x)  Towers  v.  Barrett,  1  T.  R.  133. 

N.  S.  631.  (//)  Street  v.  Blaij,  2  B.  &  Ad. 

{a)  L.  R.,   7  Ex.  7;  41  L.  J.,  456. 


170 


BREACH  OF  NVAURAXTY. 


Or  unfit  for 
a  particular 
jjurpose. 


Verbal  offer 
after  f^ale  to 
take  back  the 
Horse. 


"Where  goods 
should  be  re- 
turned imme- 
diately. 


Or  the  con- 
tract becomes 
comjplcte. 


Where  buyer 


And  a  rule  to  show  cause  wliy  a  nonsuit  should  not  lie 
entered,  on  the  ground  that  this  action  for  Money  had 
and  received  would  not  lie,  was  discharged  (;:;). 

Where  goods  are  bought  on  condition  that  they  should 
be  retiu-ned,  if  unsuitable,  they  would  not  be  returnable 
on  a  disapproval,  which  is  not  bond  fide,  or  which  is 
merely  capricious  {a).  But  in  a  case  in  which  an  order 
for  a  carriage  had  been  given  and  accepted  on  the  express 
condition  that  the  carriage  should  meet  the  approval  of  the 
defendant  on  the  score  of  convenience  and  taste  :  it  was 
held  that  he  was  entitled  (acting  bond  fide,  and' not  from 
mere  caprice)  to  retmii  it  {b). 

^Vhere  a  llorse  is  bought,  warranted  fit  for  a  particular 
purpose,  and  he  proves  unfit  for  that  piu'pose,  it  has  been 
held,  that  the  pmxihaser  may  retm-n  him  and  bring  an 
action  for  the  price,  if  paid  {c). 

But  where,  after  a  Warranty  of  a  Horse  as  sound,  the 
vendor,  in  a  subsequent  conversation  said,  that  //  tlie 
Home  irere  Ujisoiind  (which  he  denied)  he  would  tal;e  it 
again  and  return  the  monet/,  it  was  held  that  this  was  no 
abandonment  of  the  original  contract,  which  still  remained 
open  ;  and  that  though  the  Horse  be  Unsound,  the  vendee 
ought  to  sue  upon  the  Warranty,  and  could  not  maintain 
an  action  for  Money  had  and  received,  to  recover  back  the 
price  after  a  tender  of  the  Horse  (r/). 

A  Ijuyer  ^^'ho  rejects  goods  sent  to  him  as  not  being- 
equal  to  sample,  is  bound  to  retm-n  them  immediately,  if 
it  can  be  done  without  injmy  to  the  goods.  He  has  no 
right  to  retain  them  in  secmity  of  his  claim  of  damages 
for  non-performance  of  the  contract  {c). 

If  goods  delivered  on  "  sale  or  return  "  be  not  retm-ned 
A\ithin  a  reasonable  time,  or  the  retni'n  of  them  be  ren- 
dered impossible  by  the  act  of  the  Buyer,  the  contract  of 
sale  becomes  complete,  and  an  action  for  Goods  sold  and 
delivered  may  be  maintained  by  the  Seller  (/). 

Where  a   Breach  of  Warranty  has  taken  place  it  is 


{z)  Totccrsv.  Barrett,  1  T.  R.  138. 

(«)  Dallman  v.  King,  5  Scott,  382. 

{h)  Andrews  v.  Bctjidd,  2  C.  B., 
N.  S.  779. 

{c)  Chanter  v.  Bopl-'ms,  4  M.  & 
W.  400 ;  but  see  Bauson  v.  CoUls, 
10  C.  B.  523. 

{d)  Paijne  v.  Whale,  7  East,  274. 

[e)  Fadgett  v.  Maoiair,  15  Court 
of  Sess.  76  (Sco.) ;  6'.  C.  2  S.  M.  & 


P.  41;  S.  C.  4M.  Dig.  187. 

(/■)  Moss  V.  Siveet,  16  L.  T.  341; 
S.  C.  20  L.  J.  167  (Q.  B.);  S.  C. 
16  Q.  B.  493.  In  the  case  of 
Ste'mthal  v.  Mijers,  Nov.  23,  1855 
(Cor.  Brandt,  County  Court,  Man- 
chester), a  month  was  held  to  be  a 
reasonable  time  to  keep  a  Horse  on 
sale  or  return. 


]5 REACH  OF  WATIUANTY.  171 

prudent  for  the  Buyer,  iu  an  ordinary  case,  to  tender  tlie  should  tender 
Horse  back  to  the  Seller  immediately  on  discovering  sucli  *^^  Horse. 
Breach  {g)  ;   and  so  entitle  himself  to  be  repaid  the  ex- 
penses he  has  been  put  to  in  keeping  him  {h)  ;  and  if  the 
Seller  receive  him  back  there  Avili  l)e  a  mutual  rescission  of 
the  original  contract  (/'). 

But  where  the  Seller  refuses  to  take  back  the  Horse,  Sale  after 
he  should  be  sold  as  soon  as  possible  for  the  best  price  that    ^^  ^^' 
can  be  procured  (./).     And,  perhaps,  the  best  coin-se  to  be 
pm'suecl  under  such  circumstances  is  to  sell  him  by  public 
auction,  for  in  that  way  tlie  true  market  value,  which  is  the 
proper  measure  of  damages,  can  best  be  discovered  [k) . 

If  the  buyer  does  not  wish  to  tender  the   Horse,  he  Notice  in- 
should  at  any  rate  give  Notice  of  the  Breach  of  Warranty,  *l*f^'^  °*  ^^^' 
because  the  not  giving  Notice  Avill  be  strong  presumption 
against  the  Buj'er  that  the  Horse,  at  the  time  of  sale,  had    • 
not  the  defect  complained  of,  and  will  make  the  proof  on 
his  part  much  more  difficidt  (/).     And  unless  the  Breach 
in  such  case  is  clearly  established,  the  Jury  will  naturally 
suppose   that    the    Horse    corresponded   with    the   War- 
ranty {m). 

The  longer  the  time  before  Notice,  or  bringing  an  Length  of 
action  after  discovering  the  Breach  of  Warranty,  the  ^otict!^''''*' 
greater  will  be  the  dithculty  in  making  out  a  good  case 
to  a  Jmy  (/).  But  where  the  Breach  of  Warranty  can 
be  clearly  proved,  the  length  of  time  before  Notice  does 
not  appear  material.  For  the  Comt  of  King's  Bench,  iu 
a  case  where  an  Unsound  Horse  Avas  sold  with  a  Warranty 
of  Soundness,  decided  that  the  Buyer  might  maintain  an 
action  on  the  Warranty,  although  shortly  after  the  sale 
he  had  discovered  the  Unsoundness,  and,  without  giving 
Notice  of  that  fact  to  the  Seller,  had  kept  and  used  the 
Horse  for  nine  months  as  his  oa\ti,  dmung  which  period  ho 
had  given  him  physic,  and  used  otlier  means  to  cure  him ; 
ho  had  also  cut  the  Horse's  tail.  Tlie  case  had  been  tried 
at  the  Hereford  Assizes  before  Mr.  Justice  Parke,  who  di- 
rected a  nonsuit.  However,  in  the  ensuing  term  a  rule  was 
obtained  to  set  that  nonsuit  aside,  and  for  new  trial,  the 


((/)  Selwyn's  N.  P.  8th  ed.,  vol.  i.  (./)   Casuxll  v.    Coare,    1    Taimt. 

p.  657,  tit.  Deceit,  I.  2,  cited  in  5GG. 

Chcstevman  v.  Lamb,  2  A.  &  E.  129.  {_/■)  Bbinle  v.  Earc,  7  C.  B.,  N.  S. 

(/()   Chrslcrman  v.  Lanih,  2  A.   &  145. 

E.  129  ;   Cross  v.  BartlcU,  3  M.  &  P.  (0  Fielder  y.  Slarlde,  1  H.  Bla.  17. 

542.  ('«)  Poulton  v.  Lattimore,  9  B.  & 

(i)    Weston.  V.  Dowiics,  Doug.  24.  C.  265. 


172 


BREACH  OF  WARRANTY. 


Seller  sliould 
have  the 
Horse  ex- 
amined. 


Breach  of 
"Warranty  no 
defence  to 
action  on 
Bill  of  Ex- 
chans-e. 


fnless  there 
be  a  total 
failure  of 
consideration. 


Sale  by  order 
of  Court. 


cases  of  Fielder  v.  Starlie  {n),  and  Ccmcell  v.  Coave  (o) 
being  referred  to.  In  sho^ving  cause,  it  was  contended 
\hs\k.  Fielder  v.  Starkie  [n)  was  overruled^  or  at  least  qualified, 
by  subsequent  cases;  but  Lord  Denman,  ^\i\h.  the  assent  of 
Justices  Littledale,  Patteson  and  Coleridge,  said,  "We 
think  that  Fielder  v.  Starhie  is  not  overruled.  The  ride 
must  be  absolute"  {p). 

The  Seller,  on  receiving  jNotice  of  a  Breach  of  War- 
ranty, should  have  the  Horse  examined  by  some  skilful 
person,  and  so  ascertain  the  exact  state  of  the  case.  If 
he  find  that  the  Warranty  is  broken,  or  that  there  is 
doubt,  he  had  better  either  take  back  the  Horse,  or  come 
to  what  terms  he  can  with  the  Buyer,  as  Horse  causes  are 
decided  in  a  great  measure  l:)y  the  strength  of  Veterinary 
testimony.  But  if  he  find  that  there  is  really  no  Breach 
of  AVarranty,  the  e\ddence  of  the  party  who  has  examined 
the  Horse,  will  place  him  in  a  favourable  position  in  case 
an  action  should  be  brought. 

It  seems  that  if  a  Bill  of  Exchange  or  Promissory  Note 
has  been  given  for  goods,  which  were  warranted  to  be  of 
a  particular  quality  or  description,  the  buyer  has  no 
defence,  evQU.  pro  tan  to,  to  an  action  brought  upon  the  Bill 
or  Note  by  the  Seller,  merely  upon  the  ground  that  the 
goods  are  of  an  inferior  quality  or  description  {q) . 

But  he  may  defend  on  the  Bill  or  Note  in  toto,  if  an 
action  be  brought  by  the  seller,  where  there  has  been  a 
total  failure  of  consideration,  provided  the  buyer  has  re- 
pudiated the  contract ;  the  difference  being  between  an 
action  for  the  priee  of  goods,  and  an  action  upon  the 
security  given  for  them  (/•). 

In  an  action  for  the  Breach  of  Warranty  of  a  Horse,  an 
order  may  be  made  under  Ord.  LII.  r.  2  (Judicature  Act, 
Sched.),  for  the  sale  of  the  Horse,  as  "goods  which  for 
some  just  and  sufiicient  reason  it  may  be  desirable  to  have 
sold  at  once"  (s). 


(w)  Fielder  v.  Starkie,  1  H.  Bla. 
17. 

(o)   Caswell V.  C'oarc,  1  Taunt.  566. 

(j))  Pateshall  v.  Tranter,  3  A.  <&: 
E.  103  ;  8.  C.  4  Nev.  &  M.  649. 

{q)  See  Chit.  Contr.  11th  ed.  678, 
and  the  cases  there  cited ;  Moggruhje 


V.  Jones,  3  Camp.  38 ;  Knox  v. 
Whallnj,  1  Esp.  159. 

(/•)  See  Chit.  Contr.  11th  ed.  678, 
and  the  cases  there  cited. 

(.s)  Bartholomew  v.  Freeman,  L.  R. , 
3C.P.D.316;  38L.T.,  N.  S.  814; 
26  W.  E.  743. 


(     173     ) 


CHAPTER  IX. 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Pleading  and  Evidence  for  the 
Plaintiff. 

Executory  and  executed  Contracts  174 

Action  for  Price  of  Ilorsc     ....  175 

Action  for  not  accepting id. 

Resale  of  the  Goods    id. 

Action  for  Detention  of  Goods  ..  id. 

Deli  very  of  specific  Goods 176 

Action  for  not  delivering id. 

Goods  sold  and  delivered  for  Pay- 
ment of  the  Price 177 

Action  maintainable  on  Rescission 

of  Contract  by  one  of  the  Parlies  id. 

Horse  sold  and  delivered    id. 

Money  had  and  received  for  Re- 
payment of  the  Price 178 

Z^?ider  a-  3Iista]ce    id. 

Money  had  and  received  for  Re- 
payment of  Part  of  the  Price  .  id. 
Money  had  and  received  for  Price 

of  Horse  wrongfully  sold  ....  179 
Money  received  subject  to  certain 

Conditions id. 

Action  on  a  Breach  ofTFarranty  id. 

Action  for  a  False  TFarranty  . .  id. 

Liability  of  an  Infant id. 

Action  for  Fraudulent  Represen- 
tation    180 

Statement  of  Facts  in  an  Action 

for  Breach  of  Contract id. 

Statement  of  Facts  in  an  Action 

for  Deceit   id. 

Statement  of  the  Consideration  ..  id. 

If  the  Horse  turn  out  lucky  . .  181 

Words  used  in  the  Statement  .  id. 
Statement    of    the    Promise    or 

Warranty 182 

Condition  annexed  to  the  Pro- 
mise or  Warranty id. 

Qualification  of  the   Promise 

or  Warranty id. 

The  Purchase  and  the  Pay- 
ment   id. 

Statement  of  the  False  Warranty 

or  Fraudulent  Representation .  183 

Statement  of  the  Breach    id. 

Statement  of  the  Damage 184 

Proof  in    Goods    bargained  and 

sold    id. 


Proof  in  an  Action  for  not  ac- 
cepting         184 

Meaning  of  Readiness  and  Wil- 
lingness       id. 

Proof  in  a)i  Action  for  not  de- 
livering       185 

Proof  in  Goods  sold  and  delivered  id. 
Proof  in  Money  had  and  received  id. 
Proof  of  an  Account  stated  ....  186 
Proof  in  an  Action  for  Breach 

of  Warranty id. 

Proof  in  an  Action  for  a  False 

IFarranty id. 

Where   it   is   doubtful   whether 

False  Warranty  is  p)  oveable . ,     id. 
Proof  in  an  Action  for  Fraudu- 
lent Representation    187 

Proof  of  the  Bargain  and  Sale  ..     id. 

Proof  of  the  Consideration id. 

Proof  of  Payment  of  the  Price.  .  id. 
Appropriation    of     the    Money 

tendered 188 

Hardiiigham  v.  Allen id. 

Proof  of  the  Promise  or  War- 
ranty       id. 

A  Warranty  not  contained  in 

the  Receipt 189 

Warranty    in   a   Receipt    not 

always  conclusive   id. 

Written     Warranty    requires 

no  Agreement  Stamp   id. 

Where  Authority  to  ivarratit 

need  not  be  proved 190 

IJ'herc  Authority   to  ivarrant 

must  be  proved   id. 

Proof  of  Power  to  rescind    id. 

Proof  of  Fraudulent  Represen- 
tation       id. 

Proof  of  the  Breach  of  Warran  ty  191 
Notice  of  the  Nature  of  the 

Unsoundness  id. 

Fvidcnce  as  to  Unsoundness  . .     id. 

Matter  of  Fact  alone   id. 

Either     Fact     or    Veterinary 

Opinion id. 

Both     Fact    and    Veterinary 

Opinion , .     id. 

Veterinary  Opinion  alone. ...    192 

Evidence  as  to  Vice    id. 

Evidence  as  to  Unfitness,  ^-c. .     id. 


174 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Proof  of  Rescission     192 

Froof  of  Tender id. 

PleadinCt  and  Evidexce  fok  the 
Defendant. 

AdmissioJis  hy  Plcadinrj    192 

What  must  be  speeialhj  lAeaded  .     id. 
Hpceijic  Denials  must  be  made  . .    193 

Denial  of  Contraet     id. 

Allegation  of  Maliec,  'S;c id. 

Defence  for  Detention  of  Goods  .    id. 
Defence  for  Goods  bargained  and 

sold,  and  for  not  accepting    . ,     id. 
Defence   in   an  Action  for  not 

delivering    194 

Where    Evidence    of    Usage   of 

Trade  is  not  admissible id. 

Defence  for  Goods  sold  and  de- 
livered          id. 

Defence  to  Action  o)i  a  Cheque 

for  the  Price id. 

Evidence     in     Redaction     of 

Damages id. 

Defence  for   Residue   of    the 

Price  195 

Defence  for  Money  had  (end  re- 
ceived       id. 

Defence  to  an  Action  on  a  Breach 

of  Warranty id. 

A  surreptitious  Warranty    . .     id. 
Condition  annexed  to  a  War- 
ranty      196 

Evidence     in     Reduction     of 

Damages     197 

Defence  to  an  Action  for  Frau- 
dulent Representation    id. 

Disputing  the  Warranty id. 

Disputing  the  Unsoundness,  ^-c. .    id. 

Subsequent  Recovery 198 

Competency  of  Witnesses  id. 

Damages. 

General  Damages 198 

Special  Damages     id. 

Legal  and  natural   Consequences 

of  Breach  of  Contract    id. 

Judges    to    direct   Juries   as   to 

Rules  of  Damages 199 


Damages   arising    from   special 

Circumstances     199 

Effect  of  Notice 200 

J)ai)iagcsfor  wrongful  Conversion  201 

Damages  in  tort    id. 

In  Actions  for  a,  Sum  certain  . ,  id. 

Interest 202 

17  %  18  Tict.  c.  90  id. 

In    Actions     which     sound     in 

Damages id. 

A  foolish  Bargain     203 

Ayi  impossible  Contract id. 

Cannot     be     higher     than     the 

Amount  laid 204 

In  Croods  bargained  and  sold     . .  id. 

In  an  Action  for  not  accepting . .  id. 

In  an  ylctionfor  not  delivering  .  id. 

Nominal  Damages 205 

In  Goods  sold  and  delivered  ....  id. 

In  Money  had  and  received  ... .  id. 

On  Breach  of  JUarranty id. 

General  Rule id. 

Where    the  Horse    has    been 

returned id. 

Where  the  Horse  has  not  been 

returned 206 

Where  the  Horse  has  been  ten- 
dered   id. 

E-cpense  of  Keep id. 

Seller    liable    for    reasonable 

Keep   207 

What  is  reasonable    id. 

Keeping  the  Horse  till  a  Fair  208 
Expense  consequent  on  the  War- 
ranty    id. 

Expense  in  Selling     209 

Expense    in     advancing     the 

Horsc^s  Value    id. 

Horse  tendered,  and  then  sold 

by  Auction id. 

Expense  of  Veterinary  Certi- 
ficate and  CounseVs  Opinion  id. 

Travelling  Expenses 210 

loss  of  a  good  Bargain id, 

Re-selliny  icith  a  Warranty ..  id. 
Damages  for  Misrepresentation    id. 
Where    the   Damages   are   very 

small  212 


Executory 
and  executed 
contracts. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF. 

Where  you  proceed  for  a  breach  of  an  executor//  con- 
tract, you  must  rest  on  the  contract  itself ;  but  when  the 
contract  has  been  cxfciifcd,  you  proceed  on  the  promise 
implied  by  law  {a) . 

(a)  Per  Lord  Campbell,  Lour  v.  London  and  North  Western  Rail.  Co., 
21  L.  J.,  Q.  B.  3G3. 


PLEADING  AND  EVIDENCE  FOTl  THE  rLATNTTFF.  175 

Where  the  property  has  completely  passed  (/>),  and  the  Action  for 
Yendor  does  not  wish  to  deliver  the  Horse  till  he  has  re-  P!.'^*^°  °* 
ceived  the  Price  agreed  upon  ;  or  if  the  purchaser  refuse  to 
receive  him,  the  Vendor  may  bring  an  action  for  payment 
of  the  price  of  the  Horse  (r). 

Where  the  Purchaser  refuses  to  accept  the  Horse  he  Actiou  for  not 
has  bought,  the  Vendor  may  maintain  against  him  an  'Accepting-, 
action  for  not  accepting,  even  though  the  Horse  may  after- 
wards have  been  re-sold  {d)  ;  and  the  Statement  of  Claim 
will  set  out  facts  showing  the  ConHideration  and  the  Pro- 
mhe,  the  Breach,  and  the  Bamafje.  Where  a  certain  time 
or  place  for  delivery  has  been  agreed  upon,  it  is  the  duty 
of  the  Vendor  to  tender  the  Horse,  and  such  Tender  must 
be  proved  {e). 

Where  by  the  terms  of  the  Contract  the  defendant  was 
bound  to  fetch  away  the  Horse,  the  plaintiff  should  state 
in  the  Statement  of  Claim  that  he  has  not  done  so,  and  aver 
his  own  readiness  and  willingness  to  deliver  (/) . 

It  appears  that  the  general  averment  of  the  performance 
and  happening  of  all  things  necessary  to  the  plaintiff's 
right  of  action  imports  a  sufficient  statement  of  his  being 
ready  and  willing  to  do  all  things  necessary  to  be  done  on 
his  part  for  the  future  (</).  But  the  general  averment  of 
readiness  and  willingness  is  not  sufficient  in  a  case  of  con- 
dition precedent  {li): 

Where  the  Pm'chaser  of  goods  refuses  to  take  them,  the  Resale  of  the 
Vendor  by  reselling  them  does  not  preclude  himself  from  ^^^^*- 
recovering  Damages  for  breach  of  Contract.  And  it  was 
decided  by  the  Court  of  Common  Pleas  that  "  when  a 
party  refuses  to  take  goods  he  has  purchased,  they  should 
be  resold,  and  that  he  should  be  liable  for  the  loss,  if  any, 
upon  the  resale"  ii). 

An  action  for  the  detention  of  goods  may  be  maintained  Action  for 
by  any  person  who  has  either  an  absolute  or  a  special  Retention  of 
property  in  goods,  which  are  capable  of  being  ascertained,  '^ 
against  another,  who  is  in  actual  possession  of  such  goods 

(5)  Atkinson  v.   Bell,  8   B.  &  C.  (c)  Bordenave  v.  Gregory,  5  East, 

277;  Scott  v.  England,   2  D.  &  L.  111. 

524.  (/)  Bach  v.  Owen,  5  T.  R.  409 ; 

(c)  Biinmore  v.  Taylor,  Peake,  N.  Jiairson   v.  Johnson,   1    East,   203  ; 
P.  C.  r)G;  HanJccy  v.    Smith,   Ibid.  Wilks  y.  Atkinson,  1  Marsh.  412. 
57,  n.  ( r/)  Bcntlcy  v.  Baives,  9  Ex.  666. 

[d)  Maclean  v.  Bunn,  1  M.  &  P.  (//)  Roberts  v.  Brett,  6  C.  B., 
761;  S.  V.   4  BiDg.   722;  More  v.       N.  S.  611,  633. 

Mibier,  Peake,  N.  P.  C.  58,  n.  (*)  Maclean    v.    Bunn,    4    Biug. 

722. 


176  PLEADING,  EVIDENCE  AND  DAMAGES. 

either    by   delivery   or    finding,    and    refuses    to   deliver 
them(/). 

As  this  action  proceeds  on  the  ground  of  property  in 
the  plaintiff  at  the  time  of  action  brought,  it  cannot  be 
maintained,  if  the  defendant  took  the  goods  tortiously,  for 
by  the  trespass  the  property  of  the  plaintiff  is  divested  (/). 
But  if  I  lend  a  man  a  Horse,  and  he  afterwards  refuses  to 
restore  it,  this  injury  consists  in  the  detaining,  and  not  in 
the  original  taking  ;  and  the  regular  method  for  me  to 
recover  possession  is  by  action  for  the  detention  (m).  This 
would  be  the  proper  form  of  action  for  the  specific  restitu- 
tion of  a  Horse,  which  has  been  unlawfully  detained  by  a 
Trainer,  Veterinary  Surgeon,  Livery  Stable-keeper,  or 
other  person,  into  whose  hands  it  had  lawfully  come  in  the 
first  instance. 
Delivery  of  The  delivery  of  specific  goods,  contracted  to  be  delivered, 

specific  goods,  may,  in  accordance  with  a  special  finding  of  the  Jury,  be 
enforced  under  the  Mercantile  Law  Amendment  Act,  1856 
(19  &  20  Vict.  c.  97).  Section  2  of  the  Act  providing,  that, 
in  actions  in  the  Superior  Coiu"ts,  or  any  Court  of  Record, 
for  breach  of  contract  to  deliver  specific  goods  for  a  money 
price,  on  application  of  the  plaintiff,  and  by  leave  of  the 
Judge,  the  Jury  shall,  if  they  find  for  the  plaintiff,  find 
■what  are  the  goods  which  remain  undelivered,  the  sum 
%vhich  the  plaintiff  was  liable  to  pay  on  delivery,  the 
damages  sustained  if  the  goods  should  be  delivered  under 
execution,  and  the  damages  if  not  so  delivered;  and, 
thereupon,  if  judgment  be  given  for  the  plaintiff,  the  Court 
or  any  Judge  thereof,  at  their  or  his  discretion,  and  on 
application  of  the  plaintiff,  may  order  execution  to  issue 
for  the  delivery  of  the  goods  on  payment  of  the  sum 
found  payable  by  the  plaintiff,  without  giving  the  defen- 
dant the  option  of  detaining  the  goods  on  payment  of  the 
damages  assessed.  Where  it  is  intended  to  proceed  under 
this  section,  a  formal  tender  of  the  price  agreed,  and  a 
demand  of  the  specific  chattel,  should  be  made  before 
action,  as  probably  execution  for  the  specific  chattel  would 
not  be  allowed  to  issue,  unless  the  writ  had  been  specially 
indorsed  with  notice  of  the  specific  claim,  and  unless  that 
claim  is  repeated  in  the  Statement  of  Claim  {ii). 
Action  for  not  But  where  the  Vendor  refuses  to  deliver  the  Horse  he 
delivering.       j^as  sold,  and  the  Pmx'haser  is  satisfied  with  his  remedy 

(1)  Selwyn'sN.  P.  i2th  ed.  660,  («)  See  Day's  Common  Law  Pro- 

C62.  cedure  Acts,  4th  ed.  393. 

[hi)  3  Steph.  Comm.  4th  ed.  514. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF.  177 

in  damages,  he  may  maintain  against  liim  an  action  for 
not  ddkering  (ii)  ;  and  where  a  pai-ticular  time  for  dehvery 
has  been  agreed  upon,  the  Statement  of  Claim  will  set  out 
facts  showing  the  CouHideyation  and  Promise,  the  Breach 
and  the  Damage,  and  aver  a  readiness  and  willingness  to 
accept  and  receive  the  Horse  and  pay  the  Price  (o) .  If  no 
particular  time  has  been  specified,  and  the  Contract  be 
to  deliver  the  Horse  generally,  as  where  an  action  of 
Assufnjysif  for  not  delivering  was  brought  against  a  party 
who  had  sold  the  plaintiff  a  Mare,  and  promised,  if  she 
proved  Unsound,  to  provide  another  or  retmii  the  money  (p), 
there  must  be  a  special  Request  to  deliver,  which  will  come 
imder  a  general  averment  of  performance  of  conditions 
precedent  {q) .  But  if  a  place  is  mentioned,  and  no  time  (r) , 
or  the  defendant  has  incapacitated  himself  from  completing 
the  agreement,  as  by  reselling,  &c.,  a  Bequest  to  deliver  is 
imnecessary  (s). 

Where  the  Vendor  has  delivered  the  Horse,  and  the  Goods  sold 
Pm'chaser  neglects  or  refuses  to  pay  for  him  ;    or  if  a  and  delivered 
Horse  or  Groods  be  taken  in  part  payment,  and  the  residue  of^he  Prioe. 
is  unpaid  (;*) ;  or  if  the  Pm-chaser  has  the  Horse  on  the 
terms  of  sale  or  retm-n,  and  keeps  him  an  unreasonable 
time,  the  Vendor  may  maintain  an  action  for  Goods  sold 
and  delivered  iii) . 

Where  a  portion  only  of  a  larger  bulk  of  goods  to  be  Action  main- 
delivered  in  pursuance  of  a  written  contract  by  a  stated  tainable  on 
time  has  been  delivered,  and  the  pmxhaser  then  rescinds  ContracUw 
the  contract,  the  Vendor  may  maintain  an  action  for  goods  one  of  the 
sold  and  delivered,  although  the  time  fixed  for  the  payment  Parties, 
of  the  goods  has  not  elapsed  {x). 

And  where  A.  agreed  to  give  a  Horse  warranted  sound,  Horse  sold 
in  exchange  for  a  Horse  of  B.  and  a  sum  of  money,  and  ^^^  delivered, 
the  Horses  were  exchanged ;  but  B,  refused  to  pay  the 
money,  pretending  that  A.'s  Horse  was  unsound ;  it  was 
held  that  A.  might  recover  for  a  Horse  sold  and  delivered  (y) . 

(w)  Bach  V.  Owen,  5  T.  li.  410.  (?«)  Bayley  v.  Gouldsmith,  Peake, 

(o)  15  &   16  Vict.  c.   76,  s.  57;  56;  and   see   Bianchi   v.    Kash,    1 

BorclenavcY.  Gregory,  5  East,  111.  M.  &  W.   545;  and    see  Dyer  v. 

[p)  3   Wentw.   3;  and   2   Chit.  Cowley,  17  L.  J.,  Q.  B.  361  ;  Moss 

Pleading-,  6tli  ed.  166.  v.  Sweet,  16  L.  T.,  Q.  B.  441. 

{q)  Bach  v.  Owen,  5  T.  R.  410.  {x)  Bartholomew  v.  Markwkk,  33 

(>■)  See  JonesY.  Gibbons,  22  L.  J.,  L.  J.,  C.  P.  145. 
Ex.  348.  ( y)  Sheldon   v.   Cox,   3  B.   &  C. 

(s)  Bowdell  V.  Parsons,   10  East,  420  ;  S.  C,  5  D.  &  E.  277  ;  Earl  of 

359.  Falmouth  v.  Penrose,  6  B.  &  C.  387; 

{t)  Sheldon  v.  Cox,  3  B.  &  C.  420;  and  see  2  Chit.  Pleading,  6th  ed. 

Harrison  v.  Zahe,  14  M.  &  W.  139.  167. 

O.  N 


178 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Money  had 
and  received 
for  Repay- 
ment of  the 
Price. 


Under  a  mis- 
take. 


Money  had 
and  received 
for  Repay- 
ment of  part 
of  the  Price. 


"WTiere  an  article,  wliicli  has  been  paid  for,  does  not 
answer  the  description  of  the  thing  which  when  bought  it 
purported  to  be  (z) ;  or  where  a  Horse  is  bought  warranted 
sound,  &c.,  and  paid  for,  and  on  its  turning  out  unsound 
is  returned  to  the  sellers,  who  receives  it,  there  is  a  mutual 
Rescission  of  the  Contract,  and  the  buyer  may  recover  the 
Price  paid  in  an  action  for  Monei/  had  and  received  {a). 
Also,  where  a  Horse  has  been  bought  warranted  sound,  to 
be  returned  if  Unsound  (b)  ;  or  if  the  contract  is,  that  the 
Horse  is  to  be  returned  if  Un  suit  able  [c]  ;  or  Unfit  for  a 
particular  pm^pose  {d)  ;  and  circumstances  arise  in  any  of 
these  cases  which  justify  the  return  of  the  Horse,  and  the 
Horse  is  tendered,  the  same  form  of  action  lies  for  Repay- 
ment of  the  Price.  A  claim  for  Horse  meat  and  Stablinrj 
may  be  added  if  necessary. 

Where  money  is  paid  with  a  knowledge  of  all  the  facts, 
but  under  a  mistake  of  the  law,  it  cannot  in  general  be  re- 
covered back  {e) .  But  money  paid  under  a  mistake  of 
facts,  and  which  the  party  retaining  it  has  no  claim  in 
conscience  to  retain,  is  recoverable  as  money  paid  without 
consideration  (/'),  even  though  the  plaintiff  cannot  be  put 
i)i  statu  quo  (r/). 

Where  a  Horse  is  bought  and  the  Price  paid,  but  the 
Buyer,  by  the  terms  of  the  agreement,  has  the  option  of 
retiirning  the  Horse  within  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  Monei/  had  and  received.  Thus, 
where  a  pair  of  Horses  were  bought  for  80/.  and  paid  for, 
with  liberty  to  return  them  within  a  month,  allowing  the 
seller  10/.  out  of  the  80/.,  but  that  if  the  buyer  kept  them 
beyond  the  month,  he  should  pay  the  seller  10/.  beyond 
the  80/.,  it  was  held  that  upon  the  Horses  being  returned 
within  the  month,  the  buyer  had  a  right  to  recover  the 
70/.  from  the  seller,  in  an  action  for  Monei/  had  and  re- 
ceived (//) . 


(r)  Goiiipcri:  v.  Dartlctf,  22  L.  J., 
Q.  B.  99. 

{a)  IVeston  v.  Dorcncs,  Doug.  24  ; 
Fourr  v.  TFells,  Cowp.  818;  and 
Simpson  v.  Foils,  before  Rolfe,  B., 
Carlisle  Spr.  Ass.  1847,  Appendix. 

{b)  Adam  v.  Richards,  2  H.  Bla. 
573. 

(r)  Tuiccrs  V.  Barren,  1  T.  R. 
133. 


{d)  Chanter  v.  Hopkins,  4  M.  & 
W.  406. 

{c)  Flatt  V.  Bromage,  24  L.  J., 
Ex.  63  ;  Barlcr  v.  Fott,  4  H.  &  N. 
759  ;  Rogers  v.  Ingham,  L.  R.,  3 
Ch.  D.  351. 

(/)  Bize  V.  Fickason,  1  T.  R.  285. 

(>/)  Standish  v.  Ross,  3  Ex.  527. 

(h)  Hurst  V.  Orbell,  8  A.  &  E. 
107. 


TLEADING  AND  EVIDENCE  FOR  THE  ri-AlNTIFF.  179 

If  a  Sheriff  -wroDgfully  seize  and  sell  the  Horse  of  a  Money  had 
third  person  under  an  execution,  the  latter  may  sue  him  ^^^^  received 
for  Mo  lie!/  had  and  received ;  and  he  will  make  out  a  prima  Hore^wrono-- 
facie  case  hy  merely  proving  his,  the  plaintiff's,  possession  fully  sold. 
of  the  Horse  at  the  time  of  seizure.     Thus  in  the  case  of 
Oughton  v.  8ep)pings{i),  a  Sheriff's  officer  had  wrongfully 
seized  under  a  fi.  fa.  against  A.  a  Horse  belonging  to  B. 
The  Horse  was  sold  by  the  Sheriff,  and  the  money  paid 
over  to   the   officer.     B.  brought   an  action  against  the 
officer,  for  Money  had  and  received,  to  recover  the  amount. 
It  appeared  that  the  Horse  had  belonged  to  the  husband 
of  B.,  but  that  after  his  death  she  had  provided  for  his 
keep  ;  and  although  no  letters  of  administration  were  pro- 
duced, it  was  held  that  this  was  sufficient  evidence  against 
a  wrongdoer  to  entitle  her  to  recover  in  the  action. 

Money  received  by  B,  on  A.'s  account,  subject  to  cer-  Money  re- 
tain conditions,  cannot,  until  those  conditions  have  been  ceived  subject 
complied  with,  be  recovered  as  Money  had  and  received  to  aiUons^^"^  ^°^' 
A.'s  use  (/t). 

Where  a  Horse  or  other  article  has  been  sold  warranted,  Action  on  a 
but  is  in  fact  hot  according  to  the  Warranty,  the  purchaser  S^!^^?^  ?* 
may  of  course  maintain  an  action  on  the  Warranty  (/)  ; 
and  in  such  action  the  Statement  of  Claim  will  set  out  facts 
showing  the   Consideration  and  the  Warraniy,  and  state  a 
PurcJiase;  it  will  also  set  out  the  Breach  and  the  Damage. 

The  old  method  of  suing  on  a  Breach  of  Warranty  was  Action  for  a 
an  action  on  the  Case  {m).  And  now  the  plaintiff  instead  ^^^seWar- 
of  suing  on  the  breach  of  contract  may  claim  damages  for 
a  false  Warranty :  and  where  this  is  done  the  Statement  of 
Claim  should  set  out  concisely  the  facts  leading  up  to  the 
Warranty;  the  statement  of  the  Wrongful  Act,  namely,  the 
Sale  by  means  of  the  False  Warranty  [n) ;  and  the  state- 
ment of  the  Damage.  It  ought  to  appear  in  the  Statement 
of  Claim  that  the  Warranty  was  made  at  the  time  of 
Sale,  Warrantizando  vendidit  (o).  But  a  ^c/e»fer  need  not 
be  alleged,  and  if  stated  it  need  not  be  proved. 

Although  Infants  are  liable  for  torts  and  injuries  of  a  Liability  of 
private  natm^e  (^j),  yet  w^here  the  substantial  groimd  of  ^^I^^fant. 

(i)   Oughton  v.  Scppings,   1   B.  &  325. 
Ad.  241.  (o)  Com.    Dig.    Action    on    tbc 

{k)  IlarcUngham  v.  Allen,  5  C.  B.  Case  for  Deceit,  F.    2  ;  Marqetson 

793.  V.  Wright,  G  M.  &  P.  GIO  ;  Lysncg 

(l)  Roscoe,  N.  P.  13tli  ed.  403.  v.  &•%,  Ld.  Eaym.  1120. 

{>«)  Margetson  v.  Wright,  6  M.  &  {p)   Green  v.  Greoibank,  2  Marsh. 

P.  610.  485 ;  Iloivlett  v.  Eastvell,  4  Camp. 

{>i)  3[mnmery  v.   Paul,    1    C.  B.  118. 

n2 


180 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Action  for 
Fraiiclulcnt; 
Representa- 
tion. 


Statement  of 
Facts  in  an 
action  for 
Breach  of 
Contract. 


Statement  of 
Facts  in  an 
action  for 
Deceit. 


Statement  of 


action  is  contract,  the  plaintiff  cannot,  by  suing  in  tort, 
render  a  person  liable  Avho  would  not  have  been  liable  on 
his  promise.  Therefore  where  the  plaintiff  declared  that 
having  agreed  to  exchange  Mares  with  the  defendant,  the 
defendant  by  falsely  warranting  his  Mare  to  be  sound,  well 
knowing  her  to  be  unsomid,  falsely  and  fraudulently  de- 
ceived the  plaintiff,  &c.,  it  was  held  that  Infancy  was  a 
good  plea  in  bar  (^j). 

We  have  seen  in  the  Seventh  Chapter  under  what  cir- 
cumstances an  action  lies,  where  a  Horse  has  been  sold 
without  a  Warranty,  and  also  Avhat  constitutes  Fraudulent 
Eepresentation  {q).  Where  such  an  action  is  brought,  the 
Statement  of  Claim,  in  setting  out  the  material  facts,  should 
include  the  statement  of  the  Wrongful  act,  namely,  the  Sale 
by  means  of  the  Fraudulent  Bepresentation  (;•),  and  with 
regard  to  which  a  Scienter  must  be  laid ;  and  also  the 
statement  of  the  Damage. 

In  an  action  for  breach  of  Contract,  a  preamble,  stating 
the  circumstances  under  which  the  Contract  was  made,  or 
to  which  the  Consideration  has  reference  is  sometimes 
necessary.  But  where  the  mere  statement  of  the  Con- 
sideration and  Promise  will  be  sufficiently  intelligible, 
without  any  prefatory  allegation,  they  may  be  set  forth 
without  any  preamble. 

The  action  for  a  misrepresentation  in  the  nature  of  Deceit 
seems  to  be  an  exception  from  the  general  rule,  that  in 
actions  for  words,  or  special  damage  arising  therefrom, 
the  very  words  must  be  set  out,  but  the  Statement  of 
Claim  must  correctly  state  the  Contract  (s) .  Thus,  where 
a  Declaration  in  Case  stated  tliat  the  plaintiff  bargained 
uitJi.  the  defendants,  and  then  alleged  a  deceitful  Warranty 
of  tSheep,  the  joint  property  of  two  defendants,  uj)on  a 
joint  sale  made  to  him  by  both,  and  there  was  proof  of  a 
Contract  of  Sale  and  Warranty  by  one  only  as  of  his  own 
separate  property,  it  was  held,  before  the  passing  of  15  &  16 
Yict.  c.  76,  that  the  plaintiff  could  not  recover,  as  the  action, 
though  laid  in  tort,  was  founded  on  the  joint  contract 
alleged  (/). 

The  Consideration  may  either  be  Executed  or  Executory. 


(/;)  See  note  {p),  ante. 

((/)  See  ante,  pp.  150 — 152. 

(r)  Mummery  v.  Faid,  1  C.  B. 
325. 

(,s)  Gutsole  V.  Mathers,  1  M.  &  W. 
495  ;  Barley  v.  Walford,  9  Q.  B. 
197.     See   also   1    Chit.   Pleadins-, 


6th  ed.  384  ;  and  Ireland  v.  John- 
son,  1  Bing.  N.  C.  162  ;  Brotherton 
V.  Wood,  6  Moore,  34  ;  Boortnan  v. 
Brown,  3  Q.  B.  11. 

(0  Weall  V.  King,  12  East,  452  ; 
and  see  Green  v.  Greenbank,  2 
Marsh.  485. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF. 


181 


An  Executed  Consideration  consists  of  something  past,  or  theConsido- 
done  before  the  making  of  the  Promise,  and  must  be  shown  ^'^^on. 
to  have  arisen  at  the  defendant's  request  (?^). 

An  Executor  11  Consideration  is  something  to  Jye  done,  and 
in  the  statement  of  it  a  greater  degree  of  certainty  is 
required  {x).  But  in  either  case  the  whole  of  the  Con- 
sideration, if  it  be  an  entire  one,  should  be  stated,  no  part 
of  it  ought  to  be  omitted  (//).  Thus,  where  an  agent  sold 
a  florse  belonging  to  A.,  and  another  belonging  to  B.,  to 
C.  at  an  entire  Price,  and  warranted  them  sound ;  andB.'s 
Horse  turning  out  to  be  Unsound,  C.  brought  his  action 
against  B.,  declaring  in  the  usual  form  as  upon  a  Purchase 
and  Warranty  of  one  Horse  only ;  Lord  Ellenborough, 
C.  J.,  held  that  the  evidence  did  not  support  the  Declara- 
tion, because  the  Contract  being  entire  for  the  sale  of  two 
Horses,  the  Plaintiff  could  not  divide  it,  and  declare  upon 
it  as  upon  the  Sale  of  one  Horse  only  (s). 

But  where  in  an  action  of  Assumpsit  on  the  Warranty  If  the  Horse 
of  a  Horse,  the  Consideration  stated  for  the  Warranty  t^™  out 
was,  that  the  plaintiff  would  purchase  the  Horse  for  63/. ;    ^^^' 
but   the  Consideration  as  proved  was,  that  the  plaintiff 
would   pay  that   sum,    and   if  the   Horse   was  "  luchj^^ 
would  give  the  defendant  bl.  on  the  buying  of  another 
Horse ;  it  was  held  to  be  no  variance,  as  the  conditional 
promise  omitted  in  the  Declaration  was  too  vague  to  be 
legally  enforced,  and  did  not  amount  to  a  promise  in  point 
of  law  (fl) . 

If  the  plaintiff,  in  stating  the  Consideration,  uses  the  Words  used 
words  "  Had  bought "  instead  of  "  Would  buy,"  it  is  bad,  ^^  ^^^  state- 
because  an  executed  Consideration  will  support  no  other 
promise  than  such  as  would  be  implied  by  law  (^).  But 
this  would  be  amended  by  the  Judge  at  the  Trial  (c). 
There  is,  however,  no  variance  if  the  word  "  Horse  "  is 
used  and  it  is  proved  to  be  a  "Mare"  {d),  or  "  Gfeld- 


(«)  See  1  Chit.  Pleading,  6th  ed. 
29.5  ;  and  King  v.  Sears,  2  C,  M. 
&  R.  53. 

(:r)  See  1  Chit.  Pleading-,  6th  ed. 
296  ;  andIii)iffV.Iioxbronffh,2Tjvw. 
468;  S.  C.  2  C.  &  J.  418. 

{y)  Clarke  v.  Gray,  6  East,  564  ; 
see  also  Robertson  v.  Hoivard,  L.  R., 
3  C.  P.  D.  280;  47  L.  J.,  C.  P.  480. 
As  to  an  Exchange,  see  Mayor  of 
Reading  v.  Clarke,  4  B.  &  Aid.  269. 

(;)  SymondsY.  Can;  1  Camp.  361. 


(«)  Giithing  v.  Lynn,  2  B.  &  Ad 
232  ;  and  %QeSaxby  v.  Wilkin,  1  D 
&L.  281. 

[b)  Roscorla  v.  Thomas,  3  Q.  B 
234. 

(c)  15   &   16  Vict.  c.  76,  8.  222 
and  see  also  Order  XXVII.  (.Judi 
cature  Act),    which    still    further 
extends  the  power  of  amendment. 

{d)  Ware  v.  Juder.  2  C.  .fc  P.  351 
or  "Colt"  or  "Filly,"  in  an  In 
dictment,  Reg.  v.  Aid  ridge,  4  Cox 
143, 


182 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Statement  of 
the  Promise 
or  Warranty. 


Condition  an- 
nexed to  the 
Promise  or 
Warranty. 


Qualification 
of  the  Promise 
or  Warranty. 


The  Purchase 
and  the  Pay- 
ment. 


ing"  (c)  ;  nor  where  the  price  is  stated  as  money,  and 
part  of  the  price  was  paid  by  giving  goods  of  a  specified 
value  (/). 

If  any  one  substantive  part  of  a  Warranty  be  proved 
not  to  be  true,  there  is  a  Breach  on  which  an  action  may 
be  maintained,  and  it  is  sufficient  that  the  plaintiff  set 
out  all  the  substantive  and  material  parts  of  the  Contract, 
the  breach  of  which  he  complains  of,  the  parts  omitted 
not  qualifying  in  any  manner  the  sense  of  those  parts  set 
out  upon  which  the  Breaches  are  assigned.  As  where 
the  plaintiff  declared  that  in  consideration  of  his  redelivery 
to  the  defendant  of  an  Unsound  Horse,  the  defendant 
promised  to  deliver  to  him  another  Horse  in  lieu,  which 
should  be  worth  80/.  and  be  a  young  Horse,  and  then 
alleged  a  Breach  in  both  respects,  it  was  held  sufficient, 
though  it  was  proved  that  the  defendant  had  also  promised 
that  the  Horse  was  sound  and  had  never  been  in  harness  {g) . 

And  where  there  was  a  private  sale  of  a  Mare  at  a 
Repository,  and  a  Warranty  of  Soundness  was  given,  but 
there  was  a  Notice  of  the  Rules  of  Sale,  by  which  no 
Warranty  was  to  remain  in  force  after  twelve  o'clock  the 
following  day,  the  Court  of  Exchequer  held  it  sufficient 
to  declare  on  the  Warranty  alone  without  the  condition 
annexed  to  it.  However,  Mr.  Baron  Parke  said,  "  If  the 
matter  relating  to  the  notice  had  been  by  way  of  proviso 
upon  the  Warranty,  it  might  perhaps  have  been  necessary 
to  state  it  in  the  Declaration,  but  upon  that  point  I  give 
no  opinion"  (h). 

But  where  there  is  a  Qualification  of  the  Promise  it 
should  be  stated  in  the  Statement  of  Claim  ;  for  where  the 
plaintiff,  before  the  passing  of  15  &  IG  Vict.  c.  7G,  declared 
on  a  Warranty  that  the  Horse  was  "  sound,"  and  the 
Warranty  proved  was  that  the  Horse  was  "  sound  every- 
where except  a  kick  on  the  leg,"  the  omission  was  held  to 
be  fatal  (/) .  The  plaintiff  would  now,  however,  be  per- 
mitted to  amend. 

Where  the  Consideration  is  executory,  it  is  necessary 
for  the  plaintiff  to  prove  the  performance  of  the  Considera- 
tion on  his  part,  that  is  to  say,  the  Purchase,  in  order 


[e)  "UquHs,'"  in  the  Latin  plead- 
ings, was  satisfied  by  proof  of  a 
"Grclding,"  Gravely  Y.  Ford,  Lord 
Raym.  209. 

{/)  Rands  y. Burton,  9  East,  349; 
Brown  v.  Fry,  1  Selw.  N.  P.  12th 
ed.  652. 


[y)  Miles  V.  Sheivard,  8  East,  7  ; 
Clarke  v.  Gray,  6  East,  5G8. 

(A)  Smart  v.  Hyde,  8  M.  &  W. 
728. 

(j)  Jones  V.  Cowley,  4  B.  &  C. 
445  ;  .S'.  C.  G  D.  &  R.  533. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF.  183 

to  show  that  he  possesses  a  right  of  action,  and  there  must 
be  a  general  averment  of  performance  of  conditions  pre- 
cedent (/•),  And  as  the  Price  has  usually  been  paid  when 
an  action  is  brought  on  a  Breach  of  Warranty,  the  Pay- 
ment, if  made,  will  be  included  in  such  an  averment,  but 
Payment  is  not  essential  to  support  the  action. 

If  the  False  Warranty  or  Misrepresentation  be  mis-  Statement  of 
stated,  and  the  variance  be  material  to  the  merits  of  the  ^^^  ^''•l^^ 
case,  it  may  be  that  the  Judge  at  the  trial  will  refuse  to  rrauduleufc°^ 
amend  on  the  ground  that  the  defendant  has  been  misled  or  Reprcseuta- 
taken  by  surprise.  Where  an  action  on  the  Case  was  brought  ti^u. 
against  a  thii-d  party  for  a  Misrepresentation  on  the  sale 
of  a  Horse,  the  Declaration  stated  that  the  Defendant  war- 
ranted the  Horse  to  be  "  sound  and  a  good  worker,"  and  it 
appeared  in  evidence  that  he  wan-anted  the  Horse  "  sound 
in  the  wind,"  an  objection  was  taken  that  the  Warranty 
and  Misrepresentation  alleged  in  the  Declaration  were  not 
proved ;  but  Mr.  Baron  Alderson  said,  "  I  think  the  De- 
claration is  substantially  proved,  and  therefore  I  shall 
direct  the  record  to  be  amended  imder  the  recent  statute  (/). 
The  variance  relied  upon  by  the  defendant  is  not  material 
to  the  merits.  The  merits  are,  whether  or  no  the  defendant 
made  a  Fraudulent  Misrepresentation.  It  is  proved  that 
he  did;  and  the  terms  of  the  Misrepresentation  are  not 
quite  accurately  stated  in  the  Declaration,  it  is  clear  that 
the  defendant  cannot  have  been  misled  by  the  statement. 
If  he  had,  I  would  not  amend.  But  he  comes  here  to  de- 
fend himself  from  the  charge  of  having  made  a  Fraudulent 
Misrepresentation  on  the  occasion  of  the  sale,  and  whether 
he  represented  the  Horse  to  be  wholly  sound,  or  merely 
sound  in  the  wind,  makes  no  difference  to  the  merits." 
After  this  amendment  a  verdict  was  foimd  for  the  plain- 
tiff (m). 

A  Breach  must  always  be  stated  in  the  Statement  of  Statemcut  of 
Claim,  so  that  the  cause  of  complaint  may  appear  (y?).     If  t^*^  Breach, 
the  contract  be  in  the  disjunctive  the  breach  ought  to  be 
assigned  that  the  defendant  did  not  do  one  act  or  other ; 
as  on  a  promise  to  deliver  a  Horse  by  a  particular  day  or 
pay  a  sum  of  money  (o).     It  is  a  liule  in  Pleading  that 

{h)  SeeBul.  N.  P.  146;andi2i«-7  c.  75,  s.  222;    and   Ord.  XXVII. 

V.  Roxbroufjh,  2  Tyr.  468;  S.  C.  2  &  rr.  1—6. 

J.  418;  and  1  Chit.  Pleading,  6th  ed.  {^i)  Brickhead    v.    Arclihisho})    of 

296  ;   15  &  16  Vict.  c.  76,  s.  57.  York,  Hob.  198,  233. 

{I)  3  &  4  Will.  4,  0.  42,  s.  23.  (o)  Com.  Dig.  Pleader,  C. ;  Wright 

\m)  Marsh  v.  Densham,    1    M.  &  v.  Johnson,  1  Sid.  440,  447;  Alchcrnj 

Rob.  442  ;  and  sec  15  &  16  Vict.  v.  Walh'j,  1  Stra.  231. 


184 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Statement  of 
the  Damasre. 


Proof  in 
Goods  bar- 
gained and 
sold. 


Proof  in  an 
action  for  not 
accepting. 


Meaning  of 
readiness  and 
■willingness. 


the  Breach  may  in  general  be  assigned  in  the  negative  of 
the  words  of  the  Contract ;  and  therefore  it  is  not  neces- 
sary that  the  particular  description  of  Unsoundness  should 
be  stated  (p). 

In  order  to  recover  Special  Damages  it  is  necessary 
that  they  be  explicitly  stated  in  the  Statement  of  Claim, 
so  that  the  defendant  may  be  prepared  to  dispute  the  facts. 
But  Damages  which  necessaribj,  and  by  implication  of  lan\ 
ensue  from  the  non-performance  of  the  contract,  need  not 
be  expressly  detailed,  and  are  recoverable  under  the  com- 
mon conclusion  of  the  Statement  of  Claim  ((7). 

Where  the  plaintiff  brings  an  action  for  the  price  of  his 
Horse  as  Goods  bargained  and  sold,  he  must  be  prepared  to 
prove  such  a  Contract  of  a  sale  (r),  made  by  him  to  the 
defendant  and  completed,  as  was  sufficient  in  law  to  vest 
the  property  in  the  defendant.  For  instance,  where  the 
price  is  10/.  or  upwards,  the  plaintiff  must  prove  that  some 
requisite  of  the  17th  section  of  the  Statute  of  Frauds  has 
been  complied  with  (s).  And  it  will  be  necessary  to  show 
that  a  specific  price  was  agreed  upon  (/)  as  part  of  the 
contract. 

Where  the  plaintiff  brings  an  action  for  not  accepting 
the  Horse  he  has  sold  to  the  defendant,  and  a  plea  travers- 
ing the  Contract  or  Agreement  in  the  Statement  of  Claim 
is  pleaded,  the  plaintiff  must  prove  the  Contract,  that  is, 
the  alleged  Consideration  and  the  Promise  {li).  And  if  the 
defendant  contest  it  in  his  pleading,  the  plaintiff  must 
show  either  a  Tender  (.r),  as  the  case  may  be,  or  that 
during  a  reasonable  time  he  was  Ready  and  Willing  to 
deliver  it  [g) . 

The  meaning  of  Readiness  and  Willingness  is,  that  the 
non-completion  of  the  Contract  was  not  the  fault  of  the 
plaintiff,  and  that  he  was  disposed  and  able  to  complete  it, 
if  it  had  not  been  renounced  by  the  defendant  (s). 

Where  the  plaintiff  has  otherwise  than  at  the  buyer's 
request  delayed  delivery  beyond  the  proper  time,  he  can- 


{p)  Com.  Dig.  Pleader,  C.  45; 
and  see  1  CMt.  Pleading,  6tli  ed. 
172. 

[q)  See  Boorman  v.  Kaslt,  9  B.  & 
C.  152  ;  and  Chit.  Contr.  11th  cd. 
817;  BuUen  and  Leake's  Pleading, 
4th  ed.  19  ;  and  Damages,  post. 

{>■)  Requires  no  Stamp.  Mtirson 
V.  f^/wrt,  2  Bing.  N.  C.  118  ;  6'.  C. 
2  Scott,  24 a. 

(i-)  Elliott  v.Fijhus,  10  Bing.  512; 


Eohde  V.  Thwaitcs,  6  B.  &  C.  388. 

{t)  Simmons  v.  Swift,  5  B.  &  C. 
857. 

[u)  Bcal  V.  White,  12  A.  &  E. 
670. 

{x)  Proof  of  Tender,  post. 

(y)  Granger  v.  Bacre,  12  M.  &  "W. 
431 ;  Tcmjjest  v.  Kilncr,  2  C.  B.  308. 

[z)  Cort  V.  Amherc/ate  Railway 
Company,  20  L.  J.,  Q.  B.  465 ;  Baker 
y.Firminyer,  28  L.  J.,  Ex.  130. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF.  185 

not  enforce  acceptance,  nnless  the  defendant  has  entered 
into  a  new  binding  contract  (a). 

Where  a  Horse  is  bought,  and  an  action  is  brought  for  Proof  in  an 
not  deUrering  him,  a  plea  traversing  the  Contract  or  Agree-  ^°*!°^  ^^r  not 
ment  alleged  in  the  Statement  of  Claim  will  put  the  plain-  ^  ^' 

tiff  to  prove  the  Contract,  namely,  the  alleged  Consideration 
and  Promise  ;  and  if  the  defendant  contest  it  in  his  plead- 
ing, the  plaintiff  must  prove  that  he  was  Ready  and  Willing 
to  accept  and  pay  for  it.  But  where  there  is  a  traverse  of 
readiness,  if  nothing  remain  for  the  plaintiff  to  do,  it  lies 
on  the  defendant  to  disprove,  rather  than  on  the  plaintiff 
to  prove,  the  readiness  and  willingness  to  deliver  {b).  But 
it  will  not  be  necessary  to  prove  a  Tender  of  the  money  (c). 
And  it  is  sufficient  evidence  that  the  plaintiff  was  Ready 
and  Willing,  if  within  a  reasonable  time  the  Horse  is  de- 
manded by  him  (f/),  or  his  servant  [e). 

Where  the  plaintiff  after  delivering  the  Horse  brings  an  Proof  in 
action   for   his   price,  he  must  be  prepared  to  prove,  if  Goods  sold 
denied,  1st,  the  ^ale,  of  which  the  Delivery  of  the  Horse  ^^     ^  ^"'^  ' 
to  the  defendant  and  an  acceptance  by  him  will  be  suffi- 
cient iwima  facie  evidence  {e) ;  2nd,  the  Delivery  either  to 
the  defendant  or  his  agent,  or  something  which  has  been 
done  equivalent  to  a   Delivery  (,/')  ;   and  3rd,  the  Rrice 
agreed  upon  for  the  Horse;  but  if  the  Price  forms  no  part 
of  the  Contract,  or  if  the  Contract  is  merely  to  be  implied 
from  the  Delivery  to  and  acceptance  by  the  defendant,  the 
plaintiff  must  be  prepared  to  show  the  real  and  reasonable 
Value  of  the  Horse  by  persons  of  competent  experience. 

Where  the  plaintiff*  after  a  Breach  of  Warranty  sues  for  Proof  in 
liepayment  of  the  purchase-money  as  Money  had  and  re-  Money  had 
ceived,  he  may  be  compelled  by  a  proper  defence  to  prove  ^^   receive  . 
the  receipt  of  the  money  by  the  defendant,  and  his  own 
title  to  recover  it  as  received  for  him  {g) .     He  must,  there- 
fore, prove  the  Consideration  and  the  Performance  of  it  on 
his  part,  namely,  the  Payment  of  a  particular  Price  {/i)  ; 


(a)  Flcvins  v.  Downing,    L.    R.,  Bolt,  9   C.  &  P.  G96,  and  Roscoe, 

I  C.  P.  D.  220  ;  45  L.  J.,  C.  P.  695  ;  N.  P.  14th  ed.  497. 
35  L.  T.,  N.  S.  263.  (/)  Lee  v.  Shore,   1  B.  &  C.  94  ; 

(i)  Rawson   v.  Johnson,    1   East,  Smith  v.  Chance,   2  B.   &  A.    755. 

203  ;    Waterhouae  v.  Skim/er,   2  B.  See  also  Bartholomew  v.  Markwick, 

&P.  447.  33  L.  J.,  C.  P.  145,  and   Wehh  v. 

(r)    TFilkes  v.  Atkinson,  1  Marsh.  Fairmancr,  3  M.  &  W.  473. 
412;    Levy\.  Lord  Herbert,  ITaxxni.  [g)  Roscoe,  N.  P.  14th  ed.  542. 

318;   Tempest  Y.  miner,  2  G.B.'im.  {h)  Harvcg  v.  Archbold,  SB.  &G. 

(d)  Squire  v.  Uimt,  3  Price,  68.  626  ;  Bernasconi  v.  Anderson,  M.  & 

{e)  Bennett  \.  Henderson,  2  Stark.  M.  183;  Lccson  v.  Smith,   4  N.  & 

N,  P.  C.   550;  and   see   Smith  v.  M.  301. 


186 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Proof  of  an 

Account 

fcitated. 


Pi-oof  in  an 
action  for 
Breach  of 
Warranty. 


Proof  in  an 
action  for  a 
False  War- 
ranty. 


Where  it  is 
doubtful 
whether  false 
Warranty  is 
proveable. 


also  tlio  TFarraiif//,  the  Breach  of  Warranty,  and  cither  an 
ii(iiux\\.  Ilcscission  of  tlie  Contract  or  a  Power  to  Rescind,  and 
a  consequent  Tender  of  the  Horse. 

To  support  a  claim  for  Money  found  to  he  due  on  an  account 
stated,  it  must  appear  that,  at  the  time  of  the  accounting, 
which  must  have  been  before  action  brought,  a  demand 
existed  between  the  parties  respecting  which  an  account 
was  stated,  that  a  balance  was  then  struck  and  agreed  upon, 
and  that  the  defendant  then  expressly  admitted  that  a 
certain  sum  was  then  due  from  him  to  the  plaintiff  (/) . 

Where  an  action  is  brought  on  a  Breach  of  Warranty, 
and  the  Warranty  is  denied,  the  plaintiff  must  prove  the 
fact  of  the  sale  and  Warranty  having  been  given.  If  the 
Breach  is  traversed  the  onus  lies  upon  him  to  prove  the 
Unsoundness  or  Vice,  or  whatever  is  alleged  as  the  subject- 
matter  of  the  Breach  (A-) .  And  of  com'se  he  must  in  all 
cases  prove  Damaye  whether  General  or  Special. 

Where  an  action  is  brought  for  a  False  Warranty,  the 
plaintiff  should  be  prepared  to  prove  the  Wrongful  act 
alleged  to  have  been  committed  by  the  defendant  (/), 
namely,  the  Sale  by  means  of  the  False  Warranty.  He 
must  also  prove  Damage  whether  general  or  special. 

Where  no  Warranty  exists  in  the  contract,  but  the  con- 
tract is  induced  by  false  representation,  known  by  the 
seller  to  be  false,  the  action  is  grounded  on  the  fraud,  and 
should  be  so  framed  (;«).  As  we  have  before  stated  (^i), 
the  knowledge  of  the  defendant  is  in  such  case  essential 
to  the  cause  of  action  (o).  Where  there  is  evidence  of 
fraud,  it  should  be  alleged  in  addition  to  a  Breach  of  War- 
ranty, where  it  is  doubtful  whether  a  Warranty  can  be 
proved  (7;).  For  if  a  Statement  of  Claim  discloses  a  state 
of  facts,  upon  which  an  action  may  be  maintained  without 
fraud,  fraud  need  not  be  proved,  though  it  be  alleged  ;  and 
the  plaintiff  may  recover  upon  the  facts  disclosed,  though 
fraud  be  alleged  and  disproved  {q).  But  where  the  plain- 
tiff relies  on  fraud  alone  and  does  not  succeed,  he  cannot 
pick  out  facts  which  would  othermse  have  entitled  him  to 
relief  apart  from  the  fraud  (r). 


(J)  See  Chit.  Contr.  11th  ed.  601, 
608,  and  the  authorities  tliere  cited. 

{k)  Oshorn  v.  Thompson,  9  C.  &  P. 
337;  1  Tayl.  Evid.  337. 

{I)  SeeMu)nmcri/y.raiiI,lG.B.3'27. 

(w.)  Onnrod\.'Huth,  14  M.  &  W. 
G51. 

(«)  Ante,  pp.  150,  151. 

(o)  Paslcj/Y.  Freeman,  2  Sm.  L.  C. 
8th  ed.  CO. 


(p)  Bullen  &  Leake's  Pleadings, 
4th  ed.  428. 

(q)  Swinfcn  V.  Lord  Chelmsford,  5 
H.  &  N.  890,  921.  Per  Parke,  B., 
Thorn  V.  Bhjland,  8  Ex.  725. 

()■)  Il/id.son  V.  Lombard,  L.  E.,  1 
II.  L.  324  ;  London  Chartered  Bank 
of  Australia  v.  Lcmpriere,  L.  E,.,  4 
P.  C.  572 ;  Noad  v.  Murroio,  40 
L.  T.,  N.  S.  100. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF.  187 

Where  an  action  is  brougM  for  Fraudulent  Eepresenta-  Proof  in  an 
tion  on  the  sale  of  a  Horse,  the  plaintiff  should  be  prepared  action  for 
to  prove  the  Wrongful  act  alleged  to  have  been  committed  Hc^resenta- 
by  the  defendant,   namely,  the    Sale   by   means   of   the  tion. 
Fraudulent  Rejjresentation  (s) ;  and  it  is  essential  to  show 
that  there  was  a  Sale  and  also  a  Misrejjresentation  (t).    But 
he  must  give  proof  of  Damage  whether  general  or  special  {u) . 

A  Sale  may  in  all  cases  be  implied  prima  facie  from  Proof  of  the 
evidence  of  a  delivery  to,  and  an  acceptance  by,  the  pur-  I^argain  and 
chaser  (.r).     "We  have  seen,  in   the   First   Chapter,  what    ^  ^" 
is  sufficient  evidence  of  a  contract  for  Sale,  either  where 
the  value  is  under  10/.  ( g)  ;  or  the  agreement  is  not  to  be 
performed   within   a   year  (s)  ;    or   the   value   is   10/.    or 
upwards,    within    the    17th   section    of    the    Statute    of 
Frauds  {a) .     Where  there  is  an  agreement  in  writing,  it 
should  be  put  in  and  proved,  and  it  is  not  necessary  that 
it  should  be  stamped  {b).     Where,  however,  the  Bargain 
and  Sale  has  been  made  by  word  of  mouth,  the  plain- 
tiff {c),  or  some   witness  {d)  of   the   transaction  must   bo 
called. 

Where  the  Consideration  is  set  out  in  the  Statement  of  Proof  of  the 
Claim  as  executorg,  it  will  in  point  of  fact  depend  upon  the  Considera- 
same  proof  as  the  Contract  for  Sale.  When  it  is  executed, 
the  plaintiff  must  show  that  it  took  place  before  the 
Contract,  and  that  it  arose  at  the  defendant's  request  {e) . 
In  the  case  of  a  Sale  he  must  prove  Pagment  of  the  Price  ; 
but  where  the  Consideration  is  another  Horse,  or  other 
goods,  a  Deliverg  and  Accejytaiice  must  be  proved.  Where, 
however,  the  transaction  is  substantially  a  Sale,  the  plaintiff 
may  prove  that  the  defendant  took  another  Horse  in  part 
payment  (/). 

The  Pagment  of  t/ie  Price  is  usually  proved  by  producing  Proof  of 
the  Receipt,  which  of  course  must  bear  a  Stamp,  where  Payment  of 
the  sum  is  21.   or  upwards  ( g)  ;  and  if   no  Receipt  was     ^    ^^^^' 
given,  or  it  was  unstamped  or  lost,  the  plaintiff,  or  some 

(s)  Per  Cresswell,  J.,  Mummcnj  (a)  29  Car.  2,  c.  3,  s.  17;  and  see 

V.  Faul,  1  C.  B.  327.  ante,  Chap.  I. 

{()  Per  Erie,  J.,  Ibid.  (i)  Skrliw   v.    Elmore,    2    Camp. 

{/()  Per  Bramwell,  B.,  Eastwood  407. 
V.  liain,  28  L.  J.,  Ex.  74.  (c)   14  &  15  Vict.  c.  99,  ss.  1,  2. 

(2-)  Bennett  v.  Ilotdvrson,  2  Stark.  [d)  The    phxintiff's   husband   or 

5-50  ;  and  see  Smith  v.  Halt,  9  C.  &  wife  is  now  admissible  as  a  witness, 

P.  G96.  IG  &  17  Vict.  c.  83,  ss.  1,  4. 

(?/)  See  ante.  Chap.  I.  (c)  King  v.  Scars,  2  Cr.  M.  &  E. 

(;)  29  Car.  2,  c.  3,  s.  4 ;  and  see  48. 
ante,  Chap.  I.  (/)  Hands  v.  Burton,  9  East,  349. 

(y)  33  &  34  Vict.  c.  97, 's.  120. 


188  PLEADING,  EVIDENCE  AND  DAMAGES. 

person  wlio  witnessed  the  transaction,  must  be  put  into  tlie 
box  (h). 
Appropria-  Where   a   claim   consists   of   several   items,   the   party 

Y^^  °^  money  flaking  the  Tender  has  a  right  of  appropriation ;  but  if 
he  omits  to  make  any  appropriation,  the  right  to  appro- 
priate is  transferred  to  the  other  party  (/'). 

The  plaintiff's  Horse,  warranted  quiet  in  harness,  was 
sold  for  1 61.  at  Aldiidge's  Repository.  It  was  afterwards 
returned  on  the  ground  that  it  did  not  answer  its  War- 
ranty, and,  on  being  tried  in  a  break,  was  found  not  to  be 
quiet  in  harness.  By  the  printed  regulations  of  the 
Repository  the  purchase-money  for  any  Horse,  Carriage, 
&c.,  sold  there  was  not  to  be  paid  over  to  the  vendor  until 
four  days  after  the  sale.  And  he  was  also  to  pay  lO-s-.  as 
the  expense  of  trial,  when  a  Horse  was  found  not  to 
answer  his  Warranty. 

After  the  trial  of  the  Horse,  the  plaintiff  called  at  the 

Repository  and  demanded  an   account   of  his   expenses, 

when  he  received  the  following  : —  £      s.    d. 

1847.     July  31.     Bay  gelding  bait   ...  0     1     6 

Auction 0     5     0 

Au^.  4  1    -^^^  gelding,  three  days     0  10     6 
Aug.  '6       To  cash  price  for  trial  of 

Bay  gelding  in  harness  0  10     0 


£17     0 


The  plaintiff,  objecting  that  the  charge  was  exorbitant, 
laid  down  19.s.  6d.  on  the  desk  in  the  defendant's  office 
and  demanded  his  Horse.  The  defendant's  clerk  told  him 
he  could  not  have  it  unless  he  complied  with  the  Rules  and 
paid  the  11.  7s.  The  plaintiff  then  went  away,  leaving 
the  19s\  6d.  on  the  desk. 
Proof  of  the  The  plaintiff  brought  an  action  of  Debt  for  Monet/  had 
^omise  or  ^^^^^^  received,  with  a  count  in  Detinue  for  the  Horse.  It 
was  held  by  the  Court  of  Common  Pleas,  that  as  the 
Horse  was  sold  subject  to  certain  conditions,  the  sum 
received  by  the  defendant  on  the  sale  was  not  Money  liad 
and  received  to  the  use  of  the  plaintiff,  until  those  con- 
ditions had  been  complied  with,  and  the  time  for  returning 
the  Horse  had  elapsed.     Also  that  the  evidence  did  not 

{h)  ScQ  liionberi  V.  Cohen,  i  Esp.  (/)  Soc  per  Wilde,  C.  J.,  2f«?Y/i«y- 

213.  ham  v.  Allen,  5  C.  B.  797. 


PLEADING  AND  EVIDENCE  FOR  THE  PLAINTIFF.  189 

support  a  Tender,  inasmuch  as  there  was  no  specific  appro- 
priation of  any  part  of  the  19s.  6(1.  to  the  lOs.  claimed  in 
respect  of  the  trial  of  the  Horse  (/<•) . 

Where  the  Promise  or  Warranty  has  been  made  by  word  A  Warranty 
of  mouth,  the  plaintiff  or  some  party  who  heard  it  given  not  contained 
must  be  called  to  prove  it.     AVhere  the  Promise  or  War-  Receipt, 
ranty  is  to  be  gathered  from  letters  which  passed  between 
the  parties,  or  was  formally  made  in  writing,  and  this  in 
the  case  of  a  Warranty  is  usually  contained  in  the  same 
instrument  as  the  Receipt,  they  should  be  put  in  and  read. 

The  buyer  may  give  evidence  of  a  Warranty,  although 
in  a  note  of  the  sale  and  receipt  for  the  money,  given  by 
the  seller  after  the  conclusion  of  a  parol  contract,  there  be 
contained  no  notice  of  any  Warranty.  Thus  the  defendant 
sold  his  Horse  at  Aldridge's  Repository,  and  said  at  the 
time  of  sale  that  if  he  did  not  work  well,  and  go  quietly  in 
harness,  the  plaintiff  was  to  send  him  back,  and  he  should 
have  his  money  returned.  The  plaintiff  bought  him  and 
received  the  following  memorandum  : — 

"  Bought  of  Gr.  Pink  a  Horse  for  the  sum  of  71.  2s.  M. 

a.  Pink." 

The  Horse  when  put  into  harness  was  found  to  be  un- 
ruly and  vicious,  and  was  accordingly  returned  to  the  de- 
fendant. The  price  was  demanded  back,  and  on  its  being 
refused  an  action  was  brought  to  recover  it.  It  was  held 
by  the  Com-t  of  Exchequer,  that  parol  evidence  might  not- 
withstanding be  given  of  the  Warranty  (/). 

But  a  Warranty  contained  in  a  Receipt  is  not  always  Warranty  in 
conclusive  evidence  that  a  Warranty  has  been  given.     For  ^  Receipt  not 
where  some  hours  after  bargain  the  defendant  sent  his  elusive  '^°^" 
coachman  to  pay  the  plaintiff  the  money,  and  the  coach- 
man drew  out  the  following  Receipt,  which  was  signed  by 
the  plaintiff,  an  illiterate  man,  "  Received  10/.  for  a  Colt 
warranted  sound ;"  it  was  held  to  have  been  properly  left 
to  the  Jury  to  find  whether  the  Warranty  of  the  Colt 
formed  any  part  of  the  bargain,  or  was  inserted  in  the 
Receipt  without  authority,  by  an  after-thought  of  the  de- 
fendant's Servant  [m) . 

It   is   not  necessary  that   a  written   Warranty   should  Written 
have  an  Agreement  Stamp.     This  was  so  decided  in  the  Warranty 
following   case,  where  the   plaintiff    gave  in  evidence   a  A^eemeut 

Stamp. 
[k)  Hardingham  v.  Allen,  5  C.  B.  (/«)  Falnnaner  v.  Budd,  7  Bing. 

796.  575. 

(/)  Allen  V.  Pink,  4  M.  &  W.  140. 


190 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Where  au- 
thority to 
warrant  need 
not  be 
proved. 

Where 
authority  to 
warrant  must 
be  proved. 


Proof  of  a 
power  to 
rescind. 


Proof  of 
Fraudulent 
Representa- 
tion. 


Proof  of  the 


■written  instrument  signed  hy  the  defendant,  wliicli  had  a 
Receipt  Stamp,  and  contained  a  Receipt  for  the  price  of 
the  Horse,  with  the  words  subjoined,  "warranted  sound." 
It  was  objected  that  it  could  not  be  read  in  evidence  for 
the  purpose  of  proving  the  Warranty  without  an  Agree- 
ment Stamp.  But  on  the  authority  of  Mr.  Justice  LaAv- 
rence,  in  Broicne  v.  Frye  {n),  Lord  Ellenborough  held 
that  such  a  Receipt  might  be  received  to  prove  the  War- 
ranty, as  Avell  as  the  Payment  of  the  Price  of  the  Horse, 
with  a  Receipt  Stamp  only  (o)  ;  and  a  Warranty  comes 
within  the  exception  in  the  schedule  of  33  &  34  Yict. 
c.  97  (the  Stamp  Act,  1870),  as  it  is  an  Agreement  re- 
lating to  the  Sale  of  Groods,  Wares  and  Merchandizes. 

Where  a  Servant  employed  to  sell  and  receive  the  price 
has  given  the  Warranty,  it  is  enough  to  prove  that  it  was 
given  by  him,  without  calling  him  or  showing  that  he 
had  any  special  authority  for  that  purpose  (p). 

But  the  WaiTanty  of  a  person  merely  entrusted  to 
deliver  a  Horse,  is  not  prima  facie  binding  on  ihe.  Prin- 
cipal, but  an  express  authority  must  be  proved  (^7) .  So 
also  where  an  Agent  makes  an  alteration  in  a  Warranty 
given  by  his  Principal,  a  special  or  general  authority 
must  be  shown  (r). 

Where  a  power  to  rescind  is  one  of  the  terms  of  a 
verbal  contract  for  a  Plorse,  some  witness  to  the  trans- 
action must  be  called  to  prove  it  («).  Where,  however, 
there  is  a  ■written  Contract,  and  such  power  ajipears  as 
one  of  the  terms,  it  is  proved  by  putting  in  the  docu- 
ment ;  but  if  it  do  not  so  appear,  or  if  it  were  given  in  a 
subsequent  conversation,  it  is  inoperative,  and  the  original 
Contract  as  proved  still  remains  open  [t) . 

We  have  seen  in  the  Seventh  Chapter  what  constitutes 
a  Fraudulent  Ftcprescntation,  so  as  to  support  an  action 
for  deceit.  And  it  may  be  laid  down  as  a  Rule,  with 
regard  to  the  proof  of  the  Scienter  or  Fraud,  that  where  a 
Representation  is  false  to  the  knowledge  of  the  party  making 
it,  this  is  in  general  conclusive  evidence  of  Fraud  {u) . 

Where  the    Breach    of    Warranty  {x)  is    Unsoundness, 


[n)  Bro  icne  v.  Frije,  cited  in  Shine 
V.  Elmore,  2  Camp.  407. 

(o)  Sh-inc  V.  Elmore,  2  Camp.  407. 

{p)  Alexander  Y.  Gibson,  3  Camp. 
555. 

(q)  Woodin  v.  Burford,  2  C.  &  M. 
391;  S.  C.  4Tp-w.  264. 

(>•)  Strode  v.  Dyson,  1  Smith,  400. 


(.s)  As  to  unfitness,  see  Breach  of 
Warranty,  ante,  Chap.  8. 

{t)  Payne  v.  Whale,  7  East,  274. 

[u)  In  the  Exchequer  Chamber, 
Ormrodv.  Iluth,  14  M.  &W.  6G4. 

(.(■)  See  Breach  of  Warranty, 
ante,  Chap.  8. 


PLEADING  AND  EVIDENCE  FOR  THE  TLAINTIFF.  191 

the  plaintiff  must  prove  either  an  actual  existence  of  Breacli  of 
Unsoundness  at  the  time  of  Sale,  or  that  from  the  appear-  Warranty, 
ance  of  the  Horse  afterwards  he  must  have  been  Unsound 
when  sold.  This,  however,  must  be  satisfactorily  proved, 
because  a  mere  suspicion  that  the  Horse  was  then  Un- 
sound is  not  sufficient  (y).  Where  the  Breach  of  War- 
ranty is  Vice,  the  plaintiff  must  prove  the  existence  at 
the  time  of  sale  of  such  a  bad  habit  as  in  the  eye  of  the 
law  constitutes  a  Vice  {z).  And  where  a  Horse  is  war- 
ranted fit  for  some  particular  purpose,  he  must  be  proved 
to  have  been  unfit  for  it  in  ordinary  hands  [a). 

It  is  not  necessary  that  the  plaintiff  should  inform  the  Notice  of  the 
defendant  of  the  natm'e  of  the  Unsoundness,  and  he  may  mature  of  the 
refuse  to  do  so  if  applied  to  before  the  trial ;  and  the  ^    ^^^^' 

Court  of  Common  Pleas  held  that  if  the  defendant  wishes 
to  ascertain  the  nature  of  the  Unsoundness,  he  should 
take  out  a  summons  for  that  purpose  {h). 

As  there  are  a  variety  of  particular  causes  of  Unsound-  Evidence  as 
ness  {c),\hQ  proof  of  it  will  vary  according  to  the  cir-  *«  Unsouud- 
cumstances  of  the  case. 

There  are  some  cases  which  merely  depend  upon  evi-  Matter  of 
dence  as  to  a  certain   Fact;  for  instance  a  Horse  after  ^^^t alone, 
sale  is  discovered  to  be  Lame   from  a  Curb  [d],  and  a 
person  giving  his  Evidence  on  the  part  of  the  plaintiff, 
must  actually  have  seen  the  Curb,  either  before  or  at  the 
time  of  Sale. 

Other  cases  may  be  proved  either  by  Evidence  as  to  a  Either  Fact 
certain    Fact,  or    by    Veterinary   opinion.     As  where  the  or  Veterinary 
Buyer  discovers  a  Spavin  (e)  after  Sale,  he  must  either  °P^^^°^- 
prove  its  existence  before  or  at  the  time  of  Sale  by  some 
one  who  had  then  actually  seen  it,  or  he  must  produce 
Veterinary  testimony  to  show  that  from  its  present  ap- 
pearance it  must  have  then  existed. 

Other  cases,  again,  may  be  compounded  both  of  Fact  Both  Fact  and 
and  Veterinary  opinion  ;  as  where  a  Horse  has  a  Splint  (/)  ^^^^o^*^^^ 
and  is  Lame,  the  question  is  whether  the  present  Lame- 
ness ( g)  proceeds  from  the  Splint ;  and  if  it  does,  whether 
the  Splint  actually  existed  or  must  have  existed  before  or 
at  the  time  of  Sale. 

(v)  Haves  v.  Dixon,  2  Taimt.  343.  {c)  See  Unsoundness  and  Vice, 

(z)  Scholejicld  v.  liobb,  2  M.  &  Rob.  ante,  Chap.  4. 

210.  ((/)  Curb,  ante,  p.  85. 

(a)  Geddes  v.  renningtoii,  5  Dow,  {()  Spavin,  ante,  p.  103. 

164.  (/)  Si^lint,  ante,  p.  103. 

[h)  Attcrhury   v.    Fairmanncr,    8  [g)  Lameness,  ante,  j).  92. 
Moore,  33. 


opinion. 


192 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Veterinary 
opinion  alone. 


Evidence  as 
to  Vice. 


Evidence  as  to 
unfitness. 


Proof  of 

Rescission. 


Proof  of 
Tender. 


Or  a  pure  question  of  Veterinary  opinion  may  arise,  as 
wliere  there  is  a  dispute  whether  a  Ilorse  is  Spavined  (//)  or 
not ;  or  where  the  natiu'al  appearance  of  a  Horse's  Hock 
is  altered,  and  it  is  doubtful  whether  it  is  merely  a  Capped 
Hock  (?■),  or  a  material  alteration  in  the  structure  of  the 
Hock  joint. 

The  proof  of  an  alleged  Vice  [j)  may  depend  upon 
Evidence  of  the  Fact  of  its  having  existed  before  or  at  the 
time  of  Sale ;  or  upon  proof  of  the  existence  of  a  certain 
habit  before  or  at  that  time,  and  then  upon  Veterinanj 
opinioji  as  to  the  effect  of  it. 

The  Unfitness  (/.•)  for  the  purpose  for  which  the  Horse 
was  bought  must  be  clearly  proved  ;  as,  for  instance,  where 
a  Horse  has  been  warranted  to  be  a  "  thorough-broke  Gig 
Horse,"  the  Jury  must  be  satisfied  that  a  person  of  ordinary 
skill  cannot  safely  drive  him  (/.-) . 

To  prove  a  Rescission,  the  plaintiff  must  either  prove  that 
the  defendant  accepted  the  Horse  when  tendered,  or  he 
must  show  a  Rescission  by  mutual  agreement. 

The  plaintiff  may  prove  a  Tender  by  showing  that  he 
sent  the  Horse  hack  to  the  defendant,  who  refused  to 
accept  it  (/) ;  or  that  he  sent  the  Horse  to  Livevij,  and 
informed  the  defendant  that  he  had  done  so  {m). 


Admissions 
by  pleading. 


What  must 
be  specially 
pleaded. 


PLEADING  AND  EVIDENCE  FOR   THE  DEFENDANT. 

Every  allegation  of  fact  in  any  pleading  in  an  action, 
not  being  a  petition  or  summons,  if  not  denied  specifically 
or  by  necessary  implication,  or  stated  to  be  not  admitted  in 
the  pleading  of  the  opposite  party,  shall  be  taken  to  be 
admitted,  except  as  against  an  infant,  lunatic  or  person  of 
unsound  mind  not  so  found  by  inquisition.  (Ord.  XIX. 
r.  17.) 

By  Ord.  XIX.  r.  18,  the  defendant  must  plead  specially 
all  facts  not  previously  stated  on  which  he  relies,  and 
must  raise  all  such  grounds  of  defence  as,  if  not  pleaded, 
w^ould  be  likely  to  take  the  plaintiff  by  surprise,  or  would 
raise  new  issues  of  fact  not  arising  out  of  the  pleadings,  as, 
for  instance,  fraud,  or  that  any  claim  has  been  barred  by 
the  Statute  of  Limitations,  or  has  been  released. 


{h)  Spavin,  ante,  p.  103. 

(i)  Capped  Hocks,  ante,  p.  79. 

{j)  See  Unsoundness  and  Vice, 
ante.  Chap.  4. 

{k)  Geddcs  v.  Pemi'mgton,  5  Dow, 
164.     See  ante,  p.  122,  BtickingJiam 


V.  Bcere. 

(0  See  ToicersY.  Barrett,  1  T.  R., 
138. 

()h)  Chesterman  v.  Lamh,  2  A.  & 
E.  129. 


PLEADING  AND  EVIDENCE  FOR  THE  DEFENDANT.  193 

By  Ord.  XIX.  r.  20,  it  shall  not  be  sufficient  for  a  Specific  de- 
defendant   in   bis    defence    to   deny   generally  the   facts  ^^^^  ™^^'  ^® 
alleged   by  the   Statement  of  Claim;  but  the  defendant 
must  deal  specifically  with  each  allegation  of  fact  of  which 
he  does  not  admit  the  truth. 

By  Ord.  XIX.  r.  23,  when  a  contract  is  alleged  in  any  Denial  of 
pleading,  a  bare  denial  of  the  contract  by  the  opposite  Contract, 
party  shall  be  construed  only  as  a  denial  of  the  making  of 
the  contract  in  fact,  and  not  of  its  legality  or  its  sufficiency 
in  law,  whether  with  reference  to  the  Statute  of  Frauds  or 
otherwise.  This  rule  requires  the  defendant  specifically  to 
allege  in  his  defence  that  he  relies  on  the  objection  to  the 
contract  arising  under  the  Statute  {n). 

And  by  Ord.  XIX.  r.  25,  whenever  it  is  material  to  Allegation  of 
allege  malice  or  fraudident  intention,  knowledge  or  other  ^^fialice,  &c. 
condition  of  the  mind  of  any  person,  it  shall  be  sufficient 
to  allege  the  same  as  a  fact  without  setting  out  the  circum- 
stances from  which  the  same  is  to  be  inferred. 

The  ordinary  e\ddence  of  detention  is  that  the  defendant  Defence  for 
refused  to  deliver  the  goods  when  demanded  (o).     It  is  no  q^qo^*^*^"  °^ 
defence  to  show  that  the  goods  were  not  in  his  possession 
when  demanded  if  he  had  improperly  parted  with  the 
possession  {p),  as  where  he  had  sold  them,  or  lost  them  by 
carelessness  {q). 

Where  goods  have  been  deposited  or  pledged  with  the 
defendant  as  part  of  an  illegal  or  immoral  agreement,  the 
maxim  "  In  pari  delicto  potior  est  conditio  defendentis " 
appHes,  and  the  plaintiff  cannot  recover  them  (r). 

In  an  action  for  goods  bargained  and  sold  the  defendant.  Defence  for 
provided  that  he  plead  them  specially,  may  rely  on  any  of  G^oods^ar- 
the  following  facts,  viz.,  that  the  defendant  never  bought  a  ^old  and  for 
Horse  of  the  plaintiff  at  all,  or  that  the  sale  was  invalid  not  accepting. 
under  the  Statute  of  Frauds  (s)  ;  or  where  he  did  not  see 
the  Horse  before  piu-chase  he  may  show  that  it  does  72ot 
correspond  Avith  its  description  (/)  ;    or  where  it  has  been 
ordered  for  a  pai-ticular  jiiu-pose,  for  instance,  to  run  in  a 
carriage,  he   may  show  that  it  was  unjit  for  that   pur- 


(»)   Clarice  v.   Callow,   46  L.  J.,  (;•)   Tai/lor  v.  C/iester,  L,.  B.,  4^  Q. 

Q.  B.  53— C.  A.  B.  309  ;  38  L.  J.,  Q.  B.  225. 

(o)  Jones  V.  Bowie,   9  M.   &  W.  (v)  Johnson  v.  Bodgson,   2  M.  & 

19.  W.  653  ;  Elliott  v.  Thomas,  3  ibid. 

{p)  Ibid.  170  ;  Buttermere   v.  Hayes,  5  ibid. 

\q)  Reeve   v.   Palmer,    28   L.    J.,  456. 

C.  P.  168.  [t)  See  Street  v.  Blay,  2  B.  &  Ad. 

456  ;  Parsons  v.  Sexton,  4  C.  B.  905. 

O.  O 


194 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Defence  in 
action  for  not 
delivering. 


Where  evi- 
dence of  the 
usage  of  trade 
is  not  admis- 
sible. 

Defence  for 
Goods  sold 
and  delivered. 


Defence  to 
action  on  a 
Cheque  for 
the  price. 

Evidence  in 


pose  (ii)  ;  or  that  it  was  not  the  Horse  which  he  bargained 
to  purchase,  though  of  the  same  name  (.r),  or  that  the 
Contract  was  made  without  the  proper  formalities  (//). 

In  an  action  for  not  delivering  a  Horse,  the  defendant 
may  show  that  he  did  not  sell  a  Horse  to  the  plaintiff  at 
all,  or  that  the  Sale  was  informal  under  the  Statute  of 
Frauds  (s).  And  where  he  contests  it  in  his  pleading,  he 
may  show  that  the  plaintiff  was  not  Ready  and  Willing  to 
accept  and  receive  it  and  pay  the  Price  {a).  And  where 
no  particular  time  has  been  specified  for  delivery,  he  may 
show  that  the  plaintiff  never  made  any  demand  {b). 

Where  there  is  no  ambiguity  in  the  language  of  a 
contract,  evidence  is  not  admissible  to  show  that,  by  the 
usage  of  the  particular  trade,  persons  selling  under  such 
contracts  are  not  bound  to  deliver  the  goods  without  pay- 
ment (c). 

^\Tiere  an  action  is  brought  for  the  price  of  a  Horse  as 
Goods  sold  and  delivered,  the  defendant,  by  proper  allega- 
tions in  his  statement  of  defence,  may  dispute  the  Sale  and 
Delivery  in  point  of  fact.  Therefore  he  may  show  that  the 
Sale  was  on  credit  which  had  not  expired  when  the  action  was 
brought  {d)  ;  that  no  absolute  Sale  took  place  ;  that  there 
was  no  Delivery  at  all  [e)  ;  or  that  the  Delivery  was  for  the 
purpose  of  a  reasonable  trial,  and  that  the  Horse  did  not 
suit  (/)  ;  or  he  may  show  that  the  Horse  was  returned  on 
the  ground  of  a  Breach  of  Warranty,  pursuant  to  an 
agreement  embodied  in  the  contract.  If  his  defence  is 
Payment,  of  course  it  must  be  specially  pleaded.  So  also 
must  want  of  title  (r/). 

Breach  of  Warranty  is  no  answer  to  an  action  on  a 
Cheque  for  the  price ;  but  a  fraudulent  representation 
is  (70. 

However,  it  is  only  reasonable  and  just  that  when  an 


(«)  Chanter  v.  Hopkins,  4  M.  & 
W.  406. 

(a)  Raffles  V.  IFicheUiaus,  33  L.  J., 
Ex.  160. 

(v)  Frcnd  v.  Dennett,  27  L.  J., 
C.  P.  314  ;  Bradley  v.  Barehleij,  14 
M.  &  W.  873. 

[z)  Johnson  v.  Dodyson,  2  M.  feW. 
653  ;  ElUott  v.  Thomas,  3  ibid.  170; 
Buttcrmcre  v.  Hayes,  5  ibid.  456. 

(«)  Raivson  v.  Johnson,  1  East, 
203. 

ib)  Bach  V.  Given,  5T.  R.  410. 


(e)  Spartali  v.  Beneche,  10  C.  B. 
212  ;  and  see  Humphrey  v.  Bale,  11 
L.  J.,  Q   B.  390. 

[il)  Broomfield  v.  Smith,  1  M.  & 
W.  542  ;  Wchh  v.  Fairmanner,  3  M. 
&  W.  473  ;  and  see  I'aul  v.  Dod, 
2  C.  B.  800. 

{(■)  See  Smith  v.  Bolt,  9  C.  &  P. 
696. 

(/)  Street  v.  Blay,  2  B.  &  Ad. 
456;  Mossy.  Siveet,  16  Q.  B.  493. 

[y)  Walker  v.  Melhr,  11  Q.  B. 
478. 

[h)  Lciris  V.  Cosfjreave,  2  Taunt.  2. 


PLEADING  AND  EVIDENCE  FOR  THE  DEFENDANT.  195 

action  is  broiig-lit   hy  the   seller  to  recover  the  Price   or  Reduction  of 
Yalue   of  a  Horse  or  any  other   goods,   that   the   buyer  Damages, 
should  be  at  liberty  to  show  the  Breach  of  Warrant//  in 
Reduction  of  Damafies  (/). 

And  where  a  Horse  is  bought  warranted  Sound,  and  Defence  for 
part  of  the  Price  is  paid,  and  on  turning  out  Unsound,  he  ^s.^i*^^^  of  the 
is  found  to  be  w^orth  no  more  than  that  sum,  it  is  a  good 
defence  to  an  action  for  the  residue.  Thus  in  the  follow- 
ing case,  it  appeared  that  the  plaintiff  sold  to  the  defen- 
dant a  Horse,  warranted  sound,  for  twelve  guineas,  of 
which  the  defendant  had  paid  three.  In  fact,  the  Horse 
was  not  sound ;  and  the  defendant  refusing  to  pay  any 
more,  an  action  was  brought  to  recover  the  Pesidue  of 
the  Horse's  Price.  It  was  proved  that  the  Horse,  at  the 
time  of  sale  to  the  defendant,  was  not  worth  more  than 
\I.  lis.  Qd.,  and  the  defendant  afterwards  sold  it  for 
11.  10s.  On  these  facts  Lord  Kenyon  held  that  the  plain- 
tiff could  only  recover  the  value ;  and  more  having  been 
paid  to  him  by  the  defendant,  he  was  nonsuited  (/<•) . 

Wliere  an  action  is  brought  to  recover  back  the  Price  Defence  for 
paid  for  a  Horse,  on  failure  of  consideration,  as  Money  had  ^o/^^y  ^.^^^ 
and  received.,  the  defendant  may  show  that  he  never  received 
the  Price,  or  that  he  never  warranted,  or  that  there  was  no 
Bread)  of  Warranty,  or  that  there  was  no  Rescission  of  the 
contract,  or  that  there  was  no  power  to  rescind,  or  no  Tender 
of  the  Horse,  or  that  being  sold  on  trial,  it  was  kept  longer 
than  was  necessary  for  such  trial  (/). 

The  defendant  in  an  action  on  a  Breach  of  Warranty  Defence  to  an 
may  deny  the    Warranty,  or  he  may  show  that,  at  the  5°*^°^]^°^/ 
time  of  Sale,  the  Horse  ansicered  his  JFa r ra n t y,  ^Yhet\ler  it  Warranty. 
were  Soundness,  Freedom  from  Vice,  Fitness  for  a  par- 
ticular Pm-pose,  &c.  (m). 

The  defendant  may  prove  that  the  Warranty  was  added  Surreptitious 
to  the  form  of  receipt  unknown  to  him.  Thus,  in  an  Warranty, 
action  brought  on  the  Warranty  of  a  Horse,  the  Jury 
gave  a  verdict  for  the  defendant,  being  of  opinion  that 
the  Warranty  had  been  surreptitiously  introduced  into 
the  Eeceipt  by  the  Plaintifi  before  it  was  signed  by  the 
defendant.     And  ]\Ii'.  Baron  Piatt  said,  that  if  the  Jmy 

(j)  FoiiUon   V.  Lnttimore,  9  B.  &  481. 
C.  265  ;  Momlel  v.  StceJ,  8  M.  &  W.  (/)  Street  v.  Bhiy,  2  B.  &  Ad.  450 ; 

858  ;  »S'.  C.  1  D.  N.  S.  8 ;  Farsons  v.  and  seeBatvsonv.Collis,  10  C.  B.  532. 
Sexton,  4  C.  B.  908  ;  (S'.  C.  IG  L.  J.,  (;«)  See  evidence  as  to  Unsound- 

C.  P.  184.  uess,  Vice  and  Unfitness,  ante,  pp. 

(/■■)   Khnix.  Boston,  cited  7  East,  191,  192. 

o2 


196 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Condition  an- 
nexed to  a 
Warranty. 


liaci  been  of  opinion  that  the  words  were  added  afterwards  . 
by  the  plaintiff,  it  would  have  been  his  duty  to  have  im- 
pounded the  Receipt  for  ulterior  purposes  {n). 

Where  the  defendant  relies  on  a  condition  annexed  to 
a  Warranty  according  to  a  Notice  of  certain  Rules  of  Sale, 
it  appears  that  luiless  the  matter  relating  to  the  Notice  has 
been  by  way  of  Proviso  upon  the  Warranty,  such  condition 
must  be  set  out  in  the  Statement  of  Defence.     Thus,  in  an 
action  of  Assumpsit  on  a  Breach  of  Warranty,  the  De- 
claration stated  that,  in  consideration  that  the   plaintiff 
would  buy  of  the  defendant  a  Mare  at  a  certain  price, 
the  defendant   promised  that   she   was   sound.     The   de- 
fendant pleaded,  among  other  pleas,  that  the  Mare  was 
sent  to  Lucas's  Repository,  to   be  sold  according  to  cer- 
tain Rules,  which  were  as   follows :    "  Terms   of   private 
sale.     A  Warranty  of  Soundness,  when  given  at  this  Re- 
pository,   will  remain   in    force   until    twelve   o'clock   at 
noon  of  the  day  next  after  the  day  of  sale,  when  it  will 
be  complete,  and  the  responsibility  of  the  Seller  will  ter- 
minate, unless  in  the  meantime  a  Notice  of  the  contrary, 
accompanied  by  the  Certificate  of  a  Veterinary  Surgeon, 
be  delivered  at  the  office  of  R.  Lucas ;  such  Certificate  to 
set  forth  the  cause,  nature  or  description  of  any  alleged 
Unsoundness;"  that  the  Sale  took  place  subject  to  those 
Rules,  and  that  no  Notice  was  delivered  Avithin  the  time 
specified.      Mr.    Baron   Parke   said,    "  It   appears  to   me 
that  such  plea  is  not  bad  as  amounting  to  the  General 
issue.     It  admits  the  Contract  and  the  Promise,  but  shows 
it  to  have  been  made  subject  to  certain  Rules,  Avhich  have 
not  been  compHed  with.     "What  is  the  meaning  of  those 
terms?     It  seems  to  me  to  be  this,  that  the  Warranty 
shall  be  deemed  to  have  been   complied   with,   unless   a 
Notice  and  Certificate   shall  be  delivered  to  the  Vendor 
before  twelve  o'clock  at  noon  of  the  day  next  after  the  day 
of  sale.     That  is  not  a  denial  of  the  Warranty,  but  of  a 
mere  Condition  annexed  to  it.     No  Notice  and  Certificate 
were  delivered,  and  therefore  the  Contract  is  to  be  con- 
sidered as  compilied  with.     If  the  matter  relating  to  the 
Notice  had  been  by  way  of  Proviso  upon  the  Warranty, 
it  might  perhaps  have  been  necessary  to  state  it  in  the 
Declaration  ;  but  upon  that  point  I  give  no  opinion.     It  is 
enough  to  say  that  every  word  of  this  plea  is  consistent 
with  the  Contract  stated  in  the  Declaration." 


(w)  Bliss  V.  S/ww,  before  Mr.  Baron  Piatt,  Ex.  N.  P.,  May  12,  18.53. 


PLEADING  AND  EVIDENCE  FOR  THE  DEFENDANT.  197 

And  Mr.  Baron  Alderson  said,  "The  meaning  of  the 
plea  is,  that  there  was  a  sort  of  conventional  Warranty 
of  Soundness,  and  that  the  Warranty  was  to  be  considered 
as  complied  with,  unless  a  Notice  and  Certificate  of  Un- 
soundness were  given  within  a  certain  time,  which  was 
not  done.  That  is  not  a  denial  of  the  Contract,  as  alleged 
in  the  Declaration."  And  in  this  opinion  Barons  Grurney 
and  Eolfe  concurred  (o). 

Where  an  action  is  brought  on  a  Breach  of  a  Warranty  Evidence  in 
of  Soundness,  the  subsequent  Recovery  of  the  Horse  may  Reduction  of 
be  i^roved  in  Reduction  of  Damages.     Evidence  may  also  ^^^^S^^- 
be  given  as  to  the  slightness  of  the  disease ;  because  of 
com'se,  if  the  disease  be  slight,  the    Unsoundness   is  pro- 
j)ortionably  so,  and  so  also  ought  to  be  the  Damages  ;  and 
if  they  were  very  inconsiderable,  the  Judge  might  certify 
to  deprive  the  plaintiff  of  costs  (p). 

In  an  action  for  Fraudulent  Representation  on  the  Sale  Defence  to  an 
of  a  Horse,  the  defendant  may  show  that  he  never  made  action  for 
any  Representation  on  the  sale  ;  or  that  the  Representation  ^^^.udulent 
was  honesfl/j  made  and  believed  by  him  at  the  time,  though  tion. 
not  true  in  point  of  fact ;  or  that  the  Horse  at  the  time  of 
sale  correspo)ided  with  the  Representation,     A   statement 
merely  untrue  is  not  sufficient  evidence  of  fraud ;    there 
must  be  wilful   deceit  with   the    object  of  inducing  the 
plaintiff  to  act  upon  it  (q). 

The  defendant  may  show  that  he  is  not  bound  by  the  Disputing  the 
Warranty  (r),  as  where  it  has  been  given  by  a  person  Warranty. 
merely  entrusted  to  deliver  the  Horse  (s),  or  by  a  Servant 
after  Sale(?').  And  where  the  defendant  is  neither  a 
HorsedeaJer  nor  Stahlekeej)er  he  may  prove  that  the  War- 
ranty was  given  by  an  Agent  who  was  expressly /or  J /c/  to 
warrant  {u),  and  that  in  consequence  he  had  offered  to  take 
back  the  Horse. 

The  defendant  may  show  that  the  Horse  at  the  time  of  Disputing  the 
sale  was  Sound,  or  free  from  Vice,  or  that  the  defect  was  Unsound- 
Patent  at  the  time  of  Sale.     And  this  will  depend  upon  ^®^^'  ^^' 
the  same  sort  of  evidence  as  we  have  before  described  (x). 
The  defendant  may  also  show  that  the  Horse  was  not  nnjii 

(o)  Smart  v.  Ilt/de,   8  M.   &  W.  M.  391  ;  S.  C.  4  Tyrw.  264. 
723,  728.  {t)  Hchjer  v.  Eaivke,  5  Esp.  72. 

[p]  Kiddell  v.  Burnard,   9  M.  «&;  {n)  FeimY.Har7-isoH,ZT.'R,.'tQ\; 

W.  670.     See  Dawson  v.  CoUis,  10  and   Scotland  {Bank)   v.  Watson,   I 

C.  B.  532.  Dow,  45. 

{q)  Orm}-odv.IIuiJi,liM.&W.65l.  (x)  Evidence  as  to  Unsoundness, 

(>•)  See  Warranty,  Chap.  5,  ante.  ante,  p.  191;  Patent  Defects,  Chap. 

(«)    Woodinf/  V.  Biirford,   2  Cr.  &  5,  ante. 


198 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Subsequent 
Eecovery. 


Competency 
of  witnesses. 


for  the  purpose  for  whicli  he  was  bought ;  for  iustance, 
that  he  has  answered  his  Warranty  when  used  by  persons 
of  ordinary  skill  (//). 

But  where  a  Horse  is  proved  to  have  had  a  Disease  at 
the  time  of  Sale,  his  subsequent  recovery  is  no  defence  to 
an  action  on  a  Breach  of  Warranty,  because  where  a 
Horse  is  warranted  it  is  to  be  presumed  he  is  fit  for  im- 
mediate use  (z). 

There  was  formerly  a  diiference  of  opinion  as  to  the 
competency  of  a  Witness,  on  the  ground  of  interest.  Thus 
it  was  at  one  time  held,  that  the  former  OA\Tier  of  a  Horse, 
which  he  had  sold  with  a  Warranty  to  the  defendant, 
was  a  competent  Witness  for  him  to  prove  that  the  Horse 
when  so  sold  was  Sound  {a) .  And  in  a  later  case,  Mr. 
Justice  Alderson  considered  such  a  Witness  incompetent 
on  the  ground  that  the  effect  of  a  verdict  for  the  defendant 
would  be  to  relieve  the  witness  from  an  action  {h). 

Now,  however,  by  the  Acts  of  Yictoria  (r) ,  no  person  is 
to  be  excluded,  and  the  plaintiff  or  defendant,  or  the  hus- 
band or  wife  of  each  or  either,  are  competent  witnesses. 


General 
damages. 


Special 
damages. 


Legal  and 
natural  con- 
sequences of 
the  breach 
of  Contract. 


DAMAGES. 

The  Damages  which  iiccessari///,  and  by  imj^lication  of  law, 
ensue  from  the  non-performance  of  the  Contract,  or  the  com- 
mission of  the  Wrongful  act,  need  not  be  expressly  detailed, 
and  are  recoverable  under  the  connnon  conclusion  of  the 
Statement  of  Claim  {d). 

But  damages  which  really  took  place,  but  do  not  necessa- 
rily arise  from  the  non-performance  of  the  Contract,  or  the 
commission  of  the  Wrongful  act,  and  are  not  implied  by  law, 
must  be  expressly  stated  in  the  Statement  of  Claim ;  so 
that  the  defendant  may  be  prepared  to  dispute  the  facts. 

The  Damages  must  be  the  legal  and  natural  consequences 
of  the  Breach  of  Contract,  or  of  the  Injury  which  has  been 
inflicted  (c).     Thus  the  costs  of  an  action  brought  on  a 


(y)  Geddes  v.  Fetmington,  5  Dow, 
164  ;  see  ante,  p.  122,  BHclcinghain 
V.  Reeve. 

{z)  Coatcs  V.  Stephens,  2  M.  & 
Rob.  157. 

(«)  Briggs  v.  Crick,  5  Esp.  99  ; 
Baldwin  v.  Dixon,  1  M.  &  Rob.  69. 

{b)  Bissy.  Mountain,  I  M.  &  Rob. 
302. 

(e)  6  k  7  Vict.  c.  85 ;  14  &  lo  Vict. 
0.99;  16  &  17  Vict.  c.  83. 


{d)  See  Boorman  v.  Nash,  9  B.  & 
C.  1 52 :  Bullen  &  Leake's  Pleadings, 
4th  ed.  19. 

(e)  See  1  Chit.  Pleading,  6th  ed. 
395;  also  J'icarsY.  Wilcocks,  SEa.st, 
3 ;  Smith  V.  Gree7i,  L.  R.,  1  C.  P.  D. 
92  ;  45  L.  J.,  C.  P.  28  ;  Randall  v. 
Xewson,  L.  R.,  2  Q.  B.  D.  102  ; 
46  L.  J.,  Q.  B.  259  ;  36  L.  T.,  N. 
S.  164;  25  W.  R.  313— C.  A. 


DAMAGES.  199 

False  Representation  made  by  a  third  person  of  the  profits 
of  a  business,  such  third  person  not  having  been  communi- 
cated with  before  the  action  was  brouglit,  nor  having  re- 
presented himself  as  Agent  for  the  defendants  in  that 
action,  are  not  the  legal  and  natural  consequences  of  the 
Breach  of  Contract  or  of  the  Injury  which  has  been  in- 
flicted (/).  But  it  is  otherwise,  when  on  the  third  person 
being  communicated  with,  before  action  was  brought,  he 
said  that  the  plaintiffs  might  safely  go  on  with  their 
action,  and  also  professed  to  have  authority  as  Agent  for 
the  Representations  which  he  made  {g). 

This  rule  illustrates  the  maxim  "  In  jure  non  remota 
causa  sed  proxima  spectatur" — it  is  the  proximate  only  and 
not  the  remote  consequences  of  an  act  that  are  to  be  re- 
garded. But  as  to  the  degree  of  remoteness  it  is  said  that 
no  distinct  line  can  be  drawn.  In  each  case  the  Court 
must  say,  as  a  matter  of  law,  whether  it  is  on  the  one  side 
or  the  other  {//).  In  Ilobbs  v.  Lo)idon  and  South  Western 
Raihcay  Co.  (/),  the  plaintiffs  took  tickets  to  travel  by  a 
midnight  train  from  W.  to  H.  The  train  did  not  go  to 
H.,  and  the  plaintiffs  were  taken  to  E.,  which  was  a  station 
further  from  the  plaintiffs'  house  than  H.  was.  The 
plaintiffs  walked  home  in  the  wet  from  E.,  there  being  no 
conveyance  to  be  had.  It  was  held  that  damages  might 
be  given  for  the  personal  inconvenience  and  discomfort  of 
having  so  to  walk,  but  not  for  illness  brought  on  by  the 
dampness  of  the  night.  But  where  an  innkeeper  contracted 
to  provide  stabling  for  twelve  horses  for  the  plaintiff  during 
a  particular  fair,  and  failed  to  do  so,  it  was  held  that  the 
plaintiff  could  recover  damages  for  injmy  caused  to  the 
Horses  by  exposui-e  to  the  weather  while  he  was  engaged  in 
finding  other  stables  for  them  (/.•). 

The  Judge  should  direct  the  Jury  as  to  any  established  Judge  to 
rules  of  measuring  the  Damages  applicable  to  the  parti-  ^'^f^^  J|"y 
cuiar  case,  and  tiie  omission  to  do  so  is  a  ground  tor  a  new  Damages 
trial  (/). 

In  accordance  with  the  ride  that  Damages  should  be  Damages 
estimated  by  the  legal  and  natural  consequences  of  the  arising  from 

"^  °  special  cir- 

(/)  Ekhanhon  v.  Diaui,  30 L.  J., 
C.  P.  44. 

(ff)  Randell  v.  Triinoi,  2o  L.  J., 
C.  P.  307. 

(A)  Hohhs  V.  London  and  South 
Western  Itailuay  Co.,  L.  E,.,  10  Q. 
B.  117;  44  L.  J.,  Q.  B.  .52;  32  L. 
T.,  N.  S.  3.')2  :  23  W.  E.  520  ;  per 


Blackbuni,  J. 

stances, 

(i)    Vbi  supra. 

\k)  3IcMahon    v.    Field,    L.    E., 

7  Q.  B.  D.  591  ;  50  L.  J.,  Ex.  552 

-C.  A. 

(/)   Hadlcy  v.  Baxmdalc,  23  L.  J., 

Ex.  179  ;  fimccd  v.  Foord,  28  L.  J., 

Q.  B.  17S. 

200  PLEADING,  EVIDENCE  AND  DAMAGES. 

Breach  of  Contract,  or  such  as  may  be  reasonably  sup- 
posed to  have  been  in  the  contemplation  of  the  parties  at 
the  time  they  made  the  Contract,  as  the  probable  result  of 
the  Breach  of  it,  it  was  laid  down  in  Iladley  v.  Baxendale  {m), 
that  where  a  Contract  is  made  under  special  circimistances, 
which  are  communicated  b}^  one  of  the  contracting  parties 
to  the  other,  the  Damages  residtiug  from  a  Breach  of  the 
Contract,  which  the  parties  would  reasonably  be  supposed 
to  have  contemplated,  are  the  amount  of  Injury,  which 
woidd  ordinarily  follow  from  such  a  Breach  of  Contract 
under  the  special  circumstances.  But  if  the  special  cir- 
cumstances are  unknown  to  the  party  breaking  the  Con- 
tract, he,  at  the  most,  can  only  be  held  to  have  contem- 
plated the  amount  of  Injmy  which  would  arise  generally, 
and  in  the  great  multitude  of  cases,  not  aifectecl  by  any 
special  cii'cumstances,  from  such  a  Breach  of  Contract. 
Therefore  in  a  case  where  a  miller  employed  a  carrier  to 
deliver  a  broken  shaft  to  an  engineer  for  repair,  and  the 
carrier  was  guilty  of  an  unreasonable  delay  in  delivering 
it,  the  result  of  which  was  the  stoppage  of  the  mill,  and  a 
consequent  loss  of  profits,  it  was  held  that  such  a  loss  of 
profits  should  not  be  taken  into  consideration  by  the  Jury 
in  estimating  the  Damages,  as  the  carrier  had  not  been  in- 
formed that  this  would  be  the  result  or  the  probable  result 
of  his  negligence  [m). 
Effect  of  And  it  is  held  that  generally  the  mere  notice  or  know- 

ledge of  the  special  circumstances  will  not  render  the  party 
liable  for  the  special  consequences  of  a  Breach  under  such 
circmustances,  or  for  the  failure  of  the  special  purposes  of 
the  contract ;  unless  he  has  expressly  or  impliedly  contracted 
upon  the  basis  of  such  special  circumstances,  and  under- 
taken to  be  bound  for  the  consequences.  Thus,  in  an 
action  against  a  carrier  for  not  delivering  a  parcel  of 
goods,  the  mere  knowledge  on  his  part  that  the  parcel 
contained  a  part  of  the  machmery  of  a  mill,  without  which 
the  mill  could  not  be  erected,  was  held  not  sufficient  to 
charge  him  with  the  consequences  of  the  stoppage  of  the 
mill  until  the  machinery  could  be  replaced ;  and  the 
damages  were  restricted  to  the  cost  of  replacing  the  part 
lost,  with  interest  upon  that  amoimt  whilst  remaining 
unpaid  {n).  And  it  is  said  that  "in  order  that  the  notice 
may  have  any  effect,  it  must  be  given  under  such  circum- 

(;«)  Hadley  \.  Baxendale,  2^1^.3 .,  [n)  Leake    on    Contracts,    1046, 

Ex.  179  ;  Sineed  v.  Foord,  28  L.  J.,        1017,  and  cases  there  cited. 
Q.  B.  178. 


notice. 


DAMAGES.  201 

stances  as  that  an  actual  contract  arises  on  tlie  part  of  the 
defendant  to  bear  the  exceptional  loss"  (»). 

In  the  ordinary  case  of  Trover  for  a  Horse,  the  plaintiff  Damages 
recovers  the  value  of  the  Horse,  and  not  what  the  Horse  !?""  wrongful 
might  have  earned  besides  io).  Special  damages  may  be 
recovered  in  trover  if  laid.  Therefore,  where  in  trover  for 
a  Horse  it  was  laid  as  special  damage,  that  the  plaintiff 
was  obliged  to  hire  other  Horses,  it  seems  that  the  amount 
of  damages  should  be  the  value  of  the  plaintiff's  Horse 
when  taken,  and  the  sum  be  paid  for  hire,  deducting  what 
would  have  been  the  expense  of  keeping  his  own  Horse  for 
the  time(jj). 

Where  the  property  in  goods  has  passed  under  the  Con- 
tract, but  the  price  has  not  been  paid,  and  the  vendor  has 
wrongfully  converted  and  disposed  of  the  goods  so  as  to 
preclude  himself  from  delivering  them,  and  recovering  the 
price,  the  vendee  can  only  recover  the  difference  between 
the  value  of  the  goods  and  the  contract  price,  and  cannot 
recover  the  full  value  by  suing  for  the  Conversion  of  the 
goods  instead  of  for  the  Breach  of  Contract  {q) . 

Whenever  a  party  is  liable  for  a  Breach  of  a  Contract,  Damages  in 
either  express  or  implied,  it  seems  that  the  plaintiff  is  ^°''^- 
entitled  at  all  events  to  nominal  Damages ;  although  the 
action  be  framed  in  Tori  for  such  Breach  of  Contract,  and 
no  actual  Damage  be  proved  (r) .  But  in  the  case  of 
actions  framed  in  Tort  for  Breach  of  Contract  (s),  the 
Damages  must  be  such  as  are  capable  of  being  appreciated 
or  estimated,  whereas  in  such  as  are  not  founded  on  Con- 
tract the  Jury  may  consider  the  injury  to  the  feelings, 
and  many  other  matters,  which  have  no  place  in  actions 
of  Contract  (f) . 

In  an  action  for  the  recovery  of  a  fixed  pecuniary  de-  In  actions  for 
mand,  which  the  defendant  has  not  shown  groimds  for  ^J^™  ^^^' 
reducing,  by  proving  a  partial  failure  of  Consideration,  it 
is  obviously  in  general  the  duty  of  the  Jury  to  give  the 
plaintiff  neither  more  nor  less  than  the  sum  specified  {it) . 

(h)  Per  Blackburn,  J.,  in  Norne  C.  P.  130. 
Y.  Midhoid  Jiailuai/  Co.,  Jj.H.,  8G.  (r)  Molin    v.  Steward,   23  L.  J., 

P.  131 ;  42  L.  J.fC.  P.  54.  C.  P.    148;  Chit.  Contr.   10th  ed. 

(o)  Per  Jervis,    C.    J.,    Read  v.  813. 
Fairbanks,  22  L.  J.i  C.  P.  20C.  (s)  The  action  for  breach  of  con- 

[p)  Davis  V.  Osivell,    7   C.    &   P.  tract  of  marriage   is  the  only  ex- 

804  ;  see  further,  Trance  v.  Gaudet,  ception. 

L.  R.,   6  Q.  B.  199  ;  40  L.  J.,  Q.  (/)  Per  Pollock,  C.  B.,  Hamlin  v. 

B.  121.  Great  Northern  Ilaihcay  Co.,  1  H.  & 

{q)   Chincrij   V.    Viall,   29  L.   J.,  N.  410. 
Ex.  180;  Johnson  \.8tcar,2,'ilj.  J.,  {>()  Chit.  Contr.  10th  ed.  813. 


202 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Interest. 


Effect  of  3  & 
4  Will.  4, 
c.  42,  s.  28. 


17  &  IS  Vict. 
c.  90. 


In  Actions 
which  sound 
in  DamaEres. 


However,  by  3  &  4  Will.  4,  c.  42,  s.  28,  it  is  enacted, 
''  tliat  upon  all  debts  or  sums  certain,  payable  at  a  certain 
time  or  otlierwise,  the  Jury  on  tbe  trial  of  any  issue,  or 
on  any  inc[uisition  of  Damages,  7nai/,  \f  they  shall  think  fit, 
allow  Interest  to  the  creditor,  at  a  rate  not  exceeding  the 
current  rates  of  Interest,  from  the  time  when  such  debts 
or  sums  certain  were  payable  if  such  debts  or  sums  be 
payable  by  \'irtue  of  some  written  instrument  at  a  certain 
time;  or  if  imyahle  othermse,  then  from  the  time  when 
demand  of  payment  shall  have  been  made  in  writing,  so  as 
such  demand  shall  give  Notice  to  the  debtor,  that  Interest 
will  be  claimed  from  the  date  of  such  demand  until  the 
term  of  payment :  x>roi'idcd  that  Interest  shall  be  payable 
in  all  cases  in  which  it  is  now  payable  by  law." 

This  provision  does  not  extend  to  special  actions  on 
Contracts,  strictly  for  the  recovery  of  unliquidated  Damages 
resulting  from  the  Breach  of  such  Contracts,  and  ascer- 
tainable only  by  a  Jmy,  for  instance,  actions  for  not 
delivering  goods,  &c.  (,r).  Nor,  as  it  appears,  to  any  case 
in  which  the  claim  is  not  for  a  sum  certain  as  contradis- 
tinguished from  one  the  amount  of  which  is  merely  capable 
of  being  ascertained  (//).  Its  effect  is  to  leave  it  discre- 
tionary in  the  Jury  to  allow  Interest  even  in  the  cases 
specified ;  in  other  cases  it  is  to  be  taken  as  limiting  their 
discretion,  unless  there  be  proof  of  a  written  instrument, 
whereby  the  sum  certain  is  made  payable  at  a  certain  time, 
or  of  a  written  demand  of  the  money  containing  a  Notice 
that  Interest  from  thenceforth  will  be  claimed ;  and  in  all 
those  cases,  in  which  it  was  payable  by  law  at  the  time  the 
act  was  passed,  to  make  it  compulsory  on  the  Jury  to  give 
Interest. 

By  the  Act  to  repeal  the  laws  relating  to  usury  (;:) ,  it  is 
enacted,  that,  where  Interest  is  now  piayable  upon  any 
Contract,  express  or  implied,  far  payment  of  the  legal  or 
current  rate  of  Interest ;  or  where  upon  any  debt  or  sum 
of  money  Interest  is  now  payable  by  any  rule  of  law,  the 
same  rate  of  Interest  shall  be  recoverable  as  if  that  Act 
had  not  passed. 

But  in  all  actions  which  sound  in  Damages,  the  Jury 
seem  to  have  a  discretionary  power  of  giving  what  Damages 
they  think  proper ;  for  though  in  contracts  the  very  sum 
specified  and  agreed  upon  is  usually  given,  yet,  if  there  be 

(.r)  Chit.  Contr.  10th  ed.  599.  43  L.  J.,  Ch.  560. 

{>/)  Bill    V.    South    Stofonhhirc  (r)   17  &  18  Vict.  c.  (»0,  s.  3. 

Hallway  Co.,  L.  R.,    18  Eq.    154; 


DAMAGES.  203 

any  cii'cumstances  of  hardship  or  extreme  folly,  though  not 
sufficient  to  invalidate  the  contract,  the  Jury  may  consider 
them,  and  proportion  and  mitigate  the  Damages  accord- 
ingly. Thus,  where  an  action  was  brought  on  a  promise 
of  1,000/.  if  the  plaintiff  should  find  the  defendant's  Owl; 
the  Court  held,  though  the  promise  was  proved,  that  the 
Jury  might  mitigate  the  Damages  {a) . 

And  where  an  action  was  brought  in  special  Assumj^sit,  A  Foolish 
on  an  agreement  to  pay  for  a  Horse  a  barley-corn  a  nail,  bargain, 
doubling  it  for  every  nail  in  the  Horse's  shoes;  there  were 
thirty-two  nails,  and  this  being  doubled,  every  nail  in  a 
geometrical  progression,  came  to  five  hundred  quarters  of 
barley ;  and  on  the  cause  being  tried  before  Mr.  Justice 
Hyde  at  Hereford,  the  Jury,  under  his  direction,  gave  the 
real  value  of  the  Horse,  8/.  as  Damages  ;  and  this  Contract 
seems  to  have  been  held  valid ;  for  it  appears  by  the  report 
that  there  was  afterwards  a  motion  to  the  Cornet  in  arrest 
of  Judgment,  for  a  small  fault  in  the  Declaration,  which 
was  overruled,  and  the  plaintiff  had  judgment  {h). 

And  where  in  consicleration  of  2s.  6d.  paid  down,  and  An  impossible 
41.  17s.  6d.  to  be  paid  at  the  end  of  the  year,  the  de-  contract, 
fendant  agreed  to  deliver  two  grains  of  rye  on  the  then 
next  Monday,  and  double  in  geometrical  progression 
every  succeeding  Monday  for  a  year,  which  it  was  stated 
would  have  amounted  to  a  larger  quantity  of  rye  than 
existed  in  the  whole  world,  the  Court  on  demurrer  seemed 
to  consider  the  Contract  good  in  law;  and  Mr.  Justice 
Powell  said,  "  That  although  the  Contract  was  a  foolish 
one,  yet  it  would  hold  good  in  law,  and  that  the  defendant 
ought  to  pay  something  for  his  folly  ;"  upon  which  the 
defendant  agreed  to  return  the  plaintiff  his  half-crown 
and  pay  the  costs,  and  so  the  case  was  compromised  {c). 
And  an  action  will  lie  for  the  performance  of  a  Contract 
imdertaken  for  a  valuable  consideration,  though  its  per- 
formance turns  out  to  be  impossible  (unless  it  has  been 
rendered  impossible  by  the  act  of  the  other  party),  for  it 
is  the  result  of  the  "  heedlessness  of  the  contracting  party, 
if  he  runs  the  risk  of  undertaking  to  perform  an  impos- 
sibility, when  he  might  have  provided  against  it  by  his 
Contract  "  {d).     But  where  the  law  casts  a  duty  on  a  man, 

(«-)  Bac.  Abr.  Damages  (D),  602.  (c)   TliornhoroicY.  JF/ntacrf,2'Ld. 

{b)  James  y.  Morgan,  1  Lev.  Ill;  Raym.  1164. 
S.  C.  1  Keb.  569  ;  and  Chit.  Contr.  [d)  Per  Williams,    J.,    Hale   v. 

10th  ed.  20.  Rawmii,  27  L.  J.,  C.  P.  101. 


204 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Cannot  be 
higher  than 
the  amount 
laid. 


In  goods 
bargained 
and  sold. 

In  an  action 
for  not  ac- 
cepting. 


In  an  action 
for  not  de- 
livering. 


•which,  without  fault  on  his  part,  he  is  unable  to  perform, 
the  law  will  excuse  him  for  non-performance  (p). 

The  Jury  cannot  give  higher  Damages  than  the  amount 
laid  in  the  Statement  of  Claim  ;  and  if  judgment  be  entered 
for  the  excess  such  judgment  would  be  bad  (/).  But 
where  the  Jury  find  greater  Damages  than  the  amount 
laid,  the  plaiatiff  may  enter  a  ronittitur  of  the  surplus 
before  judgment  (r/),  or  he  may  amend  his  claim  and  have 
a  new  trial  {h). 

The  Damages  in  an  action  for  the  price  of  a  Horse,  as 
Goods  hargained  and  sold,  will  be  the  ic/iolc  sum,  and  not 
merely  damages  for  not  accepting  and  paying  for  it. 

In  an  action  for  not  accepting  a  Horse,  the  measure  of 
damages  is  the  difference  between  the  contract  price  and 
the  market  price,  on  the  day  when  the  vendor  ought  to 
have  received  him  (/). 

In  an  action  for  not  delirering  a  Horse  according  to  a 
Contract,  the  Damages  over  and  above  what  is  laid  spe- 
cially, wdll  be  the  difference  between  the  price  at  which  the 
Horse  was  hougJtt  and  his  value  at  the  time  he  ought  to 
have  been  delivered  [k)  ;  even  though  the  vendor  in  the 
interim  have  resold  the  Horse,  provided  that  the  vendee 
did  not  assent  to  rescind  the  contract  (/).  And  this  rule 
applies  to  each  period  of  delivery,  when  more  than  one  {m)  ; 
even  though  the  action  is  commenced  before  the  periods  of 
delivery  have  elapsed ;  for  the  repudiation  of  the  Contract 
before  the  time  for  its  fulfilment  goes  to  the  question  of 
breach,  but  does  not  afi^ect  the  damages  {n).  If  the  buyer, 
at  the  request  of  the  seller,  forbear  to  enforce  the  Contract 
at  the  time  the  goods  ought  to  be  delivered,  but  after- 
wards do  so,  the  measiu-e  of  damages  is  the  difference 
between  the  contract  price  and  the  market  price  when  the 


[c)  Clarh  v.  Glasqoxv  Assurance 
Co.,  1  Macq.  H.  of  L.  Cases,  668  ; 
Inc/ibaldv.  IVestern  Kcilghcrry  Coffee 
Co.,  11  L.  T.,  N.  S.  345. 

(/)  Chevchi  V.  Morris,  2  Bla.  R. 
1300. 

{g)  Perceval  v.  Spencer,  Yelv.  45  ; 
Wray  v.  lister,  2  Stra.  1110,  1171. 

{h)  Tidd,  9th  ed.  896,  and  note 
(A:);  Chit.  Cont.  10th  ed.  816;  and 
see  Dunn  v.  Crump,  2  B.  &  B.  300, 
307  ;  'S'.  C.  7  Moore,  137. 

(i)  PhiUpotts  V.  Evans,  5  M.  &  W. 
475  ;  Boorman  v.  Nash,  9  B.  &  C. 
145  ;  Josllnj  v.  Irvine,   0  II.  &  N. 


512.  See  also  Bornes  v.  Hutchinson, 
13  W.  R.  386. 

(/.•)  Gainsford  v.  Carol!,  2  B.  &  C. 
624;  8.  C.  4  D.  &  R.  161. 

{I)  Lee  V.  Paterson,  8  Taunt.  540  ; 
S.  C.  2  Moore,  588. 

[m)  Brown  v.  Muller,  L .  R.,  7  Ex. 
319  ;  41  L.  J.,  Ex.  214  ;  27  L.  T., 
N.  S.  272. 

[n)  Brou-n  v.  3fuller,  L.R.,  7  Ex. 
319  ;  41  L.  J  ,  Ex.  214  ;  27  L.  T., 
N.  S.  272  ;  Poper  v.  Johnson,  L.  R., 
8  C.  P.  167  ;  42  L.  J.,  C.  P.  65  ; 
28  L.  T.,  N.  S.  296  ;  Roscoe,  N.  P. 
14th  cd.  494. 


DAMAGES.  205 

buyer  so  enforces  tlie  contract,  e.  g.,  by  buying  the  goods 
in  the  market  (o) .  Where  there  has  been  a  written 
Contract,  the  vendee  cannot  enhance  the  damages  by  oral 
proof  that  the  contract  price  was  higher  than  the  market 
price  by  reason  of  the  shortness  of  the  time  fixed  by  the 
Contract  for  delivery  {p). 

Where  there  is  no  difference  between  the  contract  price  Nominal 
and  the  market  price,  the  Damages  are  only  nominal  (q).  Damages. 
And  where  goods  are  paid  for  by  bill,  and  after  a  Breach 
of  Contract  by  the  vendor  in  not  delivering  the  goods  the 
bill  was  dishonoui-ed,  the  purchaser  was  held  entitled  to 
recover  only  Nommal  Damages  (r). 

In  an  action  for  the  Price  as  Goods  sold  and  delivered^  Damages  in 
the  Damages  will  be  the  Price  or  value  of  the  Horse.  goods  sold 

Where  an  action  for  Money  had  and  received  is  brought  ^^ergj" 
for  the  Eepayment  of  the  Price,  and  there  is  a  count  for  j^  money 
Horsemeat  and  Stabling,  the  measure  of  Damages  is  the  had  and 
Price  paid  for  the  Horse  ;  and  also  the  Expense  of  Keep  received. 
from  the  day  of  Sale ;  as  the  Contract  must  be  taken  to 
have  been  rescinded  from  the  day  it  was  entered  into  (s). 
And  as  to  the  Recovery  of  Interest  on  the  Price  paid,  see 
3  &  4  Will.  4,  c.  42,  s.  28,  by  which  Statute  a  demand  in 
writing  and  Notice  of  such  claim  is  necessary  if) . 

The  Damages  in  the  case  of  a  Breach  of  Warrant//  must  On  breach  of 
be  treated  in  the  same  way  as  an  action  on  a  Contract  {u).    Warranty. 

The  general  rule  is  this,  that,  where  goods  are  delivered,  General  rule, 
which  are  inferior  in  quality  to  those  contracted  for,  the 
measure  of  Damages  is  the  difference  between  the  value  of 
the  goods  of  the  quality  contracted  for,  and  the  amount 
produced  by  the  resale  of  the  goods  actually  delivered; 
that  is,  provided  the  goods  are  resold  immediately  on  their 
being  delivered,  or  if  they  cannot  be  resold  inunediately, 
then  provided  that  they  are  resold  mthin  a  reasonable 
time  {x). 

Where  the  Horse  has  been  retiu-ned,  and  no  special  loss  Where^the 
has  accrued,  the  Damages  consist  of  the  price  paid  {y) . 


(o)  Offle  V.  Mrl  Vane,  L.  R.,  2  Q.  Q.  B.  204. 

B.   275;  Ex.   Ch.,  L.  K,  3  Q.  B.  {s)   CaswellY.Coare,  I  Taunt.  566; 

272.     See  TyersY.  liosedale,  ^-c.  Iron  King  v.  Price,  2  Chit.  416. 

Co.,  L.  E,.,  8  Ex.   305  ;  Ex.  Ch.,  {t)  See  Interest,  ante,  p.  202. 

L.  R.,   10  Ex.  195;  42  L.  J.,  Ex.  [u)  Per  Tindal,  C.  J.,  Watson  v. 

185  ;  29  L.  T.,  N.  S.  751  ;   and  see  Denton,  7  C.  &  P.  90. 

Roscoe,  N.  P.  14th  ed.  495.  (-»)  Loder  v.  Kekule,  27  L.  J.,  C. 

{p)  Brady  v.  Oastler,   3  H.  &  C.  P.  27. 

112;  33  L.  J.,  Ex.  300.  (y)   CasicellY.Coare,n&\mi. b66\ 

[q)  Valp^i  V.  Oakeley,  16  Q.B.  941.  Hdlbutt  v.  Hickson,  L.  R.,  7  C.  P. 

(>■)   Griffiths   V.  Perry,   28   L.  J.,  438  ;   41  L.  J.,  C.  P.  228. 


Horse  has 
been  re- 
turned. 


206 


PLEADINO,  EVIDENCE  AND  DAMAGES. 


Where  the 
Horse  has 
not  been 
returned. 


V/here  the 
Horse  has 
been  ten- 
dered. 


Expense  of 
Keep. 


"WTiere  the  Horse  lias  not  been  retiu-ned  tlie  measure  of 
Damages  will  be  the  difference  between  its  A-alue  with  the 
defect  wan-anted  against  and  the  value  it  would  have 
borne  without  the  defect.  It  was  formerly  laid  down  that 
the  measure  of  Damages  would  be  the  difference  between 
the  contract  price  and  that  for  which  it  would  sell  with 
its  defect  (s) .  But  the  rule  in  England  is  now  settled  as 
stated  above,  and  the  doctrine  is  the  same  in  America  (a). 
^^Tiere  the  Horse  has  been  resold  by  the  piu'chaser  before 
the  Breach  of  Warranty  has  been  discovered,  the  price 
obtained  at  the  second  sale  may  be  left  to  the  Jury  as  a 
mode  of  estimating  what  the  real  value  of  the  Horse,  if 
perfect,  would  have  been  ;  but  the  difference  between  the 
price  and  the  purchase-money  cannot  be  given  as  specific 
Damage  on  account  of  the  loss  of  profit  which  might  have 
been  made  on  it  (b). 

But  after  a  Breach  of  Warranty,  the  buyer  is  entitled 
to  recover  a  reasonable  smu  of  money  for  the  Expense  of 
Keep,  where  before  re-sale  he  has  tendered  the  Horse  to 
the  seller  ;  and  the  buyer  is  entitled  to  keep  the  Horse  for 
such  reasonable  time  as  is  required  to  sell  him  to  the  best 
advantage  (c) .  AVhat  length  of  time  and  smn  of  money  is 
reasonable  for  the  keep  is  a  question  for  the  Jury  ((/). 

The  whole  subject  of  Keep  was  fully  considered  in  the 
case  of  Chester  man  v.  Lamb  (r/),  where  an  action  oi  Assumpsit 
was  brought  on  the  Warranty  of  a  Horse,  and  also  for  the 
Expense  of  his  Keep.  It  appeared  at  the  trial  that  the 
defendant  sold  and  delivered  the  Horse  to  the  plaintiff  on 
the  28tli  of  June.  Early  in  July  the  Horse  was  found 
to  be  lame;  and  on  the  10th,  upon  examination  by  a 
Veterinary  Surgeon,  the  complaint  was  found  to  be 
Spa\'in  (e).  On  the  11th  of  July  the  plaintiff  gave  the 
defendant  notice  that  the  Horse  was  Unsound,  and  that 
he  should  return  him  and  demand  back  the  purchase- 
money  ;  and  on  the  21st  the  plaintiff  sent  the  Horse  to 
Livery,  and  informed  the  defendant  that  he  had  done  so. 


(z)   Caswell X.  Coare,  1  Taunt.  566. 

\a)  See  perBuUer,J.,  1  T.R.  136  ; 
per  Lord  Eldon,  C.  J.,  Curtis  v. 
Sannai/,  3  Esp.  82  ;  C/are  v.  Ma//- 
nard,  6  A.  &  E.  519  ;  Cox  v.  Walker, 
ibid.  523,  n.  ;  Jones  v.  Just,  L.  R., 
3  Q.  B.  197;  37  L.  J.,  Q.  B.  89; 
Lodcr  V.  Kchtle,  3  C.  B.,  N.  S.  128; 
27  L.  J.,  C.  P.  27;  Mayne  on 
Damages,   3rd  ed.    162;  Sedgwick 


on  Damages,  7th  ed.  606. 

{b)  Clare  v.  Maynard,  6  A.  &  E. 
519  ;  Cox  V.  Walker,  ibid.  523,  n.  ; 
Mayne  on  Damages,  3rd  ed.  163. 

[e)  M'Kenzie  v.  Hancock,  R.  &  M. 
436. 

{d)  Chesterman  v.  Lamb,  2  A.  & 
E.  129. 

((')  Spavin,  ante,  p.  103. 


DAMAGES.  207 

On  the  27th  tho  action  was  commenced;  and  on  the 
16th  of  September,  the  plaintiff  (having  informed  the 
defendant  of  his  intention  to  do  so)  sold  the  Horse  hy 
auction  for  twenty-three  guineas.  The  action  was  brought 
to  recover  the  difference  between  that  sum  and  40/.,  the 
price  given  by  the  plaintiff,  and  hkewise  9/.  176'.  for  the 
Horse's  Keep  at  Livery  till  the  second  sale. 

For  the  defendant  it  was  insisted  that  the  Horse  was 
not  Unsound,  and  consecj^uently  that  nothing  was  due  on 
account  either  of  the  Price  or  the  Keep. 

Mr.  Justice  Taunton,  in  leaving  the  case  to  the  Jury, 
said,  "  That  in  his  opinion  there  had  been  a  sufficient 
Tender  of  the  Horse  back  to  tlie  defendant ;  that  if  the 
Horse  was  Unsound,  it  was  the  defendant's  duty  to  pro- 
vide for  the  charges  of  standing  at  Livery  ;  and  therefore 
the  plaintiff,  in  that  case,  would  be  entitled  to  the  9/.  17.s. 
claimed  for  Keep."  The  Jury  found  a  verdict  for  the 
plaintiff  for  the  whole  sum  demanded.  A  rule  was  obtained 
to  show  cause  why  there  should  not  be  a  new  trial,  or  why 
the  verdict  should  not  be  reduced  in  respect  of  the  Keep  ; 
the  rule,  however,  was  discharged. 

And  Lord  Donman,  0.  J.,  said,  "I  can  conceive  no  case  Seller  liable 
where  a  purchaser  returns  a  Horse,  in  which  the  seller  may  foi"  reasonable 
not  be  liable  for  some  Keep.     The  law  upon  the  subject  is     ^^^' 
thus  laid  down  in  Mr.  Selwyn's  Law  of  Nisi  Prius(/). 
As  soon  as  the  Unsoundness  is  discovered,  the  buyer  should 
immediately  tender  the  Horse  to  the  seller ;  and,  if  he  re- 
fuses to  take  him  back,  sell  the  Horse  as  soon  as  possible 
for  the  best  price  that  can  be  procm-ed  ;  for  the  purchaser 
is  entitled  to  recover  for  the  Keep  of  the  Horse  for  such 
time  only  as  would  be  required  to  resell  the  Horse  to  the 
best  advantage." 

"  Whether  the  time  of  keeping  be  reasonable  or  not,  is  What  is 
a  question  for  the  Jury.  But  here  the  defendant  alto-  reasonable. 
gether  denied  his  liability.  It  is  true  that  counsel  would 
have  been  under  a  disadvantage  in  resting  the  case  on  two 
different  grounds ;  but  that  consideration  cannot  vary  the 
course  which  must  be  pursued  in  trying  a  cause.  If  the 
defendant's  counsel  meant  to  rely  upon  the  unreasonable- 
ness of  the  time,  he  should  have  shown  grounds  for  insisting 
on  that  point,  and  taken  the  opinion  of  the  Jury  upon 
it"(i7). 

(/)  Selwyn's  'N.  P.  12th  ed.  vol.  (.9)   CheHhrmau  v.  Lamb,   2  A.  & 

1,  p.  G.')G,  tit.  Deceit,  I.  2.  E.  129. 


208  PLEADING,  EVIDENCE  AND  DAMAGES. 

Keeping  the  111  tlio  following  case,  where  an  action  of  Assiimpsii  was 
Horse  till  brought  on  the  Warranty  of  a  Horse,  it  appeared  that  the 
plaintiff  had  tendered  back  the  Horse  to  the  defendant, 
and  on  his  refusal  to  receive  it,  had  kept  it  nearly  eight 
weeks  at  Livery  at  Reading,  till  Reading  Fair,  when  it 
was  sold.  The  plaintiff  sought  to  recover  the  difference 
between  the  price  which  he  had  given  for  the  Horse  and 
the  sum  for  which  he  was  sold,  and  also  the  expense  of  his 
standing  at  Livery. 

Mr.  Justice  Coleridge,  in  summing  up,  said  to  the  Jury, 
"  With  respect  to  the  Keep  of  the  Horse,  I  am  of  opinion 
that  if  a  person  has  bought  a  Horse  with  a  Warranty, 
which  has  been  broken,  and  he  tenders  the  Horse  to  the 
seller,  and  the  seller  refuse  to  receive  it  back,  the  buyer  is 
entitled  to  keep  it  a  reasonable  time  till  he  can  sell  it,  and 
for  that  time  he  may,  against  the  seller,  recover  the  ex- 
pense of  keeping  it ;  but  he  must  not  keep  it  as  long  as  he 
chooses.  All  that  he  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.  If  it  was  a  good 
thing  for  the  sale  of  the  Horse  to  keep  it  till  Reading 
Fair,  you  will  find  your  verdict  for  the  amount  claimed ; 
but  if  you  think  the  Horse  ought  to  have  been  sold  within 
a  week  or  a  fortnight,  or  some  other  short  time,  you  will 
deduct  so  much  of  the  claim  as  goes  beyond  the  time." 
The  Jury  gave  the  plaintiff  a  verdict  for  the  whole 
amount  (h). 
Expense  con-  In  the  case  of  Coxy.  Walker  (/),  where  an  action  was 
^^^H^*  ^^  brought  for  a  Breach  of  the  Warranty  of  a  Horse  sold  as 
ranty.  sound,  the  special  damage  alleged  in  the  Declaration  was 

the  plaintiff's  expense  incurred  by  reason  of  the  Warranty, 
and  his  loss  of  gains  and  profits  in  reselling  the  Horse ; 
and  the  only  plea  was  a  denial  of  the  Unsoundness.  It 
appeared  that  the  plaintiff  had  bought  the  Horse  of  the 
defendant  for  100/.,  and  had  been  offered  140/.  for  him, 
but  the  Horse,  proving  Unsound,  the  plaintiff  had  been 
obliged  to  give  up  the  bargain,  and  sell  him  for  49/.  7s. 
Lord  Denman,  C.  J.,  directed  the  Jury  that  the  plaintiff 
w^as  entitled  to  recover  the  difference  between  the  Price  at 
w^hich  he  was  finally  sold,  and  the  actual  Vcdiie  of  the 
Horse  if  he  had  been  sound  at  the  time  of  such  sale  ;  and 
he  left  to  the  consideration  of  the  Jmy,  as  a  measure  of 

{h)  ElUfi  V.  Chhmocl:,   7  C&P.  (i)   Cox  \.  Walker,  cited  per  Lord 

169.  Denman,  C.  J.,  in  Clare  v.Maynard, 

G  A.  &  E.  523. 


DAMAGES.  209 

tlie  value,  the  Price  oflPered  for  the  Horse  whilst  in  the 
plaintiff's  hands.  The  Jury  found  for  the  plaintiff  90/.  13.s. 
damages.  A  rule  nisi  was  obtained  for  a  new  trial  on  the 
ground  of  misdirection,  or  for  a  reduction  of  damages. 
Cause  was  shown  in  Easter  Term,  1836,  before  Lord  Den- 
man,  0.  J.,  and  Littledale,  Patteson,  and  Coleridge,  J  J. 
The  Court  took  time  to  consider,  and  the  case  stood  over 
for  several  terms,  but  was  at  length  settled. 

And  in  another  case,  where  the  Horse  had  been  tendered  Expense  in 
to  the  defendant  and  refused.  Chief  Justice  Tindal  in  ^^^'^s^- 
charging  the  Jury  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  by  the  defendant  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"  {k). 

The  increase  in  value  consequent  on  the  care  and  ex-  Expenses  in 
pense  bestowed  on  a  Horse  after  iDurchase,  and  evidenced  advancing- 

f  ,  0        •  1  •   \  L  1     T  1       1       the  Horse  8 

by  an  advance  of  price  on  a  resale,  might  probably  be  value, 
recovered,  if  the  cause  of  such  increase  were  properly  laid 
as  special  damage.  Because,  although  the  Court  of  Queen's 
Bench  thought  it  unnecessary  to  give  their  opinion  in  Clare 
V.  Maynard  (/),  as  that  point  did  not  there  properly  arise  ; 
yet  Lord  Denman,  C.  J.,  appeared  to  hold  that  if  it  had 
arisen,  he  should  have  directed  the  Jury  as  he  did  in  the 
case  of  Cox  v.  Walker,  and  then  the  measure  of  Damages 
would  be  the  difference  between  the  Price  ultimately  ob- 
tained for  him,  and  his  actual  Value  if  he  had  been  sound 
at  the  time  of  such  last  resale  [m). 

And  where  a  Horse  had  been  bought  in  the  country.  Horse  ten- 
and  brought  up  to  London,  and  after  it  was  discovered  ^^^'^^  ami 
to  be  Unsound  was  tendered  to  the  seller,  and  then  sold  Auction.    ^ 
by  auction.  Lord  Denman,  C.  J.,  told  the  Jury  that  the 
measure  of  Damages  was  the  difference  between  the  Value 
of  the  Horse,  if  Sound  (of  which  the  price  was  only  strong 
evidence),  and  the  Sum  it  brought  as  TJnsound  {n). 

That  the  buyer  could  not  recover  the  expenses  of  obtain-  Expense  of 
ing  a  Certificate  of  Unsoundness  from  the  Veterinary  Col-  p*^*f-'fl°^J^ 
lege  or  of  Counsel's  opinion,  as  they  were  no  part  of  the  and  Coun- 
necessary  expenses,  but  were  merely  for  the  plaintiff's  own  sel's  opinion. 

(/t)    TTafson  v.  Doiton,  7  C.  &  P.  {»i)   Cox  v.  WalJcer,  cited  ibid. 

91.  («)   Clare  v.  Maynard,  7  C  &  P. 

(0  Clare  v.  Maynard,  6  A.  &  E.       741. 
523. 

O.  P 


210 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Travelling 
Expenses. 

Loss  of  a 
good  Bar- 
gain. 


Reselling 
"vvith  a  War- 
ranty. 


Damages  for 


comfort,  and  to  convince  him  that  he  could  bring  an  action 
in  safety  (»). 

But  that  he  was  entitled  to  be  paid  the  expenses  of 
bringing  the  Horse  up  to  London,  and  of  its  Keep  (n). 

A  person  who  has  bought  a  Horse  warranted  sound,  and 
has  had  it  returned  to  him  after  resale  at  a  profit,  cannot 
in  an  action  on  the  Warranty  recover  Damages  for  the 
"Loss  of  a  good  bargain"  (o);  and  on  this  ground  the 
Court  of  Queen's  Bench  gave  their  decision  in  C/are  v. 
3Ia//nai'd  {p),  because  the  Declaration  there  merely  alleged 
that  the  plaintiff  houglit  the  Horse  at  so  much,  and  resold 
him  at  so  much,  without  alleging  the  cause  of  the  advance, 
or  averring  that  he  had  laid  out  any  money  on  the  Horse 
in  the  meantime.  And  it  was  held,  in  that  case,  that 
although  the  contract  of  sale  at  a  profit  had  been  actually 
completed  before  the  Unsoundness  was  discovered,  yet  the 
plaintiff  could  not  recover  as  special  Damage  the  advance 
in  value,  which,  as  stated  in  the  Declaration,  was  the  mere 
loss  of  a  good  bargain  {q). 

If  the  buyer  of  a  Horse  with  a  Warranty,  relying 
thereon,  resells  him  with  a  Warranty,  and  being  sued 
thereon  by  his  vendee,  offers  the  defence  to  the  vendor, 
who  gives  no  directions  as  to  the  action,  the  plaintiff 
defending  that  action  is  entitled  to  recover  the  costs  of  it 
from  his  vendor,  as  part  of  the  damage  occasioned  by  his 
breach  of  Warranty  (;■).  He  may  also  recover  not  only  a 
sum  fairly  and  reasonably  paid  to  the  second  vendee  as 
compensation  is),  but  also  a  sum  in  respect  of  damages, 
which  he  has  agreed  to  make  good,  although  no  amount 
has  been  fixed,  nor  any  sum  actually  paid,  the  mere 
liability  to  pay  such  costs  being  sufficient  to  sustain  the 
claim  for  special  damage  {£).  But  he  cannot  recover  any 
such  costs  if,  by  a  reasonable  examination,  he  could  have 
discovered  the  breach  of  Warranty  before  sale  {u). 

Where  there  is  a  misrepresentation  of  the  character  or 


741. 


Clare  v.  Mcynard,   7  C.  &  P. 


(o)  Flureau  v.  ThornhiU,  2  W. 
Bla.  1078  ;  1  Sug.  Vend.  &  Purch. 
14th  ed.  237,  and  the  cases  there 
cited. 

[p)  Clare  v.  Maijnard,  6  A.  &  E. 
624  ;  and  see  a  form  of  Special 
Damage  in  such  case  giA'en  in 
Pears.  Chit.  Plead.  202. 

(7)  Chtrc  V.  ilaijuard,  G  A.  &  E. 
524. 


()•)  Lewis  V.  Pcake,  7  Taunt.  153; 
S.  C.  2  Marsh.  43  ;  and  see  Solph 
V.  Crotwh,  L.  R.,  3  Ex.  44 ;  37  L. 
J.,  Ex.  8. 

{s)  Bimjle  V.  Earc,  7  C.  B.,  N.  S. 
145. 

it)  Haiidall  V.  Jioper,  27  L.  J., 
Q.  B.  266. 

{/<)  TFrir/Jifiip  V.  Chamberlain,  7 
Scott,  598;  Chit.  Contr.  10th  ed. 
816. 


DAMAGES.  211 

condition  of  goods,  the  vendor  is  responsible  for  all  injury  Misrepresen- 
which  is  the  direct  and  natural  result  of  the  purchaser's  tation. 
acting  on  the  faith  of  his  representation.  Therefore,  where 
a  cattle  dealer  fraudulently  represented  a  cow  to  be  free 
from  infectious  disease  when  he  knew  that  it  was  not  so, 
and  the  purchaser  placed  it  with  five  others  which  caught 
the  disease  and  died,  the  latter  was  held  entitled  to  recover 
as  damages,  in  an  action  for  fraudulent  misrepresentation, 
the  value  of  all  the  cows  (.?•) .  And  the  same  rule  would  be 
applied  where  there  was  no  fraud,  but  the  beast  was  war- 
ranted free  from  disease,  and  both  parties  contemplated  its 
being  placed  with  other  stock  {y). 

It  is  illegal  to  bring  a  glandered  Horse  into  a  public 
market  or  fair  (s),  but  there  is  nothing  illegal  in  a  simple 
sale  ;  therefore  a  person  who  sold  a  glandered  Horse  with- 
out a  Warranty  and  without  Misrepresentation  was  held 
not  responsible  for  disease  communicated  to  other  Horses 
of  the  purchaser's  in  the  stable  to  which  he  removed  it  {n). 
But  a  breach  of  statutory  duty  may  not  constitute  the 
foundation  for  a  private  right  of  action.  A  statement 
that  the  pm"chaser  of  a  Horse  must  take  it  "with  all  faults" 
and  that  the  vendor  will  give  no  warranty  with  it,  and  will 
refuse  all  future  claim  for  compensation  (where  the  vendor 
does  nothing  to  conceal  the  defect),  relieves  the  vendor 
from  all  liability  in  respect  of  any  defect  in  the  Horse 
itself  [h).  If  such  a  statement  were  followed  by  a  decla- 
ration of  the  vendor  (who  knew  the  reverse)  that  he  knew 
the  animal  to  be  free  from  objection,  there  might  be 
ground  for  an  action  of  deceit  (c).  Thus  where  a  statute 
prohibited  persons  from  sending  animals  infected  with  a 
contagious  disease  to  market,  and  inflicted  penalties  on 
any  person  so  sending  them,  the  act  of  sending  them,  if 
known  to  be  so  infected,  was  a  public  offence,  but  did  not 
amount  by  implication  to  a  representation  that  they  were 
sound,  and  did  not  itself  raise  as  between  the  vendor  of  the 
animals  and  the  purchaser  of  them  any  right  of  the  pm*- 

{x)  MuUet  V.  Mason,  L.  R.,  1  C.  27  L.  J.,   Ex.   45.      And  see  per 

P.  559  ;  35 L.  J.,  C.  P.  299  ;  Mayne  Willes,  J.,  L.  R.,  1  C.  P.  563. 

on  Damages,  3rd  ed.  167;  Sherrod  {b)    Ward  v.  Hobbs,   L.  R.,  3  Q. 

V.  Longdon,  21  Iowa,  518.  B.   D.    150;   47   L.   J.,    Q.   B.    90. 

(v)  Smith  V.  Green,  L.  R.,   1  C.  Affirmed  by  H.  L.,  L.  R.,  4  App. 

P.  D.  92;  45  L.  J.,  C.  P.  28.     And  Cas.    13;    48   L.    J.,    Q.    B.    281. 

see  Bradlci/  v.  Lea,  14  Allen,  20.  Reversing  judgment  of  the  Queen'a 

(r)  41   &  42  Vict.   c.    74,   s.  32,  Bench  Division,  L.  R.,  2  Q.  B.  D. 

Ord.  442.  331  ;  4(3  L.  J.,  Q.  B.  473. 

{a)  Hill  V.  r,alh,  2  H.  &  N.  299;  (r)  Ibid,  per  Lord  Cairns,  C. 

r2 


212 


PLEADING,  EVIDENCE  AND  DAMAGES. 


Where  the 
Damages  are 
very  small. 


chaser  to  claim  damages  in  respect  of  an  iujmy  lie  liad 
suffered  in  consequence  of  their  purchase  {d).  But  it 
seems  that  if  the  defendant  had  sent  tainted  animals  into 
the  public  market-place,  and  the  plaintiff's  animals,  in 
that  public  place,  by  contact  or  neighbom-hood  had  been 
infected,  and  the  plaintiff  suffered  loss,  that  he  might  have 
recovered  damages  for  that  loss  (e). 

Of  course  if  the  Unsoundness  be  slight,  so  also  ought 
to  be  the  Damages ;  and  if  they  be  very  inconsiderable, 
the  Judge  may  make  an  order  under  Ord.  LV.  r.  1,  that 
the  costs  shall  not  follow  the  event  (/). 


(d)  Ward  v.  Hobhs,  ante,  note  lb). 

[e)  Ibid,  per  Lord  Cairns,  C. 
(/')    Turner -V.  HeyJand,  L.  R.,  5 

C.  P.  D.  432 ;  48  L.  J.,  C.  P.  535 ; 
41  L.  T.,  N.  S.  556.  See  also 
Garnet t  v.  Bradletj,  L.  R.,   3  App. 


Cas.  941;  48  L.  J.,  Ex.  186;  39 
L.  T.,  N.  S.  261.  Reversing  judg- 
ment of  the  Court  of  Appeal,  L. 
R.,  2  Ex.  D.  349;  46  L.  J.,  Ex. 
545 ;  36  L.  T.,  N.  S.  725. 


(     213     ) 


CHAPTEE  X. 


INNKEEPERS,     VETERINARY     SURGEONS,     FARRIERS,     HORSE- 
BREAKERS,    TRAINERS,    ETC. 


Innkeeper. 

JTis  Business 214 

Definition  of  an  Inn id. 

Derivation  of  Hostler    id. 

Who  is  a  Guest id. 

What  an  Innkeeper  undertakes  .    id. 

Hours  of  Closing    id. 

Travellers  and  Lodgers 216 

Innkeeper  compellable  to  receive 

a  Traveller id. 

May  be  indicted  for  refusing    . .    217 
What   has   been   held   to   be  no 

Defence id. 

Sickness,  Drunkenness,  ^c id. 

Action  for  Compensation id. 

Not  liable  for  refusing  to  supply 

Post-Horses    id. 

Traveller   not   entitled   to  select 

particular  Apartments id. 

Liability  of  Innkeeper  limited  by 

26  f  27  Vict.  c.  41   id. 

Salaried  Manager  not  liable  as 

Innkeeper    218 

Goods  to  which  his  Liability  ex- 
tends        id. 

Hoiv  ousted    219 

Where  a  Guesfs  Horse  is  stolen  220 
Where  another  Person's  Horse  is 

stolen id. 

Principle  upoti  which  Liability 

depends   id. 

Horse  out  at  Grass  by  the  Guesfs 

desire id. 

Horse  out  at  Grass  tvithout  the 

Guesfs  desire     221 

Where  a  Guesfs  Horse  is  injured    id. 

Presumption     of     Negligence 
against  the  Innkeeper    ....     id. 

Not  rebutted  by  Stables  being 

out  of  his  Control 222 

A  Guesfs  Goods  not  distrainable  223 

Even  ivhere  he  is  accommodated 
out  of  the  Inn     id. 

Or  uses  a  Stable  provided  for 

the  Occasion   id. 

Innkeeper'' s  Lien    id. 

Innkeeper  has  a  Lien  on  a  Horse 

for  its  Keep   id. 

Cannot  detain  a  Guest  for  his  Bill  224 


But  may  detain  his  Horse    ....   224 

His  right  of  Lien id. 

Horses    and   Carriages    sent    to 

Livery  at  an  Inn id. 

Cannot  sell  one  Horse  for   the 

Keep  of  others    id. 

Has  a  Lien  on  a  Horse  left  by  a 

Wrong-doer    225 

But  not  if  he  knew  it  at  the  Time 

it  icas  left id. 

A  Horse  left  by  the  Police    . .     id. 

Giving  a  Guest  credit id. 

A  Third  Party  tvhen  ansiverable  id. 
Horse  removed  to  defeat  the  Lien    id. 

Keep  during  Detention 226 

He  cannot  use  a  Horse  he  de- 
tains         id. 

He  could  not  formerly  sell  a  Horse 

he  detained id. 

But   may  now   do   so  after  Six 

Weeks     227 

Provisions  o/41  ^42  Vict.  c.  38  id. 
Distrainor  may  sell  a  Horse  for 

his  Keep , 228 

Veteeinaey  Suegeon  and  Faeeiee. 
No  Law  peculiar  to  Veterinary 

Surgeons     228 

Farrier  cannot  refuse  to  shoe  a 

Horse id. 

When  brought   at  a   reasonable 

Time   229 

Answerable  for  his  own  Want  of 

Skill    id. 

Where  a  Third  Person  is  affected  id. 
When  answerable  for  his  Servant  id. 
Action    against   a   Farrier  for 

pricking  a  Horse  when  shoeing 

him id. 

Collins  V.  Rodway   id. 

Rule  as  to  Farriers    230 

No  Insurance  against  Injury..  231 

Peculiar  Difficulties  should  be 
mentioned id. 

Coming    at    an     Unseasonable 

Hour id. 

Parrying,  ^c,  in  the  Street, . , .  232 
Horses  standing  to  be  shod  not 

distrainable    id. 


214 


INNKEEPERS,  VETEKINAUY  SURGEONS,  ETC. 


His  business. 


Definition  of 
an  Inn. 


Derivation  of 
Hostler. 


Who  is  a 
Guest. 


Horse  may  he  detained  for  the 

Price  of  his  Shoeing 232 

Such  Lien  is  favoured  by  Law    id. 

Extends  only  to  each  particular 
Time   id. 

Liability  to  feed  a  Horse  de- 
tained     233 


"What  an  Inn- 
keeper under- 
takes. 


Hours  of 
closinor. 


HOESEBEEAKEE,  TeAINEE,  &C. 

Horsebreaker  liable  for  Damage .  233 

Horsebreaker'' s  Lien id. 

Trainer^ s  Lien   id. 

Stallion-master  has  a  Lien   ....  234 

For  Work  done  on  a  Sunday  .  235 


INNKEEPER. 

"When  a  Horse  is  taken  to  an  Inn,  the  Innkeeper  has  a 
particular  responsibility  imposed'  upon  him,  in  return  for 
which  he  has  certain  peculiar  privileges. 

An  Innkeeper  is  a  person  who  makes  it  his  business  to 
entertain  travellers  and  passengers,  and  to  provide  lodging 
and  necessaries  for  them  and  their  Horses  and  attendants, 
and  it  is  no  way  material  whether  he  have  any  sign  before 
his  door  («) . 

The  true  definition  of  an  Inn  is,  "a  house  where  the 
traveller  is  'furnished  with  every  thing  which  he  has  occa- 
sion for  whilst  on  his  way  "  [h). 

The  word  Hostler  is  derived  ah  Jiostle;  and  the  word 
Hospitafor,  which  is  used  in  the  old  writs  for  an  Innhohier, 
is  derived  ah  hospitio ;  and  Hosjies  est  quasi  Hospitimn 
petens  (c). 

A  Guest  is  properly  a  lodger  or  stranger  at  an  Inn ;  and 
the  word  "  Guest "  is  derived  from  the  Saxon  Gest,  which 
had  the  same  meaning  as  the  French  Gist  or  Gite,  that  is, 
"a  stage  of  rest  in  a  journey,"  "a  lodging"  {d).  And 
Lord  Holt  says,  "  It  is  the  lodging  of  the  man  at  the  Inn 
that  makes  him  Guest  "  (e). 

An  Innkeeper  or  Hotel-keeper  undertakes  to  receive 
and  entertain  all  travellers  until  his  house  is  filled ;  and 
an  Innkeeper  by  opening  a  common  Inn  undertakes  also  to 
receive  and  keep  the  Horses  of  those  who  come  to  hislnn(/). 

By  the  3rd  section  of  the  37  &  38  Yict.  c.  49,  the  hours 
of  closing  are  thus  provided  for  : — 

"  All  premises  in  which  intoxicating  liquors  are  sold  by 
retail  shall  be  closed  as  follows  (that  is  to  say)  : 

"  (1)   If  situate  within  the  metropolitan  district — 

"  (a)  On  Saturday  night  from  midnight  until 
one  o'clock  in  the  afternoon  on  the  following 
Sunday;  and 


(«)  Palm.  374 ;  2  Eol.  Eep.  345. 
[h)  Per  Bayley,  J.,   Thompson  v. 
Lae\i,  3  B.  &  Aid.  286. 

(f)   Calye'scase,  8  Coke,  32. 

{d)    Westbrook    v.     Griffith,    Mo. 


876,  877 ;  Saunders  v.  Plummer, 
Orl.  Bridg.  227. 

(f)  See  Smith  v.  Learlove,  6  C.  B. 
132,  n. 

(/■)  Jones  V.  Osborn,  2  Chit.  484. 


INNKEEPER.  215 

"  (b)  On  Sunday  niglit  from  eleven  o'clock 
until  five  o'clock  on  the  following  morning ;  and 
"  (c)  On  all  other  days  from  half-an-hour  after 
midnight  until-  five  o'clock  on  the  same  morning  ; 
and 
"  (2)  If  situate  beyond  the  metropolitan  district,  and  in 
the  metropolitan  police  districtj  or  in  a  town,  or 
in  a  populous  place  as  defined  by  this  Act — 

"  (a)  On  Saturday  night  from  eleven  o'clock 
until  half-an-hour  after  noon  on  the  following 
Sunday ;  and 

"  (b)  On  Sunday  night  from  ten  o'clock  until 
six  o'clock  on  the  following  morning  ;  and 

"  (c)  On  the  nights  of  all  other  days  from  eleven 
o'clock  until  six  o'clock  on  the  following  morn- 
ing ;  and 
"  (3)  If  situate  elsewhere  than  in  the  metropolitan  dis- 
trict, or  the  metropolitan  police  district,  or  such 
town  or  populous  place  as  aforesaid — 

"  (a)  On  Saturday  night  from  ten  o'clock  until 
half-an-hour  after  noon  on  the  following  Sunday ; 
and 

"  (b)  On  Sunday  night  from  ten  o'clock  until 
six  o'clock  on  the  following  morning ;  and 

"  (c)  On  the  nights  of  all  other  days  from  ten 
o'clock  until  six  o'clock  on  the  following  morning. 
''Such  premises,  wherever  situate,  shall,  save  as  hereinafter 
mentioned,  be  closed  on  Sunday  afternoon  from  three 
or  half-past  two,  according  as  the  hour  of  opening  shall 
be  one  o'clock  in  the  afternoon  or  half-an-hour  after  noon, 
until  six  o'clock. 

Such  premises,  wherever  situate,  shall  be  closed  on  Christ- 
mas Day  and  Grood  Friday,  and  on  the  days  preceding 
Christmas  Day  and  Grood  Friday  respectively,  as  if  Christ- 
mas Day  and  Cood  Friday  were  respectively  Sunday,  and 
the  preceding  days  were  respectively  Saturday  ;  but  this 
provision  shall  not  alter  the  hours  during  which  such 
premises  shall  be  closed  on  Sunday  when  Christmas  Day 
immediately  precedes  or  succeeds  Sunday." 

Section  6  gives  power  to  the  licensing  justices  to  vary 
the  hours  of  closing  on  Sunday  afternoon ;  and  section  7 
makes  provisions  for  the  granting  of  early  closing  licences. 
And  the  44  &  45  Yict.  c.  61,  enacts,  that  all  licensed 
premises  in  Wales  shall  be  closed  duiing  the  whole  of 
Sunday. 


216 


INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 


Travellers 
and  Lodsfers. 


Innkeeper 
compellable 
to  receive  a 
Traveller. 


The  lOtli  section  of  the  37  &  38  Yict.  c.  49,  provides 
that  nothing  contained  in  the  Licensing  Acts  shall  pre- 
clude a  person  licensed  to  sell  any  intoxicating  liquor  to 
be  consumed  on  the  premises  from  selling  such  liquor  at 
any  time  to  bond  fide  travellers  or  persons  lodging  in  his 
house ;  but  prohibits  the  holder  of  a  six-day  licence  from 
selling  any  such  liquor  on  Sunday  to  any  person  whatever 
not  lodging  in  his  house.  The  same  section  also  provides, 
that  nothing  in  the  Act  contained  as  to  hours  of  closing 
shall  preclude  the  sale  at  any  time  at  a  railway  station  of 
such  liquor  to  persons  arriving  at  or  departing  from  such 
station  by  railroad  ( g).  And  a  person,  for  the  purposes  of 
the  Licensing  Acts,  is  not  to  be  deemed  a  bo}id  fide 
traveller  unless  the  place  where  he  lodged  the  preceding 
night  is  at  least  three  miles  distant  from  the  place  where 
he  demands  to  be  supplied  with  liquor:  such  distance  to  be 
calculated  by  the  nearest  public  thoroughfare. 

In  calculating  the  distance  from  one  place  to  another  by 
the  nearest  public  thoroughfare,  for  the  purpose  of  satisfy- 
ing the  above  definition  of  a  bond  fide  traveller,  it  is  proper 
to  measiu-e  it  across  a  navigable  estuary  where  there  is 
a  public  ferry  which  can  be  used  by  any  person  on  pay- 
ment of  a  toll  (A). 

The  circmnstances  under  which  the  Guest  is  admitted 
and  supplied  are  matters  for  consideration  in  deciding 
whether  the  Innheeper  had  reason  to  believe  and  did  believe 
that  he  was  a  Traveller  within  the  description,  either  when 
he  admitted  him  or  when  he  supplied  him,  such  as  whether 
he  was  a  stranger  or  a  neighbour,  or  whether  he  delayed 
longer  or  took  more  than  was  consistent  with  the  need  of 
refreshment  (/).  But  the  onus  of  showing  that  the  persons 
supplied  with  refreshment  are  bond  fide  travellers  is  on  the 
Innkeeper  (Z-). 

It  is  said  that  an  Inn];eeper  may  be  compelled  by  the 
Constable  of  the  Town  to  receive  and  entertain  a  Traveller 
as  his  Guest  (/) . 


[g)  See  also  Fisher  v.  Howard, 
34  L.  J.,  M.  C.  42. 

(A)  Coulhcrt  V.  TroTce,  L.  R.,  1 
Q.  B.  D.  1;  45  L.  J.,  M.  C.  7. 

(i)  Taylor  v.  Humphries,  13  W. 
R.  136;  S.  C.  34  L.  J.,  M.  C.  1; 
and  see  37  &  38  Vict.  c.  49,  s.  10. 

(k)  Roberts  v.  Humphreys,  L.  R., 
8  Q.  B.  483  ;  42  L.  J.,  M.  C.  147  ; 
29  L.  T.,  N.  S.  387;    21  W.  R. 


885.  Previous  to  the  Licensing 
Act,  1872,  it  was  held,  that  the 
burden  of  proof  lay  on  the  informer, 
see  Taylor  v.  Humphries,  tthi  supra  ; 
Morgan  v.  Heclqer,  L.  R.,  5  C.  P. 
485;  40  L.  J.,  M.  C.  13;  Copley  y. 
Burton,  L.  R.,  5  C.  P.  489;  40 
L.  J.,  M.  C.  141. 

(/)  5  Edw.  4,2b;  Dalt.  cap.  7 
1  Show.  2C8. 


INNKEEPER.  217 

I£  an  Innlxceper  who  has  room  in  his  house  refuse  to  May  be  in- 
receive  a  Traveller,  after  a  tender  or  an  attempted  tender  <iictecl  for 
of  a  reasonable  sum  for  his  accommodation,  he  may  be    '    '    ^" 
indicted  for  it,  and  the  Indictment  must  state  that  the  per- 
son refused  was  a  Traveller  {m). 

And  it  is  no  defence  for  the  Innkeeper  that  the  Guest  What  held  to 
was  travelling  on  a  Sunday,  and  at  an  hour  of  the  night  ^*^  ^°  ^^- 
after  the  Innkeeper^ s  family  had  gone  to  bed ;  or  that  the 
Guest  refused  to  tell  his  name  and  abode,  as  the  Inn- 
keeper had  no  right  to  insist  upon  knowing  these  par- 
ticulars {n) . 

But  although  an  Innkeeper  cannot  refuse  a  person  who  Sickness, 
is  sick,  he  is  not  bound  to  receive  a  person  who  comes  to  Drimken- 
the  Inn  drunk,  or  behaves  in  an  indecent  or  improper  °*^''^' 
manner  (o). 

An  action  lies  to  recover  compensation  for  any  injury  in  Action  for 
consequence  of  such  refusal ;  but,  as  it  appears,  not  for  the  ^°™^'^^^^" 
mere  refusal  to  receive  the  Traveller  or  his  Horse  (/;). 

An  Innkeeper,  though  licensed  to  let  Post-Horses,  is  not  Not  liable  for 
liable  to  an  action  for  refusing  to  supply  a  Chaise  and  refusm^to 
Horses  to  enable  his  Guest  to  pursue  his  journey,  although  Horsed. 
they  be  disengaged  and  a  reasonable  sum  be  tendered  for 
them  ((/). 

But  although  a  Traveller  is  entitled  to  reasonable  ac-  Traveller  not 
commodation  in  an  Inn,  he  is  not  entitled  to  select  a  par-  ggi*'4*^*^*° 
ticular  apartment,  or  to  insist  on  occupying  a  bedroom  for  ticular  apart- 
the  purpose  of  sitting  up  all  night,  so  long  as  the  Innkeeper  ments. 
is  willing  and  offers  to  furnish  him  -vNath  a  proper  room 
for   that   purpose  (r)  ;  nor   is   he   entitled   to   compel   an 
Innkeeper  to  furnish  rooms  in  which  to  exhibit  the  wares 
of  his  Guest,  for  an  Innkeeper  is  not  bound  by  law  to  find 
show-rooms  for  his  Guests,  but  only  convenient  lodging- 
rooms  and  lodging  (s) . 

An  Innkeeper  [t)  was  formerly  ^r/w  a /r/c/e  liable  to  any  Liability  of 

(w)  Fell  v.  Knight,   8  M.   &  W.  {q)  Bicas  v.  Bides,  1  Stark.  247. 

276;  Bcxv.  Ivens,  7  C.  &  P.  219;  [r)  Fell  y.  Knight,  8  M.  &  W. 

Mex  V.  Luellin,  12  Mod.  445.  269. 

(«)  Eex  V.  Iveiis,  7  C  &  P.  213.  («)  Burgess  \.  Clements,  4  M.  &  S, 

(o)  Bex  V.  Luellin,  12  Mod.  445  ;  306. 

and  see  Reg.  v.  Rymer,  L.  E.,   2  {t)  As  to  the  difFerence  of  liabi- 

Q.  E.  D.    136;    46  L.  J.,   M.  C.  lity  existing  between  a  Boardiiig- 

108;    35   L.    T.,    N.    S.    774;    25  House  Keeper  and  an.  Innkeeper, 

W.  R.  415.  see  Bansey  v.  Bichardson,  3  E.  &  B. 

[p)  Haivthorn  v.  Hammond,  1  C.  144.     The  law  casts  no  obligation 

&  K.  407;  Lane  v.  Cotton,  1  Salk.  on  aLodging-HonseKeepertotake 

18  ;  Colli7)''s  case,  Godb.  346  ;  Palm.  care  of  the   goods  of   his   lodger, 

374;  2  Rol.  Eep.  315;  Kcicton  v.  Holder  v.  Sonll>g,   29  L.  J.,  C.  P. 

Trigg,  1  Show.  270.  246. 


218 


INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 


Innkeeper 
limited  by 
26  &  27  Vict. 
c.  41. 


Salaried 
manager  not 
liable  as 
Innkeeper. 

Goods  to 
•which  his 
liability 
extends. 


amount  for  loss  not  occasioned  by  the  act  of  Grod  or  tlie 
King's  enemies  («-).  But  by  the  26  &  27  Yict.  c.  41,  s.  1, 
he  is  no  longer  liable  to  make  good  to  a  Gruest  any  loss  to 
goods  or  property  brought  to  his  Inn,  not  being  a  Horse  or 
other  lice  animal,  or  any  gear  appertaining  thereto,  or  any 
carriage,  to  a  greater  amount  than  the  sum  of  30/.,  except 
where  the  loss  shall  have  been  occasioned  "through  the 
wilful  act,  default  or  neglect  of  the  Innkeejter,  or  any 
servant  in  his  employ,"  or  "  where  such  goods  or  property 
shall  have  been  deposited  expressly  for  safe  custody"  with 
him :  provided  always,  that  in  the  case  of  such  a  deposit, 
the  Innheeper  may  require,  as  a  condition  of  liability, 
"  that  such  goods  or  property  shall  be  deposited  in  a  box 
or  other  recej)taele  fastened  and  sealed  by  the  person 
depositing  the  same."  By  sect.  3,  the  Innheeper  must 
exhibit  in  a  conspicuous  part  of  the  hall  or  entrance  to  his 
Inn  at  least  one  copy  of  the  first  section  of  this  Act,  in 
order  to  be  entitled  to  its  benefit. 

It  has  been  held  that  "wilful"  in  sect.  1  of  the  26  &  27 
Yict.  c.  41,  must  be  read  with  "act"  only,  and  not  also 
with  "fault  or  neglect"  [x).  A  mere  verbal  error  in  a 
copy  of  sect.  1  of  the  Act,  exhibited  for  the  purpose  of 
limiting  an  Innkeeper'' 8  liability,  will  not  vitiate  the 
notice  so  as  to  make  it  ineffectual,  provided  the  notice  states 
correctly  the  provisions  of  the  Act ;  but  the  omission  of  a 
material  portion  of  the  Statute  will  render  the  notice 
ineifectual  to  protect  the  InnJieeper  {■//).  A  notice  was 
exhibited  in  an  Hotel,  containing  a  copy  of  the  first 
section  of  the  Act,  correct  in  every  particular,  only  that 
in  the  exception  the  word  "  act "  was  accidentally  omitted. 
The  Court  held  that  this  was  a  material  omission,  and  that 
the  notice  was  insufficient  to  protect  the  Innkeeper  {z). 

The  salaried  manager  of  an  Hotel  belonging  to  a 
company  is  not  an  Innkeeper,  so  as  to  be  by  law  respon- 
sible for  the  goods  and  property  of  the  Gruests,  although 
the  usual  licence  has  been  granted  to  him  personally  (a). 

An  Innlceeper  is  not  absolved  from  responsibility  for  his 
Guest's  goods  by  reason  of  the  luggage  being  placed  in  a 
particular  room  at  the  request  of  the  Gruest  {b) ;  nor  before  the 


(m)  Per  Bayley,  J.,  Eichmond  v. 
Smith,  8  B.  &  C.  9. 

{x)  Squire  V.  Wheeler,  16  L.  T., 
N.  S.  93,  per  Byles,  J. 

(y)  Spice  V.  Bacon,  L.  R.,  2  Q.  B. 
D.  463;  46  L.  J.,  Q.  B.  713;  36 
L.  T.,  N.  S.  896. 


(z)  Ibid. 

\a)  Dixon  v.  Birch,  L.  R.,  8  Ex. 
135  ;  42  L.  J.,  Ex.  135  ;  28  L.  T., 
N.  S.  360. 

[h)  Per  Bayley,  J.,  Jtichmond  v. 
Smith,  8  B.  &  C.  9. 


INNKEEPER.  219 

Innkeepers'  Liability  Act  (c)  was  passed  was  he  compellable 
to  receive  every  description  of  goods  with  a  Guest,  but  only 
such  as  a  person  ordinarily  travels  with  {d ) .  But  by  the  2nd 
section  of  the  26  &  27  Vict.  c.  41,  it  is  enacted  that,  "  if  an 
Innkeeper  shall  refuse  to  receive  for  safe  custody,  as  before 
mentioned,  any  goods  or  property  of  his  Gruest,  or  if  any 
such  Guest  shall,  through  any  default  of  such  Innkeeper,  be 
unable  to  deposit  such  goods  or  property  as  aforesaid,  such 
Innkeeper  shall  not  be  entitled  to  the  benefit  of  this  Act  in 
respect  of  such  goods  or  property."  However,  it  is  to  be 
presumed  that  this  section  does  not  apply  to  such  goods  as 
an  Innkeeper  was  entitled  to  refuse  before  this  Act  came 
into  operation,  as,  if  made  applicable  to  all  goods,  an  Inn- 
keeper who  refused  to  convert  his  Inn  into  a  Warehouse  for 
the  goods  of  his  Guest  would  be  disentitled  to  the  benefit 
of  the  Act  in  respect  of  them. 

It  is  no  defence  to  an  action  by  a  Guest  for  the  loss  of  How  ousted, 
his  goods  for  the  Innkeeper  to  allege  that  he  was  sick  or  of 
non  sane  memortj  at  the  time  {e)  ;  nor  that  there  was  no 
positive  negligence  on  his  part  (/) ;  but  the  negligence  of 
the  Guest  is  a  good  defence,  if  it  is  gross  negligence  {g) ,  or 
if  it  occasioned  the  loss  "  in  such  a  way  as  that  it  would 
not  have  happened  if  the  Guest  had  used  the  ordinary 
care  that  a  prudent  man  may  be  reasonably  expected  to 
take  under  the  circumstances"  (/?). 

In  Oppenheim  v.  JF/tite  Lion  Hotel  Co.  (/),  the  plaintiff ,  who 
was  a  Guest  at  the  Inn,  went  to  bed,  having  a  bag  contain- 
ing about  271.  in  his  trouser's  pocket.  He  left  his  trousers 
on  the  ground  at  the  side  of  his  bed  farthest  from  the  door. 
There  was  a  key  in  the  lock  of  the  door,  but  he  only  shut 
the  door  and  did  not  lock  it.  He  had  previously  pulled 
the  bag  containing  the  money  out  of  his  pocket  in  the  com- 
mercial room  for  the  purpose  of  pajdng  somebody  some 
money.  And  the  Court  of  Common  Pleas  held,  that  there 
was  evidence  of  negligence  on  his  part,  which  occasioned 
the  loss  in  such  a  way  that  it  would  not  have  happened 
had  he  used  the  care  that  a  prudent  man  might  reasonably 
be  expected  to  have  taken  under  the  circumstances. 

(c)  26  &  27  Vict.  c.  41.  Q.  B.  524. 

(d)  £roadicood  v.  Granara,  10  Hx.  (h)  Per  Erie,  C.  J.  (Ex.  Ch.), 
417.  Cashill  V.    TFric/Jit,  2   Jur.,   N.  S, 

(e)  Cross  v.  Andreics,  Cro.  Eliz.  1072. 

622.  (0  L.  R.  6  C.  P.  515  ;  40  L.  J., 

(f)  j\Iorrjan  v.  Havoj,   30  L.  J.,       C  P.    93;    25   L.   T.,    N.   S.    93. 
'  Ex.  131.  Hee  also  Jones  v.  Jackson,  29  L.  T., 

(g)  Armistead  t.  White,  20  L.  J.,       N.  S.  399. 


220 


INNKEEPERS,  VETERINARY  SUKGEONS,  ETC. 


Where  a 
Guest's 
Horse  is 
stolen. 


Where  ano- 
ther person's 
Horse  is 
stolen. 

Principle 
npon  which 
liability  de- 
pends. 


Horse  out  at 
grass  by  the 
Guest's  de- 
sire. 


If  the  Guest's  Horse  is  stolen  tlie  Innkeeper  is  answer- 
able in  an  action  upon  the  custom  of  the  realm  (/r),  even 
if  the  owner  has  gone  away  for  several  days,  and  it  is 
lost  or  stolen  in  his  absence,  or  if  it  has  been  brought  by 
a  servant  (/).  And  inasmuch  as  26  &  27  Yict.  c.  41,  s.  1, 
specially  exempts  Horses  from  the  operation  of  that  Act, 
the  Innkeeper's  liability  as  respects  amount  is  not  restricted 
with  regard  to  them. 

But  if  a  person  takes  another^s  Horse,  and  rides  him  to 
an  Inn  where  he  is  lost  or  stolen,  the  owner  has  no  action 
against  the  Host,  but  has  his  remedy  against  the  taker  {m) . 

The  liability  of  an  Innkeeper  for  loss  continues  only  so 
long  as  he  derives  benefit  from  his  visitor  or  his  property, 
for  if  the  Innkeeper  could  not  gain  a  profit,  he  is  not  liable 
to  suffer  loss  without  a  special  undertaking  {n),  for  so  long 
only  is  a  visitor  a  Guest.  Upon  this  principle  a  person 
leaving  a  Horse  at  an  Inn  becomes  a  Guest,  while  a  person 
leaving  dead  goods  at  an  Inn  does  not  become  a  Guest,  for 
the  Horse  must  be  fed,  by  which  the  Innkeeper  has  gain  (o). 
And  therefore  the  Innkeeper  is  liable  for  the  loss  of  the 
Horse,  although  its  owner  is  not  staying  at  the  Inn. 
Thus,  too,  when  a  person  came  to  an  Inn,  and  desired  to 
leave  some  goods  there  till  the  next  week,  which  was 
refused,  and  then  stayed  to  drink  something,  during  which 
time  his  goods  were  stolen,  the  Innkeeper  was  held  to  be 
liable  (7:*).  But  if  a  man  who  has  been  a  Guest,  gives  up 
his  room,  and  quits  the  Inn  for  a  few  days,  intending  to 
return,  and  asks  for  permission  to  leave  his  goods  at  the 
Inn,  and  the  Innkeeper  takes  charge  of  them,  the  Innkeeper 
is  clothed  only  with  the  ordinary  duties  and  responsibilities 
of  a  bailee  {q). 

An  Innkeeper  is  only  bound  by  the  custom  of  the  realm 
to  answer  for  those  things  that  are  infra  hospitimn,  and 
not  for  anything  out  of  his  Inn.  For  where  a  Horse  is 
lost  or  stolen  when  out  at  grass  by  the  Guest's  desire,  the 
Host  is  not  chargeable,  unless  it  was  the  consequence  of 
his  uilful  negligence  (/•) :  for  instance,  an  action  hes  against 


ik)  Fitzherbert'sNat.  Brev.  943; 
Jelly  V.  Clark,  Cro.  Jac.  189  ;  York 
V.  Grcenanqh,  2  Lord  Kaym.  867 ; 
S.  C.  1  Salk.  338. 

{I)  1  Salk.  338 ;  1  Rol.  Abr.  3 ; 
Moor,  877;  Cro.  Jac.  224;  Yelv. 
162;  Bac.  Abr.  tit.  Inns  and  Inn- 
keepers. 

(w)   1  Rol.  Abr.  3. 


Gelley  v.  Clerk,  Cro.  Jac.  188. 
York  V.    Grindstone,    1  Salk. 


{n) 

(0) 
388. 

(;;)  BoDiet   v.  Mellor,    5   T.    R. 
273. 

(q)   Smith 
132. 

(r)  Saunders    v.     Flummcr,     Orl. 
Bridg.  227. 


Dcarlove,    6    C.    B. 


INNKEEPER.  221 

an  Iiinhecper  wlio  volimtarily  leaves  open  the  gates  of  Ms 
close,  whereby  the  Horse  strays  out  and  so  is  lost  or 
stolen  («). 

But  he  is  answerable  if  he  has  put  the  Horse  out  to  grass  Horse  out  at 
without  the  owner  requiring  him  to  do  so  («) .  And  where  f^^^^  without 
an  Innkeeper  took  in  a  Horse  and  gig  on  a  Fair  day,  and  desire, 
the  Hostler,  without  the  Gruest's  permission,  placed  the  gig 
outside  the  Inn-yard,  in  the  part  of  the  street  in  which  the 
carriages  at  the  Inn  were  usually  placed  on  Fair  days,  and 
the  gig  was  stolen  thence,  the  Court  of  King's  Bench  held 
the  Innkeeper  VQS])on?>\h\Q.  And  Mr.  Justice  Taunton  said, 
"  It  does  not  appear  that  the  gig  was  put  in  this  place  at 
all  at  the  request  or  instance  of  the  plaintiff ;  the  place  is 
therefore  a  part  of  the  Inn ;  for  the  defendant  by  his  con- 
duct treats  it  as  such.  If  he  would  wish  to  protect  himself, 
he  should  have  told  the  plaintiff  that  he  had  no  room  in 
his  yard,  and  that  he  would  put  the  gig  in  the  street,  but 
could  not  be  answerable  for  it ;  not  having  done  so,  he  is 
bound  by  his  common  law  liability  "  {t). 

It  is  said  in  Calye's  case  {u),  that  an  Innliceper'' s  liability  Where  a 
is  confined  to  "  bona  et  catalla^''  and  that  he  is  not  answer-  i^^u^^re?"^^^ 
able  if  the  Guest  himself  is  beaten,  as  that  is  not  a  damage 
to  "  hona  et  catalla.^^  But  it  seems  that  this  statement 
must  be  simply  taken  to  mean  that  the  Innkeeper  is  not 
bound  to  insure  his  Guest ;  for  in  a  recent  case  it  was  held 
that  it  is  the  duty  of  an  Innkeeper  to  take  reasonable  care 
of  the  persons  of  his  Guests,  so  that  they  are  not  injured  by 
reason  of  a  want  of  such  care  on  his  part  whilst  they  are  in 
the  Inn  as  his  Guests  [x) .  Where  the  Guesfs  Horse  has 
been  beaten,  the  Innkeeper  was  held  liable  ;  and  it  appeared 
that  it  had  been  injured  by  having  been  taken  out  of  the 
Inn  and  immoderately  ridden  and  whipped,  though  it  did 
not  appear  by  whom  (//) . 

Where  a  Guest's  Horse  is  injured,  there  is  always  a  Presumption 
presumption  of  negligence  against  the  Innkeeper.     It  is  of  negligence 
questionable,  indeed,  if  in  any  case  this  presumption  can  innkeeper.^ 
be  rebutted  without  proof  of  actual  negligence  on  the  part 
of  the  Guest.     The  case  of  Bauson  v.  Chamney  {z)  has  been 

(s)  Bao.  Abr.  tit.  Inns  and  Inn-  S.  C.  8  Co.  32. 

keepers;  Calye's  case,  8  Coke,  32  b  ;  {x)  Sandys  v.  Florence,  47  L.  J., 

Moor,   1229  ;  Pop.  127  ;   Moslcy  v.  C.  P.  598,  per  Lindley,  J. 

Fosset,  1  Rol.  Abr.  3  ;  4  Leon.  96  ;  (//)  Stannion    v.    Davis,    1    Salk. 

2  Brownl.  255  ;  Richmond  v.  Smith,  404  ;  S.  C.  6  Mod.  323.     See  also 

S.  B.  &  C.  11.  Bather  v.  Bay,  32  L.  J.,  Ex.  171  ; 

(/■)  Junes  V.  Tyler,  1  A.  &  E.  522;  2  H.  &  C.  14. 

S.  C.  3  N.  &  M.  576.  (z)  Dawson  v.  Chamnei/,  13  L.  J., 

(m)   Calye's   case,    S    Rep.    32    a;  Q.  B.  33;  6'.  C,  5  Q.  B'.  165;  S.  C. 


222 


INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 


Not  rebutted 
by  stables 
being  out  of 
bis  control. 


relied  upon  to  sliow  that  this  presumption  maybe  rebutted 
by  giving  proof  of  such  skilful  management  on  the  part  of 
the  Innkeeper,  as  to  convince  the  Jury  that  the  damage 
could  not  have  been  occasioned  by  the  negligence  imputed, 
But  this  view  of  the  law  was  held  to  be  untenable  by 
Pollock,  C.  B.,  in  the  ease  of  Morgan  v.  Eavey  («),  who,  in 
delivering  the  judgment  of  the  Court  of  Exchequer,  said, 
"  We  think  the  cases  show  there  is  default  in  the  Innkeeper 
wherever  there  is  a  loss  not  arising  from  the  plaintiff's 
negligence,  the  act  of  Grod,  or  the  Queen's  enemies"  [b). 

And  it  must  be  borne  in  mind  that,  though  there  be  a 
private  arrangement  between  the  Innkeeper  and  the  Keeper 
of  the  Inn  Stables  or  Hostler,  and  the  result  of  that 
arrangement  be  that  as  between  him  and  the  Innkeeper,  the 
Innkeeper  has  lost  all  control  over  the  >Stables,  yet  as  between 


7  Jur.  1037.  See  also  Cashill  v. 
Wright,  2  Jur.,  N.  S.  1072. 

(«)  Morgan  v.  Eavcy,  6  H.  &  N. 
265;  S.  C.  SOL.  J.,  Ex.  131. 

(i)  According  to  the  report  of 
tbe  case  of  Dawson  v.  Chamncy,  in 
13  L.  J.,  Q.  B.  33,  and  in  5  Q.  B. 
16-1,  the  Horse  of  the  Guest  was 
left  at  the  defendant's  Inn  on  a 
raarket  day,  and  given  in  charge  to 
the  Ostler,  who  placed  it  in  a  stall 
where  there  was  another  Horse, 
which  kicked  it,  and  so  inflicted  an 
injury.  On  these  facts  it  was  held 
by  the  Coui't  of  Queen's  Bench, 
that  in  such  case  there  was  a  pre- 
siimption  of  negligence  on  the  part 
of  the  Innkeeper  or  his  servants ; 
but  that  this  presumption  might 
be  rebutted  by  gi-ving  proof  of  such 
skilful  management  on  his  or  their 
part  as  to  convince  the  Jury  that 
the  damage  could  not  have  been 
occasioned  by  the  negligence  im- 
puted. But  a  material  difference 
will  be  found  in  the  report  of  the 
facts  of  this  case  in  7  Jur.  1057, 
for  it  is  there  stated,  that  "  there 
was  no  e-vidence  of  the  manner  in 
which  the  Horse  received  the  in- 
jury for  which  the  action  was 
brought."  It  appears  that  the 
only  report  of  this  case  which  was 
seen  by  the  Coui-t,  when  giving 
judgment  in  the  case  of  Morgan  v. 
Eavei/,  was  that  of  the  Jurist,  and 
that'Pollock,  C.  B.,  foimded  the 
only  possible  reconcilement  of 
Dawson  v.  C7iamne;/  with  the  law 
upon  this  point,  which  is  the  very 


point  of  discrepancy  between  the 
Jurist  and  the  other  Reports.  He 
said,  "  The  only  case  which  points 
the  other  way  is  that  of  Dawson  v. 
ChaDuiei/,  and  according  to  the  re- 
port of  that  case  in  7  Jui*.  1057, 
there  was  no  e^ddence  of  the 
manner  in  which  the  Horse  re- 
ceived the  injury  for  which  the 
action  was  brought ;  and  this  may 
be  the  explanation  of  that  case,  for 
though  the  damage  happening  to 
the  Horse  from  what  occurred  in 
the  stable  might  be  evidence  of 
default  or  neglect,  still  it  was  not 
shown  how  the  damage  arose,  and 
it  was  not  even  shown  that  it  arose 
from  what  occurred  in  the  stable. 
It  might  have  arisen  from  some- 
thing which  had  occurred  long 
prior  to  the  Horse  being  put  into 
the  custody  of  the  Innkeeper. 
That  would  distingiiish  this  case, 
and  reconcile  all  the  cases  with  the 
general  current  of  authority."  It 
matters  not  indeed,  so  far  as  the 
law  is  concerned,  which  report  of 
the  case  of  Dawson  v.  Vliamncy  is 
authentic,  for  if  that  contained  in 
the  L.  J.  and  Q.  B.  Reports  is  the 
correct  one,  it  has  been  overruled 
by  Morgan  v.  Ravey ;  and  if  that 
of  the  Jurist  is  to  be  taken,  it  does 
not  establish  the  point  that  in  case 
of  loss  to  the  Guest,  the  presump- 
tion of  negligence  on  the  part  of 
the  Innkeeper  can  be  rebutted, 
otherwise  than  by  proof  of  actual 
negligence  on  the  part  of  the 
Guest. 


INNKEEPER.  223 

the  Innlxcepcr  and  lils  Gruest  no  sucli  private  arrangement 
can  be  recognized,  and  the  Inn'keeper'' 8  liability  towards  him 
for  injury  done  to  the  Horse  remains  imimpaired  (c). 

For  the  security  and  protection  of  travellers,  Inns  are  A  Guest's 
allowed  certain  privileges,  such  as  that  the  Horse  and  f.°,?'^^.^°^, 
goods  of  the  Guest  cannot  be  distrained,  &c.  (f/). 

If  an  Innhceper  takes  his  Gruest  to  rooms  that  he  has  Even  where 
provided  for  him,  on  account  of  not  having  sufficient  room  ^®  ^,^  accom- 

•      i-T  J.1  ••1  -y    p  f   i  /  \  modated  out 

m  ms  inn,  these  rooms  are  privileged  from  distress  (e).         of  the  Inn. 

So  also  if  a  Gruest's  Horse  is  put  into  a  Stable  provided  Or  uses  a 
for  a  particular  occasion,  it  cannot  be  distrained.     Formerly,  stable  pro- 
however,  a  different  view  was  taken  in  a  similar  case.     For  "^i^ed  for  the 
where  the  tenant  of  a  Stable  had  sub-let  it  to  an  I)inkeepey 
during  races,  and  the  Horses  of  a  Guest  were  put  into  it 
and  afterwards  distrained  by  the  landlord,  the  Distress  was 
held  good,  and  Lord  Mansfield,  0.  J.,  thought  that  the 
owner  of  the  Horses  had  his  remedy  against  the  Inn'keeper 
under  the  implied  warranty  for  safe  custody  (_/). 

An  InnJceeper  has  a  general  lien  on  all  goods  and  chattels 
belonging  to  his  Guest  {g). 

He  has  no  lien  on  goods  sent  to  his  Guest  for  a  parti-  Innkeeper's 
cular  purpose,  and  known  by  him  to  be  the  property  of  ^^^^• 
another  person  (/?),  but  his  lien  extends  to  goods  brought 
to  the  Inn  by  a  Guest,  though  they  belong  to  a  third 
party,  provided  they  be  such  as  persons  ordinarily  travel 
with  (/),  as  these  he  is  compelled  to  receive.  And  in 
Throfall  v.  Boncich  (k),  it  was  held  that  his  lien  extends  to 
all  the  goods  which  he  has  actually  received  with  a  Guest 
whether  the  property  of  the  Guest  or  not,  and  is  not  limited 
to  such  things  as  he  was  bound  to  receive  with  the  Guest. 

As  an  I)uike(per  by  law  is  bound  to  receive  the  Horse  of  Innkeeper  has 
a  traveller  in  case  his  stable  is  not  full,  he  has  therefore  a  ^^^"^  o^  ^ 
lien  for  its  keep  upon  a  Horse  left  with  him,  and  received  keep. 
by  him  in   his   character  as  Innl-eeper  {I),  whether  it  be 
kept  in  the  stable  or  put  out  to  grass.     For  the  pasture 

(c)  Bather  v.  Day,  32  L.  J.,  Ex.  (/;)  BroadwoodY.  Granara,  10  Ex. 

171';  8L.  T.,  N.  S.  205.  417. 

(f/)  1  Rol.  Abr.  668  ;  Co.  Litt.  47.  (0  Snead  v.  JFatkins,   26  L.  J., 

(e)  See  per  Pollock,  C.  B.,  Wil-  C.  P.  57. 

Hams  V.  Holmes,  22  L.  J.,  Ex.  284.  (A)  L.  R.,   10  Q.  B.  210 ;  44  L. 

(/)   Crosier  v.  TomJdnson,  2  Ld.  J.,  Q.  B.  87;  32  L.  T.,  N.  S.  32  ; 

Ken.  439;    S.    C.   Barnes'   Notes,  Ex.  Ch.     Affii-ming,  L.  R.,  7  Q.  B. 

472.  711  ;  41  L.  J.,  Q.  B.  266  ;  26  L.  T., 

{g)  MulUner  v.  Florence,  L.  P.,  N.  S.  794. 

3  Q.  B.  D.  484;  47  L.  J.,  Q.  B.  (/)  Smiihw.  I)rarlovc,(jC.'Q.\ro\ 

700  ;  38  L.  T.,  N.  S.  167.  H.  C  12  Jur.  377. 


224 


INXKEEPERS,  VETERINARY  SURGEON?,  ETC. 


Cannot  detain 
a  Guest  for 
his  bill. 

But  may 

detain  bis 
Horse. 


His  right  of 
lien. 


Horses  and 
carriages 
sent  to  lively 
at  an  Inn. 

Cannot  sell 
one  Hoi'se  for 
tlie  keep  of 
others. 


of  siicli  persons,  set  up  by  law  for  entertainment,  has  the 
same  privilege  as  the  stables,  and  an  action  of  Trover  can- 
not bo  maintained  against  him  for  detaining  the  Horse  of 
his  Gruest,  unless  the  money  due  for  its  keep  has  been  paid 
or  tendered  («^). 

An  Innl^eeper  cannot  detain  a  Guest,  or  take  off  his 
clothes,  in  order  to  secm-e  payment  of  his  bill  («). 

But  he  may  detain  his  Horse,  or  may  bring  an  action  for 
lodging,  &c.  without  any  special  contract  (o). 

It  has  been  said  that  the  Horse  of  a  Guest  can  be  de- 
tained only  for  his  own  meals,  and  not  for  the  meals  and 
expenses  of  the  Guest  (75).  But  this  doctrine  was  doubt- 
ful ((z).  And  in  a  recent  case  (r),  the  Court  of  Appeal 
held,  that  a  chattel  although  deposited  with  the  Innkeeper 
and  placed  by  him  apart  from  the  personal  goods  of  the 
Guest,  may  be  detained  by  him  on  account  of  money  owing 
to  him  for  the  lodging,  food,  and  entertainment  of  the 
Guest. 

An  InnJceeper^s  right  of  lien  depends  upon  the  fact  of 
the  goods  coming  into  his  possession  in  his  character  of 
Innkeeper,  as  belonging  to  a  Guest  (s).  So  in  a  case  in 
which  a  Trainer  of  Racehorses  went  to  an  Inn,  stayed 
there  for  a  length  of  time,  and  put  the  Horses  into  train- 
ing ;  nothing  being  said  of  any  special  Contract  between 
him  and  the  Innkeeper,  it  was  held  by  the  Exchequer 
Chamber  that  he  came  there  on  the  ordinary  terms  of  an 
Inn,  and  that  the  Innkeeper  had  a  lien  on  the  Horses 
for  their  keep,  although  they  were  frequently  taken  off  the 
premises  for  days  together  to  attend  races  (t). 

But  if  a  man  send  his  Horses  and  Carriage  to  livery  at 
an  Inn,  and  they  are  so  received,  the  fact  of  his  becoming 
a  Guest  at  a  subsequent  period  does  not  give  the  Inn- 
keeper any  lien  (s). 

Where  several  Horses  are  brought  to  an  Inn  by  the 
same  person,  each  by  the  custom  of  London  may  be  sold 
for  his  own  keep  only  and  not  for  the  keep  of  the  others ; 


(to)  2  Eol.  Abr.  85;  Cro.  Car. 
271 ;  Cai-th.  150  ;   1  Salk.  388. 

(w)  Bac.  Abr.  Tit.  Inns  and  Inn- 
keepers, 451  ;  Sunholf  y.  Alford,  3 
M.  &  W.  248. 

(o)  Saunders  v.  Plummer,  Orl. 
Bridg.  227 ;  Smith  v.  Dearlove,  6 
C.  B.  135. 

{p)  Bac.  Abridg.  Inns  and  Inn- 
keepers. 

{q).  See  Story  on  Bailments,  503, 


504. 

(r)  Florence  v.  Mullbier,  L.  R., 
3  Q.  B.  D.  484;  47  L.  J.,  Q.  B. 
700;  38  L.  T.,  N.  S.  167. 

{s)  Smith  V.  Dearlove,  6  C.  B. 
135  ;  S.  C.  12  Jur.  377. 

[t)  Allen  V.  Smith,  9  Jur.,  N.  S. 
230,  1284 ;  and  see  MuUiner  v. 
Florence,  L.  R.,  3  Q.  B.  D.  484  ; 
47  L.  J.,  Q.  B.  700;  38  L.  T., 
N.  S.  167. 


INNKEEPER.  225 

SO  that  if  the  Innkeeper  permits  the  Guest  to  take  away 
all  but  one,  he  cannot  sell  this  to  pay  the  expenses  of 
keeping  the  whole,  but  must  deliver  it  up  on  tender  of  the 
amount  for  its  own  keep  (r). 

Where  a  person  wrongfully  seizes  a  Horse,  and  takes  Has  a  lien 
it  to  an  Inn  to  be  kept,  the  owner  cannot  have  it  until  °^  a  Horse 
he  has  satisfied  the  Innlxceper  for  its  meat ;  for  the  Inn-  -s^ron^doer. 
keeper  is  not  bound  to  inquire  who  is  the  owner  of  the 
property  brought   to   his   Inn(s).     If    the   Innkeeper  in 
such  case  was  to  have  no  lien,  Doderidge,  J.,  said,  "  It 
were  a  pretty  trick  for  one  who  wants  keeping  for  his 
Horse"  (/). 

But  if  he  knew  at  the  time  the  Horse  was  left,  that  But  not  if  he 
the  person  who  brought  it  was  a  wrongdoer,  and  not  the  ^^^^,  ^^  ^^ 
owner  of  it,  he  has  made  himself  a  party  to  thq  wrongful  -„ras  lef t/ 
act,  and  has  no  lien  upon  the  Horse  for  its  keep  ;  and 
the  question  as  to  the  scienter  must  be  left  to  the  Jury  (?<). 

The  Horse  must  be  placed  at  the  Inn  by  a  Guest  to  A  Horse  left 
entitle  the  Innkeeper  to  detain  it  for  its  keep ;  for  where  ^^  *^®  Police. 
a  person  was  stoj)ped  with  a  Horse  under  suspicious  cir- 
cumstances, and  it  was  left  at  an  Inn  by  the  Police,  it 
was  held  that  the  Innkeeper  had  no  lien,  and  that  an 
Auctioneer,  by  the  direction  of  the  Innkeeper,  selling  the 
Horse  for  its  keep,  was  liable  to  the  owner  of  the  Horse 
in  an  action  of  Trover  {x). 

If  the  Innkeeper  previously  agree  to  give  the  Guest  Giving  a 
credit  for  his  entertainment,  he  cannot  detain  his  Horse  ^^^^^^  credit. 
or  goods ;  or  if  where  there  has  been  no  such  agreement, 
he  suffer  his  Guest's  Horse  to  depart  "without  payment, 
or  by  any  other  means  give  credit  to  the  owner,  he  cannot 
afterwards  detain  it  for  the  debt  upon  its  coming  again 
into  his  possession  (//). 

If  a  third  parttj  promise  the  Innkeeper  to  satisfy  him  A  third  party 
for  the  meat  of  the  Horse,  in  consideration  that  he  will  ^^^f"^  answer- 
deliver  it  to  the  Guest,  it  is  a  good  promise ;  for  there  is 
a  good  consideration,  inasmuch  as  the  Innkeeper  loses  the 
detainer,  which  is  a  damage,  and  the  Guest  regains  the 
Horse,  which  is  the  advantage  (;:). 

But  where  the  owner  of  a  Horse  has  fraudulently  got  Horse  re- 

(;•)  Moss  V.    Townscnd,    1   Bulst.  («)  Johnson  v.  HiU,  3  Stark.  N. 

207.     But  see  the  Innkeepers'  Act,  P.  C.  172. 

1878  (41  &  42  Vict.  c.  38),  s.  \,post.  {x)  Binns  v.  Flgot,  9  C.  &  P.  208. 

(«)   Turrell  v.  Crau-Ui/,  18  L.  J.,  (y)  Jones  v.  Thioioe,  8  Mod.  172  ; 

Q.  B.  155.                      '  ,S'.  a.  Jones  v.  Fearle,  1  Str.  557. 

(0  Robinson  v.   IValler,  Pop.  127.  (:)  Hutton,  101. 


226 


INNKEEPEKS,  VETERINARY  SURGEONS,  ETC. 


moved  to  de- 
feat the  lien. 


Keep  during- 
detention. 


He  cannot 
use  a  Horse 
he  detains. 


He  could  not 
formerly  sell 
a  Horse  he 
detained. 


possession  of  it  to  defeat  the  lien,  the  Innliceper  may  re- 
take it  without  force,  for  the  lien  is  not  put  an  end  to  by 
his  having  thus  parted  with  the  possession  of  it  {a).  But 
it  is  held  that  the  Iinil-ceper  must  make  fi'esh  pursuit 
after  it,  and  retake  it,  otherwise  the  custody  is  lost ;  for  he 
cannot  talce  it  at  any  other  time,  as  it  is  in  the  nature  of  a 
D/sfress.  But  where  there  is  a  lien  by  agreement,  it  is  in 
the  nature  of  a  Pledge,  and  the  Innheeper  may  retake  the 
Horse,  not  only  on  fresh  pursuit,  but  also  wherever  he 
finds  it  (^). 

It  has  been  held  that  an  In)ikeeper  who  detains  a  Horse 
for  his  keep  has  a  lien  upon  him  for  the  necessary  food 
supplied  when  thus  in  his  possession,  even  if  it  be  given 
against  the  express  direction  of  the  owner.  Thus  where 
the  owner  of  a  Horse  standing  at  an  Inn  came  and  di- 
rected that  the  IiviJceeper  should  not  give  him  any  more 
food,  as  he  would  not  be  responsible  for  it,  and  the 
question  ^^'as,  whether  the  OA^'ner  was  chargeable  for  the 
food  given  after  this  direction.  Chief  Justice  Holt  was  at 
first  inclined  to  consider  this  a  diseharge,  and  that  the 
Horse,  though  he  might  be  retained  by  the  Innheeper, 
was  but  in  the  natiu-e  of  a  Distress,  and  that  being  in  the 
custody  of  the  Innl-ceper  in  his  Inn,  it  was  a  pound 
eovert,  and  the  Horse  consequently  ought  to  be  main- 
tained at  his  peril.  However,  he  afterwards  changed  his 
opinion,  and  directed  that  this  was  no  discharge ;  for  then 
any  Innkeeper  might  be  deceived,  and  his  security  would 
be  lessened  (r).  But  his  first  opinion  appears  to  be  con- 
sistent Avith  the  law  [d). 

Where  an  Innkeeper  detains  a  Horse  for  its  meat  he 
cannot  use  it,  because  he  detains  it  as  in  the  custody  of  the 
law,  and  the  detention  is  in  the  nature  of  a  distress,  which 
cannot  be  used  by  the  distrainor  (e). 

An  Innkeeper  could  not  formerly  sell  the  Horse  he  de- 
tained for  his  meat  and  so  pay  himself,  because,  as  the 
Court  said  in  Jones  v.  TJiurloe,  "he  is  not  to  be  his  own 
carver"  {f).     And  even  if  the  Horse  "eat  out  the  price 


[a)  Wallace  v.  Woodqatc,  Ry.  & 
M.  193  ;  S.  C.  1  C.  &  P.  575. 

{b)  liosse  V.  Bramstcad,  2  Rol. 
Eep.  438. 

(f)  Gelher  v.  BerkvJeij,  Skin.  648  ; 
and  see  Scarfe  v.  Morgan,  4  M.  & 
W.  270. 

[d)  Co.  Litt.  47  b;  British  Em- 
pire Shipping  Co.  v.  Somes,  28  L.  J., 


Q.  B.  220  (Ex.  Ch.);  -S".  C.  30 
L.  J.,  Q.  B.  229.  See  also  Scarfe 
V.  Ilorgan,  4  M.  &  W.  279,  284. 

(f)  JJ'estbrook  v.  Griffith,  Moor. 
870  ;  Eobinson  v.  Walter,  3  Bulstr. 
270 ;  Bac.  Abr.  tit.  Inns  and  Imi- 
keepers. 

(/)  Jones  V.  Thurloe,  ^Modi.  172  ; 
S.  C.  Jones  v.  Pearle,  Str.  556. 


INNKEEPER.  227 

of  its  head,"  that  is,  consume  as  much  as  it  is  worth,  he 
could  not  sell  it,  except  he  lived  in  London  or  Exeter, 
where  by  the  custom  of  those  places,  if  the  Horse  is  the 
property  of  the  guest,  he  may  take  it  as  his  own  upon  the 
reasonable  appraisement  of  four  of  his  neighbours  {y). 

But  now,  by  the  Innkeepers'  Act,  1878  (41  &  42  Vict.  But  may  now 
c.  38),  s.  1,  "the  landlord,  proprietor,  keeper  or  manager  sell  Horse 
of  any  hotel,  inn  or  licensed  public-house  shall,  in  addition  -^^eeks. 
to  his  ordinary  lien,  have  the  right  absolutely  to  sell  and 
dispose  by  public  auction  of  any  goods,  chattels,  carriages, 
Horses,  wares  or  merchandise  which  may  have  been  de- 
posited with  him,  or  left  in  the  house  he  keeps,  or  in  the 
coach-house,  stable,  stable-yard,  or  other  premises  appur- 
tenant or  belonging  thereunto,  where  the  person  depositing 
or  leaving  such  goods,  chattels,  carriages.  Horses,  wares  or 
merchandise  shall  be  or  become  indebted  to  the  said  inn- 
keeper either  for  any  board  or  lodging  or  for  the  keep 
and  expenses  of  any  Horse  or  other  animals  left  with  or 
standing  at  livery  in  the  stables  or  f].elds  occupied  by  such 
Innhecper  : 

"Provided  that  no  such  sale  shall  be  made  until  after  the 
said  goods,  chattels,  carriages.  Horses,  wares  or  merchandise 
shall  have  been  for  the  space  of  six  weeks  in  such  charge 
or  custody  or  in  or  upon  such  premises  without  such  debt 
having  been  paid  or  satisfied,  and  that  such  Iinikeeper, 
after  having,  out  of  the  proceeds  of  such  sale,  paid  himself 
the  amount  of  any  such  debt,  together  with  the  costs  and 
expenses  of  such  sale,  shall  on  demand  pay  to  the  person 
depositing  or  leaving  any  such  goods,  chattels,  carriages. 
Horses,  wares  or  merchandise  the  surplus  (if  any)  remaining 
after  such  sale  : 

"  Provided  further,  that  the  debt  for  the  payment  of 
which  a  sale  is  made  shall  not  be  any  other  or  greater  debt 
than  the  debt  for  which  the  goods  or  other  articles  could 
have  been  retained  by  the  Ijuikcejjer  under  his  lien  : 

"  Provided  also,  that  at  least  one  month  before  any  such 
sale  the  landlord,  proprietor,  keeper  or  manager  shall  cause 
to  be  inserted  in  one  London  newspaper  and  one  country 
newspaper  circulating  in  the  district  where  such  goods, 
chattels,  carriages.  Horses,  wares  or  merchandise  or  some  of 
them  shall  have  been  deposited  or  left,  an  advertisement 

in/)  Baldivay  v.  Ouster,  1  Vent.  207 ;  Robinson  v.  Walter,  3  Bulstr. 
71;  TTesibrook  v.  Griffith,  Moor.  270;  Bac.  Abr.  tit.  Inns  and  Inn- 
876  ;  Moss  v.    Tounsend,   1   Bulstr.       keepers. 

y2 


228 


INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 


Distrainor's 
power  of  sale 
by  statute. 


containing  notice  of  such  intended  sale,  and  giving  sliortly 
a  description  of  the  goods  and  chattels  intended  to  be  sold, 
together  with  the  name  of  the  owner  or  person  who  de- 
posited or  left  the  same,  where  known." 

Under  statute  5  &  6  Will.  4,  c.  69,  s.  4,  requiring  the 
distrainor  of  any  Horse  (which  word  "Horse"  may  by 
sect.  21  be  construed  as  "  Horses")  to  feed  it  while  in  the 
pound,  and  empowering  him,  after  seven  days,  to  sell  any 
such  Horse  for  the  expenses,  a  party  distraining  several 
Horses  may,  by  a  proper  exercise  of  discretion,  sell  one 
or  more,  for  the  expense  of  all.  And  it  Avould  seem  that 
he  may  repeat  such  sale  from  time  to  time  as  need  re- 
quires [It).  This  statute  has  been  repealed.  But  its  pro- 
visions have  been  substantially  re-enacted  by  12  &  13  Vict. 
c.  92,  excej^t  as  to  the  power  of  sale.  And  this  was 
restored  by  17  &  18  Vict.  c.  60,  s.  1. 


No  law  pecu- 
liar to  Vete- 
rinary Sur- 
geons. 


Farrier 
cannot  re- 
fuse to  shoe 
a  Horse. 


VETERINARY  SURGEON  AND  FARRIER. 

There  is  no  law  which  applies  to  a  Vctcnnanj  Surgeon 
in  particular ;  and  where  there  is  no  contract,  he  must  go 
upon  a  qua nf tun  meruit.  And  an  usage  to  charge  for 
attendance,  where  there  is  not  much  medicine  required,  is 
too  uncertain  (/). 

Where  a  man  takes  upon  himself  a  public  employment 
he  is  bound  to  serve  the  public  as  far  as  his  employment 


I 


(Ji)  Layton  v.  Il/nri/,  8  Q,.  B.  811. 

(/)  Zaiw  V.  Cotton,  1  Salk.  18. 
The  Eoyal  College  of  Veterinary 
Sm-geons  was  founded  in  the  year 
1791,  and  received  a  Charter  of  in- 
corporation in  the  year  1815.  By 
its  Charter,  Veterinary  Surgery  is 
constituted  a  profession,  and  the 
registered  members  of  its  body  are 
alone  to  be  recognized  as  the  mem- 
bers of  the  Veterinary  profession. 
Its  diploma  is  granted  only  to  per- 
sons who  have  qualified  themselves 
by  a  certain  educational  course 
tested  by  examination.  In  the 
earlier  editions  of  this  work  it  was 
suggested  that  it  would  be  a  secu- 
rity to  the  Public  against  unc[iiaH- 
fied  practitioners,  if  the  Legisla- 
ture were  to  impose  a  penalty  on 
persons  practising  as  Veterinary 
Surgeons,  without  possessing  a 
diploma  from  this  or  some  other 
diily  constituted  body.  This  sug- 
gestion is  carried  out  by  the  Vete- 


rinary Surgeons  Act,  1881  (44  &  45 
Vict.  c.  C2),  which  by  sects.  11,  12, 
imposes  a  penalty  not  exceeding 
50/.  or  imprisonment  with  or  with- 
out hard  labour,  for  any  term  not 
exceeding  twelve  months,  on  any 
l^erson  obtaining  registration  by 
false  representation,  or  on  the  re- 
gistrar for  wilful  falsification  of 
the  register  of  Veterinary  Siu-- 
geons.  The  Act,  by  sects.  13,  14, 
further  provides  for  the  registra- 
tion of  colonial  or  foreign  practi- 
tioners possessing  some  recognized 
diploma;  by  sect.  16  imposes  a 
penalty  of  50/.  on  any  person  falsely 
reiH-esenting  himself  to  be  a  Mem- 
ber of  the  Royal  College  ;  and  by 
sect.  17  imjioses  a  like  iienalty  on 
any  person  who,  after  1883,  prac- 
tises without  the  necessary  quali- 
fications, and  further  incajjacitates 
any  such  person  from  i-ecovering 
any  fee  for  iDcrforniing  any  vete- 
rinary operation. 


VETERINARY  SURGEON  AND  FARRIER.  229 

goes,  or  an  action  lies  against  him  for  refusing.  Thus  if 
a  Farrier  refuse  to  shoe  a  Horse  (/),  an  Innkeeper  to  re- 
ceive a  guest,  a  Carrier  to  carry,  when  he  may  do  it,  an 
action  lies  (k) . 

But  the  Horse  must  be  brought  to  be  shod  at  a  reason-  When 
able  time  for  such  purpose  ;  because  if  brought  at  an  irregu-  'wrought  at  a 
lar  hour,  the  Farrier  may  say,  "  I  will  not  do  it"  (y ).  tfme°^^   ^ 

A  Farrier  is  liable  for  laming  a  Horse  in  shoeing  it,  and  Answerable 
the  action  is  founded  on  the  implied  contract,  that  every  for  his  own 
workman  undertaking  any  work  will  perform  it  properly  (/),  "^^^^*  o^  skill, 
because  it  is  the  duty  of  every  artificer  to  exercise  his  art 
rightly  and  truly  as  he  ought  {m) . 

And  an  action  may  be  maintained  for  a  breach  of  duty.  Where  a  third 
arising  out   of   a   contract   with  a  third  person.      Thus  pey^on  is 
Coke,    C.  J.,  puts   this   case,    "  If   the  master  sends   his  ^  ^^  ®  • 
servant  to  pay  money  for  him   upon  the  penalty  of  a 
Bond,  and  on  his  way  a  Smith  in  shoeing  doth  prick  his 
Horse,  and  so  by  reason  of  this  the  money  is  not  paid ; 
this  being  the  servant's  Horse,  he  shall  have  an  action 
iipon  the  Case  for  pricking  of  his  Horse ;  and  the  master 
also  shall  have  his  action  tipon  the  Case  for  the  special  wrong 
which  he  hath  sustained  by  the  non-payment  of  his  money 
occasioned  by  this"  {n). 

And  where  a  Horse  has  been  injured  in  shoeing  from  when  an- 
the  negligence  of  a  Farrier's  servant,  the  master  is  liable  (o),  swerable  for 
But  not  if  the  wrong  be  u-iifnl,  as  if  the  servant  maliciously  ^^^  servant. 
drives  a  nail  into  the  Horse's  foot  in  order  to  lame  him  (/j). 

An  action  lies  against  a  Farrier  for  pricking  a  Horse,  Action 
when  shoeing  him  {q),  and  where  one  Smith  lends  a  Horse  against  a 
to  another,  and  the  second  pricks  him  in  shoeing,  the  action  pHekin""-  a" 
lies  against  the  first,  or  the  second,  in  the  option  of  the  Horse.'' 
owner  (r). 

The  Rule  of  Law  as  to  the  extent  of  a  Farrier's  liability  roUhis  v. 
in  shoeing  a  Horse,  is  fully  and  clearly  laid  down  by  Chief  liodwaij. 
Baron  Pollock  in  the  case  of  Collins  v.  Roduay  {s)  ;  and  as 
that  case  does  not  appear  in  any  of  the  Reports,  it  will 

(.;•)   14  Hen.  6,  18.  (;;)  Jones  x.  Hart,  2  Salk.  440. 

{k)  See  note  (*),  ante.  [q)  Nat.  Brev.  94  d;   17  Edw.  4, 

(0  2  Chit.  Pleading,  6th  ed.  262.  43  ;   11  Edw.  4,  6 ;  56  Edw.  3,  19; 

{m)    Rex  V.    EUdcrby,    1    Saund.  3  Hen.  6,  36  ;  14  Hen.  6,  88  ;  Orig. 

312,  n.  2.  106  a:  48  Edw.  3,  6,  pi.  11. 

[n)  Everard  \ .  Bopldns,  2  Bidstr.  (/)   12  Edw.  4,  13. 

332  ;  and  see  Longmcad  v.  Ilolllday,  (a)    Collins  v.  Itodicay,  before  Pol- 

6  Exch.  704.  lock,    C.   B.,    Guildhall,    Dec.    15, 

(o)   1  Bla.  Com.  431;    Raiidlcson  1845;   14  Veterinarian,  102. 
V.  Muryrnj,  8  A.  &  E.  109. 


230  INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 

here  be  given  at  considerable  length.  The  following  is 
compressed  from  an  exact  copy  of  the  shorthand  notes 
which  were  taken  at  the  trial,  and  afterwards  published  in 
the  Veterinarian.  It  was  an  action  brought  against  the  de- 
fendant, a  Farrier,  for  unskilfulness  in  the  shoeing  of  two 
Horses,  sent  by  the  plaintiff  to  be  shod  at  the  defendant's 
forge,  which  he  carried  on  for  the  purpose  of  shoeing 
Horses  with  a  shoe  for  which  he  had  a  patent. 

The  one,  a  grey  mare  Pony,  was  sent  on  the  16th  of 
July,  in  the  evening  after  working  hours,  and  was  shod 
at  the  particular  request  of  the  plaintiff's  father.  On 
the  17th  she  was  driven  with  two  men  in  a  gig  to  Bar- 
net,  and  it  was  admitted  that  for  three  miles  she  had 
gone  sound.  On  the  20th  the  shoes  were  taken  off  by 
the  apprentice  of  Beck,  another  Farrier.  On  the  21st  the 
defendant  received  notice  of  her  lameness,  and  on  the  26th, 
after  her  feet  had  been  cut  about  and  poulticed,  she  was 
reshod  by  Beck  and  afterwards  worked.  It  appeared  that 
subsequently  she  had  been  tm-ned  out  for  nine  weeks. 

The  other,  a  black  entii-e  Pony,  was  sent  to  be  shod  on 
the  18th  July.  On  the  21st  the  shoes  were  taken  off  by 
Beck,  and  blood  was  said  to  have  followed  the  withdrawal 
of  two  of  the  nails.  It  Avas  admitted  that  this  Pony's  feet 
were  very  thin  and  bad,  and  his  action  very  high.  What 
was  done  to  this  Pony  did  not  appear ;  but  he  had  been 
under  the  care  of  Mr.  Field  the  Veterinary  Surgeon,  and 
was  afterwards  sold  for  a  small  simi  at  Aldridge's  Reposi- 
tory some  time  in  October. 

At  the  trial  no  Veterinary  Surgeons  were  called  to  give 
any  information  as  to  the  nature  of  the  injmy  or  of  the 
parts  in]\u-ed.  And  the  allegation  that  the  patent  shoe 
was  one  likely  to  produce  lameness  by  its  apj)lioation,  was 
withdi-awn  by  the  plaintiff's  counsel. 

The  defendant's  case  rested  on  two  grounds ;  First,  That 
even  supposing  the  Ponies  to  have  been  lamed  in  shoeing, 
he  Avas  not  liable  because  he  had  brought  to  the  perform- 
ance of  that  duty  competent  skill  and  reasonable  care,  and 
that  the  plaintiff  knowingly  brought  them  to  have  the 
patent  shoe  applied.  Secondly,  That  one  Pony  was  lame 
before  it  was  shod,  and  the  other  had  not  been  lamed  by 
the  shoeing,  but  the  lameness  had  arisen  fi'om  other  causes. 
Rule  as  to  In  summing  up  Chief  Baron  Pollock  said  to  the  Jury : 

Tamers.  u  rpj^^  ^^^^y  -j^^^Iq  gf  j^r^^  fj^at  I  feel  it  necessary  to  lay 

doAvn  upon  the  subject  in  this  case  is,  that  if  this  operation 
has  been  performed  unskilfidly  and  improperly,  no  doubt 


VETERINARY  SURGEON  AND  FARRIER.  231 

the  defendant  is  liable  to  the  plaintiff  for  any  mischief 
that  may  have  resulted  from  such  unskilfulness ;  but  he  is 
liable  only  to  the  extent  to  which  mischief  has  been  pro- 
duced. The  Ride  I  take  to  be  this,  that  a  person  employed 
for  any  purpose  must  bring  to  the  subject-matter  a  reason- 
able skill  and  fitness,  and  he  must  exercise  that  reasonable 
skill  and  fitness  with  due  and  proj)er  care.  If  he  be  defi- 
cient in  the  requisite  skilfulness,  and  in  consequence  of 
that  the  operation  is  performed  in  a  bad  and  bungling 
manner,  or  if,  having  the  requisite  skilfulness,  he  fails  to 
bring  it  to  act,  he  is  liable  for  any  mischief  which  results 
from  that." 

"  I  need  hardly  tell  you,  that  an  operation  of  this  sort  No  Insur- 
cannot  be  considered  in  the  light  of  an  Insurance.  If  you  ^^nce  against 
apply  to  a  Surgeon  or  a  medical  man  to  cure  you  of  any  ^^■I'^^J"- 
disorder,  he  is  liable  if  there  is  any  want  of  skill  or  proper 
care ;  and  I  observed  that  one  of  you  asked  whether 
pricking  a  Horse  was  a  frequent  accident.  I  think  the 
answer  to  that  immediate  question  was,  that  it  was  not, 
at  all  events,  very  unfrequent ;  still  it  may  hai^pen  with- 
out any  great  degree  of  unskilfulness  attaching  to  it. 
The  operation  most  resembles  that  of  shaving.  If  a  man 
undertakes  to  shave  another,  he  would  not  be  responsible 
for  every  abrasion  of  the  skin  that  the  barber  might  make ; 
it  requires  a  degree  of  skilfulness  and  care,  and  it  might 
be  hardly  possible  to  operate  upon  a  certain  person  without 
something  of  that  sort  taking  place :  and  although  an 
accident  may  happen,  such  as  in  this  case,  it  may  be  that 
the  foot  of  the  Horse  was  in  such  a  state  that  it  would  be 
difficult  to  perform  the  operation  of  shoeing." 

"  Wherever  that  is  the  case,  you  would  naturally  ex-  Peculiar  dif- 
pect  some  information  given  that  there  were  those  defects  Acuities 
and  difficulties,  so  that  the  Farrier  might  be  made  ac-  Mentioned 
quainted  with  the  risk  he  was  exposing  himself  to.     You 
will  therefore  have  to  judge  whether  you  think  there  was 
any  want  of  skill  in  the  operation  of  shoeing  these  Horses. 
I  own  it  appears  to  me  that  I  think  it  is  impossible  to 
doubt  as  to  the  fact  that  there  was  an  actual  pricking." 

"  With  respect  to  the  man's  skill,  he  may  have  done  Coming  at  an 
it  on  this  occasion  badly,  they  coming  to  him  at  night  to  unseasonable 
insist  upon  the   job  being   done    at    an   iiTCgular   hour;     °^^* 
that  was  partly  suggested  at  one  time.     I  must  say  it 
appears  to  me  as  a  question  of  law,  that  that  it  is  no  ex- 
cuse.    If  you  go  to  any  place,  and  call  in  a  Surgeon  or 
a  Farrier,  or  any  person  to  perform  an  operation,  if  the 


232 


INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 


Farrymg,  &c. 
in  the  street. 


Hoi'se  stand- 
ing to  be  shod 
not  dis- 
trainable. 

Horse  may  be 
detained  for 
the  ijrice  of 
his  shoeing. 

Such  Lien  is 
favoured  by 
law. 


Extends  only 


time  is  inconvenient,  and  if  the  light  be  not  sufficient, 
and  if  the  occasion  he  not  suitable,  he  is  bound  to  say, 
'  I  will  not  do  it.'  If  he  does  it,  he  is  answerable,  unless 
indeed  he  distinctly  and  explicitly  says,  '  I  do  it  at  your 
urgent  request,  but  /  in7l  not  be  responsible  for  the  con- 
sequences.' Nothing  of  that  sort  appears  to  have  come 
from  him.  On  the  contrary,  though  there  may  have 
been  a  remonstrance  that  the  man  came  too  late,  yet 
it  was  done.  It  appears  to  me  in  point  of  law  that  if 
a  person,  called  upon  at  an  unseasonable  time,  under- 
takes to  do  it  without  declaring  he  will  not  be  responsible, 
he  does  it  with  the  same  responsibility  as  if  he  did  it  at 
any  proper  time." 

The  Jury  found  a  verdict  for  the  defendant,  and  the 
Court  of  Exchequer  afterwards  refused  a  rule  for  a  new 
trial,  which  was  applied  for  on  the  ground  that  the  verdict 
was  against  the  evidence. 

Under  the  Police  of  Towns  Act  every  person  who,  in  any 
street,  to  the  obstruction,  annoyance  or  danger  of  the 
residents,  shoes,  bleeds  or  farries  any  Horse  or  animal 
(except  in  cases  of  accident),  or  cleans,  dresses,  exercises, 
trains,  or  breaks,  or  turns  loose  any  Horse  or  animal,  is 
liable  to  a  penalty  not  exceeding  40s.  (t). 

A  Horse  standing  at  a  Farrier's  to  be  shod  is  exempt 
from  Distress  on  tlie  ground  of  public  utility  (ii). 

As  a  party  has  a  right  to  go  to  a  Farrier's  shop  by  the 
tacit  permission  of  the  law  {x),  an  action  of  Trover  does 
not  lie  against  a  Farrier  for  refusing  to  deliver  a  Horse 
which  he  has  shod,  unless  the  money  due  for  the  shoeing 
has  been  paid  or  tendered  ( //) . 

Because  the  artificer  to  whom  goods  are  delivered  for 
the  purpose  of  being  worked  into  form, — the  Farrier  by 
whose  skill  an  animal  is  cured  of  a  disease, — the  Horse- 
breaker  by  whose  skill  a  Horse  is  rendered  manageable, 
and  the  man  who  covers  a  Mare  with  a  Stallion,  have  liens 
on  the  chattels  in  respect  of  their  charges.  And  all  such 
specific  liens,  being  consistent  with  the  principles  of  natural 
equity,  are  favoured  by  the  law,  which  is  coiisfriied  liberally 
in  such  cases  (~). 

But  the  Horse  can  only  be  kept  for  work  done  at  that 


{t)  10  &  11  Vict.  c.  89,  s.  28. 

(u)  Francis  v.  JTyatt,  3  Burr. 
1502,  and  the  authorities  there 
cited. 

(.r)  Lane  v.  Cotton,  1  Salk.  IS. 


{y)  Bac.  Abr.  Trover  (E.)  816. 

(r)  Scarfc  v.  2Iorr/an,  4  M.  &  W. 
280  ;  Chase  v.  Westmore,  o  M.  &  S. 
189. 


VETERINARY  SURGEON  AND  FARRIER.  233 

particular  time,  for  the  lien  does  not  extend  to  any  pre-  to  each  parti- 
vious  account ;  and  when  this  point  was  decided  by  the  ^"^^"^  *^"^^' 
Court  of  Uueen's  Bench,  Lord  Ellenborough  said,  "Grow- 
ing liens  are  always  to  be  looked  at  with  jealousy,  as 
they  are  encroachments  on  the  common  law.  If  they 
are  encouraged  in  practice,  the  Farrier  will  be  claiming 
a  lien  upon  a  Horse  sent  to  him  to  be  shod.  It  is  not 
for  the  convenience  of  the  public  that  these  liens  should 
be  extended  further  than  they  are  already  established  by 
law"(«). 

In  the  case  of  Scarfe  v.  Morgan  {h)  a  difficulty  arose  Liability  to 
out  of   the  circumstance  that  a  living  chattel  might  be-  feed  a  Horse 
come   expensive    to    the   detainer,    and  would  raise   the  ^^'^*^"^®<^- 
question  as  to  who  was  liable  to  feed  it  intermediately. 
But   this   difficulty   was    answered    by  referring   to   the 
analogous  case  of  a  Distress  kept  in  a  pound  covert,  where 
he  who  distrains  is  compellable  to  take  reasonable  care  of 
the  chattel  distrained,  whether  living  or  inanimate ;  and  to 
the  case  of  a  lien  upon  Corn,  which  requires  some  labour 
and  expense  in  the  j^roper  custody  of  it  (c) . 

HORSEBREAKER,  TRAINER,  ETC. 

A  Horsehreahcr  is  liable  for  any  damage  which  through  Horsebreaker 
his  negligence  may  happen  to  the  Horse  he  is  breaking,  liable  for 
Thus  an  action  on  the   Case  was  brought,   and  damages  thrHOTs*^ 
recovered  against  the  defendant,  to  whose  charge  a  Mare 
had  been  committed,  "to  be  taught  to  pace  "  {d). 

The  Horsehrealier,  by  whose  skill  the  Horse  is  rendered  Horse- 
manageable,  has  a  lien  upon  him  in  respect  of  his  charges;  tireaker's  lien, 
and   such   lien   being   consistent   with   the    principles   of 
natural  equity,  is  favoured  by  the  law,  which  in  such  case 
is  construed  liberally  {e) . 

It  was  for  a  long  time  doubtful  whether  in  any  case  a  Trainer's  lien. 
Trainer  had  a  lien  for  the  keep  and  exercise  of  a  Race- 
horse sent  to  him  to  be  trained;  unless  perhaps  it  was 
delivered  to  be  trained  for  the  purpose  of  running  a  spe- 
cified Race{f).  In  Be  van  v.  Waters  {g)  he  was  held  to 
have  a   lien ;  and  the   question   also   arose   in  Jacobs   v. 

(a)  Rushforth  v.  Kadficld,  7  East,  Q.  B.  220  (Ex.  Ch.). 
229.  (,/)  Lib.  Plac.  25. 

(i)  Scarfe  v.  Morgan,  4  M.  &  TV.  (V)  8carfe  v.  Morgan,  4  11.  &  W 

280.  276. 

{c)  See  ante,  p.  228 ;  12  &  13  Vict.  (/)  See  Jackson  v.  Cummins,  post. 

c.  92,  and  17  &  18  Vict.  c.  60,  s.  1 ;  {g)  Sevan  v.   Waters,   3  C.   &  P. 

also  ante,  p.   226,   British  Empire  520.     See  also  Sanderson  v.  Bell,  2 

Shipping   Co.  v.    Somes,    28   L.   J.,  C.  k  M.  304. 


234  INNKEEPERS,  VETERINARY  SURGEONS,  ETC. 

Latour  (h),  but  the  case  was  decided  on  another  point. 
The  doubt  seemed  to  be  whether  in  the  contract  for 
training  there  was  a  stipulation  for  the  re-delivery  of  the 
Horse  trained  for  the  purpose  of  Racing.  And  in  a  later 
case  Mr.  Baron  Alderson  said,  "  It  may  be  very  doubtful 
whether  a  Trainer  would  not  be  considered  to  be  in  the 
situation  of  a  Livery-stahle  heeper,  if  by  the  contract  he 
is  to  allow  the  owner  to  run  the  Horse"  {i).  Mr.  Baron 
Parke,  shortly  afterwards  in  another  case,  said,  "As  to 
the  case  of  the  training  Grroom  it  is  not  necessary  to  say 
anything,  as  it  has  not  been  formally  decided ;  for  in 
Jacobs  v.  Latour  {h)  the  point  was  left  undetermined. 
It  is  true  there  is  a  Nisi  prim  decision  of  Best,  0.  J.,  in 
Beian  v.  Waters  (k),  that  the  Trainer  would  have  a  lien, 
on  the  ground  of  his  having  expended  labour  and  skill  in 
bringing  the  animal  into  condition  to  run  at  Races ;  but 
it  does  not  appear  to  have  been  present  to  the  mind  of  the 
Judge,  nor  was  the  usage  of  training  to  that  effect  ex- 
plained to  him,  that  when  Horses  are  delivered  for  that 
purpose  the  owner  has  always  a  right  dm-ing  the  con- 
tinuance of  the  process  to  take  the  animal  away  for  the 
purpose  of  running  Races  for  Plates  elsewhere.  The  right 
of  lien,  therefore,  must  be  subservient  to  this  general  right 
which  overrules  it ;  so  that  I  doubt  if  that  doctrine  would 
apply  where  the  animal  delivered  was  a  Racehorse,  as  that 
case  differs  much  from  the  ordinary  case  of  training.  I  do 
not  say  that  the  case  of  Bevan  v.  Waters  {k)  was  wrongly 
decided ;  I  only  doubt  if  it  extends  to  the  case  of  a  Race- 
horse, unless  perhaps  he  was  delivered  to  the  groom  to  be 
trained  for  the  pm"pose  of  running  a  specified  race,  when  of 
course  these  observations  would  not  apply  "  (/). 

It  'has  however  been  decided  in  a  later  case,  that  the 
labour  and  skill  employed  on  a  Racehorse  b}^  a  Trainer 
are  a  good  foundation  for  a  lien  {m).  But  if  by  usage  or 
contract  the  owner  may  send  the  Horse  to  run  at  any  race 
he  chooses,  and  may  select  the  Jockey,  the  Trainer  has  no 
continuing  right  of  possession  and  consequently  no  lien  [m) . 
Stallion-  ^]jq  owner  of  a  Stallion  is  entitled  to  a  specific  lien  on 

Uen.  ^^    ^^  ^     the  Mare  in  respect  of  his  charge  for  covering  her.     Thus 

[h)  Jacobs  V.  Latour,  2  M.  &  P.  [l)  Jackson  v.  Ctimmins,  5  M.  & 

205.  W.  350. 

(i)  Scarfe  v.  Morgan,  4  M.  &  AY.  [m)  Forth  v.  Simpson,  13  Q.  B. 

276.  G80;  S.    C.    18  L.  J.,  Q.  B.  266; 

\k)  Bevan  v.   Waters,   3   C.  &  P.  Lee  v.  Lricin,  4  Ir.  Jur.  372. 
520. 


HORSEBBEAKER,  TRAINER,  ETC.  235 

in  the  following  case  S.  sent  a  Mare  to  M.,  a  farmer,  to 
be  covered  by  a  Stallion  belonging  to  him,  and  the  Mare 
was  taken  to  M.'s  stables  and  covered  accordingly  upon  a 
Sunday.  However,  the  charge  for  covering  not  being  paid, 
M.  detained  the  Mare,  and  on  a  demand  of  her  being 
afterwards  made,  M.  refused  to  deliver  her,  claiming  a  lien 
not  only  for  the  charge  on  that  occasiofi,  but  for  a  general 
balance  due  to  him  on  another  account.  It  was  held  that 
M.  was  entitled  to  a  specific  lien  on  the  Mare  for  the 
charge  for  covering  her,  and  that  the  claim  made  by  M.  to 
retain  the  3Iare  for  the  general  balance  was  not  a  waiver 
of  his  lien  for  the  charge  on  the  particular  occasion,  and 
did  not  dispense  ^\ith  the  necessity  of  a  tender  of  that 
sum(;?). 

It  was  also  decided  that  such  a  contract  was  not  void  For  work 
within  29  Car.  2,  c.  7,  s.  1,  on  the  ground  of  its  having  ^one  on  a 
been  made  and  executed  on  a  Sunday,  but  that  even  if  it    ^^  ^^' 
were  void  the   contract   having   been   executed  the   lien 
attached.     And   Mr.    Baron   Parke    said,    "  We    are    of 
opinion  that  this  is  not  a  case  within  the  statute  29  Car.  2, 
c.   7,  which  only  had  in  its  contemplation  the  case   of 
persons  exercising  trades,  &c.  on  that  day,  and  not  one 
like   the   present,  where  the  defendant,  in  the  ordinary 
calling  of  a  farmer,  happens  to  be  in  possession  of  a  Stallion 
occasionally  covering  Mares;  that  does  not  appear  to  me 
to  be  exercising  any  trade,  or  to  be  the  case  of  a  person 
practising  his  ordinary  calling  "  («). 

(«)  Scarfe  v.  Morgan,  4  M.  &  W.  270. 


(     236 


CHAPTER  XI. 


LIVERY-STABLE   KEEPERS,   AGISTERS,   AND   THE    HIRING    AND 
BORROWING  HORSES. 


LivEET- Stable  Keeper. 

Has  no  rrivikf/e    23  / 

Liable  icJtcre  the  Horse  is  lost  . .  id. 
Horse  at  Livery  distrainable  . .  id. 
But  not  ichere  he  is  merely  to  be 

cleaned  and  fed id. 

Distinction  taken  in  Parsons  r. 

Giugell 238 

Livery -Stable  Keeper  has  no  Lien 

for  Keep id. 

May  have  a   Lien  by  Agree- 
ment         id. 

Horse  removed  to  defeat  such 

Lien     id. 

Livery- Stable  Keeper  has  no  Lien 

for  Money  expended  on  Horse  .     id. 
What  cannot  be  set  off  in  an  Ac- 
tion for  Keep 239 

He  must   take  reasonable  Care  of 

the  LLorse    id. 

An  Action  for  not  taking    due 
care  of  a  Horse  founded  on 

Contract 240 

Agister. 

His  Possession    240 

Does  not  insure  a  Horse's  Safoiy  id. 
He  is  answerable  for  Xegligcncc.     id. 

If  he  leaves  his  Gates  open    241 

Fences  out  of  Order,  ^-f id. 

Injury  by  another  Horse   id. 

The  Horse's  Condition 242 

Eatage  let  for  a  certain  Time    ..     id. 

Agister  has  no  Lien id. 

May  have  a  Lien  by  Agreement.  243 
Horses  and  Cattle  being  agisted 

are  distrainable 244 

But  not  when  taken  in  to  rest 

for  a  Night    id. 

Decision  of  the  Irish  Court  of 

Queen's  Bench    id. 

Distinction  ivliere  Cattle  enter 
by  breaking  Fences     id. 

Hieing  Hoeses. 

Letting  for  Hire    244 

Warranty    of     Fitness     for    a 
Journey id. 


Ilymaii  r.  Nye 245 

IVhcre    a   ^^ff)Yifif/«r   Horse    is 

selected    247 

But  a  Horse  should  not  be  used 
for  a  purpose  other  than  that 
'for  u-h  ich  it  ivas  h  ired id. 

What  Care  is  required id. 

Infancy  good  Defence  to  an  Ac- 
tion on  Contract id. 

Sccns,  ichere  Action  founded  in 
Tort    248 

Where  Hirer  is  ansurrable  at  all 
Events     id. 

Unnecessary  Deviation id. 

Where  Negligence  must  be  p)roved    id. 

Where  the  Horse  falls  Lame id. 

Where  the  Horse  is  exhausted  . .     id. 

Where  the  Horse  refuses  its  Feed  249 

Where  the  Horse  is  returned  in 
icorse  Condition id. 

Expenses  of  curing  Sick  Horse . .     id. 

Where  the  Horse  is  improperly 
doctored id. 

Who  must  pay  for  Shoeing  ....     id. 

Bailment  determined  by  selling 
the  Goods    id. 

Where  the  Horse  is  stolen  from 
the  Hirer    250 

Wlierc  the  Horse  is  stolen  by  the 
Hirer ib. 

Must  have  been  originally  taken 
irith  a  Felonious  Intention  at 
Common  Law 251 

Noiv  Bailee  indictable  for  Lar- 
ceny under  24  ^-  25  Vict.  c.  96, 
s.  3 id. 

Horse  hired  by  a  Servant id. 

Owner's  Liability  in  case  of 
Accident id. 

Horses  driven  by  the  Owner's 
Servants 252 

Horses   driven   by   the   Owner^s 

Servants  to  a  certain  Flace  .    id. 
Travelling  post id. 

Horses  driven  cdjout  Town  by  the 
Owner's  Servants   id. 

Laug-her  v.  Pointer id. 


LIVERY-STABLE  KEEPER. 


237 


Owner  held  liable  in  Quarman 

V.  Bm-nett 253 

Wearbig  the  Hirer'' s  Livery . .  id. 
A  Job-Master's  Affreement  . . . ,  254 
Where  the    Hirer  is  liable  for 

Damage id. 

Hirer   liable   through   his    own 

Conduct  id. 

Hirer  liable  ivh ere  he  might  have 

controlled  his  Servant    id. 

M'Laughlin  v.  Pryor 255 

Opinion  of  the  Court  of  Com- 
mon Pleas  id. 

The  General  Rule 256 

Where  the  Hirer  ivould  not  be 
liable   id. 

Hirer  sitting  outside  liable    . .     id. 
The  Jurg  must  decide  whether 

the  Servant  is  acting  for  the 

Hirer  or  Oicner 257 

A  Hirer's  Agreement    id. 

BoKEOwiNG  Horses. 

Lending  for  Use 258 

Duties  of  Borrower  and  Lender  .  id. 

Lender  of  a  Horse id. 

Must  not  conceal  Defects   id. 


What  Care  is  requited , .    258 

As   much    as   the  Borrower   is 

capable  of  bestowing 259 

Showing  a  Horse  for  Sale id. 

A  gratuitous  Bailee 260 

Negligence  of  a  Bailee    id. 

Rule   as   to   Negligence   of  gra- 
tuitous Bailee id. 

Use  stricthj  personal id. 

Cannot  be  used  by  a  Servant . .    261 
Must   be  used  according   to   the 

Lending id. 

Or  else  the  Borrower  is   an- 
swerable       id. 

Where   no    Time    is    fixed   for 

Return     id. 

Redelivery  on  Request    id. 

Borrower    bound    to    feed     the 

Horse id. 

Where  the  Horse  is  exhausted  . .  262 
Where  the  Horse  is  killed  ....  id. 
Where    the    Horse    dies    from 

Disease    id. 

Where   Borrower  is  answerable 

for  Damage     id. 

Bailment  ended  by  Misuser  ....     id. 


LIVERY-STABLE  KEEPER. 

A  Livery-stahle  Keeper,  who  is  not  an  Innkeeper,  has  no 
privilege  himself,  and  none  can  be  claimed  under  him  ;  he 
must  therefore  rest  on  his  own  agreement  {a).  But  he  is 
not  liable  to  the  inconveniences  to  which  Innkeepers  are 
subject,  such  as  taking  out  Licences,  &c. ;  and  he  is  not 
bound  to  have  Soldiers  quartered  upon  him  {b). 

But  if  a  Horse  in  his  keeping  be  lost  or  stolen,  he  is 
answerable  for  it  {c). 

A  person  should  satisfy  himself  of  the  credit  and  solvency 
of  the  LiDery-stahle  Keeper,  to  whom  he  proposes  to  entrust 
his  Horse ;  because  Horses  and  Carriages  standing  at 
Livery  are  diatrainahle  for  rent  {e). 

But  the  case  of  a  Horse  sent  to  a  Livery-stable  merely 
to  be  cleaned  and  fed,  is  very  different  from  one,  where  he 


(«)  Yelv.  66 ;  Chapman  v.  Allen, 
Cro.  Car.  271 ;  Yorlcc\.  Greenaugh, 
2  Ld.  Raym.  687;  S.  C.  1  Salk. 
388  ;  Gelly  v.  Clerk,  Cro.  Jac.  188. 
la  some  of  tlie  States  in  America 
statutes  are  in  force  giving  the 
livery-stable  keeper  a  lien  upon 
animals  for  their  keei).  See  Hanover 
on  Horses;   Colquit  v.  Jiirkman,  47 


Ga.  555  (1873). 

{b)  Rarkhurst  v.  Foster,  1  Salk. 
387  ;  Barnard  v.  How,  1  C.  &  P. 
366. 

(c)  Yorke  v.  Greenaugh,  2  Ld. 
Raym.  866 ;  Francis  v.  Wyatt,  3 
Burr.  1498  ;  S.  C.  1  Bla.  Rep.  485; 
Parsons  v.  Gingcll,  4  C.  B.  558 ; 
S.  C.  16  L.  J.,  C.  P.  227. 


Has  no  pri- 
vilege. 


Liable  where 
the  Horse  is 
lost. 

Horse  at 
Livery  dis- 
trainable. 

But  not 
where  he  is 
merely  to  be 
cleaned  and 
fed. 


238 


LTYERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


Distinction 
taken  in 
Parsons  v. 
Gingell. 


Livery -stable 
Keeper  has 
no  lien  for 
keep. 

May  have  a 
lien  by  agree- 
ment. 


Horse  re- 
moved to 
defeat  such 
lien. 


Livery -stable 
Keeper  has 
no  lien  for 
money  ex- 
pended on 
Horse. 


is  sent  to  remain  during  the  owner's  pleasure,  the  feeding 
and  grooming  being  only  incident  to  the  principal 
object  {(l). 

In  the  case  of  Parsons  v.  Gingell  (e),  the  following 
distinction  was  taken  by  Chief  Justice  Wilde  :  "If  the 
goods  are  sent  to  the  premises  for  the  purpose  of  being 
dealt  with  in  the  way  of  the  party's  trade,  and  are  to  re- 
main upon  the  premises  until  that  purpose  is  answered,  and 
no  longer,  the  case  falls  within  one  class  ;  but  if  they  are 
sent  for  the  purpose  of  remaining  there  merely  at  the  will 
of  the  owner,  there  being  no  work  to  be  done  upon  them, 
it  falls  within  a  totally  different  consideration." 

A  Liverj/stahle  Keeper  cannot  detain  a  Horse  for  his 
keep  as  an  Innkeeper  may,  because  he  is  not  bound  to  take 
it,  much  less  can  he  detain,  or  be  bound  to  take  a  Carriage 
without  Horses  (/). 

But  he  may  have  a  lien  by  special  agreement,  as  where 
a  Mare  was  placed  with  a  Lirery-stahle  Keeper,  who  ad- 
vanced money  to  her  owner,  and  it  was  agreed  that  she 
should  remain  as  a  security  for  the  repayment  of  the  sum 
advanced,  and  for  the  expenses  of  her  keep,  the  Livery- 
stable  Keeper  was  held  to  have  a  lien  on  her  for  the  amount 
due  (r/)._ 

And  if  he  have  such  lien  by  agreement,  and  the  owner 
of  the  Horse  fraudulently  take  it  out  of  his  possession  to 
defeat  the  lien,  the  Livery-stable  Keeper  may  retake  it 
without  force,  for  the  lien  is  not  put  an  end  to  by  his 
having  parted  with  the  possession  under  such  circum- 
stances [h) . 

A  Livery-stable  Iveeper  has  no  lien  on  a  Horse  for  money 
expended  by  him  on  the  Horse  at  the  request  of  the  owner. 
Thus  in  a  case  in  which  a  Livery-stable  iLeej^er  had  em- 
ployed a  Yeterinary  Surgeon  at  the  request  of  the  owner 
to  blister  a  Horse  standing  at  Livery  with  him  for  splints, 
and  had  actually  paid  the  bill,  it  was  held  that  he  had  no 
right  to  detain  the  Horse  for  the  amount  of  this  bill, 
inasmuch  as  the  Veterinary  Surgeon  had  no  lien  for  his 
bill,  nor  the  Livery-stable  Keeper  for  his  keep ;  and 
inasmuch  as  there  is  no  rule  of  law,  which  gives  a  Livery- 


[d)  See  per  Wilde,  C.  J.,  Parso/is 
V.  Ginffell,  4  C.  B.  558. 

(e)  Farso/is  v.  Gingell,  4  C.  B. 
558 

(/)  Barnard  v.  Soiv,  1  C.  &  P. 
366 ;  Yorke  v.  Greenaugh,  2  Ld. 
Raym.   867;    Francis  v.    Wyatt,   3 


BiuT.  1498  ;  ,V.  C.  1  Bla.  Eep.  485; 
Parsons  v.  Gingell,  4  C  B.  558 ; 
-S'.  C.  16  L.  J.,  C.  P.  227. 

[g)  Bonatty  v.  Crowder,  1 1  Moore, 
479. 

ill)  Wallace  v.  Woodqate,  R.  &  M. 
193  ;  .S'.  C.  1  C.  &  P.  575. 


LIVERY-STABLE  KEEPER.  239 

stable  Keeper  a  lien  for  money  expended  upon  a  Horse 
standing  at  livery  at  the  request  of  the  owner  {i) . 

Where  a   Lkery-stahle   Keeper  brings  an  action  for  a  What  cannot 
Horse's  keep,  money  received  by  him  as  the  price  of  the  ^"^  ^®*  ?^  V^ 

TT  1     J.     £L  IX  1  i-i  '     •  £  ail  action  for 

Horse,  but  aiterwards  returned  on  the  rescission  oi  a  con-  ^ggp^ 
tract  of  sale,  cannot  be  set  off  against  him  by  the  defendant. 
Thus,  the  plaintiff,  a  Lii-ery-stahle  Keeper,  sold  for  the 
defendant  a  Horse  and  received  the  price.  The  purchaser 
afterwards  rescinded  the  contract  on  the  ground  of  fraud, 
and  v/as  repaid  the  purchase-money.  In  an  action  by  the 
plaintiff  for  the  keep  of  the  Horse,  it  was  held  that  the 
defendant  could  not  set  off  the  price  as  money  received  for 
his  use,  it  having  ceased  to  be  so  when  the  contract  was 
defeated  by  the  purchaser,  although  the  defendant  was  ig- 
norant of  the  fraud  {k) . 

A  Livery-stable  Keeper  who  undertakes  for  reward  to  He  must  talie 
receive  a  Horse  or  Carriage  and  lodge  it  in  a  stable  or  reasonable 
coach-house,  is  bound   to   take  reasonable  care  (/).     The  Horse, 
obligation  to  take  reasonable  care  of  the  thing  entrusted  to 
a  bailee  of  this  class,  involves  in  it  an  obligation  to  take 
reasonable  care  that  any  building  in  which  it  is  deposited 
is  in  a  proper  state,  so  that  the  thing  deposited  may  be 
reasonably  safe  in  it ;  but  no  Warranty  or  obligation  is  to 
be  implied  by  law  on  his  part  that  the  building  is  absolutely 
safe.     The  fact  that  the  building  has  been  erected  by  the 
Livery-stable  Keeper  on  his  own  ground  makes  no  differ- 
ence to  his  liability  {m). 

In  Searle  v.  Lavericli  {ii)  the  plaintiff  brought  his  Horses 
and  two  Carriages  to  the  defendant,  a  Livery-stable 
Keeper ;  the  Carriages  were  placed  under  a  shed  on  his 
premises,  a  charge  being  made  by  him  in  resj)ect  of  each. 
The  shed  had  just  been  erected,  the  upper  part  still  being 
in  the  hands  of  workmen.  The  defendant  had  employed 
a  builder  to  erect  the  shed  for  him  as  an  independent 
contractor,  not  as  his  servant,  and  he  was  a  competent  and 
proper  person  to  employ.  The  shed  was  blown  down  by  a 
high  wind,  the  defendant  being  ignorant  of  any  defect  in 
it,  and  the  Carriages  were  injured,  upon  which  the  plaintiff 
brought  an  action  against  him.  At  the  trial,  the  above 
facts  having  been  admitted,  the  Judge  rejected  evidence 
to  prove  that  the  fall  of  the  shed  was  owing  to  its  being 

(i)  Orchard  v.  Eackstraw,  9  C.  B.  Q.  B.   122 ;  43  L.  J.,    Q.  B.    43 ; 

698.  30  L.  T.,  N.  S.  89. 

{k)  Murray  v.  Mann,  2  Ex.  538.  {m)  Ibid. 

(/)  Searle  v.  Laverick,  L.  E,.,   9  {»)  Ibid. 


240 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


An  action  for 
not  taking 
due  care  of  a 
Horse 
founded  on 
contract. 


His  posses- 
sion. 


Does  not  in- 
sure a 
Horse' s 
safety. 


He  is  answer- 
able for 
Neg-liarence. 


imskillfully  built  tlirougli  the  negligence  of  the  contractor 
and  his  men  ;  and  he  nonsuited  the  plaintiff,  ruling  that 
the  defendant's  liability  was  that  of  an  ordinary  bailee  for 
hire,  and  that  he  was  only  bound  to  take  ordinary  care  in  the 
keeping  of  the  Carriages,  and  that  if  he  had  exercised  in 
the  employment  of  the  builder  such  care  as  an  ordinary 
careful  man  would  use,  he  was  not  liable  for  damage 
caused  by  the  carelessness  of  the  builder,  of  which  the 
defendant  had  no  notice.  And  this  nonsuit  and  ruling 
were  held  right. 

An  action  against  a  Licenj-stahle  Keeper  for  not  taking 
due  and  proper  care  of  a  Horse  of  the  plaintiff's,  whereby 
damage  resulted,  is  founded  on  contract,  and  not  in  tort, 
and  thus  differs  from  an  action  against  a  Farrier,  who 
shoes  a  Horse  negligently,  and  so  commits  a  breach  of  a 
common  law  duty.  Therefore,  where  less  than  20/.  is 
recovered  against  a  Livery-stable  Keeper,  the  plaintiff  is 
deprived  of  costs  by  the  County  Courts  Act  (30  &  31  Vict. 
c.  142),  s.  5,  unless  -the  Judge  certifies  that  there  was 
sufficient  reason  for  bringing  the  action  in  the  High 
Court  (o) . 

AGISTER. 

An  Agister  has  such  a  possession  that  he  may  maintain 
Trespass  against  a  person  who  has  taken  away  any  Horse 
or  Cattle  left  with  him  to  be  agisted  {p).  He  may  also 
maintain  an  action  of  trover  for  Horses  or  other  Cattle 
during  their  agistment  (q) .  If  a  Horse  so  left  be  sold  by 
him,  it  is  no  Larceny  (r)  ;  and  if  it  be  stolen,  and  the  thief 
prosecuted,  the  property  may  be  laid  as  his  [s). 

A  person  who  takes  in  Horses  to  agist  does  not,  like  an 
Innkeeper,  insure  their  safety.  He  is  obliged  to  use  rea- 
sonable care,  but  is  not  answerable  for  the  wantonness  or 
mischief  of  others.  For  if  a  Horse  has  been  taken  from  his 
premises,  or  has  been  lost  by  accident,  against  which  he 
could  not  guard,  he  is  not  responsible  (/). 

A  person  who  takes  Horses  to  agist  is  answerable, 
either  if  a  particular  negligence  be  proved,  thi'ough  which 
the  Horse  was  lost,  or  if,  in  ignorance  of  the  special  cir- 


(o)  Lcggc  v.  Tucker,  1  H.  &  N. 
500,  decided  iinder  13  &  14  Vict, 
c.  61,  s.  11. 

{p)  See  4  Inst.  293;  2  Eol.  Abr. 
551 ;  WoodwarcV s  case,  2  East's  P. 
C.  653. 

{q)  Clark  v.  Roe,  4  Ir.  C.  L.  Rep.  7. 


(/■)  Tux  V.  ^mlth,  1  Mood.  C.  C. 
473. 

(.v)  WoodwariV s  case,  2  East's  P. 
C.  653. 

(0  Broadwater  V.  Blot,  Holt,  547. 
See  Corbctt  v.  Paekingto»,  6  B.  &  C. 
268  ;  Lib.  Plac.  14. 


AGISTER.  241 

cumstances  of  the  case,  tliere  be  gross  general  negligence, 
to  which  the  loss  may  reasonably  be  ascribed  («) . 

For  instance,  if  cattle  be  agisted,  and  the  Agister  leaves  If  ho  leaves 
the  gates  of  his  field  open,  he  uses  less  than  ordinary  dili-  ■'"^  Gates 
gence  ;  and  if  the  Cattle  stray  out,  and  are  stolen,  he  must  °^^^' 
make  good  the  loss  (r). 

So,  too,  if  the  Fences  were  in  an  improiDcr  state  when  the  Fences  out  of 
Horse  was  taken  in  to  agist,  or  if  the  party  taking  it  in,  order,  &c. 
did  not  apply  that  care  and  diligence  to  its  custody,  even 
though  it  be  taken  in  gratuitously  (.r),  which  the  owner 
had  a  right  to  expect  (.r)  ;  as  where,  from  not  properly 
Fencing  a  Pond,  the  Horse  stuck  in  the  mud  and  died,  the 
Agister  is  answerable  for  such  negligence  (y) .  But  where 
a  Horse  fell  through  some  rotten  boards  into  a  cesspool 
and  was  injured,  it  was  doubted  by  Willes,  J.,  whether  the 
defendant  was  liable  (z). 

In  the  ease  of  Gaunt  v.  Smith  {a),  tried  before  Pollock,  Injury  by 
C.  B.,  which  was  an  action  brought  against  an  Agister  for  ?J^o*^^er 
negligence  in  the  care  of  the  plaintilf's  Pony,  which  was  °^^^'  °' 
kicked  and  damaged  during  its  agistment  by  a  Horse, 
whose  shoes  had  not  been  taken  oS,  there  being  no  evi- 
dence that  the  defendant  knew  the  Horse  to  be  vicious,  the 
plaintiff  was  nonsuited.  But  this  case  has  recently  been 
overruled  by  the  case  of  Smith  v.  Cook  {b),  the  facts  of 
which  were  as  follows : — An  Agister  of  cattle  placed  a 
Horse  in  a  field  with  a  number  of  heifers,  knowing  that  a 
bull,  kept  on  adjoining  land,  had  several  times  been  found 
in  the  adjoining  field,  and  there  was  no  sufficient  fence  to 
keep  it  out.  He  did  not,  however,  know  that  the  bull  was 
of  a  mischievous  disposition.  The  IPorse  was  gored  by  tlie 
bull  and  killed;  and  in  an  action  by  the  owner  of  the 
Horse  against  the  Agister  for  breach  of  contract  to  take 
reasonable  care,  the  jury  found  for  the  plaintiff.  It  was 
held  that  the  fact  that  the  Agister  had  no  knowledge  of 
the  mischievous  disposition  of  the  particular  bull  was  no 

(tf)  See  note  {i),  ante.  Horse  when  grazing  in  a  field,  by 

[v)    Broadwater    v.    Blot,     Holt,  falling  down  a   shaft,   which   was 

5-17.     Also  per  Byles,  J.,  Marj'dl  improperly  fenced  by  the  defend- 

V.  South  H'ales  Bailw.  Co.,  8  C.  B.,  ants,   who  were  in   occupation  of 

N.  S.  525.  the  minerals  under  the  Held,  was 

{x)  Booth  V.  JTihon,  1  B.  &  Aid.  actionable. 
59.  (r)   Slacci/  v.  Livesay,  C.  P.,  N.  P., 

{y)  Poveyy.Purnell,  before  Chief  Nov.  14,  1856. 
Justice  Jervis,  C.  P.,N.  P.,  Dec.  6,  {a)  Gaunt  y.  Smith,  N.  P.,  Ex., 

1853.     And   see    Groucott   v.    WU-  Dec.  11,  1856. 

lUuns,  32  L.  J.,  Q.  B.  237,  in  which  {}>)  L.  R.,  1  Q.  B.  D.  79  ;  45  L. 

it  was  held  that  injury  done  to  a  J.,  Q.  B.  122  ;  33  L.  T.,  N.  S.  722. 

U.  R 


242  LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 

ground  for  disturbing  the  verdict,  as  such  knowledge  was 
not  essential  to  his  liability  under  his  contract  as  an  Agister 
to  take  reasonable  care  of  the  horse. 
The  Horse's         It  is  only  just,  that  if  A.  send  his  horse  to  B.  to  be  kept 
con    ion.        £^j,  j^^j^  ^|.  gj.jjgg  f^y,  r^  certain  time,  B.  should  be  answer- 
able to  him,  if  the  Horse  when  returned  appear  in  worse 
condition  than  Horses   usually   are   under   such   circum- 
stances, unless  B.  show  that  the  Horse  has  been  in  a  good 
pasture,  and  therefore  that  the  falling  off  must  have  arisen 
from  some  fault  in  his  constitution.     But  were  B.  to  agree 
to  take  in  A.'s  horse  as  one  of  ten  to  graze  on  a  certain 
field,  in  that  case  B.  would  not  be  answerable,   if  A.'s 
Horse  fell  off  in  condition  in  consequence  of  the  field  being 
eaten  bare. 
Eatage  let  for       It  will  be  seen  by  a  modern  case  that  on  a  demise  of 
time*^^^  land  or  the  vesture  of  land  (as  the  eafage  of  a  field)  for  a 

specific  term  at  a  certain  rent,  there  is  no  implied  obliga- 
tion on  the  part  of  the  lessor  that  it  shall  be  fit  for  the 
purpose  for  which  it  is  taken.  Therefore,  where  A.  had 
agreed  in  writing  to  take  the  eafage  of  twenty-four  acres  of 
land  from  B.  for  seven  months,  at  a  rent  of  40/.,  and  then 
stocked  the  land  with  beasts,  several  of  which  died  a  few 
days  afterwards,  from  the  effect  of  a  poisonous  substance, 
which  had  accidentally  been  spread  over  the  field  without 
B.'s  knowledge  among  some  manure ;  the  Court  of 
Exchequer  held  that  A.  was  not  entitled  on  that  account 
to  throw  up  the  land,  but  continued  liable  for  the  whole 
rent.  Mr.  Baron  Parke  saying,  in  the  course  of  the  argu- 
ment, "  It  comes  simply  to  the  question,  whether  there  is 
an  implied  undertaking  that  the  grass  shall  be  fit  for  the 
eatage  of  cattle ;  if  there  is,  cadit  qncestio ;  if  not,  the 
plaintiff  has  jDerformed  his  engagement,  and  the  defendant 
has  had  all  he  bargained  for,  namely,  a  demise  of  the 
eatage  for  six  months,  and  must  pay  for  all"  (<?). 
Agister  has  If  a  man  take  in  Horses,  kine  or  other  cattle  to  de- 

no  lien.  pastui'e,  on  a  contract  at  so  much  a  head  per  week,  he 

cannot  detain  them  for  the  value  of  the  Agistment,  unless 
there  is  a  special  agreement  to  that  effect  {d).  And  the  law 
on  this  subject  was  laid  down  and  explained  in  the  case  of 
Jctclson  V.  Cummins  (e),  in  which  Mr.  Baron  Parke  said, 
"  I  think  that  by  the  common  law  no  lien  exists  in  the 
case  of   Agistment.     The  general  Rule  as  laid  down   by 

(f)  Sutton  V.  Temple,  12  IL  &  W.       273  ;  Ilkhayds  v.  Sijmons,  8  Q.  B. 
60.  93. 

(d)   Chapman  v.  Alien,  Cro.  Car.  (f)  Jarlson  v.  Ciiminimt,    5  M.  & 

W.  312. 


AGISTER.  243 

Best,  C.  J.,  in  Bcvan  v.  Waters  (/),  and  by  this  Court  in 
Scarf e  v.  Morgan  {g),  is,  that  by  the  general  law,  in  the 
absence  of  any  special  agreement,  whenever  a  party  has 
expended  labour  and  skill  in  the  improvement  of  a  chattel 
bailed  to  him,  he  has  a  lien  upon  it.  Now,  the  case  of 
Agiafment  does  not  fall  within  that  principle,  inasmuch  as 
the  Agister  does  not  confer  any  additional  value  on  the 
article  either  by  the  exertion  of  any  skill  of  his  own,  or 
indirectly  by  means  of  any  instrument  in  his  possession,  as 
was  the  case  with  the  Stallion  in  Scarfe  v.  Morgan  (g) ;  he 
simply  takes  in  the  animal  to  feed  it.  In  addition  to 
which  we  have  the  express  authority  of  Chapman  v. 
Allen  (h),  that  an  Agister  has  no  lien;  and  although 
possibly  that  case  may  have  been  decided  on  the  special 
ground  that  there  had  been  an  agreement  between  the 
parties,  or  a  conversion  of  the  animal  had  taken  place,  still 
it  is  also  quite  possible  that  it  might  have  proceeded  on  the 
more  general  principle  that  no  lien  can  exist  in  the  case  of 
Agistment ;  and  it  was  so  understood  in  this  Court  in 
Judson  Y.  Ethridge{i).  The  analogy  also  of  the  case  of 
the  Livery-stable  Keeper  who  has  no  lien  by  law,  furnishes 
an  additional  reason  why  none  can  exist  here ;  for  this  is  a 
case  of  an  Agistment  of  milch  cows,  and  from  the  very 
nature  of  the  subject-matter,  the  owner  is  to  have  possession 
of  them  during  the  time  of  milking ;  which  establishes 
that  it  was  not  intended  that  the  Agister  was  to  have  the 
entire  possession  of  the  thing  bailed ;  and  there  is  nothing 
to  show  that  the  owner  might  not  for  that  purpose  have 
taken  the  animals  out  of  the  field  wherein  they  were 
grazing  if  he  had  thought  proper  so  to  do.  This  claim  of 
lien  is  therefore  inconsistent  with  the  necessary  enjoyment 
of  the  property  by  the  owner." 

But  where  there  is  a  special  agreement,  there  may  of  May  have  a 
course  be  a  lien  (/.•).  Thus  the  plaintiff  having  a  Cow  at  lienbyagree- 
grass  in  defendant's  field,  and  being  indebted  for  the 
Agistment,  agreed  with  him  that  the  Cow  should  be 
security  ;  that  he  would  not  remove  her  till  the  defendant 
was  paid,  and  that,  if  he  did,  the  defendant  might  take 
her  where  she  might  be,  and  keep  her  till  he  was  paid. 
The  plaintiff  removed  the  Cow  -svithout  having  paid  the 

(/)  Sevan  v.  Waters,  3  C.  &  P.  278. 

520  ;  S.  C.  M.  &  M.  236.  (i)  Judson  v.  Ethrichje,  1  Cr.  &  M. 

ici)  Scarfe  v.  Morgan,  4  M.  &  W.  743. 

283  ;  S.  C.  1  Horn.  &  Hurl.  292.  [k)  Richards  v.  Si/mons,  8   Q.  B. 

{h)   Chapman  v.  Alien,  Cro.  Car.  90. 

ii2 


244 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


Horses  and 
Cattle  being 
agisted  are 
distrainable. 

Bat  not  when 
taken  in  to 
rest  for  a 
niglit. 

Decision  of 
the  Irish 
Court  of 
Queen's 
Bench. 


Distinction 
■where  Cattle 
enter  by 
breaking 
fences. 


Letting  for 
hire. 

"Warranty  of 
fitness  for 
journey. 


debt,  and  tlie  defendant  seized  her  on  the  high  road.  In 
an  action  of  Trespass  for  the  taking,  it  was  held  that  the 
agreement  might  be  set  up  as  a  defence  under  a  plea  that 
the  Cow  was  not  the  plaintiff's  {Ic). 

Horses  and  Cattle  put  into  a  close  to  be  agisted  are 
liable  to  be  taken  in  distress  by  the  landlord,  the  general 
Eule  being  that  all  things  on  the  land  are  distrainable  for 
rent  in  arrear  (/). 

Horses  or  cattle  driven  to  a  distant  Market,  and  put  into 
land  to  rest  for  one  night,  cannot  be  distrained  for  rent  by 
the  owner  of  the  land,  such  protection  being  absolutely 
necessary  for  the  public  interests  {m). 

Thus  it  was  held  in  the  Irish  Court  of  Queen's  Bench, 
that  certain  Cattle  belonging  to  a  drover  on  their  way  to 
a  Market  for  the  purpose  of  being  sold  there,  and  put  to 
graze  for  one  night,  immediately  before  the  morning  on 
which  the  Market  was  to  take  place,  were  privileged  from 
distress  by  the  landlord,  for  rent  due  to  him  out  of  the 
place  in  which  they  fed  {n). 

The  settled  distinction  seems  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  whether  they  are  levant 
ct  couchant  or  not.  If,  however,  the  Cattle  escape  through 
the  defect  of  fences  which  the  tenant  of  the  land  is  bound 
to  rejDair,  they  cannot  be  distrained  by  the  landlord  for 
rent,  though  they  have  been  levant  et  couehant,  unless  the 
owner  of  the  Cattle,  after  Notice  that  they  were  on  the 
land,  neglects  or  refuses  to  drive  them  away  (o). 

HIRING  HORSES. 

Letting  for  Eire  is  a  bailment  of  a  thing  to  be  used  by 
the  Hirer,  for  a  compensation  in  money  {p). 

If  a  Horse  or  Carriage  be  let  out  for  Hire  for  the 
purpose  of  performing  a  particular  journey,  the  party 
letting  warrants  that  the  Horse  or  Carriage,  as  it  may  be, 
is  fit  and  proper  and  competent  for  such  journey  [q). 


(/>•)  Richards  y.  Si/mous,  8  Q.  B.  90. 

(0  Jones  V.  FoiccU,  5  B.  &  C.  650  ; 
S.  0.  8  D.  &  R.  416. 

(;«)  Tate  v.  G!eed,  C.  B.,  H.  T. 
24  Geo.  3;  2  Christ.  Bla.  Com. 
p.  8,  n.  4  ;  and  see  Foole  v.  Longue- 
vill,  3  Wms.  Saund.  290,  n.  (q). 

(>i)  Kuc/ent  V.  Kinran,  1  Jebb   & 


Symes,  97  (Q.  B.  Ir.). 

(o)  Foole  V.  LomjuevWl,  3  Wms. 
Saund.  290  ;  and  see  2  Lutw.  1580 ; 
Gilb.  Dist.  34,  2nd  ed.  See  also 
Woohych  on  Fences,  309,  310. 

[p]  Jones  on  Bailments,  118. 

[q)  Per  Pollock,  C.  B.,  Chew  v. 
Joms,  10  L.  T.  231. 


HIKING  HORSES.  245 

The  fact  tliat  the  defendant  has  taken  all  reasonable 
and  proper  care  to  provide  a  fit  and  proper  Carriage  is  not 
sufficient,  and  this  was  so  held  in  the  recent  case  of 
Hyman  v,  Ni/e{)'),  in  which  the  point  was  very  fully- 
discussed.  In  that  case  the  plaintiff  hired  from  the  de- 
fendant, a  jobmaster,  for  a  specified  journey  a  Carriage, 
a  pair  of  Horses,  and  a  driver.  During  the  journey  a 
bolt  in  the  underpart  of  the  Carriage  broke,  the  splinter  bar 
became  displaced,  the  Horses  started  off,  the  Carriage  was 
upset,  and  the  plaintiff  injured.  In  an  action  against  the 
defendant  for  negligence,  the  jury  were  directed  that,  if  in 
their  opinion  the  defendant  took  all  reasonable  care  to 
provide  a  fit  and  proper  Carriage,  their  verdict  ought  to  be 
for  him.  The  Jury  found  a  verdict  for  the  defendant,  and 
in  particular  that  the  Carriage  was  reasonably  fit  for  the 
purpose  for  which  it  was  hired,  and  that  the  defect  in  the 
bolt  could  not  have  been  discovered  by  the  defendant  by 
ordinary  care  and  attention.  A  rule  having  been  ob-  lT>jmanv.Xt/e. 
tained,  calling  upon  the  defendant  to  show  cause  why 
there  should  not  be  a  new  trial  on  the  ground  of  mis- 
direction, and  that  the  verdict  was  against  the  weight  of 
the  evidence,  Lindley,  J.,  in  the  course  of  his  judgment 
said,  "A  careful  study  of  the  authorities  leads  me  to  the 
conclusion  that  the  learned  judge  at  the  trial  put  the  duty 
of  the  defendant  too  low.  A  person  who  lets  out  Car- 
riages is  not,  in  my  opinion,  responsible  for  all  defects 
discoverable  or  not ;  he  is  not  an  insurer  against  all  defects; 
nor  is  he  bound  to  take  more  care  than  coach  proprietors, 
or  railway  companies  who  provide  Carriages  for  the  public 
to  travel  in ;  but,  in  my  opinion,  he  is  bound  to  take  as 
much  care  as  they ;  and  although  not  an  insurer  against 
all  defects,  he  is  an  insurer  against  all  defects  which 
care  and  skill  can  guard  against.  His  duty  appears  to 
me  to  be  to  supply  a  Carriage  as  fit  for  the  purpose  for 
which  it  is  hired  as  care  and  skill  can  render  it ;  and  if 
whilst  the  Carriage  is  being  properly  used  for  such  purpose 
it  breaks  down,  it  becomes  incumbent  on  the  person  who 
has  let  it  out  to  show  that  the  break  down  was  in  the  proper 
sense  of  the  word  an  accident,  and  not  preventible  by 
any  care  or  skill.  If  he  can  prove  this,  as  the  defendant 
did  in  Christie  v.  Griggs  [s),  and  as  the  railway  company 
did  in  Eeadhead  v.  Midland  Rail.  Co.  (/),  he  will  not  be 

()•)  L.  R.,  6  Q.  B.  D.  685.  (0  L.  E,.,  2  Q.  B.  412  ;  36  L.  J., 

(•s)  2  Camp.  80.  Q.  B.  181. 


246  LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 

liable  ;  but  no  proof  short  of  tbis  will  exonerate  bim. 
Nor  does  it  appear  to  me  to  be  at  all  unreasonable  to  exact 
such  vigilance  from  a  person  wbo  makes  it  bis  business  to 
let  out  Carriages  for  bire.  As  between  bim  and  tbe  Hirer 
tbe  risk  of  defects  in  tbe  Carriage,  so  far  as  skill  and  care 
can  avoid  tbem,  ougbt  to  be  tbrown  on  tbe  owner  of  tbe 
Carriage.  Tbe  birer  trusts  bim  to  supply  a  fit  and  proper 
Carriage ;  tbe  lender  bas  it  in  bis  power  not  only  to  see 
tbat  it  is  in  a  proper  state,  and  to  keep  it  so,  and  tbus 
protect  bimself  from  risk,  but  also  to  charge  his  customers 
enough  to  cover  bis  expenses. 

"  Such  being,  in  my  opinion,  the  law  applicable  to  the 
case,  it  follows  tbat  the  direction  given  to  the  Jury  did  not 
go  far  enough,  and  tbat  it  was  not  sufficient,  in  order  to 
exonerate  the  defendant  from  liability,  for  bim  to  prove 
that  be  did  not  know  of  any  defect  in  tbe  bolt,  bad  no 
reason  to  suppose  it  was  weak,  and  could  not  see  tbat  it 
was  by  an  ordinary  inspection  of  the  carriage.  It  further 
follows  tbat,  in  my  opinion,  the  evidence  was  not  such  as 
to  warrant  the  finding  that  the  carriage  was  in  a  fit  and 
proper  state  when  it  left  tbe  defendant's  yard. 

"  In  many  cases  bearing  on  this  subject,  tbe  expression 
'  reasonably  fit  and  proper '  is  used.  Tbis  is  a  little 
ambiguous,  and  requires  explanation.  In  a  case  like  the 
present,  a  Carriage  to  be  reasonably  fit  and  proper  must  be 
as  fit  and  proper  as  care  and  skill  can  make  it  for  use  in  a 
reasonable  and  proper  manner,  /.  e.,  as  fit  and  proper  as 
care  and  skill  can  make  it  to  carry  a  reasonable  number  of 
people,  conducting  themselves  in  a  reasonable  manner,  and 
going  at  a  reasonable  pace  on  the  journey  for  which  tbe 
Carriage  was  hired,  or  (if  no  journey  was  specified)  along 
roads  or  over  grounds  reasonably  fit  for  Carriages.  A 
Carriage  not  fit  and  proper  in  this  sense  would  not  be 
reasonably  fit  and  proper,  and  Tice  vend.  The  expression 
'  reasonably  fit '  denotes  something  short  of  absolutely  fit ; 
but  in  a  case  of  this  description  the  difference  between  the 
two  expressions  is  not  great. 

"It  was  objected  on  the  part  of  tbe  defendant  that  the 
plaintiff  had,  in  bis  statement  of  claim,  based  bis  case -on 
negligence  on  the  part  of  the  defendant,  and  not  on  any 
breach  of  warranty  express  or  implied,  and  consequently 
that  the  plaintiff'  could  not  recover  in  this  action,  at  least 
without  amending.  But  the  absence  of  such  care  as  a 
person  is  by  law  bound  to  take  is  negligence  ;  and  whether 
the  plaintiff'  sues  tbe  defendant  in  tort  for  negligence  in 


HIRING  HORSES.  247 

not  having  supplied  such  a  fit  and  proper  Carriage  as  he 
ought  to  have  supplied,  or  whether  the  plaintiff  sues  him 
in  contract  for  the  hreach  of  the  implied  warranty  that  the 
Carriage  was  as  fit  and  proper  as  it  ought  to  have  been, 
appears  to  me  wholly  immaterial.  Upon  this  point  I 
adopt  the  opinion  of  Baron  Martin  in  Francis  v.  Cocli- 
re/l{i(),  which  is  based  upon  and  warranted  by  Bronii  v. 
Boorman  (.r). 

"  The  plaintiff's  pleadings  would  have  been  free  from  all 
objection  if  he  had  stated  in  his  statement  of  claim  that 
he  hired  the  Carriage  of  the  defendant,  and  not  merely 
that  the  plaintiff  was  lawfully  in  the  Carriage.  But  the 
defendant  knew  under  what  circumstances  the  plaintiff 
was  lawfully  in  it,  and  there  was  no  surprise  or  miscar- 
riage of  justice  occasioned  by  the  omission  of  the  statement 
of  the  fact  of  hiiing.  It  appears  to  me,  therefore,  that  the 
plaintiff  ought  not  to  be  precluded  from  recovering  in  this 
action  as  the  pleadings  stand,  if  the  facts  come  out  in  his 
favour. 

"For  the  above  reasons  I  am  of  opinion  that  there 
should  be  a  new  trial,  and  that  the  costs  of  the  first  trial, 
and  of  this  rule,  should  abide  the  event." 

And  even  if  a  particular  Horse  has  been  selected  out  of  Where  a  par- 
the  owner's  stables,  it  makes  no  difference,  as  it  must  be  ticular  Horse 
supposed  that  all  are  fit  for  their  work  {y). 

But  if  a  Horse  is  hired  for  one  purpose  and  is  used  But  a 
for  another,  and  the  Horse  when  thus  used  is  injured,  the  lio^'^e  should 
Hirer  is  liable  for  the  damage  thus  occasioned.     Accord-  foj,  ^  purpose 
ingly  where  a  Horse  was  hired  as  a  lady's  riding  Horse,  other  than 
the  Hirer  was  held  to  be  liable  for  damage  occasioned  when  that  for  which 

,.,..,  ,  s  °  it  was  hired, 

trymg  mm  m  harness  (;:). 

In  contracts  reciprocally  beneficial  to  both  parties,  such  What  care  is 
as  Hiring,  &c.,  such  care  is  exacted,  as  every  prudent  man  required, 
commonly  takes  of  his  own  goods ;  and  by  consequence 
the  Hirer  is  answerable  for  ordinary  neglect  {a).  If  there- 
fore a  man  so  treat  and  manage  his  Hired  Horse  as  any 
prudent  man  would  act  towards  his  own  Horse,  he  is  not 
answerable  for  any  damage  the  Horse  may  receive  {b). 

Where  the  plaintiff  declared  that,  at  the  defendant's  Infancy  good 
request,  he  delivered  a  Mare  to  the  defendant  to  be  pru-  <iefence  to  an 

^         '  '-  action  on 

contract. 
39  L.  J.,  {z)   Gapp   V.    Giandonati,    C.   P., 

N.  P.,  Nov.  14,  1857,  coram  Cress- 
well,  J. 
T.   231,  {n)  Jones  on  Bailments,  2.5. 

(/')  Cooper  \.  Burton,  3  Camp.  5,  n. 


(w)  L.  R. 

,5  Q.B.  509; 

Q.  B. 113. 

{x)  11  CI. 

&Pin.  1. 

(y)   Chew 

V.  Jones,  10  L, 

308. 

248 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


Seals  where 
action  founded 
in  tort. 


Where  Hirer 
is  answerable 
at  all  events. 

Unnecessary 
deviation. 


Where  negli- 
gence must 
be  proved. 


Where  Horse 
falls  lame. 


Where  the 
Horse  is  ex- 
hausted. 


dently  ridden,  and  the  defendant  injured  her,  it  was  held 
that  he  might  plead  his  infancy  in  bar,  as  the  action  was 
founded  on  a  contract  {c). 

But  where  it  is  clear,  from  the  Statement  of  Claim,  the 
whole  of  which  must  be  looked  at  in  order  to  see  whether 
the  action  is  substantially  founded  in  tort  or  in  contract, 
that  the  plaintiff  claims  damages  for  a  tort ;  and  that  in 
addition  to  breaking  the  contract,  the  defendant  by  driving 
the  Horse  at  an  excessive  speed,  and  unduly  flogging  and 
otherwise  illtreating  and  negligently  and  carelessly  using 
him,  has  committed  a  separate  and  independent  wrong 
apart  from  the  contract,  he  will  be  liable  for  that  wrong 
in  the  action,  and  the  plea  of  infancy  will  afford  no 
defence  (r/). 

A  Hirer  is  answerable  at  all  events,  if  he  keep  the  thing 
hired,  after  the  stipulated  time,  or  use  it  differently  from 
his  agreement  {e). 

If  a  man  Hire  a  Horse  to  go  from  A.  to  B.,  he  ought  to  go 
by  the  usual  road,  and  should  not  unnecessarily  deviate  from 
the  usual  and  customary  way.  And  if  he  make  a  material 
deviation,  and  any  damage  ensues,  he  would  appear  to  be 
liable  for  it  at  all  events  (_/). 

Where  there  has  been  no  material  deviation,  and  the  Horse 
has  not  been  kept  after  any  stipulated  time,  there  must  be 
positive  proof  of  negligence,  to  fix  the  Hirer.  For  instance, 
if  an  action  is  brought  against  him  for  using  a  Hired 
Horse  so  negligently  that  it  broke  its  knees,  it  will  not  be 
sufficient  for  the  plaintiff  merely  to  show  that  the  Horse 
was  a  good  Horse,  and  not  in  the  habit  of  falling  {g) . 

If  the  Horse  falls  lame  on  the  journey,  the  Hirer  may 
abandon  him  at  any  place  where  he  turns  out  unfit,  and 
give  notice  of  that  fact  to  the  party  letting  him  out,  whose 
duty  it  is  to  send  for  him  (A). 

Where  the  strength  of  a  Horse  which  has  been  Hired 
or  Borrowed  is  e.rJiausted,  and  it  has  refused  its  feed,  the 
Hirer  or  Borrower  has  no  right  to  pursue  his  journey  with 
it.  This  was  so  held  in  Bray  v.  Mayne  (/),  where  a  person 
had  a  Horse  on  trial  for  some  days  on  condition  that  he 
should  pay  10/.  for  its  hire  if  he  did  not  like  it.     The 


[c)  Jcnmngs  v.  Rioidall,  8  D.  &  R. 
335. 

id)  Wallcy  v.  EoU,  35  L.  T., 
N.  S.  631. 

(e)  Jones  on  Bailments,  121. 

(/)  Hee  Davis  v.  Garreff,  6  Bing. 


716. 

{if)  Cooper  V.  Burton,  3  Camp. 
5,  u. 

(A)  Per  Pollock,  C.  B.,  Chew  v. 
Jones,  10  L.  T.,  Ex.  231. 

(i)  Braij  X.  Mayne,  1  Gow,  1. 


HIRING  HORSES.  249 

Horse  at  that  time  had  a  slight  cold,  but  on  the  last  day 
of  trial,  after  the  Horse  had  been  driven  twenty  miles,  it 
was  discovered  that  there  was  a  swelling  under  its  throat 
and  it  refused  its  feed.  The  defendant,  however,  drove  it 
on  to  London,  which  was  about  twelve  miles  further, 
notwithstanding  that  it  was  much  distressed  during  part  of 
the  journey ;  and  when  brought  to  the  plaintiff's  stables, 
it  was  in  much  worse  condition  than  when  delivered. 

A  Veterinary  Surgeon  in  his  evidence  said  that  he  con-  Where  the 
sidered  it  a  want  of  proper  care  and  attention  to  compel  a  ^^g^fg^d^^"^^^ 
Horse  to  pursue  his  journey  after  it  had  been  driven  twenty 
miles,   and  had  then  refused  its  feed ;  and  Chief   Justice 
Dallas  directed  the  Jury  accordingly  {J). 

His   Lordship   also   held  that   the  defendant  was  not  Where  the 
entitled  to  return  the  Horse  on  payment  of  the  10/.,  because  J^^^g^Tu  ^' 
as  the  Horse,  on  being  retm'ned,  was  in  a  worse  state  than  worse  con- 
when  originally  delivered,  the  condition  on  which  it  was  dition. 
delivered  had  not  been  fulfilled  (,/ ). 

If  a  Sired  Horse  is  taken  sick  on  the  journey  agreed  Expenses  of 
upon,  without  the  fault  of  the  Hirer,  its  cure  is  at  the  ^^rmg  Sick 
expense  of  the  owner  [k). 

But  if  the  Hirer  prescribes  medicines  for  it,  he  is  an-  Where  the 
swerable  for  any  improper  treatment,  but  not  if  he  call  Horse  is  m- 
in  a  Farrier.     Thus,  where  a  Horse  has  been  hired  of  the  tored. 
plaintiff  by  the  defendant,  who,  on  the  Horse  having  been 
taken  ill,  prescribed  improper  medicines  for  it,   and  the 
Horse  died.  Lord  EUenborough  said,  "  Had  the  defendant 
called  in  a  Farrier,  he  would  not  have  been  answerable  for 
the  medicines  the   latter  might   have   administered ;  but 
when  he  prescribes  himself,  he  assumes  a  new  degree  of 
responsibility ;  and  prescribing  so  improperly,  I  think  he 
did  not  exercise  that  degree  of  care  which  might  be  ex- 
pected from  a  prudent  man  towards  his  Horse,  and  was  in 
consequence  guilty  of  a  breach  of  the  iniplied  undertaking 
he  entered  into  when  he  hired  the  Horse  from  the  plain- 
tiff (/). 

Pothier  says,  that  where  a  Horse  is  let  to  one  on  hire,  to  Who  must 
be  kept  by  him  for  a  certain  period,  the  Hirer  is  to  pay  for  P'^y  *°^  ^^°^' 
his  shoeing  during  that  time.     But  that  it  is  otherwise,  if  a     "* 
person  lets  his  Coach  and  Horses  to  another  for  a  journey, 
to  be  driven  by  his  own  servants  {ni) . 

A  bailee  of  goods  for  hire,  by  selling  them  determines  Bailment  de- 

(./)  7? ray  V.  3Iayne,  1  Gow,  1.  {!)  Dean  v.  Kcate,  3  Camp.  4. 

[k)    Pothier,    Louage,    p.    129;  (;«)  See  Pothier,  Louage,  pp.  107, 

Story  on  Bailments,  258.  129  ;  Story  on  Bailments,  2.58. 


250 


LIVERY-STABLE  KEErEIlS,  AGISTERS,  ETC. 


termined  by 
selling  the 
goods. 


Where  the 
Horse  is 
stolen  from 
the  Hirer. 


Where  the 
Horse  is 
stolen  by  the 
Hirer. 


the  bailment,  and  the  bailor  may  maintain  Trover  against 
the  purchaser,  though  the  purchase  was  bond  fide  {n). 
Thus,  where  a  person  Iiircd  a  Horse  and  sold  it  to  a  third 
party,  it  was  held  by  Mr.  Justice  Bosanquet  that  the  Owner 
might  recover  its  value  from  the  purchaser,  although  he 
had  acted  bond  fide,  and  had  given  the  Hirer  the  full  value 
for  it,  as  the  Hirer  could  give  him  no  better  title  than  he 
got  himself  (o). 

If  through  the  ITirer^s  negligence,  as  by  leaving  the 
door  of  his  stable  open  at  night,  the  Horse  be  stolen,  he 
must  answer  for  it ;  but  not  if  he  be  robbed  of  it  by 
highwaymen,  unless  by  his  imprudence  he  gave  occasion  to 
the  robbery,  as  by  travelling  at  unusual  hours,  or  by  taking 
an  unusual  road.  The  Hirer  is  liable  in  the  same  way  for 
the  negligence  of  his  servant  when  acting  under  his  direc- 
tions either  express  or  implied  (p). 

If  a  person  gets  a  Horse  out  of  the  possession  of  the 
Owner  under  the  pretence  of  hiring  it,  and  then  go  and 
offer  it  for  sale,  there  will  be  no  Felony  at  common  law 
until  the  sale  is  actually  effected.  In  the  following  case 
the  prisoner  was  indicted  for  stealing  a  Horse  and  gig 
which  he  had  hired  of  a  Livery-stable  keeper  in  Stratford 
Mews,  near  Manchester  Square,  London.  It  appeared 
that  he  drove  it  off  for  some  distance,  and  offered  it  for 
sale  at  a  small  price  to  an  Innkeeper,  who,  under  pretence 
of  getting  him  the  money,  procured  a  constable  and  gave 
him  into  custody  {q). 

On  the  trial  Pearls  case  (r),  Charleuvod^s  case  (s) 
and  SempJe's  ease  it)  were  referred  to,  and  the  following 
passage  from  the  latter  Cjuoted : — "  But,  on  the  other 
hand,  if  the  hiring  was  only  a,  j^refenee  made  use  of  to  get 
the  Chaise  out  of  the  possession  of  the  owner,  without  any 
intention  to  restore  it,  or  to  pay  for  it,  in  that  case  the 
law  supposes  the  possession  still  to  reside  with  the  owner, 
though  the  property  itself  has  gone  out  of  his  hands,  and 
then  the  subsequent  conversion  will  be  the  Felony. ^^ 

And  Chief  Justice  Tindal  said,  "  This  case  comes  near 
to  many  of  those  which  have  decided  that  the  appro- 
priation of  property,  under  circumstances  in  some  degree 
similar  to  the   present,  amounts  to   Larceny.     However, 


{n)  Cooper  V.  WiUomatf,  1  C.  B. 
C72. 

(o)  ShcUi/,  Administratrix, v.  Ford, 
5  C.  &  P.  313;  and  see  Stolen 
Horses,  ante,  Chap.  3. 


(p)  Jones  on  Bailments,  8S. 
{q)  Hcff.  V.  Uroolcs,  8  C.  &  P.  295. 
[r)  I'car^s  case,  1  Leach,  212. 
(.v)  CharlnvoocVscase,  1  Leach,  409. 
{t)  Scmple's  case,  1  Leach,  420. 


HIRING  HORSES.  251 

there  lias  been  no  actual  conversion  of  the  property,  but 
only  an  offer  to  sell ;  therefore  the  prisoner  must  be  ac- 
quitted {u). 

If  the  Owner  parts  with  the  possession  of  a  Horse  for  a  Must  have 
sjjecial  purpose,  and  the  bailee,  when  that  purpose  is  exe-  ^^^  ^ta^ken 
cuted,  neglects  to  return  it,  and  afterwards  disposes  of  it ;  -vvith  a  felo- 
if  he  had  not  a  felonious  intention  when  he  originally  took  nious  inten- 
it,  his  subsequent  withholding  and  disposing  of  it  will  not,  ^g^  law^"^" 
at  common  law,  constitute  a  new  felonious  taking,  or  make 
him  guilty  of  Felony  {x). 

But  these  questions  will  not  now  arise  in  cases  of  the  Now  bailee 
kind  just  referred  to,  as  by  24  &  25  Yict.  c.  96,  s.  3  (//),  j^^°*f  ^^^^'^ 
the   fraudulent   appropriation   of  property   by   bailees  is  2I  &  2.5  Vict. 
declared  to  be  Larceny,  and  may  be  the  subject  of  an  in-  c.  96. 
dictment  for  Larceny. 

Of  course  a  person  is  liable  to  pay  for  Horses  used  by  Horse  hired 
himself  and  hired  on  his  behalf  by  his  servant.  Thus,  if  ^  ^  servan  . 
a  coachman  go  in  his  master's  livery,  and  hire  Horses 
which  his  master  uses,  the  master  will  be  bound  to  pay 
for  the  hire  of  the  Horses,  though  he  has  agreed  with  the 
coachman  that  he  will  pay  him  a  large  salary  to  provide 
Horses,  unless  the  person  letting  the  Horses  had  some 
Notice  that  the  coachman  hired  them  on  his  own  account, 
and  not  for  his  master  (s)  ;  for  wherever  one  of  two  in- 
nocent persons  must  suffer  by  the  acts  of  a  third,  he  who 
has  enabled  such  third  person  to  occasion  the  loss,  must 
sustain  it  («). 

In  general  the  Owner  of  a  Horse  is  liable  for  any  acci-  Owner's  lia- 
dent  which  may  befall  it  when  fairly  used  by  the  IT/r^r  (h).  ^Si^enr 
Thus,  where  a  Carriage  is  let  for  hire,  and  it  breaks  down 
on  the  journey,  the  person  who  lets  it  is  liable,  and  not  the 
Hirer  (c)  ;  unless  it  breaks  down  through  some  act  of  the 
Hirer,  which  is  not  within  the  Contract  {d).  And  we 
shall  see  in  a  variety  of  cases,  what  are  the  circumstances 
under  which  Owners  have  been  held  liable  for  damage, 
inflicted  through  the  negligent  use  of  Carriages  or  Horses 
they  have  let  for  hire. 

((/)  Beg.  V.  Broolis,  8  C.  &  P.  295.  (a)  Per  Ashurst,  J.,  Liclharroiv 

But  see  post.  v.  Mason,  2  T.  R.  70. 

(.!■)  Rex  V.  Banl;s,  R.  &  Pt.  441.  {]))  See  Arbon  v.  Fussell,  3  F.  & 

But  see  post.  P.  lo2  ;  and  Holmes  v.  Onion,  2  C. 

iy)  Founded  on  20  &  21  Yict.  c.  B.,  N.  S.  790. 

54,  s.  4.  (r)  Sutton  v.  Temple,  12  IM.  &  ^Y. 

{z)  Eimell  v.  Sampayo,  1  C.  &  P.  60. 

254.  {(I)    Lygo  v.  KcwboU,   23   L.   J., 

Ex.  108. 


252 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


Horses 
driven  by  the 
Owner's 
servants. 


Horses 
driven  by 
the  Owner's 
servants  to  a 
certain  place. 


Travelling 
post. 


Horses 
driven  about 
Town  by  the 
Owner's 
servant. 


Laugher  v. 
Ifointer. 


If  a  man  hire  a  Carriage  and  any  number  of  Horses, 
and  the  0/nicr  send  with  him  his  postillion  or  coachman, 
the  Hirer  is  discharged  from  all  attention  to  the  Horses, 
and  remains  obliged  only  to  take  ordinary  care  of  the 
glasses  and  inside  of  the  Carriage  while  he  sits  in  it,  and 
he  is  not  answerable  for  any  damage  done  by  the  negli- 
gence of  the  Oicner^s  servants  (c). 

Where  Horses  are  hired  to  ch^aw  a  private  carriage  to 
a  certain  place,  and  they  are  driven  by  the  Oicner\s  servants, 
the  Owner  is  liable  for  any  damage  done  through  the 
servants'  negligence.  For  where  a  person  hired  Horses  to 
take  his  own  Carriage  to  Epsom,  and  he  was  driven  by  the 
Oicner^s  postboys.  Lord  Ellenborough  held  that  a  person 
who  hires  Horses  under  such  circumstances  has  not  the 
entire  management  and  power  over  them,  but  that  they  con- 
tinue under  the  control  and  j)ower  of  the  servants  who  are 
entrusted  with  the  driving  ;  and  that  the  Oivner  of  them 
would  be  answerable  for  any  accident  occasioned  liy  the 
postboys'  misconduct  on  the  road ;  and  his  lordship 
mentioned  a  case  of  the  kind,  in  which  damages  were 
recovered  against  the  O/oier  of  a  Chaise  for  an  injury  done 
by  it  when  Mr.  Burton,  a  Welsh  Judge,  was  in  it,  and  who 
was  called  as  a  witness  (/). 

And  where  Horses  were  hired  to  draw  a  private  Car- 
riage to  Windsor,  the  Oinier  of  the  Horses  was  held  liable 
for  damage  done,  because  they  were  under  the  care  and 
direction  of  his  servant  {rj). 

And  in  the  case  of  Sir  Henry  Hoghton  (A),  Horses 
were  hired  by  him  to  draw  his  Carriage,  trarelUng  post,  and 
he  was  held  not  to  be  answerable  for  damage  which  had 
been  done. 

But  where  Horses  have  been  hired  to  be  driven  about  by 
the  Oivner^ s  servant  wherever  the  Hirer  pleases,  and  for 
which  he  gives  him  some  gratuity,  there  seems  at  one  time 
to  have  been  a  difference  of  opinion  among  the  Judges  as 
to  the  party  liable  for  injury  done. 

In  Laugher  v.  Pointer  (/),  where  the  able  Judgments  on 
both  sides,  as  is  observed  by  Mr.  Justice  Story  in  his  book 
on  Agency,  "  exhausted  the  whole  learning  of  the  subject," 


((')  Jones  on  Bailments,  88 ; 
Samuel  v.  Wright,  5  Esp.  2G3 ; 
Smith  V.  Laivrencc,  2  M.  &  E,.  1. 

(/)  Dea/i  V.  Branthu-aite,  6  Esp. 
35  ;  and  quoted  by  Mr.  Justice 
Littledale   in   Laugher   v.    I'ointcr, 


5  B.  &  C.  558. 

(g)  Samuel Y.  JFright,  BBsyi.  2G3. 

(h)  Sir  II.  Hoghtotis  case,  cited 
5  B.  &  C.  550. 

(i)  Laugher  v.  Fointcr,  5  B.  k  C. 
558. 


HIRING  HORSES.  253 

the  Judges  of  tlie  Court  of  King's  Bench,  were  equally 
divided,  Chief  Justice  Abbott  and  Mr.  Justice  Littledale 
holding  that  the  Hirer  of  the  Horses  was  not  liable  for  an 
injury  done,  and  Mr.  Justice  Bayley  and  Mr,  Justice 
Hoh'oyd  being  of  the  contrary  opinion. 

In  the  case  of  Quarmcui  v.  Buriiett  (J:),  the  owners  of  Owner  held 
the  carriage  had  always  been  driven  by  the  same  driver,  livable  m 
he  being  the  only  regular  coachman  in  the  employ  of  the  Burnett]  ^ 
Owner  of  the  Horses,  who  paid  him  regular  weekly  wages. 
The  Owners  of  the  carriage  paid  him  2s.  a  drive,  and 
provided  him  with  livery,  which  he  left  at  their  house  at 
the  end  of  each  drive.  Mr.  Baron  Parke  said,  "  It  appears 
to  us  that  there  are  no  special  circumstances  which  dis- 
tinguish the  present  case,  and  that  we  must  decide  the 
difference  between  the  Judges  in  Laugher  y.  Pointer  (1). 
There  is  no  satisfactory  evidence  of  any  selection  by  which 
this  man  was  made  the  defendant's  servant ;  the  question 
is  therefore  the  same  as  in  that  case.  If  the  driver  be  the 
servant  of  a  Jobmaster,  we  do  not  think  he  ceases  to  be  so 
by  reason  of  the  owner  of  the  carriage  preferring  to  be 
driven  by  that  particular  servant,  where  there  is  a  choice 
amongst  more,  any  more  than  a  hack  postboy  ceases  to  be 
the  servant  of  an  Innkeeperj  where  a  traveller  has  a 
particular  preference  to  one  over  the  rest,  on  account  of  his 
sobriety  and  carefulness.  If,  indeed,  the  defendants  had 
insisted  upon  the  Horses  being  driven  not  by  one  of  the 
regular  servants,  but  by  a  stranger  to  the  Jobmaster, 
appointed  by  themselves,  it  would  have  made  all  the 
difference." 

"  The   fact  of  the  coachman  wearing   the  defendants'  Wearing-  the 
livery  with  their  consent,  and  so  being  the  means  of  in-  Hirer's  li- 
ducing  third  persons  to  believe  that  he  was  their  servant,  ^^^' 
was  mentioned  in  the  course  of  argument  as  a  ground  of 
liability,  but  cannot  affect  our  decision.     If  the  defendants 
had  told  the  plaintiff  that  he  might  sell  goods  to  their 
livery  servant,  and   had   induced   him  to   contract   with 
the  coachman,    on  the  footing  of  his  really  being   such 
servant,  they  would  have  been  liable  on  such  contract ; 
but  this  representation  can  only  conclude  the  defendants 
with  respect  to  those  who  have  altered  their  condition  on 
the  faith  of  its  being   true.     In   the   present   case  it  is 
matter  of  evidence  only  of  the  man  being  their  servant, 

(/.•)   Qnarman  v.  Burnett,  6  M.  &  {I)  Laugher  v.  Pointer,  5  B.  &  C. 

W.  499.  547. 


254 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


A  Job- 
master's 
Asyreement. 


Where  the 
Hirer  is  liable 
for  damaM. 


Hirer  liable 
through  his 
own  conduct. 


Hirer  liable 
where  he 
might  have 
controlled  his 
Servant. 


wliicli  the  fact  at  once  answers.  We  have  fully  considered 
the  judgments  on  both  sides  in  Laugher  v.  Pointer  {in),  and 
think  that  the  weight  of  authority  and  legal  principle  is  in 
favour  of  the  view  taken  by  Lord  Tenterden  (w)  and 
Mr.  Justice  Littledale." 

A  person  Jobbing  a  Carriage  by  the  year  under  a 
written  agreement,  by  which  the  owner  binds  himself 
"  to  keep  the  same  in  perfect  repair  without  any  fiu-ther 
charges  whatever,"  is  not  liable  for  repairs  made  necessary 
by  accident.  And  in  a  case  where  the  owner  had  so  bound 
himself,  Lord  Denman  said,  "  Looking  at  the  terms  of  the 
agreement,  it  seems  to  me  that  the  only  case  in  which  the 
defendant  could  be  subjected  to  the  expense  of  repairs  is 
the  case  of  damage  happening  through  the  ^cilful  default  of 
the  defendant.  With  regard  to  the  evidence  of  the  usage 
of  the  trade,  the  language  of  the  agreement  between  the 
parties  being  clear  and  unequivocal,  evidence  as  to  the 
general  usage  of  the  trade  cannot  be  of  any  avail"  (o). 

The  Hirer  of  a  Horse  or  Carriage  is  liable  for  damage 
occasioned  by  the  negligence  of  himself  or  his  servant ; 
and  where  two  persons  hire  a  Carriage,  they  are  both 
answerable  for  any  damage  occasioned  by  the  negligent 
driving  of  one  of  them ;  but  if  it  be  hu-ed  by  one  only,  the 
other,  who  is  a  m.ere  passenger,  is  not  liable  [p). 

It  is  undoubtedly  true  that  there  may  be  special  circum- 
stances which  may  render  the  Hirer  of  Job  Horses  and 
Servants  responsible  for  the  neglect  of  a  Servant,  though 
not  liable  by  virtue  of  the  general  relation  of  master  and 
servant.  Thus,  he  may  become  so  by  his  own  conduct,  as 
by  taking  the  actual  management  of  the  Horses,  or  order- 
ing the  Servant  to  drive  in  a  particular  manner  which 
occasions  the  damage  complained  of  {q). 

When  a  Master  and  Servant  are  together  in  a  Carriage, 
and  an  injmy  ensues,  the  Master,  from  his  mere  presence, 
is  a  co-trespasser,  if  the  act  of  the  Servant  amount  to  a 
trespass  (r).  And  on  this  principle  w^here  a  Carriage  and 
Horses  are  hired,  and  the  postboys  are  servants  of  the 
owner ;  if  the  Mirer  be  sitting  outside,  and  have  a  view  of 
their  proceedings,  and  do  not  interfere  to  prevent  their 


(;k)  Laugher  v.  Foinier,  5  B.  &  C. 
547. 

(w)  Then  Chief  Justice  Abbott. 

(o)  Reading  v.  Mcnhain,  1  M.  & 
Eob.  234. 


(p)  Davy  V.  Chamherlayne,  4  Esp. 
229. 

{q)  Per  Parke,  B.,  Quarman  v. 
Burnett,  6  M.  &  W.  499. 

()•)  Chandler  v.  Broughton,  1  Cr. 
&  M.  229. 


TURING  HORSES,  255 

miscondact,  and  an  iujmy  ensues,  lie  is  a  co-trespasser  with 
them,  hecause  as  he  did  not  endeavour  to  stop  their  improper 
proceedings  he  has  adopted  their  conduct  as  his  own. 

The  Court  of  Common  Pleas  entered  fully  into  the  McLaughlin  v. 
subject,  and  laid  down  the  law  upon  it  in  the  case  of  ^'''J°^'' 
MLaughUn  v.  Pry  or  (s),  in  which  a  tresjmss  had  been 
committed  by  a  Carriage  and  Horses  hired  by  the  de- 
fendant driving  against  the  plaintiff's  gig.  It  appeared 
that  the  defendant  and  seven  others  were  driving  in  a 
Carriage  and  four,  with  two  postillions,  to  Epsom  races 
on  the  3rd  of  June,  1840.  The  defendant  with  another 
party  sat  upon  the  box.  The  Carriage  Avas  not  in  the 
line  of  the  vehicles  which  were  going  through  the  turnpike 
at  Sutton,  and  as  it  approached  the  toll-bar  the  postillions 
endeavoured  to  get  into  that  line,  in  order  that  they  might 
pass  through  the  gate.  The  plaintiff  and  a  friend  of  his, 
Mr.  Mason,  were  driving  in  a  small  gig  at  that  particular 
place  where  the  postillions  attempted  to  fall  into  the  line. 
The  man  on  the  wheel  Horses  said  to  the  other  postillion, 
"  Break  in,  you  are  all  right  there,"  and  upon  doing  this 
the  trace  of  the  leaders  of  the  Carriage  caught  the  wheel 
of  the  plaintiff's  gig ;  the  gig  was  uj^set,  and  the  plaintiff 
was  injured  and  rendered  lame  for  life.  Immediately 
before  the  accident  the  defendant  called  out  to  his  pos- 
tillions to  let  the  plaintift^'s  gig  pass  first,  but  the  order 
then  came  too  late.  As  soon  as  the  accident  had  occurred 
the  Carriage  was  stopped  and  the  owner's  name  demanded ; 
whereupon  the  defendant,  in  order  to  prevent  his  party 
being  detained,  offered  money  to  the  parties,  and  eventually 
gave  his  card. 

On  the  part  of  the  defendant  it  was  objected,  that,  even 
assuming  that  the  fault  lay  with  the  drivers  of  the  Car- 
riage, the  defendant  was  not  responsible,  neither  the  Horses 
nor  the  Carriage  being  his ;  or,  at  all  events,  that  he  was 
not  liable  in  Trespass.  Chief  Justice  Tindal  left  it  to  the 
Jury  to  say  whether  the  accident  was  the  result  of  want  of 
skill  or  caution  on  the  part  of  the  drivers  of  the  Carriage, 
or  on  the  part  of  the  owner  of  the  gig — reserving  it  for 
the  Court  of  Common  Pleas  to  say  whether,  upon  the  facts 
proved,  the  defendant  was  liable  in  this  form  of  action — the 
Jury  returned  a  verdict  for  the  plaintiff. 

The  Court  of  Common  Pleas  discharged  the  defendant's  Opinion  of 

(.v)  M'LaughUn  v.  Fnjor,  1  C.  &  Marsh.  354;  S.  C.  4  Scott,  N.  E.  G55; 
4  M.  &  G.  48. 


256 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


the  Court  of 

Common 

Pleas. 


The  General 
Rule. 


Wliere  the 
Hii'er  would 
not  be  liable. 


Hirer  sitting' 
outside  liable. 


rule  iiisi  for  a  nonsuit,  and  Chief  Justice  Tindal  said, 
"  Undoubtedly  the  cases  in  which  the  Hirer  of  a  glass- 
coach  or  a  post-chaise  has  been  held  not  to  be  responsible 
for  the  act  of  the  driver,  depend  upon  grounds  wholly 
different  from  those  on  which  the  liability  of  the  defendant 
on  this  occasion  is  to  be  sustained.  It  has  always  been 
held  that  the  Hirer  of  the  Carriage,  having  no  power  of 
selection,  no  foreknowledge  of  the  character  of  the  driver, 
is  not  responsible  for  any  negligence  or  want  of  skill  or 
experience  on  his  part ;  for  that  it  is  the  duty  of  the  party 
who  lets,  to  exercise  care  and  caution  in  the  selection  of 
those  to  whom  he  entrusts  the  government  and  direction  of 
his  Plorses  and  his  Carriage.  But  here  the  question  is, 
whether  the  evidence  did  not  show  that  this  defendant  so 
conducted  himself  as  to  be  liable  as  a  co-trespasser  with  the 
postillions  whose  conduct  has  given  rise  to  this  inquiry." 

"  The  Greneral  Eule  is,  that  all  who  are  present,  and  who 
from  the  circumstances  may  be  presumed  to  be  assenting 
to  the  wrongful  act,  are  tresjjassers.  In  Trespass  all  are 
principals.  I  think  there  was  abundant  evidence  to  jus- 
tify the  Jury  in  coming  to  the  conclusion  they  did.  In 
the  first  place  the  defendant  was  present,  sitting  on  the 
box  of  the  Carriage ;  and  when  he  saw  that  the  Carriage 
was  out  of  the  line,  he  must  have  known  that  the  post- 
boys intended  to  get  into  it  again  whenever  they  found 
an  opportunity,  so  as  to  be  enabled  to  pass  through  the 
toll-gate." 

"  Had  the  defendant  at  that  time  expostulated,  I  hesi- 
tate not  to  say  that  he  would  not  have  been  a  trespasser, 
whatever  might  have  ensued ;  for  no  servant  can  against 
his  master's  u-iil  make  him  a  trespasser  by  any  wrongful 
act  of  his.  Had  he  expressed  any,  the  slightest  disap- 
probation of  the  course  the  postboys  were  evidently  pur- 
suing, he  would  have  escaped  all  liability ;  or  if  the 
defendant  and  his  friends  had  all  been  inside  the  Car- 
riage, so  that  they  could  not  be  supposed  to  be  well 
aware  of  what  was  going  on,  the  plaintiff  must  have 
sought  his  remedy  elsewhere." 

"But  being,  or  some  of  them  being,  on  the  outside, 
and  seeing  the  improper  manner  in  which  the  postboys 
were  endeavoming  to  get  on,  and,  though  not  actually 
encouraging  them  in  their  unlawful  course,  yet  abstain- 
ing from  all  interposition  to  restrain  them,  this,  though 
not  very  strong,  certainly  was  some  evidence  whence  the 
Jury  might  properly  infer  that  the  defendant  assented  to 


HITIING  HORSES.  257 

that  course.  But  tlie  evidence  does  not  stop  there ;  for 
the  defendant,  some  time  after  the  accident,  in  a  con- 
versation with  one  of  the  witnesses,  said  that  he  intended 
to  have  stopped  when  the  Carriage  had  established  itself 
in  the  line,  and  allowed  the  gig  to  regain  its  place.  Now 
that  remark  showed  pretty  strongly  that  the  defendant 
was  exercising  control  over  the  motions  of  the  postboys, 
and  was  an  assenting  party  to  their  act.  I  therefore 
think  the  defendant,  the  dominus  pro  tempore,  being  pre- 
sent and  seeing  what  was  going  on,  and  not  interfering 
to  prevent  the  mischief,  must  be  taken  to  have  been  an 
assenting  party ;  and  that  this  case  falls  within  the  prin- 
ciple laid  down  in  Gregory  v.  Piper  (/)  and  Chandler  v. 
BrougJiton  {u),  in  which  latter  case  it  was  held  that  where 
master  and  servant  are  together  in  a  Vehicle,  and  an  ac- 
cident occurs,  from  which  an  immediate  injury  ensues, 
the  master  is  liable  in  Trespass  and  not  in  Case,  although 
the  servant  was  driving,  and  not  only  no  evidence  was 
given  on  the  part  of  the  plaintiff  of  any  interference  on 
the  master's  part,  but  the  evidence  on  the  part  of  the 
defendant  distinctly  negatives  any  interference ;  so  that 
the  mere  presence  of  the  master  with  the  servant  will 
constitute  him  a  trespasser,  if  the  act  of  the  servant 
amount  to  a  trespass.  Upon  the  whole,  therefore,  in  this 
case,  I  think  the  Jmy  may  have  come  justly  to  the  con- 
clusion that  the  defendant  was  a  co-trespasser  with  the 
postboys."  And  in  this  decision  Coltman,  Erskine  and 
Cresswell,  Justices,  concurred  (.r) . 

It  is  always  a  question  for  the  Jmy  whether  the  driver  The  Jury 
is  acting  as  servant  for  the  Hirer  or   Owner;  and  Lord  must<iecide 
Abinger,   in  leaving   that  point  to   the  Jury,  observed,  servant  is 
"that  no  satisfactory  line  could  be  drawn,  at  which,  as  acting  for  the 
a  matter   of   law,  the  general   owner   of   a   carriage,  or  ^^^^^'  "^'^ 
rather  the   general   employer  of    a   driver,  ceased  to   be 
responsible,  and  the  temporary  Hirer  to  become  so ;  each 
case  of    this  class  must    depend    upon  its  own  circum- 
stances" [y). 

A  Hirer  may  of   course,  by  agreement,  make  himself  A^ Hirer's 
answerable  for  accidents.     Thus  in  the  following  case  it    ° 
appeared  that  a  man  who  let  out  Horses  to  hire  told  a 

(0   Gregonj  v.  Tlpcr,  9  B.   &  C.  (.r)  M'LaurjUin  v.  Pnjor,  1  C.  & 

591  ;  4  M.  &  E.  500.  Marsh.  354  ;  ^5'.  C.  4  Scott,  N.  R. 

(«)   Chandler  v.  Broughtou,  1  C.  &       655  ;  4  M.  &  G.  48. 
M.  29.  (y)  Brady  v.  Giles,   1  M.  &  Rob. 

49(5. 

0.  S 


258 


LTVERY-STABLE  KEEPERS,  AGISTERS,  ETC, 


person  who  applied  to  Lim  for  one,  tliat  lie  had  no  Horse 
at  home  hut  a  hlack  one  which  shied,  and  that  if  he  took 
it  on  hire  he  must  be  answerable  for  all  accidents.  The 
Horse  was  engaged  for  six  weeks  at  a  certain  price,  and 
it  appeared  that  whilst  it  was  in  the  Jlirer's  possession  it 
came  down  upon  the  road  in  consequence  of  shying,  and 
suffered  a  material  injury  in  having  its  fetlock  severely 
cut  by  a  glass  bottle.  The  Owner  of  the  Horse  brought 
an  action  against  the  Hirer  on  his  agreement,  and  the 
latter  was  held  answerable  for  the  damage  done  (s). 


Lending  for 
use. 


Duties  of 
BoiTower  and 
Lender. 


Lender  of  a 
Horse. 


Must  not 

conceal 

defects. 


"What  care  is 
required. 


BORROWING  HORSES. 

Lending  for  use  is  a  bailment  of  a  thing  for  a  certain 
time  when  used  by  the  Borrower  without  paying  for 
it(rO. 

The  duties  of  the  Borroiccr  and  Lender  are  thus  well 
laid  down  by  Mr.  Justice  Coleridge  in  Bkickniore  v. 
Bristol  and  Exeter  Railway  Company  (b) : — "  The  duties 
of  the  Lender  and  Borrower  are  in  some  degree  correlative. 
The  lender  must  be  taken  to  lend  for  the  purpose  of  a 
beneficial  use  by  the  Borrower ;  the  Borrower  therefore  is 
not  responsible  for  reasonable  wear  and  tear ;  but  he  is 
for  negligence,  for  misuse,  for  gross  want  of  skill  in  the 
iise,  above  all,  for  anything  which  may  be  defined  as  legal 
Fraud.  So,  on  the  other  hand,  as  the  Lender  lends  for 
beneficial  use,  he  must  be  responsible  for  defects  in  the 
chattel,  with  reference  to  the  use  for  which  he  knows  the 
loan  is  accepted,  of  which  he  is  aware,  and  owing  to  which 
directly  the  Borroircr  is  injiu'ed." 

"  "Would  it  not  be  monstrous  to  hold,  that  if  the  owner 
of  a  Horse,  knowing  it  to  be  vicious  and  unmanageable, 
should  lend  it  to  one  ignorant  of  its  bad  qualities,  and 
conceal  them  from  him,  and  the  rider,  using  ordinary  care 
and  skill,  is  thrown  from  it  and  injured,  he  should  not  be 
responsible." 

"  By  the  necessarily  implied  purpose  of  the  loan  a  duty 
is  contracted  towards  the  Borrower  not  to  conceal  from  him 
those  defects,  known  to  the  Lender,  which  may  make  the 
loan  perilous  or  unprofitable  to  him." 

In  contracts  from  which  a  benefit  accrues  only  to  him 


{z)  Jeffery    v.    Walton,    1    Stark. 
N.  P.  C.  267. 

(a)  Jones  on  Bailments,  118. 


[h)  BlacJnnore  v.  Bristol  ^-  Exeter 
Raihvay  Co.,  27  L.  J.,  Q.  B.  167. 
Seealso  31 'Cart /ti/v.  Young,  3L.  T., 

N.  S.  785. 


BORROWING  HORSES.  259 

who  has  the  goods  in  his  custody,  as  in  that  of  lending  for 
use,  an  c.rfraordinary  degree  of  care  is  demanded,  and  the 
Borroiccr  is  therefore  responsible  for  fsUght  negligence  {c). 

But  if  the  Lender  was  not  deceived,  but  perfectly  knew  As  much  as 
the  quality  as  well  as  age  of  the  Borrower,  he  must  be  sup-  *^®  Borrower 
posed  to  have  demanded  no  higher  care  than  that  of  which  bestlwm^.'^ 
such  a  person  was  capable ;  as  if  a  person  lend  a  fine  Horse 
to  a  raw   youth,   he  cannot   exact   the   same   degree   of 
management  and  circumspection  as  he  would  expect  from 
a  riding-master  or  an  officer  of  dragoons  {d) . 

Where  a  person  rides  a  Horse  gratuitously  at  the  Sliowing  a 
Owner^s  request,  for  the  pm-pose  of  shouing  him  for  sale,  Horse  for 
he  is  bound  in  so  doing  to  use  such  skill  as  he  actually  ^^  ^' 
possesses,  or  such  as  may  be  implied  from  his  profession 
or  situation,  and  he  is  equally  liable  with  a  Borrou-er  for 
injury  done  to  the  Horse  while  ridden  by  him.  In  a  case 
tried  before  Mr.  Baron  Eolfe,  it  appeared  that  the  plain- 
tiff had  entrusted  a  Horse  to  the  defendant,  requesting 
him  to  ride  it  to  Peckham,  for  the  ]3urpose  of  showing  it 
for  sale  to  a  Mr.  Margetson.  The  defendant  accordingly 
rode  the  Horse  to  Peckham,  and,  for  the  purpose  of 
showing  it,  took  it  into  the  East  Surrey  Pace  Grrouncl, 
where  Mr.  Margetson  was  engaged  with  others  playing 
at  cricket ;  and  there,  in  consequence  of  the  slippery 
nature  of  the  ground,  the  Horse  slipped  and  fell  several 
times,  and  in  falling  broke  one  of  his  knees.  It  was 
proved  that  the  defendant  was  a  person  conversant  with 
and  skilled  in  Horses. 

The  learned  Judge  in  summing  up  left  it  to  the  Jury 
to  say  whether  the  nature  of  the  ground  was  such  as  to 
render  it  a  matter  of  culpable  negligence  in  the  defendant 
to  ride  the  Horse  there ;  and  told  them,  that  under  the 
circumstances  the  defendant  being  shown  to  be  a  person 
skilled  in  the  management  of  Horses,  was  bound  to  take 
as  much  care  of  the  Horse  as  if  he  had  borrowed  it ;  and 
that  if  they  thought  the  defendant  had  been  negligent  in 
going  upon  the  ground  where  the  injury  was  done,  or  had 
ridden  the  Horse  carelessly  there,  they  ought  to  find  for 
the  plaintiff,  which  they  did. 

The  Court  of  Exchequer  refused  a  rule  for  a  new  trial 
applied  for  on  the  ground  of  misdirection.  Lord  Abinger, 
C.  B.,  saying, "We  must  take  the  siunming-up  altogether; 

(c)  Jones  on  Bailments,  6.5.  See  Dumoulin's  Tract — De  eo  quod 
Exod.  xxii.  14,  15.  interest,  185  ;  Story  on  Bailments, 

[d)  Jones     on     Bailments,     G5 ;        161. 

s.    O 


260 


LIVERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


A  gratuitous 
Bailee. 


Negligence  of 
a  Bailee. 


Rule  as  to 
negligence  of 
gratuitous 
Bailee. 


Use  strictly 
personal. 


and  all  it  amounts  to  is,  that  the  defendant  was  bound 
to  use  such  skill  and  management  as  he  really  possessed. 
Whether  he  did  so  or  not,  was,  as  it  appears  to  me,  the 
proper  question  for  the  Jury." 

And  Mr.  Baron  Parke  said,  "  The  defendant  was  shown 
to  be  a  person  conversant  with  Horses,  and  was  therefore 
bound  to  use  such  care  and  skill  as  a  person  conversant 
with  Horses  might  reasonably  be  expected  to  use ;  if  he 
did  not,  he  was  guilty  of  negligence." 

And  Mr.  Baron  Rolfe  said,  "  The  distinction  I  intended 
to  make  between  this  case  and  that  of  a  borrower  is,  that  a 
Gratuitous  J)ailee  is  onh/  hound  to  exercise  such  skill  as  he 
possesses,  whereas  a  Hirer  or  Borrower  may  reasonably  be 
taken  to  represent  to  the  party  who  lets  or  from  whom  he 
borrows,  that  he  is  a  person  of  competent  skill.  If  a 
person  more  skilled  knows  that  to  be  dangerous  which 
another,  not  so  skilled  as  he  does  not,  surely  that  makes  a 
diif erence  in  the  liability.  I  said  I  could  see  no  cliiference 
between  negligence  and  gross  negligence — that  it  was  the  same 
thing  with  the  addition  of  a  vituperative  epithet"  (e). 

Whether  there  is  a  distinction,  and  what  that  distinction 
is,  if  there  be  one,  between  negligence  and  gross  negligence, 
is  a  matter  of  little  importance ;  but  one  thing  is  settled, 
that  the  negligence  of  a  gratuitous  bailee,  to  be  actionable, 
differs  from  the  negligence  which  would  be  actionable  in  a 
bailee,  who  is  not  gratuitous,  and  the  distinction  appears  to  be 
that  a  gratuitous  bailee  is  not  liable  for  simple  negligence, 
for  which  a  borrower  would  be  liable,  but  only  for  such 
negligence  as  he  is  guilty  of  in  spite  of  the  better  sliill  or 
knowledqe,  n-liich  he  either  actually  had,  or  undertook  to 
have  (/). 

And  the  principle  upon  which  he  is  liable  is  thus  well 
laid  down  in  Coggs  v.  Bernard  (g)  :  "  If  a  man  will  enter 
upon  a  thing,  and  take  the  trust  upon  himself,  and  mis- 
carries in  the  performance  of  the  trust,  an  action  will  lie 
against  him  for  that ;  though  no  one  could  have  compelled 
him  to  do  the  thing." 

In  cases  of  mere  gratuitous  loan,  the  use  is  to  be  deemed 
strictly  a  personal  favour  and  confined  to  the  Borrower, 


{e)  Wilson  v.  Brett,  II  M.  &  W. 
113.  See  also  per  Willes,  J.,  in 
Grill  V.  General  Iron  Screw  Colliery 
Co.,  L.  R.,  I  C.  P.  612. 

(/)  1  Smith's  L.-C.  Sth  ed.  221, 
222;  per  Pollock,  C.  B.,  Bml  v. 
South  Bcvou  liailicaij  Co.,  5  H.  &  N. 


881 ;  Austin  v.  Manchester  Rail- 
tcay  Co.,  10  C.  B.  454;  Gihlin  v. 
McMullen,  L.  R.,  2  P.  C.  317. 

{g)  Coqgs  v.  Bernard,  I  Smith's 
L.  C.  Stii  ed.  199  et  seq. ;  Glblin  v. 
McMullen,  L.  R.,  2  P.  C.  317. 


BORROWING  HORSES.  261 

unless  a  more  extensive  use  can  be  implied  from  other 
circumstances ;  such  for  instance  as  lending  the  Horse  on 
trial.  In  general  it  may  be  said,  in  the  absence  of  all 
controlling  circumstances,  that  the  use  intended  by  the 
parties  is  the  natural  and  ordinary  use  for  which  the  thing 
is  adapted  (/»). 

A  borrowed  Horse  cannot  be  used  by  a  servant.  Thus,  Cannot  be 
where  an  action  of  Trespass  was  brought  for  immoderately  used  by  a 
riding  the  plaintiff's  Horse,  it  appeared  that  the  defendant 
had  borrowed  the  animal,  and  that  he  and  his  servant  had 
ridden  it  by  turns.  It  was  held  that  the  licence  was 
annexed  to  the  person  of  the  defendant,  and  could  not  be 
communicated  to  another  (?). 

If  a  Horse  or  Cart,  or  such  other  thing  as  may  be  used  Must  be  used 
and  delivered  again,  be  used  according  to  the  purpose  for  th°°i  ndm*° 
which  they  are  lent  and  they  perish,  he  who  owns  them 
must  bear  the  loss,  if  they  perish  not  through  default  of 
him  who  horroicecl  them,  or   he   made  a  promise  at  the 
time  of  delivering  to  redeliver  them  safe  again  (/r) . 

But  if  they  be  used  in  any  other  manner  than  according  Or  else  the 
to  the  lending,  in  whatever  manner  they  may  perish,  if  it  Borrower  is 
be  not  by  default  of  the  Owner,  the  Borrower  is  chargeable 
both  in  law  and  conscience  (/).  Thus,  if  the  Borrower, 
instead  of  coming  to  London,  for  which  purpose  the  Horse 
was  lent,  go  towards  Bath,  or  having  borrowed  him  for  a 
week,  keep  him  for  a  month,  he  becomes  responsible  for 
any  accident  that  may  befal  the  Horse  in  his  journey  to 
Bath,  or  after  the  expiration  of  the  week  {in). 

In  regard  to  time,  if  no  particular  time  is  f  red,  a  reason-  Wliereno 

able  time  must  be  intended,  keeping  in  view  the  obiects  of  time  is  fixed 

•  •     -  tor  rGturn 

the  bailment.  If  a  Horse  is  lent  for  a  journey,  it  is  pre- 
sumed to  be  a  loan  for  the  ordinary  time  consumed  in  such 
a  journey,  making  proper  allowance  for  the  ordinary  delays 
and  the  ordinary  objects  of  such  a  journey  {u). 

But  where  the  Borrower  of  a  Horse  promised  to  re-deliver  Redeliv^ery 
it  on  request,  and  the  Horse  died  without  his  default  before  °^  request, 
request,  he  was  held  not  liable  (o). 

A  party  who  borrows  a  Horse  is  bound  to  feed  it  during  Borrower 

(h)  Story    on    Bailments,     161  ;  {m)  Jones    on    Bailments,     68  ; 

and  lord  Canioys  v.  Scurr,  9  C.  &  Coqqs  y.  Bernard,  Ld.  Raym.  915; 

P.  386.  2  Ld.    Raym.   909  ;   3  Bract,  c.  2, 

(i)  Bringloe  v.  Morrice,   1   Mod.  s.  1  ;   1  Smith's  L.  C.  8th  ed.  199. 
R.  210  ;  ;S'.  C.  3  Salk.  271.  (w)  Story  on  Bailments,  161. 

{k)  Noy's  Maxims,  91.  (o)    Williaim  v.  Lloi/d,  Jones  on 

(0  Ibid.  Bailments,  179;    S.  C.  nom.    Wil- 
liams V.  mil,  Palm.  518. 


262 


Ll VERY-STABLE  KEEPERS,  AGISTERS,  ETC. 


bound  to  feed 
the  Horse. 


Where  the 
Horse  is  ex- 
hausted. 
Where  the 
Horse  is 
kiUed. 


W^here  the 
Horse  dies 
from  disease. 


Where  Bor- 
rower is 
answerable 
for  damage. 

Bailment 
ended  by 
misiiser. 


the  time  of  the  loan  ( 7;)  ;  and  if  it  is  returned  out  of 
condition,  the  Borroircr  would  probably  he  called  upon  to 
prove  that  lie  fed  it  properhj,  and  that  the  falling  off  in 
condition  did  not  arise  from  any  neglect  on  his  part  ((7). 

Where  the  Horse  is  exltaustcd  and  refuses  his  feed,  he 
must  not  be  ridden  or  driven  any  further  (r). 

If  a  man  through  his  own  imprudence  has  his  borrowed 
Horse  killed,  by  robbers  for  instance,  or  by  a  ruinous 
House  or  Stable,  in  manifest  danger  of  falling,  coming  on 
to  his  head,  the  Owner  is  entitled  to  the  price  of  the  Horse, 
but  not  if  the  House  or  Stable  were  in  good  condition,  and 
fell  by  the  violence  of  a  sudden  hurricane  (s). 

Where  a  borrowed  Plorse  dies  from  disease,  the  Borroicer 
is  not  answerable.  Thus,  in  Williams  v.  Hide  et  Uxor,  (t) 
the  plaintiff  declared  that  in  consideration  he  had  lent  to 
the  defendant's  wife,  du?)i  sola,  a  Horse  to  be  returned  upon 
request,  she  promised  to  return  it  upon  request,  but  had 
not  done  so.  The  defendants  pleaded  that,  before  the 
request,  the  Horse  per  diversos  morbos  in  corpore  suo 
crescentes  moritur,  and  so  they  could  not  re-deliver  it. 
Upon  demurrer  the  defendants  had  Judgment ;  for,  where 
the  agreement  is  possible  when  made,  but  afterwards 
becomes  impossible  by  the  act  of  Grod,  the  party  is  for  ever 
discharged. 

A  person  borrowing  a  Horse  or  Carriage  is  answerable 
for  any  damage  occasioned  by  negligent  management, 
whether  done  by  himself  or  another  j)erson  in  driving  (?/). 

The  Rule  is,  that  w^hen  there  has  been  a  misuser  of  the 
thing  lent,  as  by  its  destruction  or  otherwise,  there  is  an 
end  of  the  bailment,  and  an  action  of  Trover  is  maintain- 
able for  the  conversion  (.r). 


(;?)  Ilandford  v.  Falnicr,  2  B.  & 
Bing-.  359. 

(«/)  Bray  \.  Mayne,  1  Gow,  1 . 

(r)  Ibid. ;  and  see  Hiring  Horses, 
ante. 

(s)  Jones  on  Bailments,  68. 

[t)   WiUiaiiJs    V.   Hide  ct    Uxor., 


Palm.  548  ;  cited  in  Foiccl  v.  Salis- 
biin/,  2  Y.  &  J.  394. 

(ll)  WheafUy  v.  FnfricL;  2  M.  & 
W.  650 ;  and  see  Hii-ing  Horses, 
ante. 

(.r)  See  per  PoUock,  C.  B.,  Bryant 
V.  Wurddl,  2  Ex.  482. 


(     263     ) 


CHAPTER  XII. 


CARRYING  HORSES. 


A  Common  Carrier    26-t 

Bailway  Companies  Common  Car- 
riers         id. 

Duty  of  Common  Carriers    ....     id. 
Inherent  Vice  in  Animal 265 

Froofof 266 

Rule  applies  to  Common  Carriers 

by  Sea 267 

When    Carrier    may    refuse   to 

carry  Animals   268 

On Ks  of  Proof  of  Xo)i -liab ility . .     id. 
Must  carry  for  reasonable  Charges    id. 

Defects  in  Carriages id. 

A  special  Contract  to  carry  ....     id. 

Binding  at  Common  La,w 269 

Hardship  thus  occasioned id. 

Remedy  17^-18  Vict.  c.  31 id. 

Sections  1 — 6 id. 

Section  7 id. 

Application  of  Section  7    270 

Construction  of  Section  7 271 

Peek    r.   North    Staffordshii-e 

Railway  Co id. 

General  Xotices  invalid 272 

Condition  limiting  Liability ....     id. 
"  Condition''^  and  "  Special  Con- 
tract'''' synonymous  Terms ....     id. 
Special  Contract  binding  on  Com- 

jmny  without  Signature  . . . ,  273 
Effect  of  Signature  by  Agent  . .  id. 
As  to  reasonableness  Court  to  decide  id. 
General  Effect  of  these  Decisions  274 
JFhat  Cond'itions  just  and  reason- 
able and  tchat  not id. 

''To  be  free  from  all  Risks''^ — 

Cattle  suffocated id. 

''To  be  free  from  all  Risks  of 

Conveyance'''' — Unsound  Truck  275 
Owner'' s  Risk  at  lower  Rate ....  276 
Condition  as  to  Timewithinwhich 

Loss  should  be  declared  to  create 

Claim id. 

Condition  as  to  Special  Rate ....     id. 

As    to   Package   insuffic'iently 
packed     id. 

As  to  Non-l'iab'iVity  for  Loss 
of  Market  as  to  Fish id. 

As  to  Cheese  id. 

As  to  Loss  of  Market  cou2)led 
w'Uh  "  Injimf  to  Cattle  . .   277 


Condition  as  to  Value  coupled 
w'ith  unreasonable  Rate 278 

Where  Value  untruly  declared. .   279 

Condition  as   to    General  Non- 

~liability id. 

As    to    Non-UabiUty   beyond 
their  oicn  Limits    280 

If  part  of  Spec'ial  Contract  is 
reasonable,  such  Part  may  be 
rel'ied  on 281 

Alternatire  Rates id. 

What  is  Wilful  Misconduct 282 

Onus  of  Proof   283 

General  Effect  of  the  Dec'tsions  as 
to  Conditions id. 

Delivery  by  Carrier   id. 

Notice  of  Consignee's  Refusal  to 
Consignor    id. 

Eff'ect  of  Consignee'' s  Refusal    . .     id. 

Compensat'wn  paid  in  Error  to 
Consignor  no  Answer  to  Action 
by  Consignee   28-4 

Liability  of  Company  when  Ac- 
cident happens  to  Horse  'in  their 
Yard id. 

Opinion  of  Cockburn,  C.J.  ....     id. 

OfMellor,  J. 285 

Of  Blackburn,  J.    id. 

Declaration  of  Value  under  17  ^' 
18  Vict.  P.  31,  s.  7    id. 

Non-compliance  tcith  a  Rule  as  to 
Receipt    id. 

Through  Carriage  on  Railways, 
what  Company  licMe 'id. 

Gill  V.  Manchester,  &c.  Rail. 
Co 286 

Combe  v.  London  &  South 
Western  Rail.  Co 287 

Through  Carr'iage  by  Rail  and 
Sea id. 

Regulation  ofRa'ilwaysAct,  1868    id. 

Regulation  of  Ra'ilwai/s  Act,  1871  288 

Doolan  v.  Midland  Rail.  Co. . .   289 

Steamboat  and  Railway  Com- 
panies to  dis'iufect  Carriages, 
Boats,  S;c 290 

"  Reasonable  Time" id. 

A  Ferryman 291 

Damages 292 

Injury  must  not  be  too  remote  . .     id. 


264 


CARRYING  HORSES. 


CARRYING    HORSES. 


A  Common 
Cai-rier. 


Railway 

Companies 

Common 

Carriers. 


Duty  of 
Common 
Carriers. 


A  Common  Carrier  is  a  person  who  undertakes  for  hire 
to  transport  from  place  to  place,  either  by  land  or  water, 
the  goods  of  such  persons  as  think  fit  to  employ  him  (a). 
A  person  who  carries  persons  onI>/  is  not  a  Common 
Carrier  {b). 

Railway  Companies  are  Common  Carriers  (c).  But 
their  duties  and  obligations  differ  in  some  respects  from 
those  which  attach  to  Common  Carriers  by  virtue  of  the 
Statutes  under  which  they  are  constituted,  and  of  other 
Acts,  more  especially  the  Eailway  and  Canal  Traffic  Act, 
1854  {d). 

A  Common  Carrier  is  bound  to  convey  to  and  from  the 
places  within  which  he  professes  to  ply  (although  one  of 
those  places  may  be  without  the  realm  (e)  ),  the  goods  of 
any  person  who  offers  to  pay  his  hire,  unless  his  carriage 
be  already  full,  or  the  risk  sought  to  be  imposed  upon  him 
be  extraordinary,  or  unless  the  goods  be  of  a  sort  which  he 
cannot  convey,  or  which  he  is  not  in  the  habit  of  con- 
veying (/).  He  is  not,  in  the  absence  of  a  special  contract, 
bound  to  carry  within  any  given  period  of  time,  but  only 
within  a  time  which  is  reasonable,  regarding  all  the  circum- 
stances of  the  case ;  and  he  is  not  responsible  for  delay 
arising  from  causes  beyond  his  control  {g).  He  is  bound 
to  deliver  the  goods  safely,  and  in  the  same  condition  as 
when  they  were  received ;  or  in  default  thereof  to  make 
compensation  to  the  owner  for  any  loss  or  damage  which 
happens  while  the  goods  are  in  his  custody,  except 
such  loss  or  damage  as  arises  from  the  act  of  God,  as 
storms,  tempests,  and  the  like ;  or  from  the  Queen's 
enemies  {/>).     Act  of  Grod  means  not  merely  an  accidental 


(ff)  C'offffs  V.  Bernard,  1  Smith's 
L.  C.  Sth  ed.  199  ;  Trent  and  Mersey 
Navigation  v.  Wood,  3  Esp.  127  ; 
S.  C.  4  Doug.  287. 

{h)  See  Co(jgs  v.  Bernard,  1  Smith's 
L.  C.,  8th  ed.  199,  and  cases  there 
cited. 

(c)  Coqgs  V.  Bernard,  1  Smith's 
L.  C.  8th  ed.  199  ;  Palmer  \.  Grand 
Junction  Canal  Co.,  4  M.  &W.  749  ; 
Pichford  V.  Grand  Junction  Jxaihrag 
Co.,  10  M.  &  W.  399;  Parl-er  v. 
Great  Western  Eailwatj  Co.,  7  Scott, 
N.  R.  835. 

{d)  17  &  18  Vict.  c.  31 ;  see  post, 


p.  269. 

(f)  Crouch  V.  London  and  Xorth 
Western  Bailway  Co.,  23  L.  J.,  C. 
P.  73. 

(/■)  See  Coggs  v.  Bernard,  1 
Smith's  L.  C.  8th  ed.  199 ;  Chit. 
Contr.  7th  ed.  433 ;  Piekford  v. 
Grand  Junction  Railway  Co.,  10  M. 
&  W.  399  ;  ParJccr  v.  Great  Western 
Bailway  Co.,  7  Scott,  N.  R.  835. 

[(/)  Tai/lorw  Great  Northern  Rail- 
vay  Co.,'L.  R.,  1  C.  P.  385  ;  35  L. 
J.,  C.  P.  210. 

{h)  Crouch  v.  Great  Western  Rail- 
way Co.,  11  Ex.  742. 


CARRYING  HORSES.  265 

circumstance  but  something  overwhelming  (i),  and  which 
"could  not  have  been  prevented  by  any  amount  of  foresight 
and  pains,  and  care  reasonably  to  be  expected  from  "  the 
Carrier  (/»■). 

The  liability  of  railway  companies  as  common  carriers  Inlierent 
of  animals  is  subject  to  a  further  exception  in  cases  where  ^^°^' 
the  injury  is  the  consequence  of  an  inherent  vice  of  the 
animal  carried,  w^hich  results  in  its  destruction,  without 
any  negligence  on  their  part.  The  leading  case  on  this 
subject  is  Blower  v.  Great  Western  Rail.  Co.  (I),  which  was 
an  action  brought  in  the  County  Court  of  Monmouthshire 
against  the  Great  Western  Railway  Company  for  the 
non-delivery  of  a  Bullock  which  was  delivered  to  them  at 
Dingestow  station  to  be  carried  by  them  to  Northampton. 
In  the  course  of  the  journey  the  animal  escaped  from  the 
truck  in  which  it  was  placed,  and  was  killed.  In  a  case 
stated  by  the  County  Court  Judge,  it  was  found  that  the 
escape  was  w^holly  attributable  to  the  efforts  and  exertions 
of  the  animal  itself,  and  not  to  any  negligence  on  the  part 
of  the  company,  and  that  the  truck  -was  in  every  respect 
proper  and  reasonably  sufficient  for  the  conveyance  of  cattle ; 
the  Court  held  that,  upon  this  state  of  facts,  the  Judge  ought 
to  have  directed  a  verdict  for  the  defendants,  and  Willes,  J., 
in  the  course  of  his  judgment,  said,  "  The  Bullock  was 
received  by  the  company  under  the  terms  of  a  notice 
which  is  assailed  by  the  plaintiff.  It  is  unnecessary  to 
consider  whether  or  not  the  notice  was  a  reasonable  one. 
The  question  for  our  decision  is,  whether  the  defendants, 
upon  the  facts  and  findings  of  the  County  Court  Judge, 
are  liable  as  common  carriers  for  the  loss  of  this  animal. 
Whether  a  railway  company  are  common  carriers  of  animals 
is  a  question  upon  which  there  has  been  much  conflict  of 
opinion,  and,  although  there  may  be  difficulties  in  deter- 
mining that  question,  such  as  induced  Lord  Wensleydale, 
in  Carr  v.  LancasJdre  and  Yor/cs//irc  Rail.  Co.  {m),  to  make 
the  observations  which  have  elicited  remarks  from  some 

(i)   OaMey  Y.  Portsmouth,  ^-c.  Steam  Katharine  Lochs  Co.,   L.  R.,  3  Ch. 

Packet  Co.,  11  Exch.  623  ;  21  L.  J.,  D.  603  ;  39  L.  T.,  N.  S.  433. 

Ex.  101,  per  Martin,  B.  (/)  L.  R.,  7  C.  P.  655 ;  41  L.  J., 

[k)  Nvgent  v.  Smith,  L.  E.,  1  C.  C.  P.   268  ;  27  L.  T.,  N.  S.  883  ; 

P.  D.  441,  444  ;  45  L.  J.,  C.  P.  697  ;  and  see  Clark  v.  Rochester  and  Si/ra- 

34L.T.,]Sr.S.  827;  per  James,L.  J.  cuse Hailroad  Co.,!^  Nevf  York,  570; 

See  also  Nichols  v.  ilarsJand,  L.  R.,  liisseU  v.  New  York  Central  liailroacl 

10  Ex.  255  ;  L.  R.,   2  Ex.   D.   1  ;  Co.,  25  New  York,  442. 

46  L.  J.,  Ex.  174:  Roscoe,  N.  P.  (w)  7  Ex.   712,   713;  21   L.  J., 

14th  ed.  569,  and  Nitro- Phosphate,  Ex.  261. 
^•c.    Manure    Co.    v.    London   6;   St. 


266  CARRYING  HORSES. 

learned  Judges  apparently  to  the  contrary,  it  may  turn 
out  after  all  to  be  a  mere  controversy  of  words.  The 
question  as  to  their  liability  may  tiu'n  on  the  distinction 
between  accidents  which  happen  by  reason  of  some  vice 
inherent  in  the  animals  themselves,  or  disposition  producing 
unruliness  or  phrenzy,  and  accidents  which  are  not  the 
result  of  inherent  vice  or  unruliness  of  the  animals  them- 
selves. It  comes  to  much  the  same  thing  whether  we  say 
that  one  who  carries  live  animals  is  not  liable  in  the  one 
event,  but  is  liable  in  the  other,  or  that  he  is  not  a  common 
carrier  of  them  at  all,  because  there  are  some  accidents, 
other  than  those  falling  within  the  exception  of  the  act  of 
Grod  and  the  Queen's  enemies,  for  which  he  is  not  respon- 
sible. By  the  esp)ression  '  vice,'  I  do  not,  of  course,  mean 
moral  vice  in  the  thing  itself,  or  its  owner,  but  only  that 
sort  of  vice  which,  by  its  internal  development,  tends  to 
the  destruction  or  the  injury  of  the  animal  or  thing  to  be 
carried,  and  which  is  likely  to  lead  to  such  a  result.  If 
such  a  course  of  destruction  exists,  and  produces  that 
result  in  the  course  of  the  journey,  the  liability  of  the 
carrier  is  necessarily  excluded  from  the  contract  between  the 
parties." 
Proof  of.  Kendall   v.  London   and   South    Western   Rail.    Co.  (o) 

was  an  action  to  recover  damages  for  injuries  sustained  by 
the  plaintiff's  Horse  whilst  it  was  being  carried  by  the 
defendants  on  their  railway.  The  cause  was  tried  before 
Martin,  B.,  at  Gfuildhall,  at  the  sittings  after  Hilary 
Term,  1872.  It  appeared  that  the  Horse  was  taken, 
saddled  and  bridled,  to  the  defendants'  station  at  Waterloo, 
and  was  there  delivered  to  the  defendants  to  be  carried  to 
Ewell.  It  was  attempted  to  be  shown  that  the  defendants' 
servants  were  guilty  of  negligence  in  not  fastening  up  the 
stirrups ;  but  as  the  plaintiff  was  himself  present  when  the 
Horse  was  put  into  the  box,  and  had,  after  first  objecting, 
acquiesced  in  the  stirrups  being  allowed  to  hang  down  : 
and,  as  evidence  was  also  given  that  the  course  adopted 
was  usual  and  proper,  that  contention  was  abandoned. 

No  accident  happened  to  the  train,  nor  anything  likely 
to  alarm  the  Horse,  which  was  proved  to  be  a  quiet 
animal  and  accustomed  to  travel  by  rail ;  but,  at  the  end 
of  the  journey,  the  Horse  was  found  to  have  sustained 
considerable  injuries  :  and  it  was  in  respect  of  these  injuries 
that  the  action  was  brought. 

(o)  L.  R.,  7  Ex.  373  ;  41  L.  J.,  Ex.  18i  ;  26  L,  T.,  N.  S.  735. 


CARRYING  HORSES.  267 

A  verdict  was  entered  for  the  plaintiff  for  31/.  lO^., 
leave  being  reserved  to  the  defendants  to  move  to  enter  the 
verdict  for  them,  the  Court  to  have  power  to  draw  inferences 
of  fact.  A  rule  having  been  obtained  accordingly,  the 
Court  held,  drawing  inferences  of  fact  (Martin  and  Bram- 
well,  BB.,  Pigott,  B.,  dissenting),  that  the  defendants 
were  not  liable,  since  it  was  to  be  inferred  that  the  injuries 
resulted  from  the  proper  vice  of  the  Horse.  Bramwell,  B., 
saying,  "  There  is  no  doubt  that  the  Horse  was  the  imme- 
diate cause  of  its  own  injuries.  That  is  to  say,  no  person 
got  into  the  box  and  injured  it.  It  slipped,  or  fell,  or 
kicked,  or  plunged,  or  in  some  way  hurt  itself.  If  it  did 
so  from  no  cause  other  than  its  inherent  propensities,  '  its 
j)roper  vice,'  that  is  to  say,  from  fright,  or  temper,  or 
struggling  to  keep  its  legs,  the  defendants  are  not  liable. 
But  if  it  so  hurt  itself  from  the  defendants'  negligence,  or 
any  misfortune  happening  to  the  train,  though  not  through 
any  negligence  of  the  defendants,  as,  for  instance,  from 
the  horse-bos  leaving  the  line  owing  to  some  obstruction 
maliciously  put  upon  it,  then  the  defendants  would,  as 
insurers,  be  liable.  If  perishable  articles,  say  soft  fruit, 
are  damaged  by  their  own  weight  and  the  inevitable 
shaking  of  the  carriage,  they  are  injured  through  their 
own  intrinsic  qualities.  If  through  pressure  of  other 
goods  carried  with  them,  or  by  an  extraordinary  shock  or 
shaking,  whether  through  negligence  or  not,  the  carrier  is 
liable.  Since  this  was  ^VTitten,  the  case  of  The  Great 
Wedern  Rail.  Co.  v.  Blower  {p)  has  been  decided  in  the 
Common  Pleas  to  this  effect." 

In  Nugent  v.  Smith  (7)  a  common  carrier  by  sea  from  Rule  applies 
London  to  Aberdeen  received  a  Mare  to  be   carried   to  to  Common 
Aberdeen  for  hire.     In  the  course  of  the  voyage  the  ship  gg™^^^  ^^ 
encountered  rough  weather,  and  the  Mare  received  such 
injuries  that  she  died.     The  Jury  found  that  the  injuries 
were  caused  partly  by  more  than  ordinary  bad  weather, 
and  partly  by  the  conduct  of  the  Mare  herself  by  reason  of 
fright  and  consequent  struggling,  without  any  negligence 
of  the  carrier's  servants.     It  was  held  that  the  carrier  was 
not  liable  for  the  death  of  the  Mare,  on  the  ground  that  a 
carrier  does  not  insure  against  the  irresistible  act  of  nature, 
nor  against  defects  in  the  thing  carried  itseK ;  and  if  he 
can  show  that  either  the  act  of  nature,  or  the  defect  of  the 

(ja)  Ante,  p.  265.  J.,C.P.G97;  34  L.  T.,  N.  S.  827— 

q)  L.  R.,  1  C.  P.  D.  423  ;  45  L.       C.  A. 


268 


CARRYING  HORSES. 


When  Car- 
rier may  re- 
fuse to  carry 
Animals. 


Onus  of  proof 
of  non-lia- 
bility. 


Must  carry 
for  reason- 
able Cbarffes. 


Defects  in 
carriasres. 


A  special  con- 
tract to  caiTy. 


thing  itself,  or  both  taken  together,  formed  the  sole,  direct 
and  iiTesistible  cause  of  the  loss,  he  is  discharged. 

In  Richardson  v.  The  North  Eastern  Rail.  Co.  (p),  it 
was  apparently  assumed  that  railway  companies  are  not 
bound  to  carry  animals,  but  may  limit  their  business  of 
carriers  in  this  respect,  and  may  refuse  to  carry  animals 
except  under  special  contract.  There  the  company  had 
given  public  notice  that  they  were  not  "  common  carriers 
of  Horses,  Cattle,  Sheep,  Pigs  and  other  animals,"  but 
would  only  undertake  the  carriage  of  animals  under  special 
contract.  A  Grreyhound,  having  on  a  leathern  collar  with  a 
strap  attached,  was  delivered  to  the  defendants  for  carriage, 
and  the  fare  paid.  In  the  course  of  the  journey  there  was 
a  change  of  trains,  and  the  Greyhound  was  fastened  by  the 
strap  and  collar  to  an  iron  spout  on  the  open  platform  of 
the  station.  While  so  fastened,  it  slipped  from  the  collar 
and  ran  upon  the  line  and  was  killed.  It  was  held  that  the 
fastening  of  the  Greyhound  by  the  means  furnished  by  the 
owner  himself,  which  at  the  time  appeared  to  be  sufficient, 
was  no  evidence  of  negligence  on  the  part  of  the  company. 

The  onus  of  proving  that  damage,  happening  during 
transit  or  while  the  goods  were  in  the  Carrier's  hands,  was 
occasioned  by  a  cause  for  which  he  was  not  responsible, 
lies  upon  the  Carrier  (q) . 

All  Common  Carriers  must  carry  goods  for  reasonable 
charges,  and  consequently  not  take  more  from  one  than 
from  another  for  the  same  service.  Therefore  one  customer 
or  class  of  customers  cannot  be  charged  more  than  another 
customer  or  class  of  customers,  or  the  public  generally  (r) . 

Eailway  Companies,  being  Common  Carriers,  are  prima 
facie  liable  at  common  law  for  defects  in  their  Carriages  or 
Trucks,  by  which  damage  accrues  to  the  goods  entrusted  to 
them  to  carrj^  (.s;). 

But  a  special  contract  entered  into  with  a  Common 
Carrier,  by  the  party  who  delivers  goods  to  be  conveyed, 
by  which  contract  the  Carrier  is  exempted  from  all  liability 
for  any  loss  occasioned  by  his  negligence,  is  binding  upon 
both  parties  (/)  at  Common  Law. 


(p)  L.  E.,  7C.  P.  75:  41  L.  J., 
C.  P.  60;  26  L.  T.,  N.  S.  131; 
and  see  Lake  Shore  Railroad  Co.  v. 
Ferklns,  25  Micb.  329. 

(q)  Hudson  V.  Baxendale,  2  II.  & 
N.  575. 

(r)  Johnson  v.  ilidland  Railicay 
Co.,  4  Ex.  367  ;  and  Coyrjs  v.  Ber- 


nard, 1  Smith's  L.  C.  8th  ed.  199, 
and  cases  there  cited. 

(*)  See  Combe  v.  London  and  South 
Western  Railway  Co.,  31  L.  T.,  N. 
S.  613. 

[t)  Carr  v.  Lancashire  and  York- 
shire Railway  Co.,  7  Ex.  707. 


CARRYINO  HORSES.  269 

At  one  period  indeed  there  was  a  disposition  in  our  Eluding  at 
Courts  to  hold  that  Common  Carriers  could  not  by  their  Cr'ominon 
Notices  shake  off  their  Common  Law  responsibility ;  but     ^^' 
Mr.  Justice  Story  says  {u) : — "  The  right  of  making  such 
qualified  acceptances  by  Common  Carriers  seems  to  have 
been  asserted  in  early  times.     Lord  Coke  declared  it  in  a 
note  to  Southcote^s  case  (.r),  and  it  was  admitted  in  Morse  v. 
Slue  {//) .     It  is  now  fully  recognized  and  settled  beyond 
any  reasonable  doubt  in  England."     For  this  assertion  he 
cites  a  number  of  authorities,  and  the  Court  of  Common 
Pleas  held  that  he  had  arrived  at  a  correct  conclusion  (;;). 

It  being  thus  established,  that  the  Common  Law  liability  Hardship 
of  Railway  Companies  as  Common  Carriers  might  always  *^^^  ^^^^' 
be  defeated  by  the  express  contracts  to  carry,  which  were 
embodied  in  their  Notices  and  Tickets  (a),  the  monopoly 
enjoyed  by  them  led  to  their  unduly  restricting  their 
liability  by  sj)ecial  contracts  with  customers,  who  could 
not  afford  the  time  or  expense  of  litigating  the  right  to 
refuse  to  carry  except  upon  such  contracts,  and  thus  in 
many  cases  they  were  enabled  to  protect  themselves  against 
the  legal  consequences  of  the  grossest  negligence  on  their 
part  {b). 

With  the  view  of  remedying  the  hardships  thus  occa-  Remedy 
sioned  the  Eailway  and  Canal  Traffic  Act  was  passed  in  ^"^ ^  1 8  Vict. 
1854(c). 

That  Act  by  the  first  six  sections  provides  for  enforcing  Sections  1—6. 
against  these   Companies  the   duty  of   making  arrange- 
ments for  receiving  and  forwarding  traffic  of  every  de- 
scription without  delay  and  without  partiality  (d). 

By  the  7th  section  it  enacts  that  every  such  Company  Section  7. 
*'  shall  be  liable  for  the  loss  of  or  for  any  injury  done  to 
any  Horses,  Cattle,  or  other  animals,  or  to  any  articles 
or  goods,"   "in  the  receiving,   forwa]:ding   or  delivering 

(m)  Story  on  Bailments,  549.  {b)   Carr  v.  Lancashire  and  York- 

[x)  Southcote^s  case,  4  Kep.  83.  shire  Railway   Co.,   7  Ex.  707,  and 

{y)  Morse  v.  Slue,  1  Vent.  2o8.  cases  there  cited. 

{z)  See  Judgment  of  Court  of  C.  {c)  17  &  18  Vict.  c.  31. 

P.,   Austin   V.  Manchester,  Sheffield  (d)  As  to  the  construction  to  be 

and  Lincolnshire  Hallway  Co.,  21  L.  put  upon  these  sections,  see  Brid- 

J.,  C.  P.  183.  don  V.  Great  Northern  Railway  Co., 

(a)   Carr  v.  Lancashire  and  York-  28  L.  J.,  Ex.  51  ;    Garten  v.  Bristol 

shire  Railway  Co.,  7  Ex.  707;  Austin  and  Exeter  Railway   Co.,   28  L.  J., 

V.  Manchester,  Sheffield  and  Lincoln-  C.  P.   30G  ;   also  per  Crowder,  J., 

shire  Railway  Co.,   21  L.  J.,  C.  P.  Nicholson  v.  Great  Western  Railway 

183;    Chippendale  v.  Lancashire  and  Co.,  28  L.  J.,  C.  P.  89;   and  Ran- 

Yorkshire  Railway  Co.,  21  L.  J.,  Q.  some  y.  Eastern  Counties  Railway  Co., 

B.  22.  26  L.  J.,  C.  P.  91. 


270  CARRYING  HORSES. 

thereof,"  "occasioned  by  tlie  neglect  or  default  of  such 
company  or  its  servants,  notwithstanding  any  Notice, 
Condition  or  Declaration  made  and  given  hij  such  Com- 
pani/  contrary  thereto,  or  in  anyicise  limiting  such  liabi- 
lity;  every  such  Notice,  Condition  or  Declaration  made 
and  given,  being  thereby  declared  to  be  null  and  void; 
provided  always,  that  nothing  herein  contained  shall  be 
construed  to  prevent  the  said  Companies  from  making 
such  Conditions  with  respect  to  receiving,  forwarding 
and  delivering  of  any  of  the  said  animals  or  goods  that 
shall  be  adjudged  by  the  Court  or  Judge,  before  whom 
the  question  relating  thereto  shall  be  tried,  to  be  just 
and  reasonable  ;  provided  always,  that  no  greater  damages 
shall  be  recovered  for  the  loss  or  for  any  injury  done  to 
any  such  animals,"  beyond  50/.  for  any  Horse,  15/.  per 
head  for  any  Neat  Cattle,  and  2/.  per  head  for  Sheep  or 
Pigs  :  "  unless  the  person  sending  or  delivering  the  same 
to  such  Companj^  shall,  at  the  time  of  such  delivery,  have 
declared  them  to  be  respectively  of  higher  value  than  as 
above  mentioned,  in  which  case  it  shall  be  lawful  for  such 
Company  to  demand  and  receive  by  way  of  compensation 
for  the  increased  risk  and  care  thereby  occasioned,  a 
reasonable  percentage  upon  the  excess  of  the  value  so 
declared  above  the  respective  sums  so  limited  as  aforesaid, 
and  which  shall  be  paid  in  addition  to  the  ordinary  rate  of 
charge." 

It  is  also  provided  by  this  section  that  such  percentage 
or  increased  rate  of  charge  shall  be  publicly  notified  {e) ; 
that  the  onus  of  proof  of  value  and  injury  shall  lie  with 
the  person  claiming  compensation,  and  that  "  the  Special 
Contract  shall  be  signed  by  him  or  the  person  delivering 
the  animals  or  goods  for  carriage." 
Application  The  Act  only  extends  to  the  traffic  on  a  Company's  own 

of  section  7.  lines,  and  section  7  does  not  apply  to  a  Contract  exempting 
a  Company  from  liability  for  loss  on  a  Railway  not  belong- 
ing to  or  worked  by  the  Company  (/) .  But  where  the  Com- 
pany contract  to  carry  over  their  own  as  well  as  other 
lines,  they  must  prove  that  the  loss  did  not  occur  on  their 
line,  in  order  to  avail  themselves  of  a  condition  of  non- 
liability (r/). 

((•)  According  to  the  provisions  Q.  B.  209  ;  20  L.  T.,  N".  S.  873. 

of  the  Carriers  Act,  11  Geo.  4  &  1  (ff)  Kent  v.  Midland  Rail icay  Co., 

WiU.  4,  0.  68.  L.  R.,  10  Q.  B.  1 ;  44  L.  J.,  Q.  B. 

(/)  Zunz  X.  South  Eastern  Raihcaij  IS;   31  L.  T.,  N.  S.  430. 
Co.,  L.  R,  4  Q.  B.  539;   38  L.  J.. 


CARRYING  HORSES.  271 

The  principal  points  of  difficulty  in  the  construction  of  Construction 
this  ill-drawn  and  ambiguous  section  are  those  restrictions  ^f  section  7. 
on  the  common  law,  which  it  appears  to  have  been  its 
especial  object  to  create.  They  are  these  :  First,  whether 
General  Notices  given  by  such  Companies  are  valid  for 
the  purpose  of  limiting  their  Common  Law  liability  as 
Carriers  ?  Secondly,  what,  if  any,  distinction  is  to  be  drawn 
between  the  words  "Special  Contract"  and  "Condition"? 
And,  thirdly,  whether  this  Common  Law  liability  may  be 
limited  by  such  Conditions  as  the  Court  or  Judge  shall 
determine  to  be  just  and  reasonable  ?  And,  moreover,  if 
this  Common  Law  liability  may  be  limited  by  such 
Conditions  as  the  Court  or  Judge  shall  determine  to  be 
just  and  reasonable,  it  is  important  to  consider  what 
Conditions  have  come  within  that  definition. 

Notwithstanding  a  great  divergence  of  opinion  among 
the  learned  Judges,  the  construction  to  be  put  upon  this 
section,  with  especial  regard  to  these  points  of  difficulty, 
has  been  defined  with  considerable  exactitude  by  decisions, 
which  it  will  be  necessary  to  give  in  some  detail. 

In  the  case  of  Peck  v.  TJie  North  Staffordshire  Railway  Peek  v.  KortJi 
Compant/  (h),  the  w^hole  law  on  this  subject  was  reviewed  ^iaffordslm-e 
by  the  House  of  Lords,  and  in  a  great  measure  settled,  paly"^^ 
It  is  therefore  unnecessary,  with  regard  to  those  points 
which  it  determined,  to  advert  to  the  judicial  decisions 
which  preceded  it,  and  which  exhibit  considerable  variances 
of  opinion. 

The  defendants  in  this  case  had  issued  a  Notice,  that 
they  would  receive,  forward  and  deliver  goods  solely  sub- 
ject to  certain  Conditions,  one  being,  "  That  they  would 
not  be  responsible  for  the  loss  or  injury  to  any  marbles, 
&c.  unless  declared  or  insured  according  to  their  value." 
The  plaintiff's  forwarding  agent  had  knowledge  of  this 
Notice  or  Condition,  and  on  the  1st  of  August,  1857,  by 
letter,  directed  the  defendants  to  forward  the  goods  in 
question  (three  cases  of  marbles),  '■^ not  insured.''^  The 
marbles  sustained  injury  on  the  journey  from  wet  im- 
pregnated with  the  rust  of  the  nails  of  the  cases  penetrating 
through  and  discolouring  the  stone,  and  this  action  was 
brought  for  the  damage  thus  occasioned  against  the  Com- 
pany as  Common  Carriers. 

By  their  fourth  plea  the  Company  pleaded  under  17  &  18 

[h)  Peek  V.  North  Slafforchlure  Railway  Co.,  32  L.  J.,  Q.  B,  241 
(Dom.  Proc.) 


272 


CARRYING  HORSES. 


General  No- 
tices invalid. 


Condition 

limiting 

Liability. 


"Condition" 
and  ' '  Special 
Contract' ' 
synonymous 
terms. 


Yict.  c.  31,  s.  7,  that  tlie  marbles  were  delivered  to  be  car- 
ried by  tbem  subject  to  a  certain  Special  Contract,  whereby 
it  was  agreed  that  they  should  not  be  responsible  for  the 
loss  of  or  injury  to  marbles  unless  declared  and  insured 
according  to  their  value,  and  that  the  same  were  not  nor 
was  any  part  thereof  so  declared  or  insured ;  and  by  their 
fifth  plea,  that  the  marbles  were  delivered  and  received  on 
the  above  Condition ;  that  such  Condition,  made  by  the 
defendants,  and  assented  to  by  the  plaintiff,  was  a  just  and 
reasonable  Condition. 

It  having  been  decided  by  the  Exchequer  Chamber  (re- 
versing the  judgment  of  the  Queen's  Bench)  that  the  de- 
fendants were  entitled  to  the  verdict  on  these  pleas,  the 
House  of  Lords  reversed  that  decision,  and  affirmed  the 
judgment  of  the  Court  of  Queen's  Bench,  holding  that  no 
Greneral  Notice  given  by  a  Railway  Company  is  valid  in 
law  for  the  purpose  of  limiting  the  Common  Law  liability 
of  the  Company  as  Carriers ;  but  that  such  Common  Law 
liability  may  be  limited  by  such  Conditions  as  the  Court  or 
Judge  shall  determine  to  be  just  and  reasonable. 

The  majority  of  the  Lords  present  were  of  opinion  that 
the  Condition  above  cited  was  neither  just  nor  reasonable, 
as  the  effect  of  such  a  Condition  would  be  to  exempt  the 
Company  from  responsibility  for  injury  however  caused, 
whether  by  their  own  negligence,  or  even  by  fraud  or 
dishonesty  on  the  part  of  theii'  servants ;  and  that  the  letter 
of  the  1st  of  August,  1857,  did  not  constitute  a  Special 
Contract  in  writing,  the  words  "  not  insured "  being  in- 
sufficient, either  expressly  or  by  reference,  to  embody  the 
Condition  itself  into  the  letter. 

It  was  held  also  by  the  Lord  Chancellor  (Lord  West- 
bury)  and  by  Lord  Wensleydale,  Lord  Cranworth  and 
Lord  Chelmsford  dissenting,  that  the  Conditions  must  be 
embodied  in  a  Special  Contract  in  writing,  to  be  signed 
by  the  owner  or  person  delivering  the  goods  (?").  This 
question  therefore  remains  as  decided  by  M^JIanns  y.  Lanca- 
shire and  YorJcs/iire  Raihcay  Company  (/r),  that  in  order  to 
give  this  section  (/)  its  intended  extent  of  remedy,  it  must 
be  construed,  in  accordance  with  the  approved  principle  of 
interpretation,  with  reference  to  the  state  of  the  law  when 
the  Statute  was  passed.  Before  that  time,  every  case  in 
which  a  special  limited  liability  was  substituted  for  the 


(j)  See  also  Lewis  v.  Great  Western 
Hailwai/  Co.,  L.R.,  3Q.B.D.  195. 
(A')  M^Mainis   v.    Lancashire   and 


Yorkshire  Raihcay    Co.    (Ex.    Cli.) 
4  H.  &  K  349. 

(/)   17  &  18  Vict.  c.  31,  s.  7. 


CARRYING  HORSES.  273 

general  Common  Law  obligation  of  the  Carrier,  whether 
by  Notice  acquiesced  in,  or  document  signed  by  the  cus- 
tomer, was  one  of  Special  Contract.  Therefore,  the  con- 
struction to  be  put  upon  the  words  "Special  Contract"  in 
the  Act  must  date  back  to  a  state  of  the  law,  when  a 
Condition  signed  by  the  owner  or  his  agent  for  delivering 
the  goods  was  held  to  be  "  a  Special  Contract,"  except 
where  expressly  varied  by  the  words  of  the  Statute. 

But  a   Railway  Company  cannot  repudiate  a  Special  Special  con- 
Contract  on  the  around  that  it  has  not  been  signed  by  the  ^'^^^^  bimiing 

ji  •        •  J      ^         ^  !•         i  Oil  company 

consignor ;    the  proviso  m  sect.    7   only  applies  to  cases  without  si^-- 

where  the  company  seek  to  relieve  themselves  from  liability  nature. 

by  reason  of  there  being  a  Special  Contract  [in) . 

Where  an  agent  who  is  employed  to  deliver  cattle  to  be  Effect  of 
sent  by  a  Railway  Company  signs  the  consignment  note,  A^ent*^^^  ^ 
he  must  be  taken  to  have  known  the  contents,  and  thereby 
binds  his  principal  {)i).  If  a  man  who  can  read  sends  a 
man  who  cannot  read  to  sign  a  document  or  to  enter  into 
a  contract  in  which  a  document  must  to  his  knowledge  be 
signed,  he  cannot  dispute  his  liability  on  the  contract  so 
signed,  on  the  ground  that  his  agent  could  not  read  the 
contents ;  for  in  such  a  case  the  principal  must  be  taken  to 
be  in  the  same  position  as  though  he  had  signed  it  himself 
without  reading  it  (o) . 

It  was  also  decided,  in  the  case  of  irManus  v.  Lancashire  As  to  reason- 
and  Yorkshire  Raihcay  Compani/{p),  that  the  17  &  18  Vict.  ^ou^tT 
c.  31,  s.  7,  gave  power  to  the  Court  or  Judge  trying  the  decide, 
cause  to  decide  upon  the  justice  and  reasonableness  of  Con- 
ditions in  a  Special  Contract  for  the  carriage  of  animals  or 
goods  on  a  Railway ;  and  the  Court  expressed  their  con- 
currence with  the  opinion  pronounced  by  Jervis,  C.  J.,  in 
Simojis  V.  Great  Western  Railaru/  Company  {q),  that  "the 
Company  may   make   Special   Contracts  with  their  cus- 
tomers, provided  they  are  just  and  reasonable,  and  signed ; 
and  that,  whereas  the  monopoly  created  by  Railways  com- 
pels 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  Condition 
or  Special  Contract  is  just  and  reasonable." 

(w)  Baxendale    v.    Great   Eastern  {o)  Foreman     v.     Great    Western 

Hailwai/  Co.,  L.  R.,  4  Q.  B.  244;  Raihcay  Co.,  38  L.  T.,  N.  S.  351. 
38  L.  J.,  Q.  B.  137.  {p)  See  note  (/■:),  ante. 

(«)  Klrhij  V.  Great  Western  Rail-  [q)   Simons  v.  Great  Western.  Rail- 

u-aii  Co.,   18  L.  T.,  N.  S.  658,  per  xauj  Co.,  26  L.  J.,  C.  P.  25. 
Martin,  B. 

O.  T 


274 


CARHYTXG  HORSES. 


General  effect 
of  these 
decisions. 


What  Condi- 
tions are  just 
and  reason- 
able, and 
what  not. 


To  be  free 
from  all  risks 
in  respect  of 
damage — 
Cattle  suffo- 
cated. 


Thus  then  the  effect  of  the  7tli  section  of  the  Railway 
and  Canal  Traffic  Act  {q)  has  been  determined  by  the 
foregoing  decisions  to  be  this: — First,  to  make  Greneral 
Notices  given  by  Companies  under  this  Statute,  for  the 
purpose  of  limiting  their  Common  Law  liability  as  Car- 
riers, invalid ;  and,  secondly,  to  make  the  words  "  Special 
Contract  "  and  "  Condition  "  in  the  7th  section  synony- 
mous terms,  to  the  extent  of  permitting  the  Common  Law 
liability  of  such  Companies  to  be  limited  by  such  Condi- 
tions, or  such  Special  Contract,  signed  by  the  owner  or 
his  agent  for  delivering  the  goods,  as  the  Court  or  Judge 
shall  determine  to  be  just  and  reasonable. 

It  is  therefore  important  to  consider  what  Conditions 
have  been  held  to  be  just  and  reasonable,  and  what  have 
been  held  not  to  be  so.  For  no  rule  of  universal  applica- 
tion can  be  laid  down  with  respect  to  what  is  a  mixed 
question  of  law  and  fact,  inasmuch  as  a  reasonable  Con- 
dition may  be  applied  to  a  state  of  facts  which  makes  it 
unreasonable  {>•). 

In  the  case  of  Pardiugfon  v.  Soidh  Western  Railicay 
Comjxuvf  (s),  a  person  sending  cattle  by  railway  signed 
a  Contract  containing  the  following  amongst  other  Con- 
dition : — "  A  pass  for  a  drover  to  ride  with  his  stock, 
the  Company  is  to  be  held  free  from  all  risks  in  respect 
of  any  damages  arising  in  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."  A  drover  received  a  pass  to  go  with 
the  cattle.  The  cattle  were  not  put  into  proper  cattle- 
trucks,  but  into  vans  closing  with  lids  ordinarily  used 
for  the  conveyance  of  salt,  and  this  was  done  with  the 
consent,  or,  at  all  events,  without  any  objection  on  the 
part  of  the  drover.  The  lid  of  one  of  the  vans  having 
become  closed  in  the  course  of  the  journey,  several  of 
the  cattle  were  suffocated.  The  drover  travelled  in  the 
same  carriage  with  the  Gruard,  and  did  not  get  out  during 
the  journey  to  look  at  the  cattle.  The  Jury  having 
found  that  the  cattle  were  suffocated  dm-ing  the  transit, 
Alderson,  B  ,  directed  a  verdict  to  be  entered  for  the  de- 
fendants, giving  leave  to  the  plaintiffs  to  move  to  enter  a 
verdict  for  135/.  if  the  Court  thought  that  the  Conditions 
were  unreasonable.     The  Court  refused  a  rule,  and  con- 


{(])  17  &  18  Vict.  c.  31,  s.  7. 

(r)  Per  Martin,  B.,  in  Grcgor>j  v. 
West  Midkuid  Eailuat/  Co.,  33  L.  J., 
Ex.  155. 


(.s)  Fardiiiffton  y.  South  IVestcni 
Raihmy  Co.,  1  H.  &  N.  392  ;  and 
see  Wise  v.  Great  Western  Railway 
Co.,  1  H.  &  N.  63 ;  25  L.  J.,  Ex.  258. 


CARRYING  HORSES.  275 

sidered  that  the  drover  had  the  means  of  knowhig  whether 
the  cattle  could  travel  safely  in  the  carriage  provided  for 
them,  and  that  the  Condition  was  a  reasonable  one. 

In  the  case  of  M'JIaiiiis  v.  Lancashire  and  Yorkshire  To  be  free 
Railicaij  Company  (t),  a  Horse  was  placed  by  defendants'  of°Conve^^-^^^ 
servants  in  a  truck  which  was  insufficient  and  unsound,  ance— Horse 
and  the  Horse  put  its  foot  through  a  hole  in  the  floor,  and  injured  by 
was  injured ;  and  the  question  of  liability  on  the  contract  J^^rudT^*^ 
turned  upon  the  reasonableness  or  unreasonableness  of  the 
following  Condition  : — This  ticket  is  issued,  subject  to  the 
owner's  undertaking  "  all  risks  of  conveyance,  loading 
and  unloading  whatsoever,  as  the  Company  will  not  be 
responsible  for  any  injury  or  damage  (however  caused) 
occurring  to  live  stock  of  any  description  travelling  upon 
the  Lancashire  and  Yorkshire  Railway,  or  in  their 
vehicles."  This  Condition  was  held  to  be  neither  just 
nor  reasonable,  and  Williams,  J.,  in  delivering  the  judg- 
ment of  the  Court,  said  :  "In  order  to  bring  the  de- 
fendants within  the  protection  of  the  Special  Contract,  it 
is  necessary  to  construe  it  as  excluding  responsibility  for 
loss  occassioned  not  only  by  all  risks,  of  whatever  kind, 
directly  incident  to  the  transit,  but  also  for  that  caused  by 
the  insufficiency  of  the  carriages  provided  by  the  de- 
fendants, thougli  occasioned  by  their  own  negligence  or 
misconduct.  The  sufficiency  or  insufficiency  of  the  vehicles 
by  which  the  Company  are  to  carry  on  their  business  is  a 
matter,  generally  speaking,  which  they,  and  they  alone, 
have,  or  ought  to  have,  the  means  of  fully  ascertaining. 
And  it  would,  we  think,  not  only  be  unreasonable,  but 
mischievous,  if  they  were  to  be  allowed  to  absolve  them- 
selves from  the  consequences-  of  neglecting  to  perform 
properly  that  which  seems  naturally  to  belong  to  them  as 
a  duty.  It  is  unreasonable  that  the  Company  should 
stipulate  for  exemption  from  liabilitj''  from  the  conse- 
quence  of  their  own  negligence  however  gross,  or  mis- 
conduct  however  flagrant ;  and  that  is  what  the  Condition 
•under  consideration  professes  to  do.  That  Condition  is 
therefore  void ;  and  the  case  stands  simply  upon  the 
ground  that  the  plaintiif  has  employed  the  defendants  to 
carry  his  Horses  safely,  and  that  they  have  used  an  in- 
sufficient and  improper  vehicle  for  that  purpose,  whereby 
the  Horses  have  been  injured." 

(t)  HP  Manns  v.  Lancasliirc  and  Yorksliire  Eaihvay  Co,  (Ex.  Ch.),  4  II.  & 
N   349. 

t2 


2:6 


CARRYING  HORSES. 


Owner's  risk 
at  lower  rate. 


Condition  as 
to  time  "with- 
in "which  loss 
should  be  de- 
clared to 
create  claim. 

Condition  as 
to  Special 
Rate. 

As  to  pack- 
age insuffici- 
ently packed. 

As  to  non- 
liability for 
Loss  of  Mar- 
ket as  to  Fish. 


As  to  Cheese. 


But  where  A.  knew  that  there  was  a  certain  rate  for 
carrying  Horses  on  a  railway  by  passenger  train,  and  in 
horse-boxes,  and  that  there  was  a  lower  rate  for  carrying 
them  by  goods  train,  and  in  waggons  ;  it  was  held  that  it 
was  a  reasonable  condition  of  the  contract  for  conveyance 
that  the  Horses  should  be  carried  entirely  at  the  owner's 
risk,  and  that  such  condition  would  protect  the  railway 
company  if  the  Horses  were  injured  on  the  journey,  but 
would  not  protect  them  from  the  consequences  of  delay 
where  the  contract  was  to  deliver  in  a  reasonable  time  (?<). 

Conditions  protecting  the  Company  against  claims  for 
loss  unless  made  within  seven  days  from  the  time  at  which 
the  goods  should  have  been  delivered,  and  against  liability 
for  the  loss  of  goods  untruly  or  incorrectly  declared  or 
described  by  the  sender  are  reasonable,  and  binding  (x). 

A  Condition  that  a  Railway  Company  should  not  be  re- 
sponsible for  loss  or  damage  for  any  cause  whatsoever  to 
goods  conveyed  (it  a  special  or  mileage  rate,  is  reasonable. 

A  Condition  that  a  Company  should  not  be  liable  for 
the  loss,  detention  or  damage  of  any  package  insufficiently 
packed,  is  unreasonable  (//) . 

In  Bcal  V.  SoutJi  Devon  Railicaij  Compani/  (z),  the  Company 
gave  notice  that  they  would  only  convey  fish  on  their  line 
by  special  agreement,  and  the  Condition  in  question  pro- 
vided that  the  Company  should  not  be  responsible  under 
any  circumstances  for  Loss  of  Market,  or  for  other  loss 
or  injury,  from  any  cause  whatsoever,  other  than  gross 
negligence  or  fraud ;  and  this  condition  was  held  to  be 
reasonable,  dissentiente  Martin.  B. 

In  the  case  of  White  v.  Great  Western  Raihcaij  Com- 
'pa)nj  [a),  in  which  the  plaintiff  delivered  a  quantity  of 
cheese  at  a  station  of  the  defendants'  Railway  for  a  parti- 
cular market,  and  the  cheese  was  delayed  in  delivery,  and 
thus  lost  a  market,  it  was  held  that  a  Condition  that  "  the 

((/)  Si»ions  Y.  Great  Western  Eail- 
u-ay  Co.,  26  L.  J.,  C.  P.  25. 

{z)  Beat  V.  South  Devon  Railway 
Co.,  5  H.  &  N.  875.  See  also 
AUdaij  V.  Great  Western  Railway 
Co.,  3t  L.  J.,  Q.  B.  5,  post. 

{a)  White  v.  Great  Western  Rail- 
way Co.,  26  L.  J.,  C.  P.  158  ;  and 
see  cases  there  cited,  and  Alhlay  v. 
Gt-eat  irestcrn  Railway  Co.,  31  L.  J., 
Q.  B.  5,  post.  See  also  Lord  v. 
jMidlaml  Railway  Co.,  L.  E.,  2  C. 
P. 339. 


(«)  Robinson  v.  Great  Western 
Railway  Co.,  35  L.  J.,  C.  P.  123  ; 
H.  &  E..  97  ;  see  also  D'Arc  v. 
London  and  North  Western  Railway 
Co.,  L.  R.,  9  C.  P.  325;  30  L.  T., 
N.  S.  763.  See  also  Harris  v.  Mid- 
land Railway  Co.,  25  W.  E.  63— 
D.  C.  A. ;  &ndi  Lewis  v.  Great  West- 
ern Railway  Co.,  L.  E.,  3  Q.  B.  D. 
195;  47L.  J.,Q.  B.  131;  37L.  T., 
N.S.  774.  PerBrett,  L.  J.,  L.E., 
3  Q.  B.  D.  209. 

(.(,■)  Lewis  V.  Great  Western  Rail- 
way Co.,  5  H.  &  N.  867. 


CARRYING  HORSES.  277 

Company  will  not  under  any  circumstances  be  liable  for 
Loss  of  Market,  or  any  other  claim  arising  from  delay  or 
detention  of  any  train,  whether  at  starting,  or  at  any  of 
the  stations,  or  in  the  course  of  the  journey,"  was  not  an 
unreasonable  one. 

In  the  case  of  Alldai/  v.  Great  Western  Railarty  Com-  As  to  Loss  of 
pnnij  {b),  the  plaintiff  delivered  some  beasts  to  the  Station-  M:arket  cou- 
Master  at  Oxford,  with  directions  to  send  them  to  Binning-  ?<  injury"  to 
ham,  for  the  market  there,  and  signed  a  ticket,  containing  Cattle, 
certain  Conditions,  and  amongst  others  that  the  defendants 
were  "  not  to  be  answerable  for  any  consequences  arising 
from  overcarriage,  detention  or  delay  in,  or  in  relation  to 
the  conveying  or  delivery  of  the  said  animals,  however 
caused."  The  Company  have  two  stations  at  Birmingham, 
one  at  Bordesley,  for  the  cattle  from  Oxford  and  places 
south  of  Birmingham,  and  the  other  at  Hockley,  north  of 
Birmingham,  which  would  not  be  the  proper  station  for 
the  plaintiff's  cattle  to  be  sent  to.  The  plaintiff  made  in- 
quiries for  them  the  next  morning  at  the  Bordesley  Station, 
but  inasmuch  as  they  had  been  carried  to  the  Hockley 
Station,  he  did  not  get  them  till  the  middle  of  the  day. 
The  proper  time  for  him  to  have  received  them  would  have 
been  early  in  the  morning,  and  at  the  Bordesley  Station. 
By  reason  of  the  delay  which  took  place  he  lost  the  market ; 
and  in  addition  it  was  proved  that  the  cattle  had  become 
injured  by  having  been  kept  in  the  trucks  without  food  or 
water.  The  defendants  refused  to  make  any  compensa- 
tion, and  contended  that  they  were  protected  by  the  Con- 
ditions of  the  ticket  above  specified,  and  that  they  were 
therefore  not  liable  in  respect  of  overcarriage.  It  was  held 
however  by  the  Court  of  Queen's  Bench  that  the  cattle 
were  "injured"  within  the  meaning  of  the  statute,  and 
also  that  the  Condition  in  the  ticket  was  unreasonable. 
And  Cockbrn-n,  C.  J.,  said,  "It  is  admitted  that  there  had 
been  loss  of  condition  to  the  cattle,  and  it  is  clear  that  that 
amounts  to  '  injury'  within  the  meaning  of  the  7th  section. 
I  am  also  of  opinion  that  the  Condition  expressed  in  the 
ticket  is  unreasonable.  The  defendants  claim  complete 
immunity  from  liability  in  respect  of  all  delay,  overcar- 
riage, &c.  They  talk  of  reduced  rates,  but  there  is  no 
proof  that  they  charged  the  plaintiff  anything  less  than 
the  ordinary  rates  of  charge.  It  might  perhaps  be  reason- 
able, if  they  had  given  the  plaintiff  the  choice  of  two 

(i)  Alldai/  V.  Great  Western  Railwaij  Co.,  34  L.  J.,  Q.  B.  5. 


278 


CAHRYING  HORSES. 


Condition  as 
to  value 
conplcd  with 
unreasonable 
rate. 


classes  of  rates,  and  had  made  a  Special  Contract  limiting 
their  liability  in  consideration  of  the  lesser  rate  being 
charged.  But  no  such  thing  has  been  done  here."  And 
Mr.  Justice  Cronipton  said,  "  I  am  of  the  same  opinion. 
It  is  clear  that  the  cattle  sustained  injury  by  reason  of  the 
conduct  of  the  defendants.  It  is  also  clear  that  the  Condi- 
tion is  an  unreasonable  one ;  it  was  compulsory  upon  the 
plaintiff,  no  option  being  given  to  him,  and  the  defendants 
cannot  in  such  a  manner  protect  themselves  from  liability." 
In  these  judgments  Mr.  Justice  Mellor  and  Mr.  Justice 
Shee  concm^red.  It  is  important  to  observe  in  this  case, 
that  the  "  injmy  "  to  the  cattle  is  the  only  damage  adverted 
to  by  the  learned  Judges,  so  it  may  be  inferred,  in  accord- 
ance with  former  decisions  (c),  that  the  Loss  of  Market 
alone  would  not  have  entitled  the  defendants  to  compen- 
sation. 

In  Harrison  v.  London,  Brighton  and  South  Coast 
liaihcay  Comjxmy  (d),  the  following  Condition  was  called 
in  question  : — "  The  Company  will  not  be  liable  in  any 
case  for  loss  or  damage  to  any  Horse  or  other  animal 
above  the  value  of  40/.,  or  any  dog  above  the  value  of  51., 
unless  a  declaration  of  its  value,  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  injmy  to  any  Horse  or  other  animal, 
or  dog,  of  whatever  value,  where  such  injury  arises  wholly 
or  partially  from  fear  or  restiveness.  If  the  declared  value 
of  any  Horse  or  other  animal  exceed  40/.,  or  any  dog  5/., 
the  price  of  conveyance  will,  in  addition  to  the  regular 
fare,  be  after  the  rate  of  Two  and  a  half  per  cent,  upon 
the  declared  value  of  above  40/.,  whatever  may  be  the 
amount  of  such  value,  and  for  wliatever  distance  the 
animal  is  to  be  carried."  In  this  case  the  plaintiff  de- 
livered to  the  defendants  a  dog  to  be  carried,  and  signed  a 
ticket  with  this  Condition  annexed.  The  value  of  the 
dog  was  21/.,  but  the  plaintiff  made  no  declaration  of  its 
value,  and  paid  only  the  regular  fare,  Ss.  The  dog 
escaped  from  the  train  during  the  journey,  and  was  lost, 
without  any  negligence  on  the  part  of   the  defendants. 


{<■)  Beal  V.  South  JDcron  MaUway 
Co.,  5  H.  &  N.  875,  ante;  llliitcv. 
Great  Western  Railway  Co.,  26  L.  J., 
C.  r.  158,  ante. 


{(l)  Harruon  v.  London,  BrUjliton 
and  South  Coast  Ilailwai/  Co.,  29  L. 
J.,  Q.  B.  209. 


CARUYING  HOUSES.  279 

The  plaintiff  having  sued  the  defendants  for  the  loss,  it 
was  held  by  the  majority  of  the  Court  of  Exchequer: 
first,  that  the  meaning  of  this  ticket,  the  whole  of  which 
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  accordingl}^,  the  defendants  would  not  be  liable 
at  all,  even  for  loss  or  injury  caused  by  their  own  negligence, 
and  that  the  Condition  was  therefore  within  17  &  18  Vict, 
c.  31,  s.  7 ;  secondly,  that  this  Condition  was  not  just  and 
reasonable,  inasmuch  as  the  extra  charge  of  Two  and  a 
half  2^er  cent,  (without  proof  to  the  contrary,  which  it  lay 
on  the  defendants  to  give)  appeared  excessive  and  un- 
reasonable ;  and,  thirdly,  that  the  Condition  being  void, 
the  plaintiff,  although  there  was  no  negligence  on  the 
part  of  the  defendants,  was  entitled  to  recover  the  full 
value  of  the  dog  against  them  as  Common  Carriers. 

The  judgment  in  this  case  was  reversed  in  the  Ex- 
chequer Chamber  {e),  and,  as  reversed,  was  the  subject  of 
some  discussion  in  As/iendon  v.  T/ie  London,  BrigJdon  and 
Soiif/i  Coast  Railicaij  {/),  where  it  was  held  that  a  Condition 
that  a  Railway  Company  will  not  be  liable  "  in  any  case  " 
for  loss  or  damage  to  a  Horse  or  dog  above  certain 
specified  values  delivered  to  them  for  carriage,  unless  the 
value  is  declared,  is  not  reasonable,  as  it  is  in  its  terms 
unconditional,  and  would,  if  valid,  protect  the  Company 
even  in  case  of  the  negligence  or  wilful  misconduct  of  their 
servants  ;  and  the  Court  further  gave  its  opinion  that  the 
judgment  of  the  Exchequer  Chamber  was  in  effect  over- 
ruled by  Peek  v.  Nortli  Staffordshire  Raibmij  Compani/  (rj). 

But  where  the  Condition  as  to  an  increased  rate  for  Where  value 
increased  value  is  not  objectionable  on  the  ground  of  "^'^*^„^^^  *^' 
excess  or  otherwise,  a  wilfully  false  statement  as  to  the 
value  of  a  Horse  to  be  conveyed  made  by  the  plaintiff  in 
order  that  it  might  be  conveyed  at  the  lower  rate  will 
disentitle  him  from  recovering  in  damages,  if  it  is  injured, 
upon  any  other  value  than  that  which  was  falsely  declared 
to  be  its  real  value  (//). 

In  the  case  of  Gregory  v.  West  Midland  Railicay  Com-  Condition  as 
pany  (i),  a  cow  and  a  heifer  had  been  placed  by  the  defen-  *°  ^T^^vit 
dants'  servants  without  halters  in  a  sheep  or  calf  truck 

{(■)   31  L.  J.,  Q.  B.  113.  (It)  M'Cancc  v.  T.oiirlon  and  XortJi 

(/)  L.  R.,  5  Ex.  D.  190  ;  42  L.  Western  Railway  Co.,  31  L.  J., 
T.,  N.  S.  586.  Ex.  39. 

{;/)  Ante,  p.  271.  (i)   Grcgori/  v.  IFcst  3Iidland Rail- 

tvaij  Co.,  33  L.  J.,  Ex.  155. 


280 


CARRYING  HORSES. 


Condition  as 
to  non-liabi- 
lity beyond 
their  own 
limits. 


without  rails,  and  during  the  journey  the  cow  fell  or 
jumped  out  of  the  truck,  and  was  injured.  An  action  was 
brought  for  the  damage  thus  occasioned,  and  the  Company 
relied  upon  the  Special  Contract  made  by  them  with  the 
plaintiff,  among  the  Conditions  of  which  were  these : — 
That  "the  Company  are  to  be  free  from  all  risk  and 
responsibility  with  respect  to  any  loss  or  damage  arising  in 
the  loading  or  unloading,  or  injury  in  the  transit  from 
any  cause  whatever,  it  being  agreed  that  the  animals  are 
to  be  carried  at  the  owner's  risk,  and  that  the  owner  of  the 
cattle  is  to  see  to  the  efficiency  of  the  waggon,  before  his 
stock  is  placed  therein  ;  complaints  to  be  made  in  writing 
to  the  Company's  officer  before  the  waggon  leaves  the 
Station."  In  accordance  with  the  decision  of  the  Exchequer 
Chamber  in  M'Mcnuis  v.  T//e  Lancashire  and  Yorlishire 
JRaUicay  Company  i^j),  these  Conditions  were  held  to  be 
neither  just  nor  reasonable. 

In  Roofh  V.  The  North  Eastern  Raihcai/  Company  (/<•),  a 
Contract  for  the  conveyance  of  cattle  by  railway,  signed  by 
the  party  sending  them,  contained  the  two  following, 
amongst  other,  Conditions : — "  The  owner  undertakes  all 
risks  of  loading,  unloading  and  carriage,  whether  arising 
from  the  negligence  or  default  of  the  Company  or  their 
servants,  or  from  defect  or  imperfection  in  the  station, 
platform  or  other  places  of  loading  or  unloading,  or  of  the 
carriage  in  which  the  cattle  may  be  loaded  or  conveyed,  or 
fi'om  any  other  cause  whatsoever."  "  The  Company  will 
grant  fi'ee  passes  to  persons  having  the  care  of  live  stock, 
as  an  inducement  to  owners  to  send  proper  persons  with 
and  to  take  care  of  them:" — It  was  held  that  the  first 
of  these  Conditions  was  unreasonable,  and  that  its  un- 
reasonable character  was  not  removed  by  the  fact  that  the 
Company,  under  the  second  condition,  granted,  and  the 
o^Tier  accepted,  a  fi^ee  passage  for  a  person  who  travelled 
with  the  cattle  sent. 

If  Carriers  receive  a  chattel  to  carry  to  a  particular 
place,  they  must  be  said  to  have  the  carrying  of  it  to 
the  end  of  the  joui-ney,  whether  they  themselves  carry  it 
all  the  way  or  not.  Therefore  any  parties  to  whom  they 
may  hand  it  over  are  their  agents  and  they  are  clearly 
liable,  unless  the  facts  show  that  their  responsibility  has 


[j)  M'Ma)ins  v.  Lancashire  and 
Yorkshire  Eaihcay  Co.  (Ex.  Ch.) 
4  H.  &  N.  327.  See  also  Tceh  v. 
North  Staffordshire  Eaihvay  Co.,  32 


L.  J.,  Q.  B.  241,  ante,  p.  271. 
(/.)  L.  E.,  2  Ex.  173;  3C  L. 
Ex.  83. 


J., 


CARRYING  HORSES.  281 

determined  (/).  But  a  Company  (whieli  is  within  tlio 
Railway  and  Canal  Traffic  Act)  may  divest  itself  of  this 
responsibility  for  goods  beyond  its  own  limits,  as  the 
following  Conditions  have  been  held  to  be  just  and  reason- 
able, viz.,  that  "in  respect  of  goods  destined  for  places 
beyond  the  limits  of  the  Company's  railway,  the  Company's 
responsibility  will  cease  when  such  goods  shall  have  been 
delivered  over  to  another  Carrier  in  the  usual  course  for 
another  conveyance."  And  "  that  any  money,  which  may 
be  received  by  the  Company  as  payment  for  the  convey- 
ance of  goods  beyond  their  own  limits,  will  be  so  received 
for  the  convenience  of  the  Consignors,  and  for  the  purpose 
of  being  paid  to  the  other  Carrier  "  {iii). 

If  a  Railway  Company  puts  two  Conditions  into  their  If  part  of 
carrying  clause,  one  of  whicli  is  unreasonable,  they  may  special  con- 
rely  upon  the  other,  which  is  reasonable.     So,  too,  if  part  go'nable  such 
of  a  Condition,  which  is  severable  from  the  rest  of  it,  is  part  may  be 
reasonable  (yj).  relied  on. 

It  has  been  said  that  the  principle  deducible  from  the  Alternative 
authorities  is,  that  a  contract,  j^vimd  facie  unreasonable,  Kates, 
becomes  reasonable  if  an  alternative  rate  is  offered  to  the 
customer,  i.  e.,  if  the  company  have  two  rates,  at  one  of 
which,  the  higher,  it  undertakes  the  ordinary  risk  of  a 
carrier,  while  at  the  other,  the  reduced  rate,  it  carries  upon 
condition  of  being  relieved  from  that  risk(o).  But  the 
f>rinciple  w^ould  not  be  applied  in  a  case  where  the  higher 
rate  is  excessive,  and  the  Court  of  Common  Pleas  refused 
to  apply  it  to  a  case  where  wax- work  was  carried  "at 
owner's  risk"  {p). 

But  it  seems  that  it  would  apply  where  the  expression 
"  at  owner's  risk"  is  modified  by  an  exception  of  the  wilful 
misconduct  of  the  defendants'  servants  [q). 

Where  alternative  rates  are  charged  for  the  conveyance 
of  cattle  or  goods,  the  lower  rate  being  at  owner's  risk, 
a  2)riori  the  higher  rate,  if  within  the  parliamentary  limit, 


(/)  Muschamp    v.    Lancaster   and  see  also  Hodges  on  Railways,  6tli 

Preston  Junction  Eailway  Co.,  8  M.  ed.  598. 

&  W.  421  ;    Watson  v.  Anibcrgatc,  {]})  B'' Arc  v.  London  and  North 

Nottingham  and  Boston  liallicaij  Co.,  Western  Railwaii  Co.,  L.  R.,  9  C.  P. 

15  Jur.  448.  325  ;  30  L.  T.,'N.  S.  763  ;  and  see 

(«i)  Aldridge    v.    Great     Western  Itobii/son  v.  Great  Western  Railuay 

Railway  Co.,  33  L.  J.,  C.  P.  161.  Co.,  35  L.  J.,  C.  P.  123. 

(«)  M'Cance  v.  London  and  North  [q)  Leivis  v.  Great  Western  Rail- 
Western  Raihva>/ Co.,  7  H.  &N.  i'7.  u-ay    Co.,   L.  R.,    3   Q.   B.  D.   195, 

['j)   Gallagher    v.    Great     Western  200;  47  L.  J.,  Q.  B.  131  ;   37L.  T., 

Railway   Co.,  Ir.  R.,  8  C.  L.  326  ;  N.  S.  774. 


282  CARRYING  HORSES. 

is  not  necessarily  unreasonable  or  prohibitory  (>•).  It  is  a 
question  for  the  jury  whether  the  higher  rate  is  unreason- 
able in  the  sense  that  it  is  so  high  as  to  be  prohibitory ; 
and  the  mere  fact  that  the  lower  rate  is  so  low  that  cattle 
dealers  invariably  avail  themselves  of  it  is  not,  standing 
alone,  evidence  that  the  higher  rate  is  unreasonable  or 
prohibitory  (.s). 
What  is  wilful  When  a  Railway  Company  agrees  to  carry,  at  a  re- 
misconduct.  ducccl  rate,  upon  condition  of  being  relieved  from  the 
ordinary  liability  for  negligence,  and  to  be  responsible 
only  for  the  consequences  of  the  wilful  misconduct  of 
their  servants,  it  will  be  for  the  plaintiff,  in  an  action 
for  injury  to  the  goods  carried,  to  prove  more  than  culpable 
negligence.  There  must  be  evidence  of  actual  wilful  mis- 
conduct causing  the  injury  (/).  Thus,  where  a  Railway 
Company  contracted  with  the  plaintiff  to  carry  a  van  at 
a  reduced  rate,  on  the  terms  that  the  Company  should  not 
be  liable  for  damage  or  delay,  except  sucli  as  was  occasioned 
by  wilful  misconduct  on  the  part  of  its  servants ;  and  the  van 
was  to  be  delivered  at  a  station  outside  the  Company's 
system,  and  on  the  line  of  another  Company  ;  and  a  delay 
was  occasioned  by  the  van  having  been  loaded  on  a  truck 
which  was  too  high  to  allow  of  its  passing  under  the  other 
Company's  gauge,  although  it  passed  under  that  of  the 
Company  ;  it  was  held  that  there  was  not  sufficient  evi- 
dence of  wilful  misconduct  on  the  part  of  the  Company's 
servants  to  go  to  a  Jury,  inasmuch  as  it  was  not  proved 
that  they  knew  that  the  truck  was  too  high  to  carry  the 
van  under  the  other  Company's  bridge  {m).  But  where  a 
Railway  Company  had  carried  goods  from  one  of  its 
stations  to  another,  and  the  station  master  at  the  place  to 
which  they  were  carried,  without  making  inquiries  of  the 
Consignor,  after  a  delay  of  a  week,  delivered  the  goods  to 
a  person  of  a  very  similar  name  to  that  of  the  person 
named  as  Consignee  ;  and  the  Contract  of  Carriage  was  at 
a  reduced  tariif,  conditioned  to  exclude  all  liability  ex- 
cept for  wilful  misconduct ;  the  delivery  of  the  goods  was 
held  to  amount  to  wilful  misconduct  {x). 

{>•)  Foreman     v.    Great     Western  way   Co.,  26  W.  E,.  111.     See  also 

Itailicay  Co.,  38  L.  T.,  N.  S.  851.  Lewis  y.  Great  Western  Rail a-ny  Co., 

(«)  Ibid.  L.  R.,  3  Q.  B.  D.  195;  47  L.  J., 

\t)   Great  Western  Jlaiticai/  Co.  v.  Q.  B.  131. 
G/e/iister,  29  L.  T.,  N.  S.  422  ;   22  (r)  Jloare  v.  Great  Western  Rall- 

W.  R.  72  vay  Co.,  37  L.  T.,  N.  S.  18G  ;  25 

{ii)    Webb  V.  Great  Western  Rail-  W.  R.  63. 


CARRYING  HORSES.  283 

The  onus  of  proving  that  a  Condition  is  reasonable,  lies  Onus  of  proof. 
upon  the  Company  {y) . 

It  will  have  been  seen  by  a  consideration  of  the  eases  General  effect 
that  the  reasonableness  or  unreasonableness  of  a  Condition  ^f  *^^  ^^^^' 
depends  upon  the  nature  of  the  articles  to  be  conveyed,  the  Conditions, 
degree  of  risk  attendant  upon  their  conveyance,  the  rate  of 
charge  made,  and  all  the  circumstances  of  each  particular 
case  {z). 

Very  slight  evidence  of  non-delivery  is  sufficient  to  call  Delivery  by 
upon  the  defendant  to  prove  delivery  {a).  If  the  carrier  ^^^■^^<^'-'- 
deliver  the  goods  at  the  place  directed  in  accordance  with 
the  ordinary  usage,  he  has  fulfilled  his  obligation,  although 
he  has  delivered  them  to  a  person  the  sender  did  not 
intend  (b).  Where  cattle  sent  by  railway  were  kept  at  the 
arrival  station  with  the  sanction  of  the  plaintiff's  servant, 
until  they  could  be  removed  according  to  the  police 
regulations,  it  was  held  that  the  liability  of  the  Railway 
Company  as  carriers  had  ceased  when  the  alleged  loss  and 
damages  occurred  (c). 

There  is  no  general  rule  of  law  requiring  Carriers  to  Notice  of 
give  notice  to  the  Consignor  of  the  refusal  of  the  Con-  Consignee's 
signee  to  receive  goods,  but  Carriers  are  merely  bound  to  Consignor, 
do  what  is  reasonable,  under  the  particular  circumstances 
of  each  case  (r/).     However,  Bramwell,  B.,  said  in  the  case 
of  Hudson  V.  Baxendalc  {d),  that  "the  judgment  of  the 
majority  of  the  Court"  (from  which  however  he  dissented) 
"  in  Crouch  v.  Great  Western  RaUu-ay  Cojnpany  (e)  seemed 
to  show  that  it  was  the  duty  of  the  Carrier  to  communicate 
with  the  Consignor." 

If  the  Consignee  makes  default  in  receiving  the  goods  Effect  of 
the  Carrier  is  entitled  to  recover  from  him  the  expenses  consignee's 
reasonably  incurred  in  taking  care  of  the  goods.     A  person  ^^  ^^'^ " 
sent  a  Horse  by  railway,  consigned  to  himself  at  a  station 
on  the  line,  and  paid  the  fare.     When  the  Horse  arrived 
at  the  station  there  was  no  one  on  his  behalf  to  receive  it, 
and  the   Railway  Company   therefore  placed   it   with  a 
livery  stable-keeper ;  and  it  was  held  that  the  Company 

(y)  Harrison  v.  London,  Brighton  6  Ex.  36;   40  L.  J.,  Ex.  30  ;  24  L. 

a7id  South  Coast  Railwaij  Co.,  29  L.  T.,  N.  S.  559. 
J.,  Q.  B.  209.  [c)  Shepherd  y.  Bristol  and  Exettr 

(=)  See   Addison   on  Torts,    2nd  Railivar/  Co.,  L.  R.,  3  Ex.  189  ;  37 

ed.  p.  403.  L.  J.,  Ex.  113. 

{a)   Griffiths  V.  Lee,  1  C.  &  P.  1 10 ;  {d)  Hudson  v.  Baxcndalc,  27  L.  J. , 

llaukes  v.  Smith,   Car.    &  M.    72  ;  Ex.  93. 
Eoscoe,  N.  P.,  14th  ed.  585.  («)   Crouch  v.  Great  Western  Rail- 

{'))  M'Kcan    v.   M'lvcr,    L.    E.,  ivay  Co.,  26  L.  J.,  Ex.  418, 


284 


CARRYING  HORSES. 


Compensa- 
tion paid 
erroneously 
to  Consignor 
no  answer  to 
action  by 
Consignee. 

Liability  of 
Company 
■when  acci- 
dent happens 
to  a  Horse  in 
their  yard. 


Opinion  of 
Coekbiu'n, 
C.J. 


could  recover  from  tlie  owner  of  the  Horse  the  reasonable 
charges  which  it  had  paid  to  the  stable-keeper  (/). 

After  goods  have  been  refused  at  the  Consignee's  address, 
the  Carrier  becomes  an  involuntary  bailee,  and  is  only 
bound  to  act  with  due  and  reasonable  care  and  diligence  (g). 

It  is  no  answer  to  an  action  against  Carriers  by  the 
owner  of  goods  lost  (who  was  the  Consignee),  that  the 
Consignor,  after  the  loss  of  the  goods,  claimed  compen- 
sation, and  that  the  Carriers,  without  notice,  and  believing 
him  to  be  the  owner,  paid  compensation  to  him  {/>). 

In  a  case  (?)  in  which  the  plaintiff  sent  a  Horse  of 
great  value  to  the  yard  of  the  defendant's  Railway  Station 
at  Worcester,  for  the  purpose  of  its  being  carried  by  their 
Railway :  by  the  direction  of  a  servant  of  the  Company, 
the  plaintiff's  groom  was  leading  the  Horse  to  the  plat- 
form, when  it  was  startled  by  another  Horse,  and  backed 
upon  some  sharp  iron  girders  lying  on  the  spot,  receiving 
such  an  injury  that  it  was  necessary  to  kill  it.  No 
declaration  of  value  had  been  made,  nor  had  any  ticket 
been  taken  or  fare  demanded ;  the  usual  practice  at  that 
Station  being  to  put  the  Horse  into  the  box,  in  which  it 
was  to  be  conveyed  in  the  first  instance.  The  Jury  found 
that  the  defendants  were  guilty  of  negligence  in  putting 
the  girders  where  they  were,  and  that  there  was  no 
negligence  on  the  part  of  the  groom,  and  found  a  verdict 
for  the  plaintiif  for  1,000/.  A  rule  was  subsequently 
obtained,  pursuant  to  leave  reserved,  calling  upon  the 
plaintiff  to  show  cause  why  the  damages  should  not  be 
reduced  to  50/.,  on  the  ground  that  the  plaintiff's  right  to 
recover  was  limited  to  that  sum  by  17  &  18  Vict.  c.  31, 
s.  7.  The  Court  differed  in  opinion,  but  it  was  held  by 
the  majority  that  the  rule  should  be  made  absolute  to 
reduce  the  damages  to  50/. 

It  was  held  by  Cockburn,  C.  J.,  who  dissented  from 
this  judgment,  that  as  the  negligence  complained  of  was 
not  the  negligence  of  the  defendants  in  their  character  of 
Carriers,  they  were  not  entitled  to  the  protection  of  this 
section ;  secondly,  if  they  would  have  otherwise  been 
entitled  to  the  protection,  there  was  no  evidence  of  their 
having   notified  the  increase  rate   of   charge   as  required 

(/■)  Great  Korthern  Railway  Co. 
V.  SwafficM,  L.  R.,  9  Ex.  132;  43 
L.J.,Ex.  89;  30L.  T.,  N.  S.  562. 

{g)  Heugli  v.  London  and  North 
Western  Railway  Co.,  L.  R.,  5  Ex. 
51  ;  39  L.  J.,   Ex.  48;  21  L.  T., 


N.  S.  676. 

[h)  Coombs  v.  Bristol  and  Exeter 
Railway  Co.,  27  L.  J.,  Ex.  269. 

(;')  Hodgman  v.  West  Midland 
Railway  Co.,  33  L.  J.,  Q.  B.  233. 


CARRYING  HORSES.  '  285 

by  the  section ;  and  thirdly,  therefore,  on  both  grounds, 
the  plaintiff  was  entitled  to  recover  the  full  value  of  the 
Horse. 

Mr.  Justice  Mellor  was  of  opinion  that  the  provision  of  Mellor,  J. 
in  the  section  applied  not  only  to  the  risks  of  carriage  and 
conveyance,  but  also  to  those  which  attend  the  receiving 
and  delivery ;  that  the  injury  was  done  in  receiving  the 
Horse  ;  and  therefore,  that  as  there  was  no  declaration  of 
value,  the  plaintiff  could  not  recover  more  than  the  50/. 

It  was  held  by  Mr.  Justice  Blackburn,  that  the  Statute  of  Black- 
is  not  confined  to  neglects  and  defaults  after  the  relation  t)iirn,  J. 
of  Carrier  and  Customer  has  been  completely  established, 
and  that  the  real  value  above  50/.  cannot  be  recovered 
unless  the  declaration  is  made  before  the  injury  happens, 
though  it  happen  before  the  receipt  by  the  liailway  Com- 
pany is  complete. 

The  mere  casual  knowledge  of  a  Railway  Company  of  Declaration 
the  excess  in  value  of  a  Horse  sent  to  be  carried,  derived  °^  ^'^^^^  under 
from  a  letter  of  the  sender  to  their  Traffic  Manager,  does  ^  3^  g  -j^^ 
not   entitle   them   to   refuse   to   carry   it,   except   at   the 
increased  percentage  of  charge  (/.•). 

A  Railway  Company  is  not  responsible  for  the  non-  Non-com- 
delivery  of  live  stock,  where  the  owner  has,  in  defiance  of  pliance  with 
the  known  com-se  of  business  of  the  Company,  permitted  ^_  ^'^^^  ^^  *° 
them  to  be  delivered  at  one  of  the  Company's  Stations  ^^°^^P  * 
without  an  acknowledgment  from  the  proper  Officer  of 
their  receipt  for  the  purpose  of  their  being  carried,  although 
they  are  proved  to  have  been  delivered  to  an  Officer  in  the 
Company's  employ  (/). 

Where  one  railway  company  undertakes  to  carry  goods  Througli  car- 
from  a  station  on  their  railway  to  a  place  on  another  distinct  ^iage  on  rail- 
railway,  with  which  it  communicates,  this  is  evidence  of  a  ^'^^^'  "^^^* 
contract  with  them  for  the  whole  distance,  and  the  other  liable, 
company  will   be   regarded   simply  as   their   agents  (ni). 
But  the  first  company  might  by  a  special  contract  restrain 
their  liability  to  the  limits  of  their  own  rail,  where  they 
expressly  act  as  agents  for  the  other  company  (>;).     And 
the  question  as  to  which  company  is  liable  will  depend  on 
the  terms  of  the  special  contract  in  each  individual  case. 

ik)  Robinson    v.     South     Western  Railway  Co.,  SM..  kW. '^21  ;  ZH. 

i?«;7iTOyCo.,C.P.Banc.  May,  1865;  &  C.  771 ;  4  H.   &  C.  582,   Exch. 

19  C.  B.,  N.  S.  51  ;  34L.J.,  C.  P.  Ch. 

234.  («)  Fowles  \.  Great  Western  Rail- 

{I)  Slim  V.  Great  Northern  Rail-  way  Co.,  22  L.  J.,  Ex.  76;  7  Exch. 

u-ay  Co.,  14  C.  B.  647.  699;  and  see  Roscoe,  N.  P.,  14th 

(«()  Muschamp  v.  Lancaster,    ^c.  ed.  572. 


Rail.  Co. 


286  CAHRYING  HORSES. 

Thus,  in  Coxon  v.  Great  Western  Raihcay  Compan!/  {o), 
the  plaintiff  delivered  cattle  at  a  station  of  the  Shrews- 
bury and  Hereford  Railway  Company,  to  be  conveyed  to 
Birmingham,  and  signed  a  contract-note  with  that  com- 
pany, 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 
the  defendants  lying  at  the  station,  and  were  conveyed  in 
it  along  the  Shrewsbury  and  Hereford  Railway  to  Shrews- 
bury, and  then  on  the  defendants'  line  to  Birmingham. 
Between  Shrewsbury  and  Birmiogham  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  Shrews- 
bury and  Hereford  Company  for  the  entire  journey,  the 
defendants  were  not  liable. 
Criily.  Man-  In  Gill  V.  Manchester,  Sheffield  and  Lincolnshire  Raihcaij 
chesie>'^  ^r.  Company  ( p) ,  the  Great  Northern  Railway  Company  and 
the  Manchester  Railway  Company  had  agreed  that  a 
complete  and  full  system  of  interchange  of  traffic  should 
be  established  from  all  parts  of  one  company  and  beyond 
its  limits,  to  all  parts  of  the  other  company  and  beyond  its 
limits,  with  through  tickets,  through  rates  and  invoices, 
and  interchange  of  stock  at  junctions,  the  stock  of  the  two 
companies  being  treated  as  one  stock.  The  agreement 
provided  for  the  division  of  the  traffic.  The  plaintiff, 
wishing  to  send  a  cow  from  Doncaster  to  Sheffield,  went 
to  the  station  of  the  Grreat  Northern  Railway  Company  at 
Doncaster  and  booked  her-  for  Sheffield  by  the  Manchester 
line.  He  signed  a  contract,  by  which  it  was  agreed  that 
the  cow  was  to  be  conveyed  upon  certain  conditions,  one 
of  which  was  as  follows  : — "  The  Grreat  Northern  Railway 
Company  gives  notice  that  they  convey  Horses,  Cattle, 
Sheep,  Pigs  and  other  live  stock  in  waggons,  subject  to 
the  following  condition :  That  they  will  not  be  respon- 
sible for  any  loss  or  injury  to  any  Horse,  Cattle,  Sheep,  or 
other  animal,  in  the  receiving,  forwarding  or  delivering,  if 
such  damage  be  occasioned  by  the  kicking,  plunging  or 
restiveness  of  the  animal."  The  cow  was  put  into  a  truck 
belonging  to  the  Manchester  Railway  Company,  and  was 
conveyed  to  Sheffield,  where  their  servant,  who  was  in 
charge  of  the  yard  or  loading  place,  let  her  out  of  the 
truck,  although  he  was  cautioned  by  the  plaintiff  not  to 

(o)  29  L.  J.,   Ex.    1G5  ;  5  H.  &  (;j)  L.  R.,  8  Q.  B.  186;  42  L.  J., 

N.  274.  Q.  B.  89  ;  28  L.  T.,  N.  S.  587. 


CARRYING  HORSES.  287 

do  SO  at  that  time.  The  cow  rushed  out  of  the  truck, 
and,  after  running  about  the  yard,  got  upon  the  line  and 
was  killed.  It  was  held  that  the  Grreat  Northern  Railway 
Company  was  the  agent  of  the  Manchester  Railway 
Company  to  make  the  contract  for  the  carriage  of  the 
cow,  and  that,  as  the  Manchester  Railway  was  not  pro- 
tected by  the  condition  above  set  out,  an  action  was 
maintainable  against  them. 

In  Co)nhe  v.  London  and  South  Western  Baitnrii/  Co.  (q),  Combe  y.  ion- 
the   plaintiff   sent   off    some   Horses   from   Wadhurst,    a  ^"  ^"'^  ^°"^^ 

,    ,•  r^  ■)      ^•  •       Tx  1  T     1  •  Western  Mail. 

station  on  one  Company  s  ime,  m  Horse-boxes  belongmg  co. 
to  that  Company  in  charge  of  a  groom,  who  was  to  take 
them  to  Farnham,  a  station  on  the  defendants'  line.  At 
Gruildford  was  the  junction  with  the  defendants'  railway, 
where  it  was  necessary  to  book  again,  and  whence  there 
are  two  routes  to  Farnham.  The  groom,  on  going  to  take 
tickets,  was  told,  in  answer  to  his  inquiries,  that  the  train 
direct  to  Farnham  did  not  go  for  some  hours,  but  that  by 
paying  a  little  higher  fare,  he  could  go  on  by  a  train 
which  was  about  to  start  immediately,  and  went  round  a 
longer  way.  He  said  he  would  go  on  at  once,  and  he 
and  the  Horses  proceeded  in  the  same  trucks  in  which 
they  had  come  from  Wadhurst.  At  Farnham  two  porters 
came  to  unload  the  trucks,  and  the  groom  told  them  of  the 
danger  of  an  accident  arising  from  a  wide  space  between 
the  flap  and  the  body  of  the  Horse-box,  and  how  at 
Wadhurst  it  had  been  stopped  up  for  the  Horses  to  be  put 
in.  They  accordingly  tried  to  stop  it  up  with  straw,  while 
the  groom  kept  the  Horses  quiet  inside.  When  done  they 
said  "  all  right,"  and  he  then  led  out  the  Mare,  her  Foal 
following.  The  latter  put  its  foot  through  the  opening  and 
broke  its  leg.  It  was  held  that  the  Company  were  bound 
to  provide  a  truck  reasonably  fit  for  the  conveyance  of  the 
plaintiff's  Horses,  and  there  was  evidence  that  this  was 
unfit,  and  that  the  defendants  had  adopted  it  from  the 
other  Company  at  Gruildford,  and,  by  sending  it  on  to  Farn- 
ham, became  liable  for  an  accident  caused  by  its  defects. 

The  Regulation  of  Railways  Act,  1868  (31  &  32  Vict.  Througli  car- 
c.  119),  Part  II.,  sect.  14,  provides  that  where  a  Company,  "yf^ilway^^ 
by  through  booking,  contracts  to  carry  any  animals,  luggage  and  partly  by 
or  goods  from  place  to  place,  partly  by  railway  and  partly  sea.    Eegula- 
by  sea,  or  partly  by  canal  and  partly  by  sea,  a  Condition  ^aYs^AdT^^" 
exempting  the  Company  from   liability   for  any  loss  or  1868. 

{(j)  31  L.  T.,  N.  S.  G13. 


288 


CARRYING  HORSES. 


Company  to 
furnish  par- 
ticulars of 
char  ores. 


Regulation  of 
Eailwaj-sAct, 
1871. 


damage  wliicli  may  arise  during  the  carriage  of  sucli 
animals,  &c.  by  sea,  from  the  act  of  Grod,  the  king's  enemies, 
fire,  accidents  from  machinery,  boilers  and  steam,  and  all 
and  every  other  dangers  and  accidents  of  the  seas,  rivers 
and  navigations,  of  whatever  nature  and  kind  soever,  shall, 
if  published  in  a  conspicuous  manner  in  the  office  where 
such  through  booking  is  effected,  and  if  printed  in  a 
legible  manner  on  the  receipt  or  freight  note  which  the 
Company  gives  for  such  animals,  &c.,  be  valid  as  part  of 
the  contract  between  the  consignor  of  such  animals,  &c.  and 
the  Company,  in  the  same  manner  as  if  the  Company  had 
signed  and  delivered  to  the  consignor  a  bill  of  lading 
containing  such  Condition.  For  the  purpose  of  this  section, 
the  word  "Company"  includes  the  owners,  lessees  or 
managers  of  any  canal  or  other  inland  navigation. 

Section  16  of  the  same  Act  contains  provisions  for  securing 
equality  of  treatment  in  respect  of  tolls  where  a  railway 
company  is  authorized  to  work  steam  vessels  in  connection 
with  their  lines  ;  and  also  provides  that  "the  provisions  of 
the  Railway  and  Canal  Traffic  Act,  1854,"  so  far  as  the 
same  are  applicable,  shall  extend  to  the  steam  vessels  and 
to  the  traffic  carried  on  thereby. 

By  section  17,  "where  any  charge  shall  have  been  made 
by  a  Company  in  respect  of  the  conveyance  of  goods  over 
their  railway,  on  application  in  writing  within  one  week 
after  payment  of  the  said  charge  made  to  the  secretary  of 
the  Company  by  the  person  by  whom  or  on  whose  account 
the  same  has  been  paid,  the  Company  shall  within  fourteen 
days  render  an  account  to  the  person  so  applying  for  the 
same,  distinguishing  how  much  of  the  said  charge  is  for 
the  conveyance  of  the  said  goods  on  the  railway,  including 
therein  tolls  for  the  use  of  the  railway,  for  the  use 
of  carriages,  and  for  locomotive  power,  and  how  much 
of  such  charge  is  for  loading  and  unloading,  covering, 
collection,  delivery,  and  for  other  expenses :  but  without 
particularizing  the  several  items  of  which  the  last-mentioned 
portion  of  the  charge  may  consist." 

By  section  18,  "  where  two  railways  are  worked  by  one 
Company,  then,  in  the  calculation  of  tolls  and  charges  for 
any  distances  in  respect  of  traffic  (whether  passengers, 
animals,  goods,  carriages  or  vehicles)  conveyed  on  both 
railways,  the  distances  traversed  shall  be  reckoned  con- 
tinuously on  such  railways,  as  if  they  were  one  railway." 

The  ilegulation  of  Railways  Act,  1871  (^34  &  35  Vict. 
c.  78),  section  12,  enacts  that  "  where  a  Railway  Company 


CARRYING   HORSES,  289 

under  a  contract  for  carrying  -persons,  ajiimak,  or  goods 
by  sea  procure  the  same  to  be  carried  in  a  vessel  not 
belonging  to  the  Railway  Company,  the  Railway  Company 
shall  be  answerable  in  damages  in  respect  of  loss  of  life  or 
personal  injury,  or  in  respect  of  loss  or  damage  to  animals 
or  goods,  in  like  manner  and  to  the  same  amount  as  the 
Railway  Company  would  be  answerable  if  the  vessel  had 
belonged  to  the  Railway  Company ;  provided  that  such 
loss  of  life  or  personal  injury,  or  loss  or  damage  to  an i Dials 
or  goods,  happens  to  the  person,  animals  or  goods  (as  the  case 
may  be)  dming  the  carriage  of  the  same  in  such  vessel,  the 
proof  to  the  contrary  to  lie  upon  the  Railway  Company." 

This  section  extends  the  provisions  of  the  31  &  ^2  Yict. 
c.  119,  s.  16,  ante,  p.  288,  and  therefore  of  17  &  18  Yict. 
c.  31,  s.  7,  ante,  p.  269,  to  the  carriage  of  goods  which  the 
Company  contract  to  carry  in  ships  not  belonging  to  them. 
In  Boolan  v.  The  Midland  Railway  Company  (r),  the  defen-  DoolmiN.Mid- 
dants,  an  English  Railway  Company,  having  no  special  ^""(^  l^ad.  Co. 
powers  to  work  steam  vessels,  contracted  at  their  office  in 
Dublin  to  convey  cattle  by  sea  to  Liverpool,  and  thence  by 
railway  to  St.  Ives.  The  cattle  were  lost  on  the  passage 
to  Liverpool  through  the  negligence  of  the  crew  of  the 
steam  vessel,  with  the  owners  of  which  the  Railway  Com- 
pany had  a  through  booking  arrangement  for  the  conveyance 
of  their  traffic.  The  contract  was  made  subject  to  a  written 
condition  exempting  the  Railway  Company  from  liability 
for  "  loss  of,  or  any  damage  or  injury  to,  animals,  goods, 
or  property  intrusted  to  them,  arising  from  the  dangers  or 
accidents  of  the  sea,  or  of  steam  navigation,  the  act  of  God, 
the  Uueen's  enemies,  jettison,  barratry,  collision,  improper, 
careless  or  unskilful  navigation,  accidents  connected  with 
machinery  or  boilers,  or  any  default  or  negligence  of  the 
master  or  any  of  the  officers  or  crews  of  the  company's 
vessels ; "  and  it  was  held  by  the  House  of  Lords,  reversing 
the  judgment  of  the  Irish  Exchequer  Chamber  (.s),  and 
restoring  the  judgment  of  the  Irish  Court  of  Common 
Pleas  [t],  that  the  contract  was  governed  by  the  Railway 
and  Canal  Traffic  Act,  1854,  s.  7  (»),  that  its  conditions 
were  unreasonable,  since  they  tried  to  exempt  the  Company 
from  all  liability  for  the  negligence  of  its  officers  and 
servants,  and  therefore  that  the  Railway  Company  was 
liable  for  the  loss  of  the  cattle. 

(r)  L.  R.,     2    App.    Cas.    792 ;  {t)  9  Ir.  R.,  C.  L.  20. 

34  L.  T.,  N.  S.  317.  {u)  Ante,  p.  2G9. 

(6)  10  Ir.  R.,  C.  L.  47. 

o.  u 


290  CAKRYIISG  HORSES. 

Steamboat  Section  32  of  the  Contagious  Diseases  (Animals)  Act, 

aud  Railway  1878  (41  &  42  Yict.  c.  74),  empowers  tlie  Privy  Council 
&c!X^dism-  from  time  to  time  to  make  such  orders  as  tliey  think  fit, 
feet  Carriages,  subject  to  the  provisions  of  the  Act,  for  prescribing  and 
Boats,  &c.  regulating  the  cleansing  and  disinfecting  of  vessels,  vehicles 
and  pens,  and  other  places  used  for  the  carrying  of  animals 
for  hire  or  purposes  connected  therewith.  Accordingly, 
by  Order  in  Council  of  August  16th,  1878  (the  Cleansing 
and  Disinfecting  Order  of  1878),  provisions  are  made  for  the 
cleansing  ancj,  disinfecting  in  the  mode  therein  ordered — 
of  every  vessel  used  for  carrying  animals  by  sea,  or  on  a 
canal,  navigation,  or  river,  after  the  landing  of  animals 
therefrom  and  before  the  taking  on  board  of  any  fresh 
animals  or  other  cargo — of  every  loading  pen,  either  on 
each  day  on  which  it  is  used  and  after  the  using  thereof, 
or  at  some  time  not  later  than  twelve  o'clock  at  noon  of 
the  next  following  day,  unless  the  following  day  is 
Sunday,  and  then  on  the  following  Monday,  and  before 
the  using  thereof — of  every  truck  and  every  van  on  every 
occasion  after  an  animal  is  taken  out  of  the  same,  and 
before  any  other  animal  is  placed  therein — of  every  move- 
able gangway  or  other  apparatus  used  for  transit  of 
animals  on  or  from  a  truck  or  vessel  as  soon  as  practicable. 
For  any  contravention  of  these  provisions  the  owner  and 
master  of  the  vessel  in  which ;  and  the  Railway  Company 
carrying  animals  on  or  owning  or  working  the  Railway 
on  which ;  and  the  owner  of  the  apparatus,  in  respect  of 
which  the  same  is  done,  shall  each  be  deemed  to  be  guilty 
of  an  offence  against  the  Act. 
"Reasonable  A  Carrier  of  goods  or  cattle  is  only  bound  to  carry  in  a 
time.  reasonable  time  under  ordinary  circumstances,  and  is  not 

bound  to  use  extraordinary  efforts,  or  incur  extra  expense 
in  order  to  surmount  obstructions  caused  by  the  act  of  God, 
such  as  a  fall  of  snow  {ii).  Nor  is  he  responsible  for  delay 
arising  from  causes  beyond  his  control ;  e.g.,  a  Railway 
Company  was  prevented  from  unavoidable  obstruction  on 
its  line  from  carrying  goods  within  the  usual  time.  The 
obstruction  was  occasioned  by  an  accident  resulting  solely 
from  the  negligence  of  another  Company,  having  parlia- 
mentary running  powers  over  their  line  ;  and  it  was  held 
that  the  Railway  Company  was  not  liable  to  the  owner  of 
the  goods  for  damage   caused  to  them  by  the  delay  (o). 

(«)  Uriddo)!.     V.    Great    JS'ortltcni  («)    Taylor  \.  Great  NortJicrn  Ra'd- 

Railwatj  Co.,  28  L.  J.,  Ex.  51.  vay  C'o.,"L.  R.,  1  C.  P.  385  ;  35  L. 

J.,  C.  P.  210. 


CARRYING  HORSES.  291 

What  is,  or  is  not,  reasonable  time,  must  be  judged  with 
reference  to  the  means  at  the  Carrier's  disposal  for  for- 
warding the  goods  (;;)  ;  but  if  his  course  of  business  is 
inconsistent  with  reasonable  expedition,  it  is  no  answer  to 
an  action  against  him  for  damages  arising  from  delay,  that  . 
he  carried  at  the  ordinary  rate  at  which  he  conducted 
business  {q).  Provided  that  he  carry  by  a  reasonable  and 
usual  route  he  is  not  bound  to  carry  by  the  shortest  route, 
even  though  empowered  by  statute  to  charge  a  mileage 
rate  for  carriage  (r). 

A  Ferryman  is  bound  not  only  to  provide  a  safe  mode  A  Feirjman. 
of  conveyance,  but  also  proper  means  for  the  embarkation 
and  landing  of  the  animals  carried  by  him.  The  defend- 
ants, lessees  of  a  Ferry  over  the  river  Mersey,  ran  Steam 
Boats  across  for  the  conveyance  of  passengers  and  goods 
for  hire.  They  also  carried  animals,  but  it  was  not  their 
practice  to  take  charge  of  the  animals  when  on  board. 
The  plaintiff,  having  paid  his  usual  fare,  led  his  Mare  on 
board  at  one  side  of  the  river,  and  remained  with  her 
until  the  Steam  Boat  reached  the  other  side.  For  landing 
the  passengers  and  animals  the  defendants  had  provided 
a  moveable  slip  leading  from  the  boat  to  a  landing-barge. 
The  slip  had  a  handrail,  which  had  been  twice  recently, 
to  the  defendants'  knowledge,  broken  by  the  pressure  of 
a  Horse  on  landing ;  and  in  the  handrail  was  an  iron 
spike,  which  appeared  whenever  the  rail  gave  way.  The 
defendants  had  also  been  cautioned  that  the  slip  was  un- 
safe. They  notwithstanding  continued  to  use  the  slip, 
leaving  the  broken  rail  slightly  tied  up,  so  that  it  ap- 
peared sound.  Over  this  slip  the  plaintiff  proceeded  to 
lead  his  Mare  towards  the  shore ;  but  she  pushed  against 
the  rail,  which  immediately  gave  way,  and  the  iron 
spike  concealed  in  it  injured  her  severely.  It  was  held 
that  they  were  bound  not  only  to  find  a  good  boat,  but 
also  a  good  slip,  and  therefrom  so  to  bridge  over  the 
space  between  the  boat  and  the  land  as  to  provide  means 
for  getting  from  one  to  the  other.  And  that  although 
the  Mare  was  under  the  control  and  management  of  the 
plaintiff,  they  were  liable  for  the  injury  to  her  in  con- 

[p]  Hales  V.   London   and   Xorth  Western  Eailwai/  Co.,  32  L.  J.,  Q. 

Western  Railway  Co.,  32  L.  J.,  Q.  B.  292. 

B.  292.  (/•)    Myers  v.  London   and   South 

(q)  Blalcemore  v.  Lancashire   and  Western  Railway  Co.,  L.  E.,  5  C. 

Yorkshire  Railway  Co.,  1   F.  &  F.  P.  1. 
76 ;    Halei    v.   London   and  Kortli 

v2 


292 


CARRYING  HORSES. 


Damaffes. 


Injury  must 
not  be  too 
remote. 


Failing' to  pro- 
vide Horse- 
boxes for 
Plorses  to  be 
sold  at 
Auction. 


sequence  of  their  culpable  negligence  in  allowing  an  im- 
proper slip  to  be  used  (r). 

The  Damages  to  be  paid  will  be  measured  by  the  value 
of  the  animal,  if  it  be  killed,  or  by  the  loss  on  the  sale, 
if  it  be  injured,  but  in  respect  of  Companies  under  the 
Railway  and  Canal  Traffic  Act  (s),  within  the  limit  of 
Damages  imposed  by  that  Statute,  viz.,  for  a  horse  50/., 
neat  cattle  per  head  15/.,  and  for  sheep  and  pigs  per 
head  2/.,  unless  at  the  time  of  delivery  they  shall  be  de- 
clared to  be  of  higher  value  than  that  above  mentioned ; 
in  which  case  however  they  cannot  be  estimated  upon  a 
higher  value  than  that  which  has  been  declared  by  their 
owner  or  his  agent  in  the  written  declaration  required  by 
the  Company,  though  the  declared  value  is  less  than  the 
real  value  [t) 

If  Horses  or  cattle  are  injured  on  their  way  to  an 
Agricultural  Show,  the  chance  of  obtaining  a  prize  is 
too  remote  a  ground  for  Damages  (») .  But  such  ex- 
penses as  are  reasonably  and  necessarily  incurred  by  the 
Owner  in  consequence  of  unreasonable  delay  in  the  de- 
livery of  goods,  may  be  recovered  against  the  Carrier  (,r). 

In  order  to  recover  Damages  for  non-sale,  owing  to  delay 
in  carrying,  there  must  have  been  an  actual  Contract  to 
buy  for  a  price  {y). 

A  Railway  Company  having  failed  to  provide  Horse- 
boxes, pursuant  to  Contract,  for  the  conveyance  of  Horses 
for  sale  by  auction  in  Dublin  on  the  day  but  one  following, 
the  Owner  was  compelled  to  send  them  by  road,  a  distance 
of  twenty-four  miles,  in  order  that  they  might  arrive 
in  due  time  for  the  sale,  and  for  previous  inspection  by 
purchasers.  The  Horses,  which  v/ere  valuable  hunters, 
were  in  soft  condition  at  the  time.  They  were  deteriorated 
in  appearance  by  the  fatigue  of  the  road  journey ;  one  of 
them  was  lamed :  and  such  as  Avere  sold  realized  prices 
below  what  would  have  otherwise  been  obtained,  the  others 
being  left  on  the  Owner's  hands.  It  appeared  that  if  they 
had  been  in  hard-fed  condition,  they  would  have  borne  the 
journey  without  injury.  The  Company's  station  master 
was,  at  the  time  of  the  Contract,  aware  of  the  intended 


(r)  JVilloughbi/  v.  Horridge,  22  L. 
J.,  C.  P.  90. 

is)   17  &  18  Vict.  c.  31. 

{t)  M'Cance  v.  London  and  North 
Western  Baihcai/  Co.,  31  L.  J.,  Ex. 
65  ;  <•?.  C.  Ex.  Ch.  34  L.  J.,  Ex.  39. 


[>()  Watson  V.  Amhergatc,  Not- 
ihtg/iam  and  Boston  Railway  Co., 
15  Jur.  448. 

(.r)  Black  v.  Baxendalc,  1  Ex.  410. 

[>/)  Hart  V.  BaxcndaU,  IG  L.  T., 
N.  S.  390,  IMartin,  B. 


CARRYING  HORSES.  293 

sale  and  of  the  day  on  whicli  it  was  to  take  place.  It  was 
held  that  the  Company  were  not  liable  in  Damages  for  the 
whole  of  the  loss  which  the  Owner  sustained  in  consequence 
of  the  injuries  occasioned  by  the  road  journey ;  but  that 
the  measure  of  Damages  was  the  deterioration  which  the 
Horses,  if  in  ordinary  condition  and  fit  to  make  the 
journey,  would  have  suffered  thereby,  and  the  time  and 
labour  expended  on  the  road  (~) . 

(z)    Waller  v.  Midland  Great    Western  Railicay  Co.,  L.  E.,  4  Ir.   376; 
reversing  L.  E..,  1  Ir.  520. 


(     204    ) 
PART  II. 

NEGLIGENCE  IN  THE  USE  OF  HOESES,  &c. 
— * — 


CHAPTEE  I. 

THE  CRIMINAL  AND  CIVIL  LIABILITIES  OF  PARTIES  FOR 
INJURIES  INFLICTED  OR  INCURRED  IN  DRIVING,  ALSO 
THE  RULE  OF  THE  ROAD,  AND  NEGLIGENT  DRIVING  BY 
A  SERVANT. 


Negligent  Driving. 

Definition  of  Xcgligoice    296 

Negligent  JJriving id. 

Where  killing  a  Person  is  held  to 
be  Murder id. 

Where  lalling  a  Person  is  held  to 
be  Manslmighter    297 

Burthen  of  Proof id. 

Furious  Driving     id. 

Carriages  racing    id. 

Driver  unable  to  pull  up   id. 

Causing  Death  of  Passenger . .  . .    298 

Defence  of  Contributor;/  Neg- 
ligence          id. 

Where  killing  a  Person  is  held  to 

be  Accidental  Death id. 

jlnd  the  Driver  is  not  liable. .   299 

Trotting  a  Waggon  along  a  Poad    id. 

Trotting  a  Waggon  along  a  Street    id. 

Memarks  in  Easfs  Pleas  of  the 
Crown     id. 

Where  Streets  arc  unusually 
crowded id. 

Where  Driver  is  indictable  under 
24  ^-  25  Viet.  c.  100,  s.  35  . .    300 

Furious  Driving  in  the  Metro- 
politan Police  District id. 

Poiccr  of  Police  Constables    ....     id. 

Conviction  no  Par  to  Action  of 
Trespass    id. 

Where  Party  injured  by  negli- 
gent Driver  may  maintain  an 
Action     id. 

Duty  of  Drivers  of  public  and 
private  Vehicles id. 

Action  lies  for  Negligence  in  the 
care  of  vicious  Horses,  S;c.     ..    301 

Where  another  Person  strikes  a 
Horse id. 

Damages  recovered  in  Trespass  .    id. 


Driving  furiously  round  a  Corner  301 

Mail  Cart  rapidly  entering  Post 
Office  Yard     id. 

Frightening  a  Horse  by  a  Fire- 
basket  id. 

By  Van  left  on  Poadside  ....  302 
Judgment  in  Harris  v.  Mobbs  303 
By  bloivitig  off  Steam    305 

Pules  as  to  civil  Ziability     ....     id. 

Negligence  on  one  Side  only . .     id. 

Passenger  throivn  from  an  Om- 
nibus      30G 

Horse  and  Cart  left  standing  in, 
the  Street    id. 

Damage  from  Tackle  breaking..   307 
Or  from  Defect  in  the  Car- 
riage        id. 

Negligence  on  both  Sides  ....     id. 

Where  the  Negligence  of  the  in- 
jured Party  did  not  contribute 
to  the  Accident 308 

Where  such  Negligence  occasioned 
Part  of  the  Mischief id. 

A  Wrongdoer  not  without  the 
Pale  of  the  Law     id. 

Driving  against  an  Ass  fettered 
on  the  Poad    id. 

Question  of  ordinary  Care  on  the 

Part  of  the  Plaintiff' 309 

On  the  Part  of  the  Defendant    id. 

Circumstances  of  the  Case  must 
be  left  to  the  Jury id. 

Horse  injured  in  being  led  out  of 
the  Stable    id. 

Horse  and  Cart  left  in  the  Street  310 

Judgment  of  the  Court  of  Queen'' s 
Bench id. 

Where  no  Negligence  on  the  Part 
of  the  Defendant    31-1 

Law  deducible  from  these  Cases  .    id. 


NEGLIGENT  DRIVING. 


295 


Abbott  r.  Macfie 314 

A  Heap  left  on  a  Rigltwaij ....    315 

Opportunity  of  seeing   the  Ob- 
struction       id. 

Eunning  over  Stones  at  Night  . ,     id. 

Leaving  the  Highicaij   id. 

Excavation  a  public  Nuisance  . .    316 

Trespasser     may     maintain    an 
Action     id. 

True  Test  of  legal  Liability  ....     id. 

Owners  of  private  Ways  may  be 
liable  for  Negligence id. 

Even   where  Lnjury   caused    by 
intervening  act  of  third  Tarty .  317 

Liability  of  a  Contractor id. 

Where  there  arc  several  ivays  of 
doing  a  Thing    ,  ....    318 

Liability  of  an  Emp)loyer id. 

What   is   the    Question  in  such 
Cases   id. 

Drain  repaired  by  an  ordinary 
but  skilful  Labourer id. 

Stones  left  by  a  Sub-Contractor  .  319 

Statutory   L)uty  —  Surveyor   of 
Highicays id. 

Terformance  of  an  ordinary  Do- 
mestic Duty    id. 

Manure  left  on  a  Road 320 

With  regard  to  Works  cvccutcd 
under  Local  Acts   id. 

Eotli  Parties  to  blame     id. 

Identification  of  Child  icith  Ter- 
son  in  charge  of  it 321 

Identification  of  Tassenger  ivith 
Driver     id. 

Remarks    in    Smith's    Leading 
Cases   id. 

Tower  of  Selection 322 

Altogether  an  Accident id. 

Manning  over  a  Terson  at  Night .     id. 

Where   it   is   the  Result  of  the 
sudden  Fright  of  the  Horse  . .   323 

Hammack  c.  White id. 

Manzoni  v.  Douglas    324 

Horse  running  away id. 

Qualification  of  Rule 325 

Froof  of   Negligence    must     be 

affirmative 4     id. 

Where  Evidence  is  equally  con- 
sistent ivith  Negligence  and  no 

Negligence 326 

Where   a   Horse  straying  in   a 
Highivay  kicked  a  Child  ....    327 

Horse  kicking  at  Sale    id. 

Accident  itself  sometimes  affirma- 
tive Froof  of  Negligence     . . .-.     id. 

Evidence  identical  with  that  re- 
quired for  Manslaughter  ....    328 
As  to  Demand  of  Farticulars  in 
Actions  for  Negligent  Driving,    id. 


KULE  OP  THE  EOAD. 

Right  Side  of  the  Road 328 

Driving  on  the  wrong  Side  in  the 

Dark id. 

Seeing  a  Ferson  coming  on  his 

wrong  Side id. 

Does  not  justify  a  wanton  In- 
jury       329 

Rule  of  the  Road  not  inflexible. .  id. 

Light  Load  meeting  Heavy  ....  id. 

Farties  meeting  on  a  sudden, . . ,  id. 

Rule  of  the  Road  ap2)Ues  to  Saddle 

Horses     330 

Ordinary  Vehicles  meeting  Street 

or  Tram  Cars id. 

Foot  Fassengers id. 

Rule  of  the  Road  does  not  apply.  331 

Going  over  a  Crossing   id. 

Nuisance  on  Fublie  Highway   . .  id. 

Horse  and  Carriagebefore  Trades- 
man'' s  Door    id. 


Negligent  Driving  by  a  Seevant. 

When  the  Master  was  liable  ac- 
cording to  former  Decisions  .,   331 

Liability  now  more  extensive    . .   332 

Lirapus   v.    General   Omnibus 
Co id. 

Acts   done  within   Employment 
and  for  Master'' s  Interest ....     id. 

If  Servant    vindictively   strikes 
Horse  with  his  Whip    333 

Instructions  of  Master,  if  disre- 
garded, immaterial    id. 

Master  liable,  if  Acts  are  done 

for  his  Benefit    id. 

Unless  done  out  of  the  Course 
'    of  the  ServanV s  Employment  334 

Liability  of  Cab  Froprictor  ....     id. 

Master  and  Servant  driving  to- 
gether     335 

Servant  entrusting  the  Reins  to  a 
Stranger     id. 

Servant   striking    the   Horse   of 
another   336 

Servant  striking  Fassenger   ....     id. 

Guard  of  Omnibus  using  undue 
Violence  to  Fassenger    id. 

Servant  removing  an  Obstruction  337 

Servant  acting  im2}roperly     ....     id. 

Making  a  Detour  for  his  own 
Furposcs     id. 

Serva)it   acting  contrary  to   his 
Trust 338 

Taking  his  Master's  Horse  with- 
out Leave    id. 

Re-entering  on  Duty 339 

Taking  the  Horse  of  another    . ,     id. 


296 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


No  express  Autlioritij  of  Master 

necessary     340 

Question  for  the  Jury    id. 

Master^ s  Name  vn  the  Cart  ....     id. 

Giving  an  Address    id. 

Aetion  for  bodily  Hurt id. 

Liability  of  3Iaster  and  Servant 

respectively     341 

Negligence  of  Fellow-Servant  ..     id. 
Master  bound  to  use  due  Care  in 

Selection  of  Servants id. 

Liability  of  Cab   Proprietor    to 

Driver     id. 

Action  by  Eepresentatives  of  a 

Person  hilled 3-12 

By   Persons    henejicially    in- 
terested         id. 

Construction  to  be  put  upon  the 

Condition  in  9  ^  10  Vict.  c.  93    id. 


Flan  of  the  Locality 313 

Conviction  for  fur  ioics  Friving  a 
Bar  to  subsequent  Action  ....     id. 

Damages   344 

Eesjjonsibility  for  "all  possible 
Consequences"    id. 

Famage  too  Remote    id. 

Lnjury  done  to  a  Carriage     ....    345 

Measure  of  Faniages  where  a 
Horse  has  been  injured id. 

Famages  where  a  Person  has  been 
killed id. 

How  limited id. 

Cannot  be  given  for  Funeral  Ex- 
penses      34G 

Famages  not  given  to  a  Class, 
but  to  Lndividuals id. 


Definition  of 
nesrlicrence. 


Negligent 
driving. 


Where  killing 
a  person  is 
held  to  be 
Murder, 


NEGLIGENT   DRIVING. 

Negligence  is  defined  to  be  the  omitting  to  do  something 
which  a  reasonable  man  would  do,  or  the  doing  something 
which  a  reasonable  man  would  not  do  ;  in  either  case 
causing  mischief  to  a  thu-d  party;  not  intentionally.,  for 
then  there  would  be  no  negligence  («). 

An  abstract  rule  as  to  what  will  constitute  negligent 
driving  can  hardly  be  laid  down.  It  must  depend  upon 
all  the  circumstances  of  each  case.  Thus,  it  was  held  by 
Bay  ley,  J.  (i),  that  a  carter  sitting  inside  a  cart,  instead  of 
attending  at  the  Horse's  head,  was  guilty  of  negligenee ; 
and  the  fact  that  while  he  was  there  sitting,  the  cart  went 
over  a  child,  who  was  gathering  up  flowers  on  the  road,  and 
killed  it,  made  him  guilty  of  manslaughter.  And  the 
same  point  was  ruled  by  HuUock,  B.  (c).  But  under 
other  circumstances  a  driver  would  be  more  negligent  in 
being  off  than  on  his  vehicle. 

If  a  man  rides  recklessly  a  wild  Horse  into  a  crowd,  and 
kills  a  person,  it  will  be  Murder,  in  the  same  way  as  it  has 
been  so  held  when  bricks  were  thrown  from  the  top  of  a 
House  into  a  thoroughfare,  and  killed  a  person  {d). 

If  a  person  driving  a  Carriage  happens  to  kill  another, 
and  he  saw  or  had  timely  notice  of  the  mischief  likely  to 
ensue,  and  yet  KilfuUy  drove  on,  it  will  be  Murder ;  for  the 


(rt)  Per  Alderson,  B.,  Blyth  v. 
Birmingham  Waterworks  Co.,  2  Jiu'., 
N.  S.  333. 

{b)  Knighfs  case,  1  Lewin,  C.  C. 
168. 


(f;)  Spring  Assizes,  1829,  quoted 
1  Lewin,  C.  C.  168. 

(rf)  See  per  Alderson,  B.,  Peg.  v. 
Cook,  Appendix;  1  Ld.  Raym.  143. 


NEGLIGENT  DRIVING.  297 

presumption  of  malice  arises  from  tlie  doing  a  dangerous 
act  intentionally,  and  "  there  is  the  heart  regardless  of 
social  duty  "  {e). 

If  the  driver  might  have  seen  the  danger,  but  did  not  Where  killint? 
look  before  him,  it  will  be  Ilanslaiirjhter  for  want  of  due  a  person  is  held 
circumspection  {e) .     And  generally  it  may  be  laid  down,  skuo-hter!' 
that,  where  one  by  his  negligence  has  contributed  to  the 
death  of  another,  he  is  guilty  of  Manslaughter  (/). 

Where  a  man  was  indicted  for  the  Manslaughter  of  a  Burthen  of 
woman  by  driving  a  Cab  over  her  in  a  public  street,  and  P^'*^*^^* 
his  defence  was,  that  he  had  used  due  and  proper  care  in 
driving  the  Cab  upon  the  occasion  in  question ;  it  was 
held  that  the  burthen  of  proving  negligence  did  not  lie  on 
the  crown,  but  that,  upon  the  fact  of  the  kilKng  being 
proved,  it  was  cast  upon  the  prisoner  to  show  that  he  had 
used  due  and  proper  care  in  driving  the  Cab  ( g). 

If  a  man  drive  a  Carriage  or  Cart  at  an  unusiiaUij  rapid  Fiu-ious 
2mce  {h),   whereby   a  person    is    killed,   though    he    calls  ^'^^"'o- 
repeatedly  to  such  person  to  get  out  of  the  way ;  if  from 
the  rapidity  of  driving,  or  from  any  other  cause,  the  person 
cannot  get  out  of  the  way  in  time  enough,  but  is  killed, 
the  driver  is  in  law  guilty  of  Manslaughter  (?). 

If  each  of  two  persons  be  driving  a  Cart  or  Carriage,  Carriages 
at  a  dangerous  and  furious  rate,  along  a  highway,  and  racing, 
they  be  racing  and  inciting  each  other  so  to  drive,  and 
one  of  them  runs  over  a  man  and  kills  him,  both  are 
guilty  of  Manslaughter  (/.•)  ;  and  it  is  no  ground  of  de- 
fence, that  the  death  was  caused  by  the  negligence  of  the 
deceased  himself,  or  that  he  was  either  deaf  or  drunk  at 
the  time  (/.-) . 

So,  also,  if  the  driver  of  a  Carriage  be  racing  with  an-  Driver  un- 
other  Carriage,  and  from  being  unable  to  pull  up  his  ^^^'^  ^"^  ^^^^^ 
Horses  in  time,  the  first-mentioned  Carriage  is  upset,  and 
a  person  thrown  off  it  and  killed,  this  is  Manslaughter 
in  the  driver  of  that  Carriage.  Thus,  where  two  Omni- 
buses, running  in  opposition  to  each  other,  were  galloping 
along  a  road,  and  a  person  killed  by  the  upsetting  of  one 
of  them,   for  which  the  driver  was  tried: — Mr.  Justice 

(e)  1  Hale,  476;  Fost.    263;    1  (h)  See    the    General  Highway 

East's  Pleas  of   the  Crown,   263  ;  Act,    5  &  6  WUl.  4,  c.  50,   s.  78  ; 

and  see  Hcff.  v.  Cook,  Appendix.  and  for  the  Metropolis,  2  &  3  Vict. 

(/)  licff.  V.  Swindall,  2  C.  &  K.  c.  47,  s.  54. 

230.  [i)  VevGiivTow,B.,  Jicxv.TFalkcr, 

iff)  Berj.   V.  Cavendish,  8  Ir.  E.,  1  C.  &  P.  32. 

C.  L.  178— C.  C.  R.  (/.-)  Ecy.  v.  Stvindall,   2  C.  &  K. 

230. 


298  NEGLIGENCE  IN  THE  USE  OF  HOP.SES,  ETC. 

Patteson  in  summing  up  said  to  tlie  Jury,  "  The  question 
here  is,  whether  you  are  satisfied  that  the  prisoner  was 
driving  in  such  a  negligent  manner  that,  by  reason  of  his 
gross  negligence,  he  had  lost  command  of  his  Horses  ? 
And  that  depends  on  whether  the  Horses  were  unruly,  or 
whether  you  believe  tliat  he  had  been  racing  with  the 
other  Omnibus,  and  had  so  urged  his  Horses  that  he  could 
not  stop  them ;  because,  however  he  might  be  endeavour- 
ing to  stop  them  afterwards,  if  he  had  lost  the  command 
of  them  by  his  own  act,  he  would  be  answerable,  for  a 
man  is  not  to  say,  I  will  race  along  a  road,  and,  when  I 
have  got  past  another  Carriage,  I  will  pull  up.  If  the 
prisoner  did  really  race,  and  only  when  he  got  past  the 
other  Omnibus  endeavour  to  pull  up,  he  must  be  found 
guilty;  but  if  you  believe  that  he  was  run  away  with, 
witliout  any  act  of  his  own,  then  he  is  not  guilty.  The 
main  questions  are,  were  the  two  Omnibuses  racing ;  and 
was  the  prisoner  driving  as  fast  as  he  could  in  order  to 
get  past  the  other  Omnibus,  and  had  he  urged  his  Horses 
to  so  rapid  a  pace  that  he  could  not  control  them  ?  If  you 
are  of  that  opinion,  you  ought  to  convict  him  ;  but  if  his 
Horses  ran  away  of  their  own  accord,  without  any  act  of 
his,  he  is  entitled  to  an  acquittal"  (/). 
Causing  death  If  a  man  undertakes  to  drive  another  in  a  vehicle,  he  is 
of  Passenger.  Ijq^^,^  ^q  exercise  proper  care  in  regard  to  the  safety  of  the 
man  under  his  charge,  and  if  by  culpable  negligent  driving 
he  causes  the  death  of  the  other,  he  will  be  guilty  of  man- 
slaughter. But  he  cannot  be  found  guilty  of  manslaughter 
if  the  deceased  himself  interfered  in  the  management  of  the 
Horse  and  thereby  assisted  in  bringing  about  an  acci- 
dent {m) . 
Defence  of  Contributory  negligence  is  not  an  answer  to  a  criminal 

Nr-Sencef     charge,  as  to  a  civil  action  (»).     And  even  if  the  doctrine 
°  °    ■  '      of  contributory  negligence  does  apply  to  criminal  cases,  yet 
there  is  no  contributory  negligence  on  the  part  of  anyone 
in  merely  getting  into  a  vehicle  and  allowing  himself  to 
be  driven,  although  the  diiver  be  perceptibly  drunk  (o) . 
Where  killing       "VVhen  a  person  has  been  killed  in  such  a  manner  that 
heM^to'ibr       ^^0  u-ant  of  care  could  be  imputed  to  the  driver,  it  will  be 
Accidental       Accidental  Death,  and  he  will  be  excused  (;j). 


Death, 


m  Sex  T.  Timmiiis,  1  C.  &  P.  500.  (o)  Beg.  v.  Jones,  22  L.  T.,  N.  S. 

[m)  Reg.  v.  Jones,  21  L.  T.,  N.  S.  217  ;   H  Cox,  C.  C.  544— Lush,  J. 

217;   11  Cox,  C.C.  544— Lush,  J.  {p}  1   Hale,   476;    Post.   2G3  ;  1 

{n)  Beg.  v.  Kcic,   12  Cox,   C.  C.  East's  Pleas  of  the  Crown,  263. 
356 — Byles,  J. 


NEGLIGENT  DRIVING.  299 

Therefore,  if  tlie  driver  of  a.  conveyance  use  all  reason-  And  the  driver 
able  care  and  diligence,  and  an  accident  happen  through  ^'^  ^°*  liable. 
some  chance  which  he  could  not  foresee  or  avoid,  he  is  not 
to  be  held  liable  for  the  results  of  such  accident  {q). 

Thus,  in  an  old  case,  where  A.  was  driving  a  waggon  Trotting  a 
with  four  Horses  in  the  highway  at  Whitechapel,  and  he  Waggon 
being  in  the  waggon,  and  the  Horses  upon  a  trot,  they  ^^°^o  ^  ^^''^*^- 
threw  clown  a  woman  who  was  going  the  same  way  with  a 
burden  upon  her  head,  and  killed  her,  Chief  Justice  Holt, 
Justice  Tracy,  Baron  Bury,  and  the  Recorder  Lovel,  held 
this  to  be  only  a  Misadve)iture{r). 

But  Lord  Holt  held  in  that  case,  if  it  had  been  in  a  Trotting  a 
street  where  people  usually  pass,  it  would  have  been  Man-  Waggon 
slaughter ;  but  it  was  clearly  agreed  that  it  could  not  be        ° 
M(()'(Ier{r). 

It  must  be  taken  for  granted  from  this  note  of  the  case,  Eemarks  in 
that  the  accident  happened  in  a  highway  ichere  j^cople  East's  Pleas 
did  not  nsually  pass  (s)  ;  for  otherwise,  the  circumstance  °  ^  rown. 
of  the  driver's  being  in  his  Cart,  and  going  so  much  faster 
than  is  usual  for  carriages  of  that  construction,  savoured 
much  of  negligence  and  impropriety ;  for  it  was  extremely 
difficult,  if  not  impossible,  to  stop  the  course  of  the  Horses 
suddenly  in  order  to  avoid  any  person  who  could  not  get 
out  of  the  way  in  time.  And  indeed  such  conduct  in  a 
driver  of  so  heavy  a  carriage  might,  under  most  circum- 
stances, be  thought  to  betoken  a  want  of  due  care,  if  any, 
though  but  few,  persons  might  probably  pass  by  the  same 
road.  The  greatest  possible  care  is  not  to  be  expected, 
nor  is  it  required ;  but  whoever  seeks  to  excuse  himself,  for 
having  unfortunately  occasioned  by  any  act  of  his  own  the 
death  of  another,  ought  at  least  to  show  that  he  took  that 
care  to  avoid  it  which  persons  in  similar  situations  are  most 
accustomed  to  do  (/). 

The  fact  that  Streets  are  unusually  crowded  from  any  "Wlicre  Streets 
public  procession  or  other  cause,  instead  of   excusing  a  are  unusually 
driver  when  proceeding  at   his   ordinary  pace   and  with  °^'°''^<i^*^^- 
ordinary  care,  requires  him  to  be  particularly  cautious,  and 
may  tend  to  render  him  criminally  answerable  for  any 
accidents  ensuing  from  driving  at  a  rate,  and  with  those 
precautions  which  he  might  have  ordinarily  observed  {u). 

(7)  Itcff.  v.  Murray,  5  Cox,  C.  C.  present  day. 
509  (Ir.).  (0  1  East's  Pleas  of  the  Crown, 

(r)  O.  B.  Sess.  before  Mich.  T.  263. 
1704,  M.  S.  Tracy,  32.  («)  Rcrj.  y.  Murray,  5  Cox,  C.  C. 

(.v)  Unlike  Whitechapel    of    the  509  (Ir.). 


300 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Where  driver 
is  indictable 
under  24  &  25 
Vict.  0.  100, 
B.  35. 

Fm-ious  driv- 
ing in  the 
Metropolitan 
Police  Dis- 
trict. 


Power  of 
Police  Con- 
stables. 


Conviction  no 
bar  to  action 
of  Trespass. 


Where  party- 
injured  by 
negligent 
di'iviug  may 
maintain  an 
action. , 

Duty  of  dri- 
vers of  public 
and  private 
vehicles. 


If  any  one  be  maimed  or  otherwise  injured  by  the 
"wanton  and  furious  driving  or  racing,"  or  by  the  "wilful 
misconduct"  of  the  driver  of  any  public  stage  carriage, 
the  person  so  offending  is  guilty  of  a  misdemeanor,  and 
indictable  under  the  statute  24  &  25  Yict.  c.  100,  s.  35  {x). 

Under  2  &  3  Yict.  c.  47,  s.  54,  every  person  who,  within 
the  Metropolitan  Police  District,  "  shall  ride  or  drive 
furiously,  or  so  as  to  endanger  the  life  or  limb  of  any  per- 
son, or  to  the  common  danger  of  the  passengers  in  any 
thoroughfare,"  is  liable  to  a  penalty  of  not  more  than  40.s. 

Police  Constables  are  empowered  to  take  a  person  into 
custody  without  warrant,  who  may  commit  any  such  offence 
"  within  view  of  any  such  Constable  "  («/) ;  and  this  power 
is  not  confined  to  cases  where  the  offender's  name  and 
residence  is  unknown  (2) . 

A  conviction  for  fmious  cbiving  under  this  Statute, 
not  alleging  the  oft'ence  to  have  been  committed  within 
view  of  the  Police  Constable,  was  held  not  to  be  a  bar  to 
an  action  of  Trespass  against  a  Police  Constable  for  the 
arrest  and  detention  of  the  party,  although  such  convic- 
tion was  unappealed  against  and  acquiesced  in  {a) . 

A  party  who  sustains  an  injury  from  the  careless  or 
negligent  driving  of  another  may  maintain  an  action, 
unless  he  has  himself  been  guilty  of  such  negligence  or 
want  of  due  care  as  to  have  contributed  or  conduced  to 
the  injury  (b). 

The  driver  of  a  public  vehicle  is  bound  to  be  a  skilful 
driver,  and  any  damage  arising  from  his  unskilful  driving 
is  a  ground  of  action.  A  less  degree  of  skill  is  to  be 
looked  for  from  the  driver  of  a  private  vehicle,  but  he  is 
bound  to  drive  with  reasonable  care  and  skill.  Thus,  in 
the  case  of  Collier  v.  Chaplin  (c),  which  was  an  action 
to  recover  damages  for  an  injury  to  the  plaintiff,  and  to 
her  clothes,  from  being  upset  by  the  defendant,  when 
driven  by  him,  it  appeared  that  the  plaintiff  at  the  de- 
fendant's request  took  a  drive  with  him  in  his  cart,  and 


(x)  Re-enacting  1  Geo.  4,  c.  4. 

(y)  2  &  3  Vict.  c.  47,  s.  54. 

(c)  Justin:  V.  Gosling,  16  J.  P.  105 
(C.  P.) ;  8.  G.  21  L.  J.,  C.  P.  94  ; 
2  &  3  Vict.  0.  47,  s.  63. 

(«)  Justice  V.  Gosling,  16  J.  P.  105 
(C.  P.);  ^.  C.  21L.  J.,C.  P.  94. 

{b)  See  per  Coltman,  J.,  Thoro- 
good  V.  Bryan,  8  C.  B.  130. 


{c)  Collier  v.  Chaplin,  N.  P.,  C.  P. 
cor.  Byles,  J., Westminster,  Feb.  1, 
1865.  See  also  Moffat  v.  Batcman, 
L.  R.,  3  P.  C.  115  ;  22  L.  T.,  N.  S. 
140  ;  6  Moore,  P.  C.  C,  N.  S.  369  ; 
Simsoii  V.  London  General  Omnibus 
Co.,  L.  R.,  8  C.  P.  390  ;  42  L.  J., 
C.  P.  112;  28  L.  T.,  N.  S.  560; 
21  AV.  R.  565.;  and  Manzoni  v. 
Douglas,  L.  R..  6  C.  P.  D.  145,  151. 


NEGLIGENT  DRIVING.  301 

that  tlie  defendant  upset  the  cart,  by  reason  of  which 
a  can  of  gas-tar,  which  was  in  the  cart,  was  spilt  over 
her  clothes,  and  her  ankle  was  injured.  Mr.  Justice 
Byles  told  the  Juiy  that  the  defendant  was  not  bound  to 
bring  the  same  skill  and  care  as  a  driver  of  a  public  vehicle, 
to  the  driving  of  his  cart,  in  which  he  allowed  the  plaintiff 
to  accompany  him,  but  he  was  bound  to  drive  with  reason- 
able care  and  skill,  and  that  the  question  for  them  was 
whether  the  accident  arose  from  the  defendant's  culpable 
negligence  or  not. 

An  action  lies  for  neglect   in   taking  care  of   vicious  Action  lies  for 
Horses,  Cattle,  Dogs,  &c.     As  if  a  man  ride  an  unruly  iieghgence  m 
Horse   in   Lincoln's  Inn    Fields    (or    other  public   place  -vricious 
of  resort)  to  tame  him,  and  he  break  loose  and  strike  a  Horses,  S:c. 
person  {d). 

But  where  damage  is  done  in  consequence  of  a  person  Where  ano- 
striking  a  Horse  on  which  another  rides,  the  striker  is  the  strike^^r""^ 
trespasser  and  the  rider  is  not  (c).  Horse. 

A  man  and  his  wife  brought  an  action  of  Trespass  for  Damages 
a  battery,  and  declared   that   the   defendant   struck   the  recovered  in 
Horse  whereon  the  wife  rode,  so  that  the  Horse  ran  away  ^''^^i^"^^- 
with  her,  whereby   she  was   thrown  down,  and   another 
Horse  ran  over  her,  whereby  she  lost  the  use  of  two  of  her 
fingers.     The  Jury  found  for  the  plaintiffs  and  gave  them 
48/.  damages  (/). 

If  a  man  diive  fmuously  round  a  corner  and  injure  a  Driving  f un- 
person on  the  further  side,  he  is  liable  to  an  action  for  his  ^^^^7  round 

T  /     \  a  corner. 

negligence  ( g) . 

One  of  the  Mail  Carts,  entering  the  Greneral  Post  Office  Mail  cart 
Yard  at  the  rate  of  five  or  six  miles  an  hour,  knocked  rapidly  enter- 
down  and  seriously  injured  the  plaintiff,  a  widow.     On  an  y"^^*^^*^^"® 
action  being  brought  the  defence  was,  that  the  accident 
was  occasioned  by  the  plaintiff's  own  awkwardness,  in  not 
attending  to  the  driver's  warning.     Lord  Campbell  told 
the  Jury,  that  the  real  question  was  whether  that  was  a 
proper  pace  to  drive  into   the  yard.     And  they  gave  a 
verdict  for  the  plaintiff,  with  50/.  damages  (A). 

If  damage  is  caused  by  a  Horse  taking  fright  at  some-  Frightening 
thing  which  is  improperly  placed  in  the  public  street,  the  j^-^^^^  w^ 

(d)  See  Com.  Dig.  Action  upon  {</)  See   Slaijor   of    Colchester  v. 

the  Case  for  Negligence,  A.  5;  and  Brooke,  7  Q.  B.  359. 
Ferocious    and   Vicious    Animals,  (/()  Smithv.  M''Namara,cov.'Liovdi 

post,    Part   2,    Chap.  2;    see   also  Cami^bell,   C.  J.,   Queen's  Bench, 

jUichaelv.  Alcstrce,  2  Lev.  173.  N.    P.,    May    12,    1853;    and    see 

(r)   Gibson  V.  Fcpjxr,  2  Salk.  G37.  Boivdcn  v.  Sherman,  Appendix. 

(/)  BodwcU  V.  Burford,  1  Mod.  21. 


302  NEGLIGEXCE  IN  THE  USE  OF  HORSES,  ETC. 

person  so  placing  it  is  liable.  Thus,  in  tlie  following'  case, 
the  plaintiff,  a  carman,  was  proceeding  with  his  master's 
cart,  heavily  laden,  along  Angel  Lane,  Stratford,  when 
the  Horse  took  fright  at  a  Fire-basket,  on  which  some 
asphalte  wag  boiling,  started  to  one  side,  and,  notwith- 
standing the  plaintiff's  catching  hold  of  the  bridle,  threw 
him  down,  so  that  the  wheel  passed  over  his  leg  and  pro- 
duced a  compound  fracture  of  the  bone.  He  was  taken 
to  the  London  Hospital,  where  the  bone  was  set,  but 
hospital  gangrene  supervened,  and  he  was  for  some  days 
in  danger  of  losing  his  leg.  He,  however,  gradually 
recovered,  was  discharged  after  twelve  weeks,  and  con- 
tinued as  an  outpatient  for  a  long  time.  Eventuoily  he 
w^as  able  to  walk  about  with  the  help  of  a  stick,  and  earn 
lO.s.  a- week,  but  at  the  time  of  the  accident  he  was  in  the 
receipt  of  1/.  a- week,  on  which  he  supported  himself  and 
two  young  daughters.  The  defendant  had  contracted  to 
lay  the  floor  of  a  room  in  the  Angel  Inn  with  asphalte, 
which  he  caused  to  be  boiled  in  the  lane,  as  the  smell  was 
too  powerful  for  the  house.  He  had  been  warned  of  the 
danger  of  having  the  Fire-basket  in'  the  street,  and  had 
removed  it  to  a  different  part  of  the  lane,  but  did  not 
]Aaee  it  in  the  yard  of  the  Inn,  where  it  had  been  suggested 
it  would  be  more  out  of  the  way.  The  Jury  returned  a 
verdict  for  the  plaintiff — damages  60/.  (/). 
ByVanlefton  A  house-van  attached  to  a  steam-plough  was  left  for 
Roadside.  ^|-^q  night  on  the  grassy  side  of  a  highway  by  the  de- 
fendant. The  van  and  plough  were  four  or  five  feet  from 
the  metalled  part  of  the  way.  During  the  evening  the 
plaintiffs'  testator  drove  his  Mare  in  a  Cart  along  the 
metalled  road.  The  Mare  was  a  kicker,  but  he  was  un- 
aware of  her  vice.  Passing  the  van  she  shied  at  it,  kicked, 
and  galloped,  kicking  for  140  yards,  then  got  her  leg  over 
the  shaft,  fell,  and  kicked  her  driver  as  he  rolled  out  of  the 
Cart.  He  afterwards  died  from  the  kick  so  received.  In 
an  action  under  Lord  Campbell's  Act  (9  &  10  Yict.  c.  93, 
s.  1),  by  his  executors  for  wrongful  and  negligent 
obstruction  of  the  highway,  the  Jury  found  that  the  van 
was  left  where  it  stood  unreasonably,  and  negligently,  and 
caused  some  appreciable  danger  to  vehicles  passing  along  the 
metalled  parts  of  the  road ;  that  the  death  was  occasioned 
by  the  van  standing  where  it  did,  and  by  the  inherent 

(i)  Lamhcrt  v.  Harrison,  cor.  Talfoiml,  J.,  Guildhall  (C.  P.),  Feb.  25, 
18:)3. 


NEGLIGENT  DRIVING.  303 

vice  of  the  Mare  combined,  and  that  there  was  no  con- 
tributory negligence.  Denman,  J.,  in  delivering  judg- 
ment for  the  plaintiff  said,  "  It  was,  I  think,  clearly  made 
out  at  the  trial,  that  the  Mare  which  the  deceased  was  driving 
was  a  vicious  Mare,  in  the  sense  that  she  was  a  kicker.  It 
must,  however,  be  taken  that  the  Jury  negatived  any 
knowledge  in  the  deceased  of  this  habit,  such  as  would 
have  rendered  it  negligent  in  him  to  drive  the  Mare. 
Contributory  negligence  on  any  other  ground  was  nega- 
tived. The  immediate  cause  of  the  accident  was  clearly 
that  the  Mare  in  kicking  got  her  leg  over  the  shaft  which 
caused  her  to  fall,  and  in  falling,  the  deceased  received  the 
kick  which  ultimately  caused  his  death.  The  Jury  found  Judgment  in 
that  the  accident  was  due  to  the  van  being  there  (which  -^^"''J'"  ^" 
must  be  taken  to  mean  '  to  the  van  being  unreasonably 
left  on  that  part  of  the  highway  so  as  to  cause  some  danger 
to  vehicles  passing  by'),  combined  with  the  vice  of  the 
Mare.  I  understood  this  finding  to  mean  that  the  accident 
would  not  have  happened  but  for  both  these  causes  combined 
— an  imreasonable  and  dangerous  user  by  the  defendants  of 
that  part  of  the  road  by  their  van  and  plough  so  as  to 
cause  danger  to  vehicles  passing  by, — and  an  exception- 
ally dangerous  animal  shying,  and  running  away  from 
fright  at  the  van  and  plough,  and  then  kicking  the  vehicle 
whether  from  fright  or  vice,  the  kicking  being  an  excep- 
tional vice  in  the  Mare.  This  finding  must  also,  if  pos- 
sible, be  reconciled  with  the  other  finding  that  the  accident 
was  not  a  mere  accident,  which  was  explained  to  the  Jury 
as  meaning  one  for  which  no  one  was  to  be  fairly  con- 
sidered to  blame. 

"  The  plaintiffs'  counsel  argued  that,  inasmuch  as  the 
defendant  was  guilty  of  an  unauthorized  and  dangerous 
act  in  derogation  of  the  public  rights,  by  which  the  Mare 
had  been  frightened,  this  must  be  taken  to  be  the  only 
material  cause  of  the  mischief,  the  deceased  being  guilty 
of  no  wrong  at  all,  and  the  whole  transaction  being  one 
flowing  directly  from  the  alarm  caused  by  the  defendant's 
unauthorized  act. 

"On  the  other  hand,  it  was  contended  that  the  causa 
proxima  of  the  injury  was  the  kicking  of  the  Mare,  which 
was  not  a  necessary  or  natural  consequence  either  of  the 
shying  or  of  the  running  away,  so  that,  although  it  might 
be  true  that,  in  some  sense,  the  van  and  plough  being 
there  led  to  the  accident,  it  was  not  true  that  their  being 
there  was  material  to  the  accident,  or  caused  it,  in  such  a 
sense,  so  to  make  the  defendant  responsible  for  it. 


304  NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 

"  Tliougli,  not  without  licsitation,  I  have  come  to  the 
conckision  that  the  plaintiffs  are  entitled  to  have  the  verdict 
and  judgment  entered  for  them.  Looking  at  the  undis- 
puted facts  in  the  case,  I  think  it  is  clear  that,  although 
the  immediate  cause  of  the  accident  was  the  kicking  of  the 
Mare,  still  the  unauthorized  and  dangerous  appearance  of 
the  van  and  plough  on  the  side  of  the  highway  was,  within 
the  meaning  of  the  law,  the  proximate  cause  of  the  acci- 
dent. It  cannot,  I  think,  be  laid  down  that  no  one  is 
entitled  to  recover  damages  for  an  injury  caused  by  a 
kicking  horse,  in  the  absence  of  any  knowledge  on  his  part 
that  it  is  such.  In  the  present  case  it  must  be  taken  that 
the  deceased  was  not  aware  that  the  horse  was  a  kicker. 
Then  was  the  kicking  which  caused  the  death  a  natural 
and  necessary  consequence  of  the  act  complained  of  ?  I 
think,  upon  the  whole,  that  it  was.  The  van  was  there, 
and  it  in  fact  frightened  the  deceased's  Mare  so  that  she 
shied  and  swerved  to  run  away,  and,  having  got  one  wheel 
on  the  footpath,  kicked  violently,  and  within  150  yards 
fell  and  injured  the  deceased  so  that  he  died.  The  whole 
transaction  is  within  a  few  seconds,  and  originates  in  the 
fright  of  the  Mare  caused  by  the  van.  I  think  it  cannot 
be  laid  down  as  having  been  the  duty  of  the  deceased  to 
abstain  from  driving  the  Mare.  On  the  other  hand,  it 
cannot  be  laid  down  as  the  right  of  the  defendant  to 
assume  that  no  nervous  or  runaway  or  kicking  Horse  would 
come  along  the  highwa3^  It  is  only  in  the  case  of  Horses 
liable  to  be  frightened  that  any  danger  exists,  and  where 
a  Horse  has  once  been  frightened  by  a  dangerous  apparition 
unlawfully  placed  on  the  highway,  running  away  and 
kicking  can  hardly  be  considered  unusual  or  unnatural 
consequences  of  the  fright.  The  wrongdoer  has  no  right 
to  lay  down  the  measure  of  his  own  wrong,  or  to  limit  the 
free  use  of  the  highway  to  Horses  which  shall  only  shy 
when  frightened  and  do  no  further  mischief.  On  the 
whole,  I  think  that  the  finding  of  the  jury  only  amounts 
to  this,  that  the  accident  was  caused  by  the  van,  but  that 
if  the  Horse  was  not  a  kicker  it  would  not  have  happened. 
Looking  at  the  finding  and  the  facts  together,  I  come  to 
the  conclusion  that  the  plaintiffs  were  entitled  to  the 
verdict.  I  therefore  dii-ect  it  to  be  entered  for  them  for 
the  amount  assessed  by  the  jury,  and  give  judgment  for 
that  amount  with  costs"  {k). 

(k)  Harris  v.  Mobbs,  L.  R.,  3  Ex.       L.  R.,   3  Q.  B.  D.  327  ;  47  L.  J., 
D.  268;  SOL.  T.,N.S.  164;  27  W.       Q.  B.  427;  38  L.  T.,  N.  S.  454. 
R.  154  ;  and  Reo  Clark  v.  Cliambers, 


NEGLIGENT  DRIVING.  305 

So,  too,  where  an  Engine-driver  blew  off  steam  at  a  By  Engine- 
spot  where  a  Railway  crossed  a  Highway  on  a  level,  so  as  P^'i^er  blow- 
to  frighten  Horses  waiting  to  cross  the  line,  such  crossing  I't^^Crossin^ 
being  a  place  where  there  was  considerable  traffic,  it  was 
held  to  be  actionable  negligence  on  the  part  of  the  Com- 
pany (/). 

Where  damage  has  been  caused  by  collision,  there  may  Rules  as  to 
be  Negligence  on  one  side  onlij  [m)  \  ov  Negligence  on  both  civil  liability. 
sides  (u).  Both  2^n>'ti&s  majj  be  to  blame  (o)  ;  or  it  may 
be  Altogether  an  accident  {p).  The  following  Rules,  which 
appear  fully  borne  out  by  the  cases  hereafter  quoted,  will 
fix  the  liabilities  of  the  parties  concerned,  under  whatever 
circumstances  the  damage  may  be  inflicted. 

1st.  If  a  party  who  is  taking  reasonable  and  proper  care 
receives  damage  in  consequence  of  a  Horse  or  Carriage  he 
encounters  being  negligently  managed,  the  person  who 
has  the  control  over  such  Horse  or  Carriage  is  answerable. 

2nd.  Where  damage  is  not  the  neeessanj  consequence  of 
a  particular  wrongful  act,  the  person  sustaining  damage, 
though  a  wrongdoer,  may  recover  against  the  person 
causing  it,  if  it  be  shown  that  with  ordinary  care  on  the 
part  of  the  latter,  the  injury  might  have  been  avoided. 

3rd.  But  where  one  party  by  his  improper  conduct  makes 
it  impossible  for  the  other  party,  who  is  also  acting  im- 
properly, to  avoid  doing  him  damage,  the  person  inflicting 
the  injury  is  not  liable,  because  the  negligence  of  both 
parties  concurs  in  producing  it. 

4th.  Where  damage  is  the  consequence  of  pure  accident, 
neither  party  is  answerable. 

In  the  following  case  the  Jury  found  for  the  plaintiff,  Negligence  on 
being  of  opinion  that  there  was  negligence  on  the  side  of  ^"'^ "  ^ ""  ^' 
the  defendant  only.  It  appeared  that  between  seven  and 
eight  o'clock  on  the  evening  of  the  30th  of  November, 
the  plaintiff,  who  was  a  female  servant,  was  intending 
to  cross  High  Street,  Aldgate,  and  was  stepping  off  the 
curbstone  for  that  purpose,  when  a  Cabriolet,  which  came 
up  at  a  pace  of  nine  or  ten  miles  an  hour,  struck  against 
her  and  knocked  her  down,  by  which  she  was  injured. 
In   summing   up,   Mr.    Justice   Coleridge   said,    "  If  the 

{])   Manchester     ami    AUrlncham  («)    Negligence   on  both    sides, 

Mailuaij  Co.  v.  Fullarton,  1-1  C.  B.,  post,  p.  307. 

N.  S.  54.  (o)  Both  parties  to  blame,  post, 

{m)  Negligence  on  one  side  only,  p.  320. 

infra.  (p)  Altogether  an  accident,  post, 

p.  322. 

O.  X 


306 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Passenger 
thrown  from 
an  Omnibus. 


Horse  and 
Cart  left 
standing'  in 
the  street. 


plaintiff  lias  coutributecl  to  the  accident  by  her  own 
neglect,  slie  cannot  recover  in  this  action.  I  will  pnt 
this  case.  If  a  person  in  Oxford  Street  sees  an  Omnibus 
coming,  however  furiously,  and  he  will  be  headstrong 
enough  to  try  to  cross  the  street,  and  is  run  over,  he 
cannot  recover  in  an  action  against  the  proprietors  of  the 
Omnibus,  as  no  one  has  a  right  of  action  if  he  meets 
with  an  accident  which  by  ordinary  care  he  might  have 
avoided.  The  Cabriolet,  it  is  said,  was  coming  at  the 
rate  of  nine  or  ten-  miles  an  hour,  which  was  a  most  im- 
proper pace  at  such  an  hour  and  in  such  a  place.  Even 
a  much  less  pace  would  be  too  fast  at  that  time  of  the 
evening  in  such  a  place  as  High  Street,  Aldgate.  If 
the  plaintiff  took  reasonable  and  proper  care,  and  it  was 
on  account  of  the  extraordinary  speed  of  the  Cabriolet 
that  s]ie  could  not  save  herself,  and  thus  met  with  the 
accident,  she  is  entitled  to  your  verdict ;  but  if  she,  by 
her  own  negligence  and  want  of  care,  contributed  to  the 
accident,  she  cannot  recover  in  this  action,  even  though 
you  should  think  the  driver  of  the  Cabriolet  was  driving 
too  fast,  and  was  therefore  guilty  of  negligence  as  well  as 
the  plaintiff.  If,  however,  the  plaintiff  took  reasonable 
and  proper  care,  and  it  was  the  negligence  of  the  driver 
which  caused  the  accident,  you  ought  to  find  a  verdict  for 

the  plaintiff  "C/)- 

So,  also,  where  it  appeared  that  the  plaintiff  was  a 
passenger  on  the  top  of  an  Omnibus,  which  was  struck 
by  the  defendant's  Omnibus,  and  the  consequence  was 
that  the  Omnibus  on  which  the  plaintiff  sat,  continuing 
its  course,  ran  against  some  obstacle,  and  the  plaintiff 
was  thrown  off  with  considerable  violence,  it  was  held 
by  the  Court  of  Exchequer  that  the  defendant  was 
liable  (r). 

If  a  Horse  and  Cart  are  left  standing  in  the  street, 
without  any  person  to  watch  them,  the  owner  is  liable  for 
any  damage  done  by  them,  though  it  be  occasioned  by 
the  act  of  a  passer-by,  in  striking  the  Horse.  Thus,  where 
damage  had  been  done  under  such  circumstances.  Chief 
Justice  Tindal  said,  "If  a  man  chooses  to  leave  a  Cart 
standing  in  the  street,  he  must  take  the  risk  of  any  mischief 
that  may  be  done"  (s).  And  in  like  manner  a  master  is 
liable  if  his  Cart  be  so  left  by  his  servant  {t) . 


{q)    Woolfx.  Beard,  8  C.  &  P.  373. 
{)■)  Righy  v.  Heivitt,  5  Ex.  242. 
\d)  llUdfje  V.  Goodwin,  5  C.  &  P. 


193. 

[t)  Lynch  V.  Nurdin,  1  Q.  B.  33. 
See  also  Lt/go  v.  Ncu-hoU,  9  Ex.  302. 


NEGLIGENT  DRIVING.  307 

The  owner  of  a  Cart  or  Carriage  is  bound  to  have  good  Damage  from 
tackle,  and  he  is  liable  for  an  accident  in  consequence  of  its  tackle  break- 
breaking  ;  as  where  the  chain-stay  of  a  Cart  broke,  and  the  ^^°' 
Horse  being  frightened  ran  away  and  did  damage  {u) ;  and 
where,  in  consequence  of  the  reins  breaking,  a  foot  passenger 
was  run  over  and  injured  (,r). 

So,  also,  in  the  following  case,  in  which  it  appeared  that  Or  from  a  de- 
the  defendant  was  driving  his  Cart  down  a  hill,  and  the  feet  in  the 
Horse,  which  was  usually  quiet,  suddenly  commenced  kick-  ''^"^^o®- 
ing,  and  proceeded  at  a  furious  pace.    Eventually  the  shafts 
broke,  and  the  Horse  and  Cart  came  into  collision  with 
the  plaintiff's  gig,  and  injured  it.     It  was  held  that  as 
the  breaking  of  the  shafts  showed  a  defect  in  the  Cart, 
which  raised  a  presumption  of  negligence  in  the  owner,  he 
was  liable  for  the  damage  sustained  by  the  plaintiff  {>/) . 

The  subject  of  Negligence  on  loth  sides  was  fully  con-  Xcgllgenee  en 
sidered  by  the  Court  of  Exchequer  in  Bridge  v.  The  Grand  ^^^^^  «'**• 
Jnnetion  Canal  Company  (s),  and  Mr.  Baron  Parke  there 
said,  "  The  Rule  of  law  is  laid  down  with  perfect  correct- 
ness in  the  case  of  Butterfield  v.  Forrester  (a),  that  although 
there  may  have  been  Negligence  on  the  part  of  the 
plaintiff,  yet  unless  he  might  by  the  exercise  of  ordinary 
care  have  avoided  the  consequence  of  the  defendant's 
Negligence,  he  is  entitled  to  recover.  But  if  by  ordinary 
care  he  might  have  avoided  them,  he  is  the  author  of  his 
own  wrong."  And  in  a  later  case  (b)  the  law  as  deducible 
from  preceding  decisions  was  thus  laid  down  by  Wight- 
man,  J.,  delivering  the  judgment  of  the  Exchequer 
Chamber  : — "  It  appears  to  us  that  the  proper  question  for 
the  Jury  is,  whether  the  damage  was  occasioned  entirely 
by  the  negligence  or  improper  conduct  of  the  defendant, 
or  whether  the  plaintiff  himself  so  far  contributed  to  the 
misfortune  by  his  own  negligence,  or  want  of  ordinary  and 
common  care  and  caution,  that  but  for  such  negligence  or 
want  of  ordinary  and  common  care  and  caution  on  his  part, 
the  misfortune  would  not  have  happened.  In  the  first 
place,  the  plaintiff  Avould  be  entitled  to  recover  ;  in  the 
latter  not,  as  but  for  his  own  misconduct  the  misfortune 
would  not  have  happened.     Mere  negligence  or  want  of 

(«)    JFchh   V.  Lawrence,    2    Chit.  (~)  Bridge  v.  The  Grand  Jtmction 

262.  Raihca;/  Co.,  3  M.  &  W.  246. 

(a-)   Cutkril  v.  Turley,  8  C.  k  P.  («)  Jlutterfeld     v.    Forrc&ter,     11 

693.  East,  GO. 

((/)   Tewpleman  y.Baydon,   19  L.  [b)   Tnffy.  JFannan,  27  L.  J.,  C. 

T.  218.  P.  322. 

X2 


308 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Where  negli- 
gence of  the 
injured  party 
did  not  con- 
tribute to  the 
accident. 

Where  such 
negligence 
occasioned 
part  of  the 
mischief. 

A  -R-rongdoer 
not  without 
the  pale  of 
the  law. 

Dri\-ing 
against  an 
Ass  left  fet- 
tered on  the 
road. 


ordinary  and  common  care  and  cantion  would  not  liow- 
ever  have  disentitled  him  to  recover,  unless  it  was  such 
that  but  for  the  negligence  and  want  of  ordinary  care 
and  caution  the  misfortune  would  not  have  happened ;  or 
if  the  defendant  might,  by  the  exercise  of  caution  on  his 
part,  have  avoided  the  consequences  of  the  neglect  or 
carelessness  of  the  plaintiff." 

Where  the  negligence  of  the  party  injured  did  not  in 
any  degree  contrihute  to  the  immediate  cause  of  the  acci- 
dent, such  negligence  ought  not  to  be  set  up  as  an  answer  to 
an  action  brought  against  the  person  who  committed  an 
injury  (c). 

A  person  who  is  guilty  of  negligence,  and  thereby  pro- 
duces injury  to  another,  cannot  set  up  as  a  defence  that 
2Kiyt  of  the  mischief  would  not  have  arisen  if  the  person 
had  not  himself  been  guilty  of  some  negligence  {d). 

As  a  general  liule  of  law,  every  one  in  the  conduct  of 
that  which  may  be  harmful  to  others  if  misconducted,  is 
bound  to  use  due  care  and  skill,  and  the  wrongdoer  is  not 
without  the  pale  of  the  law  for  this  purpose  (e). 

Therefore,  where  the  defendant  negligently  drove  his 
Horses  and  Waggon  against  and  killed  an  Ass,  which 
had  been  left  in  the  highway  fettered  in  the  fore  feet, 
and  was  thus  unable  to  get  out  of  the  way  of  the  defen- 
dant's Waggon,  which  was  going  at  a  smartish  pace  along 
the  road,  Mr.  Justice  Erskine  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  of 
the  Waggon,  the  action  was  maintainable  against  the  de- 
fendant ;  and  his  Lordship  directed  them,  if  they  thought 
that  the  accident  might  have  been  avoided  by  the  exercise 
of  ordinary  care  on  the  part  of  the  driver,  to  find  for  the 
plaintiif ,  which  they  accordingly  did. 

The  Court  of  Exchequer  refused  a  rule  for  a  new  trial 
which  was  applied  for  on  the  ground  of  misdirection ;  and 
Mr.  Baron  Parke  said,  "  The  correct  rule  is  laid  down  in 
Bridge   v.    The    Grand    Junction    Railway    Company  (/), 


(c)  See  Greenland V.  Chaplin,  5  Ex. 
248.  See  also  Broitmlow  v.  Metro- 
politan Board  of  Works,  2  F.  &  F. 
604. 

{d)  Greenland  v.  Chaplin^  5  Ex. 
243. 


(e)  See  per  Lord  Denman,  C.  J., 
Mayor  of  Colchester  v.  Brooke,  7  Q. 
B.  377. 

( f)  Bridge  v.  The  Grand  Junction 
Mailuay  Co.,  3 M,  &  W.  246. 


NEGLIGENT  DRIVING.  309 

namely,  that  the  negligence  which  is  to  preclude  a  plain- 
tiff from  recovering  in  an  action  of  this  nature,  must  be 
such  as  that  he  could  by  ordinary  care  have  avoided  the 
consequences  of  the  defendant's  negligence.  Although 
the  Ass  may  have  been  wrongfully  there,  still  the  de- 
fendant 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  lying  asleep  there,  or  the 
purposely  running  against  a  Carriage  going  on  the  wrong 
side  of  the  road  [g). 

In  an  action  for  damage  occasioned  by  the  defendant's  Question  of 
negligence,  a  material   question   is,  whether   or   not   the  ordinary  care 
plaintiff  might  have  escaped  the  damage  by  ordinary  care  the  plamtiff. 
on  his  own  part  {Ji). 

There  is  negligence,  and  a  want  of  ordinary  care,  if  a  On  the  part 
person  riding  a  vicious  Horse,  applies  the  spur  when  in  'f  t^®  ^e- 
close  proximity  to  a  bystander,  and  the  Horse  kicks  out 
and  injures  him :  but  there  would  not  be  negligence  nor 
a  want  of  ordinary  care,  if  the  person  riding  the  Horse  is 
not  aware  that  it  is  a  vicious  one,  and  it  suddenly  kicks 
out  without  provocation,  and  kills  a  bystander  (/). 

The  defendant  however  is  not  excused  merely  because  Circumstances 
the  plaintiff  knew  that  some  danger  existed  through  the  °^  *^®,  °^^^., 
defendant's  neglect,  and  voluntarily  incurred  such  danger;  ^o  the  Jury, 
the  amount  of  danger,  and  the  circumstances  which  led  the 
plaintiff  to  incur  it,  are  for  the  consideration  of  the  Jury(//). 

Therefore,  where  Commissioners  of  Sewers  had  made  a  Horse  injured 
dangerous  trench  in  the  only  outlet  from  a  mews,  putting  ^^  ?%°?  ^^^ 
up  no  fence,  and  leaving  only  a  narrow  passage,  on  Avhich  stable, 
they  heaped  rubbish,  and  a  Cabman,  in  the  exercise  of  his 
calling,  attempted  to  lead  his  Horse  out  over  the  rubbish, 
and   the  Horse   fell   and  was  killed,   for  which   loss   he 
brought  an  action  : — It  was  held  by  the  Court  of  Queen's 
Bench  that  the  plaintiff  was  not  disentitled   to  recover 
because  he  had,  at  some  hazard  created  by  the  defendants, 
brought  his  Horse  out  of  the  stable.     Also,  that  the  case 
was  properly  left  to  the  Jury  on  the  question  whether  or 
not  the  plaintiff  had  persisted,  contrary  to  express  warning 
at  the  time  (as  to  which  there  was  contradictory  evidence), 
in  running  upon  a  great  and  obvious  danger  (A). 

{g)  Bavies  v.  Mann,  10  M.  &  W.       439. 
546.  (0  North    v.  Smith,    10   C.    B., 

[h)  Clayards  v.  Dethich,  12  Q.  B.       N.  S.  572. 


310 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Horse  and 
Cart  left  in 
the  street. 


Judgment  of 
the  Court 
of  Queen's 
Bench. 


The  following  is  an  important  decision  in  a  case  where 
both  parties  were  wrongdoers,  but  where  the  negligence 
of  the  plaintiff  would  not  necessarily  have  been  followed 
by  damage,  had  there  not  been  great  negligence  on  the 
part  of  the  defendant's  servant,  who  had  carelessly  left  a 
Horse  and  Cart  standing  for  some  time  in  the  street,  and 
the  plaintiff,  a  young  child,  was  injured  when  playing 
about  the  wheel.  The  defendant  was  held  liable  by  a 
Jury,  and  the  Court  of  Queen's  Bench,  after  taking  time 
to  consider,  discharged  a  rule  nisi  for  a  new  trial  applied 
for  on  the  ground  of  misdirection,  and  Lord  Denman  de- 
livered the  following  important  judgment : — ■ 

"  This  case  was  tried  before  my  brother  Williams  at  the 
sittings  in  Easter  Term,  1839.  It  was  an  action  of  Tort 
for  Negligence  by  the  defendant's  servant,  in  leaving  his 
Cart  and  Horse  half-an-hour  in  the  open  street,  at  the 
door  of  a  house  in  which  the  servant  remained  during  that 
period.  The  evidence  for  the  plaintiff  proved  that  at  the 
end  of  the  first  half-hour,  he,  a  child  of  very  tender  age, 
being  between  six  and  seven  years  old,  was  heard  crying, 
and  on  the  approach  of  the  witnesses  was  found  on  the 
ground,  and  a  wheel  of  the  defendant's  Cart  going  over 
his  leg,  which  was  thereby  fractured.  The  defendant 
first  applied  for  a  nonsuit.  The  learned  Judge  refused  the 
application  ;  and  no  question  was  made  before  us  that 
these  facts  afforded  prima  facie  evidence  of  the  mischief 
having  been  occasioned  by  the  negligence  of  the  defen- 
dant's servant  in  leaving  the  Cart  and  Horse.  Witnesses 
were  then  called  to  establish  a  defence  by  a  fuller  explana- 
tion of  the  facts  that  had  occurred.  They  proved  that 
after  the  servant  had  been  about  a  quarter  of  an  hour  in 
the  house,  the  plaintiff  and  several  other  children  came 
up,  and  began  to  play  with  the  Horse  and  climb  into  the 
Cart  and  out  of  it.  While  the  plaintiff  was  getting  down 
from  it,  another  boy  made  the  Horse  move,  in  conse- 
quence of  which  the  plaintiff  fell,  and  his  leg  was  broken 
as  before  mentioned.  On  this  undisputed  evidence  (for 
there  was  no  cross-examination  of  the  witnesses)  the  de- 
fendant's counsel  claimed  the  Judge's  direction  in  his 
favour,  contending  that  as  the  plaintiff  had  obviously 
contributed  to  the  calamity,  it  could  not  be  said,  in  point 
of  law,  to  have  been  caused  by  the  Negligence  of  the 
defendant's  servant.  My  learned  brother,  however,  thought 
himself  bound  to  lay  all  the  facts  before  the  Jury,  and  take 
their  opinion  on  that  general  point.     They  found  a  verdict 


NEGLIGENT  DRIVING.  311 

for  the  plaintiff.  It  is  now  complained  that  such  direction 
was  not  given ;  and,  at  all  events,  the  Jury  are  said  to 
have  given  a  verdict  contrary  to  the  evidence.  The  case 
came  on  in  the  new  trial  paper  last  term,  and  has  been 
fully  argued  before  us." 

"  It  is  urged  that  the  mischief  was  not  produced  by 
the  mere  Negligence  of  the  servant,  as  asserted  in  the  ' 
declaration,  but  at  most  by  that  Negligence,  in  combina- 
tion with  two  other  active  causes,  the  advance  of  the 
Horse  in  consequence  of  his  being  excited  by  the  other 
boy,  and  the  plaintiff's  improper  conduct  in  mounting  the 
Cart,  and  so  committing  a  trespass  on  the  defendant's 
chattel.  On  the  former  of  these  two  causes  no  great  stress 
was  laid,  and  I  do  not  apprehend  that  it  can  be  necessary 
to  dwell  upon  it  at  any  length ;  for  if  I  am  guilty  of 
Negligence  in  leaving  any  thing  dangerous  in  a  place 
where  I  know  it  to  be  extremely  probable  that  some  other 
person  will  unjustifiably  set  it  in  motion  to  the  injury  of  a 
third,  and  if  that  injury  should  be  so  brought  about,  I 
presume  that  the  sufferer  might  have  redress  by  action 
against  both  or  either  of  the  two,  but  unquestionably 
against  the  first.  If,  for  example,  a  Gamekeeper,  re- 
turning from  his  daily  exercise,  should  rear  his  loaded  gun 
against  a  wall  in  the  playground  of  schoolboys  whom  he 
knew  to  be  in  the  habit  of  pointing  toys  in  the  shape  of 
guns  at  one  another,  and  one  of  them  should  playfully  fire 
it  off  at  a  schoolfellow  and  maim  him,  I  think  it  will  not 
be  doubted  that  the  Gamekeeper  must  answer  in  damages 
to  the  wounded  party.  This  might  j)ossibly  be  assumed 
to  be  clear  in  principle,  but  there  is  also  the  authority  of 
the  present  Chief  Justice  (/)  of  the  Common  Pleas  in  its 
support  in  IlUdge  v.  Goodwin  "  {m). 

"  But  in  the  present  case  an  additional  fact  appears. 
The  plaintiff  himself  has  done  wrong  ;  he  had  no  right  to 
enter  the  Cart ;  and,  by  abstaining  from  so  doing,  he 
would  have  escaped  the  mischief.  Certainly  he  was  a 
co-operating  cause  of  his  own  misfortune  by  doing  an 
unlawful  act ;  and  the  question  arises,  whether  that  fact 
alone  must  deprive  the  child  of  his  remedy.  The  legal 
proposition  that  one  who  has  by  his  own  Negligence  con- 
tributed to  the  injury  of  which  he  complains,  cannot 
maintain  his  action  against  another  in  respect  of  it,  has 
received  some  qualifications.    Indeed  Lord  EUenborough's 

(/)  Chief  Justice  Tindal.  [m)  IllUhje  v.  Goodwin,  5  C.  &  P.  190. 


312  NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 

doctrine  in  Buiterfidd  v.   Forrester  (u),  wliicli   lias  been 
generally  adopted  since,  would  not  set  up  the  want  of  a 
superior  degree  of  skill  or  care  as  a  bar  to  the  claim  for 
redress.     Ordinary  care  must  mean  that   degree  of  care 
which  may  reasonably  be  expected  from  a  person  in  the 
plaintiff's  situation  ;    and   this  would  evidently  be  very 
small  indeed  in  so  young  a  child.     But  this  case  presents 
more  than  the  want  of  care ;  we  find  in  it  the  positive 
misconduct  of  the  plaintiff,  an  active  instrument  towards 
the   effect.     We   have   here   express   authorities   for   our 
guidance.     In  I/oft  v.  Wilkes  (o),  a  decision  which  excited 
great  attention  both  in  Westminster  Hall  and  beyond  it, 
this  Court  indeed  held  that  a  trespasser  in  a  wood,  where 
he  well  knew  sj)ring-guns  to  be  placed,  could  not  sue  for  the 
injury  received  by  him  from  the  explosion  of  one  of  them. 
But  Lord  Tenterden  and  his  three  brethren  cautiously  and 
repeatedly  declared  that  their  opinion  was  founded  on  the 
plaintiff's  Jowic'uhj  of  the  danger  and  roluntarih/  incurring 
it.     Best,  J.,  who  was  supposed  to  carry  to  the  greatest 
extent  the  right  of  protecting  property  against  invaders 
by  placing  dangerous  instruments,  took  infinite  pains,  when 
Chief  Justice  of  the  Common  Pleas,  to  explain  that  his 
opinion  in  Ilott  v.  WlUies  (o)  rested  exclusively  on  the  Notice, 
In  Bird  v.  Holbrook  (p)  his  expressions  are  most  remark- 
able ;  and  so  far  is  his  Lordship  from  avowing  the  doctrine 
that  the  plaintiff's  concmTcnce  in  producing  the  evil  debars 
him  from  his  remedy,  that  he  considers  liotf  v.  Wilhes  (o) 
an  authority  in  favour  of  the  action.     He  also  expresses 
an  inclination  to  agree  with  the  two  learned  judges  who 
held  the  action  maintainable  in  Deane  v.  Clayton  (q).    There 
the  plaintiif's  dog  had  been  killed  by  a  spike,  placed  on 
defendant's  land  for  the  protection  of  his  preserves,  while 
in  pursuit  of  a  hare.     Park  and  Burrough,  JJ.,  gave  judg- 
ment in  favour  of  the  plaintiff;  Gibbs,  C.  J.,  and  Dallas, J., 
for  the  defendant.    The  present  argument  does  not  require 
any  particular   discussion   of   that   case,   because  Bird  v. 
Holbrook  (r)  is  a  decisive  authority  against   the   general 
proposition  that  misconduct,  even  wilful  and  culpable  mis- 
conduct, must  nccessarili/  exclude  the  plaintiif  who  is  guilty 
of  it  from  the  right  to  sue.     I  remember  being  present  at 

[n)  Buttcrfehl    v.    Forrester,    11  {q)  Beane  v.    Clayton,   7   Taunt. 

East,  60.  489. 

{o)  Ilott  V.  WUJccs,  3  B.  &  Aid.  (;•)  Bird    v.    Holbrook,    4    Bing. 

301.  628. 

{p)  Bird  V.  Holbrook,  4  Bing.  628. 


NEGLIGENT  DRIVING.  313 

a  trial  at  "Warwick,  before  Lord  Chief  Baron  Richards,  where 
the  same  law  prevailed.  The  case  is  Jay  v.  WJnf field  (.s-), 
mentioned  in  Bird  v.  Holhrook  (/).  A  boy  having  received 
serious  injury  from  a  spring-gun  placed  in  a  garden  where 
he  was  trespassing,  recovered  a  verdict  for  120/.  damages, 
which  was  much  considered  and  never  disturbed." 

"  A  distinction  may  here  be  taken  between  the  wilful 
act  done  by  the  defendant  in  those  cases,  in  deliberately 
planting  a  dangerous  weapon  in  his  ground,  with  the 
design  of  destroying  trespassers,  and  the  mere  Negligence 
of  the  defendant's  servant  in  leaving  his  cart  in  the  open 
street.  But  between  icilfnl  Mischief  and  gross  Nepligence 
the  boundary  line  is  hard  to  trace ;  I  should  rather  say 
impossible.  The  law  runs  them  into  each  other,  consider- 
ing such  a  degree  of  negligence  some  proof  of  malice.  It 
is  then  a  matter  strictly  within  the  province  of  a  Jury 
deciding  on  the  circumstances  of  each  case.  They  would 
naturally  inquire  whether  the  Horse  was  vicious  or  steady  ; 
whether  the  occasion  required  the  servant  to  be  so  long 
absent  from  his  charge,  and  whether  in  that  case  no 
assistance  could  have  been  procured  to  watch  the  Horse ; 
whether  the  street  was  at  that  hour  likely  to  be  clear  or 
thronged  with  a  noisy  multitude  {u)  :  especially  whether 
large  parties  of  young  children  might  be  reasonably  ex- 
pected to  resort  to  the  spot.  If  this  last-mentioned  fact 
were  probable,  it  would  be  hard  to  say  that  a  case  of  gross 
negligence  was  not  fully  established." 

"  But  the  question  remains,  can  the  plaintiff  then,  con- 
sistently with  the  authorities,  maintain  his  action,  having 
been  at  least  equally  in  fault  ?  The  answer  is,  that  sup- 
posing that  fact  ascertained  by  the  Jury,  but  to  this  extent, 
that  he  merely  indulged  the  natural  instinct  of  a  child  in 
amusing  himself  with  the  empty  Cart  and  deserted  Horse, 
then  we  think  that  the  defendant  cannot  be  permitted  to 
avail  himself  of  that  fact.  The  most  blameable  carelessness 
of  his  servant  having  tempted  the  child,  he  ought  not  to 
reproach  the  child  with  yielding  to  that  temptation.  He 
has  been  the  real  and  only  cause  of  the  mischief.  He  has 
been  deficient  in  ordinary  care  ;  the  child  acting  without 
prudence  or  thought,  has,  however,  shown  these  qualities  in 
as  great  a  degree  as  he  could  be  expected  to  possess  them. 

(*■)  Jai/  V.  WhUfichl,  cited  4  Bing.  case  that  Compton  Street  was  more 

644.  througed  than  usual  in  consequence 

[t)  Bird  v.  Ilollirook,  4  Bing.  628.  of    a  neighbouring   street   having 

(m)  It  appeared  in   the  present  been  stopped  up. 


314 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Where  no 

negligence  on 
the  part  of  the 
defendant. 


Lawdeducible 
from  these 
decisions. 


Abbott  V. 
Macfie, 


His  misconduct  bears  no  proportion  to  that  of  the  defen- 
dant which  produced  it." 

"  For  these  reasons  we  think  that  nothing  appears  in 
the  case  which  can  prevent  the  action  from  being  main- 
tained. It  was  properly  left  to  the  Jury,  with  whose 
opinion  we  fully  concur"  (r). 

In  a  case  in  which  a  child  three  years  old  strayed  upon 
a  railway,  and  had  its  leg  cut  off  by  a  passing  train,  it 
was  held  that  in  the  absence  of  any  evidence  to  show  any 
negligence  on  the  part  of  the  Company,  they  were  not 
responsible  for  the  injury  {x). 

The  law  then  deducible  from  these  decisions  is,  that 
where  there  is  only  so  much  negligence  and  so  little  ordi- 
nary care  on  the  part  of  the  child,  as  it  is  natural  the  child 
should  possess,  if  negligence,  and  a  want  of  ordinary  care, 
be  shown  by  the  defendants,  the  child  is  entitled  to  recover. 
But  if  no  negligence,  and  no  want  of  ordinary  care,  be 
proved  against  the  defendants,  the  child  is  not  entitled  to 
recover. 

But  in  a  more  recent  case  it  was  held  by  the  Court  of 
Exchequer  (//),  that  the  contributory  negligence  of  an 
infant  has  the  same  effect  in  disentitling  him  to  maintain 
an  action  as  that  of  an  adult.  For,  in  a  case  in  which  the 
defendants  placed  the  shutter  of  their  cellar  against  the 
wall  of  a  public  street,  and  the  dress  of  a  child,  who  was 
playing  in  the  street  and  jumping  off  the  shutter,  caught 
the  corner  of  the  shutter,  which  fell  upon  and  injured 
him,  it  was  held  that  the  defendants  were  not  liable  to 
an  action,  and  Pollock,  C.  B.,  said,  "Had  the  plaintiff 
been  an  adult,  it  is  clear  that  he  could  maintain  no 
action ;  he  voluntarily  meddled  for  no  lawful  purpose 
with  that  which,  if  left  alone,  would  not  have  hurt 
him ;  he  would  therefore,  at  all  events,  have  contributed 
by  his  own  negligence  to  his  damage.  We  think  that  the 
fact  of  the  plaintiff  being  of  tender  years  makes  no  differ- 
ence. His  touching  the  flap  was  for  no  lawful  purpose, 
and  if  he  could  maintain  the  action,  he  could  equally  do 
so,  if  the  flap  had  been  placed  inside  the  defendant's 
premises  within  sight  of  the  child.  As  far  as  the  child's 
act  is  concerned,  he  had  no  more  right  to  touch  the  flap 


(r)  Lynch  v.  Ktirdin,  1  Q.  B.  33. 
See  also  the  case  of  L>jgo  v.  Xcivbolf, 
y  Ex.  302. 

[x)  Singleton  v.  Eastern  Counties 
Railivmj  Co.,  7  0.  B.,  N.  S.  287. 


(y)  Abbott  V.  Macfii;  33  L.  J., 
Ex.  177.  See  also  Mangan  \.  At- 
terton,  L.  E.,  1  Ex.  239;  4  H.  &  C. 
388. 


NEGLIGENT  DRIVING.  315 

for  the  purpose  for  which,  he  did  touch  it  than  he  would 
have  had  it  been  on  the  defendant's  premises."  This 
decision  presents  a  different  view  of  the  law  from  the 
foregoing  ones,  inasmuch  as  it  appears  to  rest  upon  the 
fact  that  the  contributive  act  of  the  child  was  an  unlawful 
one,  rather  than  upon  the  absence  of  proof  of  negligence  or 
of  a  want  of  ordinary  care  upon  the  part  of  the  defendants. 
But  it  is  questionable  whether  a  decision  not  only  at 
variance  with  the  current  of  authority,  but  also  containing 
no  allusion  to  the  law  as  deducible  from  the  former  cases, 
can  be  entitled  to  great  weight  (2). 

If  a  person  using  ordinary  care  is  injured  by  falling  over  A  heap  left  on 
a  heap  on  a  Highway,  the  person  who  left  it  there  is  liable.  *^®  Highway. 

But  a  person  who  is  injured  by  an  obstruction,  against  Opportunity 
which  he  may  fall  on  a  Highway,  cannot  maintain  an  of  seeing  the 
action,  if  it  appear  that  he  was  riding  with  great  violence 
and  want  of  ordinary  care,  without  which  he  might  have 
seen  and  avoided  the  obstruction.  Thus  Lord  Ellenbo- 
rough,  C.  J.,  said,  "A  party  is  not  to  cast  himself  upon 
an  obstruction  which  has  been  made  by  the  fault  of  an- 
other, and  avail  himself  of  it,  if  he  do  not  himself  use 
common  and  ordinary  caution  to  be  in  the  right "  {a). 

The  opportunity,  however,  of  seeing  Stones  during  the  Running  over 
day  is  no  defence   to  an  action  for  damage   caused  by  stones  at 
running  over  them  at  night  (b).  ^^^ 

If  a  person  leaves  the  Highway  and  sustains  injury.  Leaving  the 
he  cannot  recover  any  damages.  Thus,  where  a  person  Highway, 
stepped  aside  at  night  from  a  Highway,  and  fell  into  the 
foundation  of  a  house,  and  broke  his  leg,  and  brought  an 
action  against  the  defendant,  Mr.  Justice  Cresswell  held 
that  there  was  a  wilful  departure  from  the  Highway,  and, 
in  summing  up,  directed  the  Jury  that  the  first  question 
for  them  to  consider  was,  whether  the  excavation  made 
by  the  defendant  prevented  the  public  from  passing  in 
safety  along  the  Highway.  A  second  question,  involved 
in  the  first,  was,  whether  the  defendant  was  bound  to 
have  fenced  off  the  excavation ;  and,  thirdly,  had  the 
defendant  tumbled  into  the  hole  while  passing  along  the 
Highway.  The  evidence  was  that  he  had  departed  from 
the  road.     The  Jury  found  a  verdict  for  the  defendant  (c) . 

(r)    And     see     observations     of  (A)  Per  Eolfe,  B.,  Grieve  v.  3['d- 

Cockburn,     C.    J.,    in     Clark    v.  to)i,  Carlisle  Spr.  Ass.  1850. 
Chambers,  L.   R.,  3   Q.  B.  D.  338,  («)  Firth  v.  Ackroyd,  before  Mr. 

339  ;  47  L.  J.,  Q.  B.  427.  Justice  Cresswell,  York  Spr.  Ass. 

{a)  See  Biitterfehl  v.  Forrester,  11  March  10,  1853. 
East,  Gl. 


316 


NEGLIGENCE  IN  THE  TSE  OF  HORSES,  ETC. 


Excavation  a 

public 

nuisance. 


Trespasser 
may  maintain 
an  action. 


True  test  of 
legal  liability. 


Owners  of 
private  ways 
may  be  liable 
for  negli- 
gence. 


But  when  the  newly-made  and  unfenced  excavation 
for  a  house  adjoins  an  immemorial  public  way,  which  is 
found  by  the  Jury  to  render  the  way  unsafe  to  those  who 
use  it  with  ordinary  care,  it  is  a  public  nuisance,  though 
the  danger  consists  in  the  risk  of  accidentally  deviating 
from  the  road ;  for  the  danger  thus  created  may  reason- 
ably deter  prudent  persons  from  using  the  way,  and  thus 
the  full  enjoyment  of  it  by  the  public  is,  in  effect,  as 
much  impeded,  as  in  the  case  of  an  ordinary  nuisance  to 
a  highway  {(/).  And  a  private  injury  arising  from  a 
j)ublic  nuisance  is  the  subject-matter  of  an  action  for 
damages  {e) . 

It  by  no  means  follows  that,  because  the  person  in- 
jured is  a  trespasser  on  the  land  at  the  time  the  injury 
was  sustained,  he  cannot  maintain  an  action.  A  tres- 
passer is  liable  to  an  action  for  the  injury  which  he  does  ; 
but  he  does  not  forfeit  his  right  of  action  for  an  injury 
sustained  (_/). 

The  proper  and  true  test  of  legal  liability  in  these  cases 
is,  whether  the  excavation  be  substantially  adjoining  the 
way.  When  an  excavation  is  made  adjoining  a  public 
way,  so  that  a  person  walking  on  the  public  way  might,, 
by  making  a  false  step,  or  being  affected  with  sudden 
giddiness,  or,  in  the  case  of  a  Horse  or  Carriage,  who 
might  by  the  sudden  starting  of  a  Horse  be  thrown  into 
the  excavation,  it  is  reasonable  that  the  person  making 
such  an  excavation  should  be  liable  for  the  consequences. 
But  it  would  not  be  reasonable  that  he  should  be  liable  for 
the  consequences,  when  the  excavation  is  made  at  some 
distance  from  the  way,  and  the  person  falling  into  it 
would  be  a  trespasser  upon  the  defendant's  land,  before  he 
reached  it  [e) . 

But  it  is  not  only  when  injury  results  to  persons  using 
a  public  way  from  the  negligence  of  adjoining  proprietors, 
that  an  action  lies.  It  lies  also  against  the  owner  of  a 
private  way  for  injury  to  persons  lawfully,  and  by  his 
permission,  using  it,  if  caused  by  the  negligence  of  his 
servants,  and  if  not  arising  from  the  risks  attendant  on 
the  ordinary  nature  of  the  business  carried  on,  as  where 


{d)  Barnes  v.  Ward,  9  C.  B.  392; 
Sadlei/  V.  Ta7jlor,  L.  R.,  1  C.  P. 
53. 

(e)  Hardcastle  v.  South  Yorkshire 
JRaibcai/  Co.,  28  L.  J.,  Ex.  139. 
See  also  Hounsell  v.  Smyth,  7  C.  B., 
N.  S.  731 ;  Benjamin  v.  Storr,  L.  R., 


9  C.  P.  400;  43  L.  J.,  C.  P.  162; 
30  L.  T.,  N.  S.  362;  22  W.  R. 
631. 

(/')  Sadler  v.  Hcnloch,  24  L.  J., 
Q.  B.  138;  Blahe  v.  Thirst,  2  H.  & 
C.  20;  Butler  \.  Hunter,  7  H.  k  N. 
826. 


NEGLIGENT  DRIVING.  317 

the  injury  was  caused  by  negligently  lowering  goods 
from  the  warehouse,  under  which  the  private  way 
passed  (//). 

In    Clarke  v.  Chambers  (Ji)  the   defendant,  who  was  in  Even  where 
the  occupation  of  certain  premises  abuttino:  on  a  private  ^}^^?-^J  caused 

1  •/•  0  •  ~i    c      I  ^  •  ^        ^       •  byintervenmsT 

road  consisting  oi  a  carriage  and  footway,  which  premises  act  of  third 
he  used  for  the  purposes  of  athletic  sports,  had  erected  party. 
a  barrier  across  the  road  to  prevent  persons  driving 
vehicles  up  to  the  fence  surrounding  his  premises  and 
overlooking  the  sports.  In  the  middle  of  this  barrier  was 
a  gap,  which  was  usually  open  for  the  passage  of  vehicles, 
but  which,  when  the  sports  were  going  on,  was  closed  by 
means  of  a  pole  let  down  across  it.  It  was  admitted 
that  the  defendant  had  no  legal  right  to  erect  this  bar- 
rier. Some  person,  without  the  defendant's  authority, 
removed  a  part  of  the  barrier  armed  with  spikes,  com- 
monly called  cJieraux-de-friac,  from  the  carriage-way  where 
the  defendant  had  placed  it,  and  put  it  in  an  upright 
position  across  the  footpath.  The  plaintiff,  on  a  dark 
night,  was  lawfully  passing  along  the  road  on  his  way 
from  one  of  the  houses  to  which  it  led.  He  felt  his  way 
through  the  opening  in  the  middle  of  the  barrier,  and 
getting  on  the  footpath  was  proceeding  along  it  when  his 
eye  came  in  contact  with  one  of  the  spikes  of  the  cJtcvanx- 
de-frise  and  was  injured.  It  was  not  suggested  that  the 
plaintiff  was  guilty  of  any  negligence  contributing  to  the 
accident,  and  the  Jury  found  that  the  use  of  the  chevaux- 
de-frise  in  the  road  was  dangerous  to  the  safety  of  the  per- 
sons using  it.  It  was  held,  that  the  defendant,  having  un- 
lawfully placed  a  dangerous  instrument  in  the  road,  was 
liable  in  respect  of  injuries  occasioned  by  it  to  the  plaintiff, 
who  was  lawfully  using  the  road,  notwithstanding  the  fact 
that  the  immediate  cause  of  the  accident  was  the  inter- 
vening act  of  a  third  party  in  removing  the  dangerous 
instrument  from  the  carriage-way  (A) . 

Although  where  a  Contractor  does  what  he  contracts  to  Liability  of 
do,  the  act  of  the  employed  is  the  act  of  the  employer ;  yet  Contractor. 
where  the  act  to  be  done  is  lawful,  the  Contractor  is  liable 
for  anything  done  negligently,  or  beyond  his  contract  {i). 
But  a  Contractor  lawfully  employed  to  construct  a  sewer 
under  a  road,  is  not  liable  for  injury  caused  to  an  in- 

io)  Gallagher  v.  Humphcry,  6  L.  38  L.  T.,  N.  S.  454. 

T.,  N.  S.  684.  (0  Ellis  v.   Sheffield  Gas  Co.,  23 

[h)   Clark  v.   Chambers,  L.  R.,  3  L.  J.,  Q.  B.  42;  Gray  v.  Fiillen,  32 

Q.  B.  D.  327;  47  L.  J.,  Q.  B.  427;  L.  J.,  Q.  B.  169. 


318 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Where  there 
are  several 
ways  of  doing 
a  thing. 

Liability  of  an 
employer. 


What  is  the 
question  in 
such  cases. 


Drain  re- 
pau'ed  by  an 
ordinary  but 
sldlful 
labourer. 


dividual,  through  a  hole  having  formed  in  the  roadway 
from  the  natural  subsidence  of  the  ground,  the  work 
having  been  properly  completed  by  the  defendant  {k). 

So,  if  a  man  employs  another  to  do  a  thing,  and  there 
are  several  ways  of  doing  it,  one  criminal  and  another 
innocent,  and  he  does  it  in  a  criminal  manner,  the  em- 
ployer is  not  liable  (/). 

If  a  Contractor,  however,  is  employed  to  do  an  unlawful 
act,  the  employer  is  liable,  because  in  such  case  the  act  of 
the  employed  is  the  act  of  the  employer.  Therefore 
where  the  defendants  had  employed  a  Contractor  to  open, 
without  legal  authority,  the  Streets  of  Sheffield,  and  the 
plaintiff  was  injured  by  the  rubbish,  it  was  held  that  this 
being  the  act  from  which  the  injury  arose,  the  defendants 
were  liable  {ui).  And  where  a  duty  is  imposed  on  the 
defendant  by  common  law  (ii),  or  by  a  statute  (o),  he 
cannot  excuse  himself  by  throwing  the  blame  on  his 
Contractor. 

The  question  in  such  cases  is,  whether  the  injury  was 
the  act  of  the  party  as  the  employer's  servant,  or  in  the 
character  of  Contractor ;  because  in  the  first  case  the 
employer  would  be  liable  to  an  action,  and  in  the  second 
he  would  not  {p).  And  the  test  applicable  to  the  de- 
termination of  this  fact  is  whether  the  employer  has  any 
control  over  the  persons  employed  as  to  the  manner  in 
which  their  work  should  be  performed  {q). 

Thus  the  defendant  with  the  consent  of  the  owner  of 
the  soil  and  the  surveyor  of  the  district,  emj)loyed  P.,  who 
was  an  ordinary  labourer,  but  nevertheless  a  person  par- 
ticularly skilled  in  the  construction  of  drains,  to  cleanse  a 
drain,  which  ran  from  the  defendant's  garden  under  the 
public  road,  and  paid  P.  five  shillings  for  the  job.  The 
defendant  had  never  before  employed  P.,  and  did  not  in 
any  way  interfere  with  or  direct  him  in  doing  the  job. 


{k)  m/ams  V.  Webster,  L.  R.,  2  Q. 
B.264;  ■L.E,.,4Q.B.138— Ex.Ch. 

(/)  Peachei/  v.  lioland,  13  C.  B. 
182.  See,  too,  Cleveland  v.  Spie?;  16 
G.  B.,  N.  S.  399. 

{»>)  Ellis  V.  Sheffield  Gas  Co.,  23 
L.  J.,  Q.  B.  42.  And  see  Whitclcij 
V.  Fvpjyer,  L.  E.,  2  Q.  B.  D.  276  ; 
46  L.  J„  Q.  B.  436;  36  L.  T.,  N. 
S.  588;  25  W.  R.  607. 

(«)  Tarry  v.  Ashton,  L.  E,.,  1  Q. 
B.  D.  314  ;  45  L.  J.,  Q.  B.  260  ; 
34  L.  T.,  N.  S.  97;  24  W.  R.  581. 


See  also  Bower  v.  Peaie,  L.  R.,  1 
Q.  B.  D.  321;  45  L.  J.,  Q.  B.  446; 
35  L.  T.,  N.  S.  321. 

(o)  Hole  V.  Sittinghoiirne  Railway 
Co.,  6  H.  &  N.  488;  30  L.  J.,  Ex. 
81. 

[p)  Knight  v.  Fox,  5  Ex.  725  ; 
Overton  v.  Freeman,  21  L.  J.,  C.  P. 
52. 

[q)  Sadler  v.  Uenloek,  24  L.  J., 
Q.  B.  138;  Blake  v.  Thirst,  2  H.  & 
C.  20  ;  Butlers.  Hunter,  7  H.  &  N. 
826. 


NEGLIGENT  DRIVING.  319 

But  it  was  held  tliat  the  relationship  of  master  and  servant 
had  been  established  between  the  defendant  and  P.,  so  as 
to  render  the  defendant  liable  for  an  injury  occasioned  to 
the  plaintiff,  whilst  riding  on  the  public  road,  by  reason 
of  the  negligent  manner  in  which  P.  had  left  the  soil  of 
the  road  over  the  drain,  because  P.  was  not  a  person  exer- 
cising the  independent  business  of  making  and  repairing 
drains,  but  only  a  labourer  chosen  by  the  defendant  in 
preference  to  any  other  person  (r). 

But  in  a  case  in  which  the  defendants  were  employed  by  Stones  left 
A.  to  pave  a  district,  and  contracted  with  B.  to  pave  one  J^yaSub- 
of  the  Streets,  and  B.'s  workmen,  in  the  course  of  paving     °^  ^^^  °^* 
the  Street,  left  some  stones  at  night  in  such  a  position  as 
to  constitute  a  public  nuisance,  and  the  plaintiff  was  in- 
jured by  falling  over  these  stones ;  it  was  held  that,  as  no 
personal  interference  of  the  defendants  with,  or  sanction  of, 
the  work  of  laying  down  the  stones  was  proved,  the  de- 
fendants were  not  liable  (■>>•). 

When  a  Surveyor  of  Highways  has  been  ordered  by  a  Statutory 
Vestry  to  do  certain  works  on  a  Highway,  and  during  the  ^}^^^^;        » 
periormance  of  tliose  works  an  accident  occurs  m  conse-  Highways, 
quence  of  the  road  being  left  in  a  dangerous  condition,  the 
Surveyor  is  guilty  of  neglect  of  a  statutory  duty,  under 
5  &  6  Will.  4,  c.  50,  s.  56,  and  will  be  liable  in  an  action 
for  damage,  notwithstanding  that  he  has  contracted  with  a 
third  party  for  supplying  the  necessary  labour,  and  has  not 
personally  interfered  with  the  work  (/) . 

And  where  an  action  on  the   Case  for  Negligence  was  Performance 
brought  against  A.  by  B.,  a  Car  proprietor,  for  damage  of  an  ordinary 
occasioned  to  a  vehicle  of  the  latter,  in  consequence  of  a  ^x\tj. 
heap  of  rubbish  having  been  left  in  a  Street,  near  the 
dwelling-house  of  A.,  by  a  man  employed  by  him  to  clear 
out  his  ashpit,  and  the  Jury  found  the  man  had  contracted 
with  A.  not  only  to  remove  the  rubbish  to  the  Street,  but 
to  carry  it  away  altogether;  it  was  held  by  the  Irish  Court 
of  Queen's  Bench,  that  the  subject-matter  of  the  contract 

(r)  Sadler   v.  Hcnhck,  24  L.  J.,  see  Wlhon  v.  Mem/,  L.  E..,  1   H. 

Q.  B.  138  ;  Blake  v.  Thirst,  2  H.  &  L.  326,  341  ;  and  Roscoe's  N.  P. 

C.  20  ;  Butler  \.  Sunter,  7  H.  &  N.  14th  ed.  689. 

826.  {t)   Taylor  v.   Greenhalgh,   24  W. 

(s)   Overton  Y.  Freeman,  21  L.  J.,  R.    311 — C.  A.  ;  reversing  L.   E., 

C.  P.  52  ;   Gray  v.  Tullen,  32  L.  J.,  9  Q.  B.  487  ;  43  L.  J.,  Q.  B.  168  ; 

Q.  B.  169  ;  this  latter  case  was  re-  31  L.  T.,  N.  S.  184  ;  23  W.  R.  4  ; 

versed  in  the  Exchequer  Chamber,  and  see   Pendleburij  v.   Greenliahjh, 

34   L.   J.,    Q.   B.    265;    but    the  L.   R.,  1  Q.  B.  D.   36;  45  L.   J., 

reasoning    on  which  the    decision  Q.  B.  3;  33L.T.,  N.  S.  372;  24  "W. 

was  founded  has  been  disapi^roved ;  R.  98 — C.  A. 


320  NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 

being  the  performance  of  an  ordinary  domeHflc  duty,  the 
defendant  was  liable  for  the  injury  sustained  {u). 
Manure  left  In  another  case,  some  Manure  left  on  a  Highway  for 

on  a  road.  ^  ^^^^  ^^^  removed,  and  a  carriage  was  upset  by  it  at 
night.  No  great  damage  was  done  to  the  carriage,  and  it 
was  driven  home  ;  but  about  an  hour  after  arriving  there, 
one  of  the  Horses  died  suddenly,  and  it  was  proved  that 
the  death  was  caused  by  an  injury  sustained  by  falling 
over  the  Manure.  An  action  was  brought  against  A.  for 
the  damage,  and  a  verdict  obtained  against  him ;  but  it 
was  afterwards  doubted  on  the  evidence,  whether  he  or  the 
person  w^ho  left  it  was  responsible  (.r). 
With  regard  If  in  the  execution  of  works  authorized  by  Act  of  Par- 
cutTd  under^"  li^ment  damage  be  sustained,  and  the  Act  provides  a  special 
Local  Acts.  mode  in  which  compensation  for  such  damage  may  be 
recovered,  no  action  will  lie  for  it.  But  this  only  relates 
to  works  carefully  and  skillfully  executed,  and  if  there  be 
a  want  of  proper  skill  on  the  part  of  those  executing  the 
works  an  action  for  the  negligence,  to  recover  damages  for 
the  injury  thus  sustained,  will  lie  (//). 
Both  parties  to  Where  the  Negligence  of  both  parties  concurs  in  pro- 
ducing the  damage,  so  that  both  are  to  blame,  neither 
party  can  recover.  Thus,  where  the  plaintiff,  in  crossing 
a  road,  was  knocked  down  and  seriously  injured  by  the 
defendant's  Cart,  Chief  Justice  Tindal  told  the  Jury  that 
they  must  be  satisfied  that  the  injury  was  attributable  to 
the  Negligence  of  the  driver  and  to  that  aIo)ie,  before  they 
could  find  a  verdict  for  the  plaintifi^ ;  for  if  they  thought 
that  it  was  occasioned  in  a)iy  degree  by  the  improper  con- 
duet  of  the  plaintiff  in  crossing  the  road  in  an  incautious 
and  imprudent  manner,  they  must  find  their  verdict  for 
the  defendant  (z) .  And  where  an  action  was  brought  for 
an  injury  to  the  plaintiff's  Chaise  by  the  defendant's  Car- 
riage, Mr.  Justice  Alderson  left  it  to  the  Jury  to  say 
whether  the  injury  was  occasioned  by  Negligence  on  the 
part  of  the  defendant's  servant,  without  any  Negligence 
on  the  part  of  the  plaintiff  himself ;  for  that  if  the  plain- 
tiff's Negligence  in  any  way  concurred  in  producing  the 
injury,  the  defendant  would  be  entitled  to  the  verdict  {a). 

{/()  M'Kcon  V.  Bolton,  3  Ir.  Jur.  sioncrs,  33  L.  J.,  Q.  B.  296. 
288  (Q.  B.  Ir.).  (--)  ITaickuis  v.  Cooper,  8  C.  &  P. 

(.r)   Gassiot  v.  Carpmael,  19  L.  T.  473. 
64,  94.  {fi)  Tluchu-dl  v.  JTilmi,  Bart.,  5 

{!/)   Clothier  v.  Webster,  31  L.  J.,  C.  &  P.  375. 
C.  P.  316;   Ohrli!/  y.  Bydc  Commis- 


blame. 


NEGLIGENT  DRIVING.  321 

So,  also,  if  a  person  sees  another  Carriage  coming  furiously 
on  the  wrong  side  of  the  road,  and  does  not  get  out  of  the 
way  when  he  has  the  opportunity,  he  cannot  recover  for 
any  injury  he  may  sustain  (b). 

In  an  action  brought  by  an  infant  plaintiff  against  a  Identification 
Eailway  Company  for  an  iniury  from  an  accident,  which  of  child  with 
was  caused  by  the  joint  negligence  of  the  defendants  and  change  of  it. 
the  grandmother  of  the  child,  who  had  charge  of  it,  the 
child  being  unable  to  take  care  of  itself,  it  was  held  by 
the  Exchequer  Chamber,  affirming  the  judgment  of  the 
Court  of  Queen's  Bench,  that  the  child  could  not  maintain 
an  action  against  the  Company,  as  a  comj^lete  identification 
was  constituted  between  the  plaintiff  and  the  party  whose 
negligence  contributed  to  the  damage  (c). 

In  the  case  of  Tliorogood  v.  Brijan  [d),  where  a  person  Identification 
was  run  over  and  killed  by  an  Omnibus  which  was  racing,  of  passenger 
and  the  Negligence  of  the  driver  of  the  Omnibus,  in  which  ^    ^ 
the  deceased  was  a  passenger,  was  relied  on  as  a  defence 
to  the  action  brought  by  the  widow  of  the  deceased,  it  was 
hold  that  the  deceased  having  trusted  the  party  by  selecting 
the  particular  conveyance,  he  had  so  far  identified  himself 
with  the  Carriage  in  which  he  was  travelling,  that  want  of 
care  on  the  part  of  its  driver  was  a  defence  for  the  driver 
of  the  other  Carriage,  which  clu'eetly  caused  the  injury ; 
and  that  this  was  in  accordance  with  the  opinion  expressed 
by  the  Court  of  Exchequer  in  Bridge  v.  TJie  Grand  Junction 
llaihcay  Company  {e) . 

Upon  this  last  case  the  following  remarks  are   made  Remarks  in 
in   Smith's    Leading    Cases :— "  If    two    drunken   Stage  f^J^'Sse^^^*^" 
Coachmen  were  to  drive  their  respective  carriages  against     ° 
each  other  and  injure  the  passengers,  each  would  have  to 
pay  for  his  own  carriage  no  doubt ;  but  it  is  inconceivable 
that  each  set  of  passengers  should,  by  a  fiction,  be  identi- 
fied with  the  Coachman  who  drove  them,  so  as  to  be  re- 
stricted for  remedy  to  actions  against  their  own  driver  or 
his  employer  {/).     And  "why  in  this  particular  case  both 
the  wrongdoers  should  not  be  considered  liable  to  a  person 
free  from  all  blame,  not  answerable  for  the  acts  of  either 
of  them,  and  whom  they  have  both  injured,  is  a  question 


(i)  See  Seed  v.  Tate,  post,  p.  328.  130. 

(c)    Waite  v.  North-Eastern  Rail-  {e)  Bridge  v.  The  Grand  Junction 

way  Co.,  E.  B.  &  E.  719.  Hailway  Co.,  3  M.  &  W.  244. 
{d)   Thorogood  v.  Bryan,   8  C.  B.  (/)   1  Sni.  L.  C,  8th  ed.  315. 

O.  Y 


822 


NEGLIGENCE  IN  THE  USE  OE  HOUSES,  ETC. 


Power  of 
selection. 


Altogether  an 
Accident. 


Running  over 
a  person  at 
night. 


■wliicli  seems  to  deserve  more  consideration  tlian  it  received 
in  the  ease  of  TJiorogood  v.  BrijcDi"  {[/). 

And  indeed  it  seems  absurd  to  say  tliat  the  Driver  of 
an  Omnibus  is  the  servant  of  the  passenger  on  account  of 
his  "  selecting  the  particular  conveyance,"  An  omnibus 
is  a  carriage  ]  lying  between  'two  termini,  and  subject  to 
various  regulations,  over  which  the  passenger  has  no 
control.  By  these  the  Driver  is  governed,  and  for  a 
breach  of  them  he  is  punished  under  an  Act  of  Parliament, 
tlie  passenger  in  no  case  being  able  either  to  alter  or 
modify  the  regular  routine  of  the  Driver's  employment. 
And  it  would  be  idle  to  say  that  a  passenger  going  from 
Charing  Cross  to  the  Eyre  Arms  selects  his  Carriage,  for 
the  only  Omnibuses  which  run  there  are  those  of  the  Atlas 
Company.  And  indeed  all  ■  London  Omnibuses  being 
under  the  same  regulations,  each  must  be  supposed  to  have 
been  selected  for  the  public  service,  so  that  in  point  of  law 
there  can  be  no  difference  between  one  and  another. 

Where  the  injury  arises  altogether  from  accident  the 
defendant  is  not  liable  (//).  Thus,  where  an  action  of 
Trespass  was  brought  for  injury  done  to  a  Horse  by  a 
Pony  and  Chaise  running  against  it,  the  plaintiff  called 
witnesses  who  said  they  saw  the  Pony  and  Chaise  stand- 
ing half  an  hour  in  the  street  without  any  person  to  take 
care  of  them,  and  also  they  afterwards  saw  the  Pony  run 
away  with  the  Chaise  and  run  against  the  plaintiff's 
Horse ;  but  they  did  not  know  the  cause  of  the  Pony's 
starting.  It  was  sworn  on  the  part  of  the  defendant, 
that  his  wife  was  holding  the  Pony  by  the  bridle,  w'hen  a 
Punch  and  Judy  show  coming  by  frightened  the  Pony, 
which  ran  away,  and  almost  pulled  down  the  defendant's 
wife  while  she  tried  to  hold  it  in,  and  she  was  obhged 
at  length  to  let  go  the  rein.  Lord  Denman,  C.  J.,  in 
summing  up,  said  to  the  Jury,  "  If  the  facts  are  true  as 
suggested  for  the  defence,  I  very  much  think  you  would 
be  disposed  to  consider  this  as  an  ineritahle  accident,  one 
which  the  defendant  could  not  prevent."  However,  the 
Jury  disbelieved  the  defendant's  evidence,  and  found  a 
verdict  for  the  plaintiff  (?) . 

In  the  following  case,  a  servant  was  sent  with  a  Yan 
and  a  Plorse   on   some   errand   by   the   defendant,   with 


(r/)  1  Sm.  L.  C,  8th  ed.  316;  and 
see  also  Child  v.  Ileum,  L.  E.,  9 
Ex.  17G;  4;)L.  J.,  Ex.  100. 


ill)  Per  Alderson,  J.,  TlueJciccll 
V.  Wilson,  5  C.  &  P.  37.5. 

(i)  Goodman  v.  Taylor,  5  C.  &  P. 
410. 


NEGLIGENT  DRIVING.  323 

directions  to  bring  back  witb  bim  anotber  Horse,  wbicb 
bad  been  left  on  tbe  road.  Wben  tbe  servant  obtained 
possession  of  the  second  Horse,  wbicb  seemed  to  bave 
been  in  tbe  babit  of  following  the  Van  witbout  being 
tied,  be  gave  a  boy  permission  to  ride  bim.  As  tbe  ser- 
vant drove  on,  be  came  upon  tbe  plaintiff  wbo  was  re- 
turning borne  late  at  nigbt  witb  a  band-barrow,  and, 
seeing  bim,  be  turned  bis  Horse's  bead  out  of  bis  direct 
line  to  avoid  bim.  Tlie  boy  and  Horse  bebind,  bowever, 
went  on  witbout  noticing  tbe  plaintiff,  and  tbe  conse- 
quence was  tbey  both  fell  over  bim  and  severely  injured 
bim.  On  tbe  trial  Cbief  Baron  Pollock  nonsuited  tbe 
plaintiff,  being  of  opinion  tbat  tbe  defendant  was  not 
liable  for  this,  and  ruled  tbat  tbe  declaration  was  not 
supported,  as  tbe  Horse  wbicb  did  tbe  injury  was  not 
conducted  or  driven  by  tbe  servant  of  tbe  defendant. 
And  tbe  Court  of  Exchequer  afterwards  beld  tbat  tbe 
Chief  Baron's  ruling  was  correct,  and  that  tbe  facts  clearly 
showed  that  tbe  injury  sustained  by  the  plaintiff  was  tbe 
result  of  the  purest  accident  {k). 

This  was  held  to  be  the   case,  where  the  defendant's  Where  it  is 
Horse,  being  frightened  by  the  sudden  noise  of  a  butcher's  the  resuitof  a 
cart,  which  was  driven  f m-iously  along  tbe  street,  became  ^^  ^  Horsef  ^ 
ungovernable,  and  plunged  the  shaft  of  a  gig   into  the 
breast  of  the  plaintiff's  Horse  (/).     So,  too,  where  a  Horse 
ridden  by  the  defendant   was   frightened  by   a   clap   of 
thunder,  and  ran  over  tbe  plaintiff,  wbo  was  incautiously 
standing  witb  others  in  the  carriage-road  («?). 

And  in  the  case  of  Hammack  v.  White  {n),  in  which  the  iTammacJcx. 
defendant  bought  a  Horse  at  Tattersall's,  and  the  next  ^^''"^^• 
day  took  him  out  to  try  bim  in  Finsbury  Circus,  a  much- 
frequented  thoroughfare ;  and  from  some  unexplained 
cause  the  Horse  became  restive,  and  notwithstanding  the 
defendant's  well-directed  efforts  to  control  him  ran  upon 
the  pavement,  and  killed  a  man,  it  was  held  that  these 
facts  disclosed  no  evidence  of  negligence,  which  the  Judge 
was  warranted  in  submitting  to  the  Jury.  And  Erie, 
C.  J.,  said,  "  I  am  of  opinion  that  the  plaintiff  in  a  case  of 
this  sort  is  not  entitled  to  bave  his  case  left  to  the  Jury, 
unless  he  gives  some  affirmative  evidence  that  there  has 
been  negligence  on  the  part  of  the  defendant.     The  sort 

(/;)  Bird  v.  Hharpc,   Ex.  Nov.  5,  (jh)    Gibbons    v.    Tipper,     1     Ld. 

1853.  Rayra.  38. 

(/)    Walccman  v.  Robinson,  1  Bing.  («)  Ilammncic  v.  Wliitc,  H  C.  B., 

213.  N.  S.  588. 

y2 


324 


NEGLIGEXCE  IN  THE  USE  OF  HORSES,  ETC. 


of  negligence  imputed  here  is  either  that  the  defendant 
was  unskilful  in  the  management  of  the  Horse,  or  im- 
prudent in  taking  a  vicious  animal,  or  one  with  whose 
propensities  or  temper  he  was  not  sufficiently  acquainted, 
into  a  populous  neighhourhood.  The  evidence  is,  that  the 
defendant  was  seen  riding  a  Horse  at  a  slow  pace,  that  the 
Horse  seemed  restless  and  the  defendant  was  holding  the 
reins  tightly,  omitting  nothing  he  could  do  to  avoid  the 
accident ;  but  that  the  Horse  swerved  from  the  roadway 
on  to  the  pavement,  where  the  deceased  was  walking,  and 
knocked  him  down,  and  injured  him  fatally.  I  can  see 
nothing  in  this  evidence  to  show  that  the  defendant  was 
unskilful  as  a  rider  or  in  the  management  of  a  Horse. 
There  is  nothing  which  satisfies  my  mind  affirmatively  that 
the  defendant  was  not  quite  capable  of  riding  so  as  to  justify 
him  in  being  with  his  Horse  at  the  place  in  question.  It 
appears  that  the  defendant  had  only  bought  the  Horse 
the  day  before,  and  was  for  the  first  time  trying  his  new 
purchase, — using  his  Horse  in  the  way  he  intended  to  use 
it.  It  is  said  that  the  defendant  was  not  justified  in 
riding  in  that  place  a  Horse  whose  temper  he  was  unac- 
quainted with.  But  I  am  of  opinion  that  a  man  is  not 
to  be  charged  with  want  of  caution  because  he  buys  a 
Horse  without  having  had  previous  experience  of  him. 
There  must  be  Horses  without  number  ridden  every  day 
in  London  of  whom  the  riders  know  nothing.  A  variety 
of  circumstances  will  make  a  Horse  restive.  The  mere 
fact  of  restiveness  is  not  even  prima  facie  evidence  of 
negligence"  (o). 
Manzoni  v.  And  where  a  Horse  drawing  a  Brougham  under  the 

ou(/  as.  ^^^^   ^£    ^j^g   defendant's    coachman    in    a    public    street 

suddenly,  and  without  any  explainable  cause,  bolted,  and, 
notwithstanding  the  utmost  efi'orts  of  the  driver  to  control 
him,  swerved  on  to  the  footway  and  injured  the  plaintiff,  it 
was  held  that  there  was  no  evidence  of  negligence  to  go  to 
the  Jury :  and  it  was  also  held,  that  the  fact  that  the 
Horse  had  cast  a  shoe  shortly  after  he  bolted,  and  that  the 
driver  did  not  under  the  circumstances  in  which  he  was 
placed  call  out  or  give  any  warning,  did  not  alter  the 
case  {j)). 
Horse  run-  J^  all  cases,  therefore,  where  a  Horse  riois  away  and 

nmgaway,       inflicts  an  injury,  if  the  rider  or  driver  have  not  acted  in 
such  a  manner  as  would  lead  a  Jury  to  suppose  that  his 

(o)  Hammack  v.  White,  11  C.  B.,       C.  P.  D.  145;  50  L.  J.,  C.  P.  289; 
N.  S.  588.  upholdiiitr  Hnnunark  v.  Whiti;  kIiI 

( p)   ]\r(inznni  y.  Bnuf/laa,  L,  R.,    6        foq). 


NEGLIGENT  DRIVING.  325 

conduct  must  liave  contributed  to  the  accident,  he  is  not 
answerable  {q). 

But  the  rule  that  a  person  is  not  answerable  for  injury  Qualification 
resulting  from  circumstances  over  which  he  has  no  control  of  I'^iie- 
admits  of  this  qualification,  namely,  that  if  a  person  is 
aware  beforehand  that  the  circumstances  in  which  of  his 
own  free  will  he  is  about  to  place  himself,  will  put  him  in 
a  position  over  which  he  has  no  control,  and  in  which,  he 
will  probably  cause  injury  to  others,  he  will  then  be  an- 
swerable for  an  injury  so  caused ;  thus,  if  in  the  case 
quoted  above  of  Hanimack  v.  White,  the  defendant  had 
been  proved  to  have  known  beforehand  that  the  Horse  was 
vicious  and  unmanageable  (/•),  he  would  have  been  held 
responsible.  So,  also,  in  Simson  v.  London  General  Omnibus 
Compel n//  («),  where  a  passenger  in  an  Omnibus  was  injured 
by  a  blow  from  one  of  the  Horses,  which  had  kicked 
thi'ough  the  front  panel  of  the  vehicle,  and  there  was  no 
evidence  on  the  part  of  the  passenger  that  the  Horse  was 
a  kicker ;  but  it  was  proved  that  the  panel  bore  marks  of 
other  kicks,  and  that  no  precaution  had  been  taken  by  the 
use  of  a  kicking  strap  or  otherwise  against  the  possible 
consequences  of  a  Horse  striking  out,  and  no  explanation 
was  offered  on  the  part  of  the  owner  of  the  Omnibus  : — It 
was  held  that  there  was  evidence  of  negligence  proper 
to  be  submitted  to  a  Jury. 

The  proof  of  negligence  must  be  affirmative.  Therefore  Proof  of  neg- 
where  there  is  a  perfectly  even  balance  of  evidence  there  is  I'^^S?*^  ™?-^!' 
no  negligence.  Thus,  in  the  case  of  Cotton  v.  Wood  (t), 
the  plaintiff's  wife,  on  a  dark  night,  and  in  a  snowstorm, 
proceeded  slowly,  accompanied  by  another  female,  to  cross 
a  crowded  thoroughfare,  whilst  the  defendant's  Omnibus 
was  coming  up  on  the  right  side  of  the  road,  and  at  a 
moderate  pace.  There  was  abundant  time  for  the  women 
to  have  got  safely  across,  and  they  had  got  so  far  across 
as  to  have  passed  in  front  of  the  Omnibus,  when  they  were 
alarmed  by  the  approach  of  another  vehicle  from  the 
opposite  direction,  and  turned  back ;  the  result  of  which 
was  that  the  plaintiff's  mfe  was  knocked  down  and  run 
over  by  the  Omnibus,  and  was  so  injured  that  she  died. 

(q)  See  ante,  Bex  v.   Timmins,  7  597. 
C.   &  P.   500  ;    and  see  Holmes  v.  (s)  L.  R.,  8  C.  P.  390;  42  L.  J., 

Mather,  L.  R.,  10  Ex.  261  ;  44  L.  C.   P.   112;    28  L.  T.,  N.  S.  500  ; 

J.,  Ex.  170;  33L.  T.,  N.  S.  361.  21  W.  R.  595. 

(r)  See  judgment  of  WiUes,  J.,  (t)   Cotton  v.  Wood,  8  C.  B.,]Sr.  S. 

JIammack  v.  Wldte,  11  C.  B.,N.  S.  568. 


326 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Where  evi- 
dence is 
eqiially  con- 
sistent with 
neglig-ence 
and  no  negli- 
srence. 


The  only  circumstance  wliicli  was  at  all  suggestive  of  neg- 
ligence on  the  part  of  the  defendant  was  that,  though  he 
saw  the  women  cross  in  front  of  his  Omnibus,  he  had  at 
the  moment  when  they  turned  back  looked  round  to  speak 
to  the  conductor,  and  therefore  was  not  aware  of  their 
danger,  until  warned  by  the  cry  of  a  bystander,  when  it 
was  too  late  to  avert  the  mischief. 

It  was  held  that  there  was  in  this  case  no  proof  of 
negligence  on  the  part  of  the  defendant,  for  it  w^as  not 
shown  that  there  existed  some  duty  owing  from  the  de- 
fendant to  the  plaintiff,  of  which  there  had  been  a  breach. 
And  Erie,  0.  J.,  said,  "  Where  it  is  a  perfectly  even 
balance  upon  the  evidence  whether  the  injury  complained 
of  has  resulted  from  the  want  of  proper  care  on  the  one 
side  or  on  the  other,  the  party  who  founds  his  claim  upon 
the  imputation  of  negligence  fails  to  establish  his  case." 
"  One  of  the  plaintiff's  witnesses  stated  that  the  driver  was 
looking  round  at  the  time  to  speak  to  the  conductor. 
That  clearly  would  be  no  affirmative  proof  of  negligence. 
The  man  was  driving  on  his  proper  side,  and  at  a  proper 
pace.  As  far  as  the  evidence  goes,  there  appears  to  me 
just  as  much  reason  for  saying  that  the  plaintiff's  wife 
came  negligently  into  collision  with  the  defendant's  Horses 
and  Omnibus  as  for  sajdng  that  the  collision  was  the  residt 
of  negligence  on  the  part  of  the  defendant's  servant." 
"A  scintilla  of  evidence,  or  a  mere  surmise  that  there  may 
have  been  negligence  on  the  part  of  the  defendants, 
clearly  would  not  justify  the  Judge  in  leaving  the  case  to 
the  Jury(^^).  There  must  be  evidence  upon  which  they 
might  reasonably  and  properly  conclude  that  there  was 
negligence."  "  The  very  vague  use  of  the  term  negligence 
has  led  to  many  cases  being  left  to  the  Jury  in  which  I 
have  been  utterly  unable  to  find  the  existence  of  any  legal 
duty,  or  any  evidence  of  a  breach  of  it." 

And  in  the  same  case  (,r)  "Williams,  J.,  said,  "  There 
is  another  rule  of  the  law  of  evidence,  which  is  of 
the  first  importance,  and  which  is  fully  established  in  all 
the  Courts,  viz.,  that  where  the  evidence  is  equally  con- 
sistent with  cither  view, — with  the  existence  or  non- 
existence of  negligence, — it  is  not  competent  to  the  Judge 
to  leave  the  matter  to  the  Jury." 


(«)  Quoting  from  Williams,  J., 
in  Toomcy  v.  London,  Brighton  and 
South  Coast  Railway  Co.,  3  C.  B., 
N.   S.   146 ;    and  see    Cornman  y. 


Eastern  Counties  Eailicai/  Co.,  4  H. 
&N.  781. 

(.r)   Cotton  V.  IFood,  8  C.  B.,  N.  S. 
568,  ante,  p.  32.5. 


NEGLIGENT  DRIVING.  327 

So,  in  a  case  in  which  the  defendant's  Horse,  being  on  "Wlien  a  Horse 
a  highway,  kicked  the  pLaintiff,  a  child  Avho  was  pLaying  -"tancling  in  a 
there.     There  being  no  evidence  to  show  how  the  Horse  kifkedTchild. 
got  to  the  spot,  or  that  the  defendant  knew  that  he  was 
there,  or  that  the  defendant  knew  that  he  was  accustomed 
to  kick,  or  that  the  Horse  was  accustomed  to  kick,  or  what 
induced  him  to  kick  the  child,  it  was  held  that  there  was 
no  evidence  from  which  a  Jury  would  be  justified  in  in- 
ferring that  the  defendant  had  been  guilty  of  actionable 
negligence  ( //) . 

In  Abbott  V.  Freeman  iz),  the  defendant  was  the  pro-  Horse  kicking 
prietor  of  a  yard  and  premises  used  for  the  sale  of  Horses,  at  Sale. 
The  plaintiff  attendee!  a  sale,  and  was  walking  up  the 
yard  behind  a  row  of  spectators,  who  were  watching  a 
Horse  then  on  sale.  In  order  to  show  the  Horse's  pace,  a 
servant  of  the  defendant  led  it  with  a  halter -down  a  lane 
formed  by  the  spectators  on  one  side,  and  a  blank  wall  on 
the  other.  There  was  no  barrier  between  the  Horse  and 
the  spectators,  and  when  the  Horse  was  about  ten  yards 
from  the  plaintiff,  another  servant  of  the  defendant  struck 
it  with  a  whip  in  order  to  make  it  trot.  On  being  struck 
the  Horse  swerved  into  and  through  the  crowd,  and  kicked 
and  injured  the  plaintiff.  It  was  a  usual  thing  for  a  man 
to  be  stationed  with  a  whip  at  the  particular  point  when 
Horses  where  brought  out  for  sale.  There  was  no  evidence 
as  to  the  kind  of  blow  that  was  given,  nor  the  character  of 
the  Horse,  nor  how  it  was  being  led,  nor  that  it  was 
customary  to  put  a  barrier  for  the  protection  of  the  public 
in  yards  where  Horses  were  being  sold.  The  plaintiff 
sued  the  defendant  to  recover  damages  for  injuries  caused 
by  the  negligence  of  the  defendant's  servant ;  and  it  was 
held  that  there  was  no  evidence  upon  which  the  Jury  could 
reasonably  find  negligence  on  the  part  of  the  defendant. 

But  there  are  cases  in  which  the  mere  occurrence  of  Accident  itself 
an  accident  is  prima  feicie  proof  of  negligence,  the  pre-  sonietimes 
sumption    depending   upon    the   nature   of    the    accident,  proof  of  neo-- 
Thus  in  a  case  in  which  the  plaintiff,  while  walking  in  a  ligence. 
street  in  front  of  the  house  of  a  Hour-dealer,  was  injured 
by   a   barrel    of   flour   falling  upon   him  from  an  upper 
window,  it  was  held  that  the  mere  fact  of  the  accident 
without  any  proof  of  the  circumstances   under  which  it 
occurred  was  evidence  of  negligence  to  go  to  the  Jm-y  in 

0/)   Cox  V.  Burhridrjc,  13  C.   B.,  (;)  35  L.  T.,  N.  S.  783— C.  A. 

N.  S.  430.  Reversing  34  L.   T.,  N.  S.  544— 

Ex.  D. 


328 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Evidence 
identical  with 
that  requii'ed 
for  man- 
slaughter. 

As  to  demand 
of  particulars 
in  actions 
for  negligent 
dii\ing. 


an  action  against  the  flour-dealer,  the  declaration  alleging 
that  the  plaintilt'  was  injiu'ed  by  the  negligence  of  the 
defendant's  servants.  And  Pollock,  C.  B.,  said,  "  There 
are  certain  cases  of  which  it  may  be  said  res  ipsa  loquitur, 
and  this  seems  to  be  one  of  them.  The  Courts  have  held 
that  from  certain  occurrences  negligence  may  be  presumed, 
railway  accidents,  &c."  {a). 

It  may  be  taken  as  a  rule  that  the  same  evidence  is  re- 
quired to  establish  a  case  of  negligence  as  would  suffice 
to  convict  a  man  of  manslaughter  {b). 

In  an  action  of  fort  for  an  injury  to  the  person,  as  by 
careless  driving,  it  is  within  the  discretion  of  the  Judge 
at  Chambers,  upon  ajDplication  by  the  defendant  on  affi- 
davit, to  oid.QX  p)(i^'ticulars  as  to  the  nature  and  extent  of  the 
injuries  or  of  the  claim  for  compensation  {c). 


Right  side  of 
the  Eoad. 


RULE  OF  THE  ROAD. 

If  there  be  no  peculiar  circumstances  to  the  contrary,  it 
is  the  duty  of  each  party  to  keep  the  regular  side  of  the 
road.  However,  a  person  riding  or  driving  is  not  hound  to 
keep  his  side ;  but  if  he  does  not,  he  must  use  more  care, 
and  keep  a  better  look  out,  to  avoid  collision,  than  would 
be  necessary  if  he  were  on  the  proper  part  of  the  road  (rf). 
But  the  mere  fact  of  a  man  driving  on  the  wrong  side  of 
the  road  is  no  evidence  of  negligent  driving  in  an  action 
brought  against  him  for  running  over  a  person,  who  was 
crossing  a  road  on  foot  {e) . 

If  a  person  driving  on  the  wrong  side  of  the  road  in  the 
darl;  accidentally  injures  another  Carriage  or  person,  he  is 
answerable  for  it  (_/' ) . 

If  a  person  driving  a  Gig  on  his  proper  side  sees  a  Gig 

son  coming  on  comiug  dowu  ou  the  wrong  side  of  the  road,  he  must  not 

his  wrons:        jg^.  j^imsclf  be  run  down,  but  if  he  have  time  and  room, 

must  get  out  of  the  way ;  for  if  he  does  not,  he  cannot 

bring  an  action  and  recover  damages  (</). 


Driving  on 
the  wrong 
side  in  the 
dark. 


Seein 


g  a  per- 


side. 


(«)  Byrne  v.  BoacUc,  33  L.  J.,  Ex. 
13.  See  also  Scott  v.  London  Dock 
Co.,  13  W.  R.  410,  and  Kearney  v. 
London,  Briyltton  and  South  Coast 
lictUu-a)i  Co.,  L.  R.,  5  Q.  B.  411  ; 
afBrmed  in  Ex.  Ch.,  L.  R.,  6  Q.  B. 
759. 

{h)  See  judgments  of  "Williams, 
J.,  and  Wilde,  J.,  llammack  v. 
White,  11  C.  B.,  N.  S.  588. 

(e)  Wicks  V.  Macnama)-a,  27  L. 
J.,  Ex.  419. 


(d)  See  Ale.i-ander  v.  Laidley,  Ap- 
pendix; and  I'lucJcicell  v.  Wilson, 
5  C.  &  P.  375. 

(c)  Lloyd  V.  Offleby,  5  C.  B.,  N.  S. 
667. 

(/)  See  Handayside  v.  Wilson, 
3  C.  &P.  530;  Alex((nder\.  Laidley, 
Appendix  ;  Elvin  v.  Chapman,  Ap- 
pendix. See  also  Lcame  v.  Bray, 
3  East,  593. 

('/)  PerPatteson,  J.,  Beed  v.  Tate, 
Newcastle  Sj^r.  Ass.  1846;  and  see 


RULE  or  THE  ROAD.  329 

And  where  an  action  was  brought  for  negligently  Does  not  jus- 
driving  against  the  plaintifJ's  Horse,  it  appeared  that  ^^^  ^  wanton 
the  defendant's  Chaise  came  out  of  another  road,  and  in  ^^J'^^' 
crossing  over  to  its  right  side  broke  the  leg  of  the  plain- 
tiff's Horse,  which  was  then  on  the  wrong  side  of  the 
road.  Lord  Ellenborough  held  that  the  circumstance  of 
the  person  being  on  the  wrong  side  of  the  road  was  not 
sufficient  to  discharge  the  defendant ;  for  though  a  person 
might  be  on  his  wrong  side  of  the  road,  if  the  road  was 
of  sufficient  breadth,  so  that  there  was  full  and  ample 
room  for  the  party  to  pass,  he  was  of  opinion  that  he  was 
bound  to  take  that  course  which  would  carry  him  clear 
of  the  person  who  was  on  his  wrong  side ;  and  that  if  an 
injury  happened  by  running  against  such  a  person  he 
would  be  answerable.  A  person  being  on  his  wrong  side 
of  the  road  could  not  justify  another  in  wantonly  doing 
an  injury  which  might  be  avoided.  The  question,  there- 
fore, to  be  left  to  the  Jury  was,  whether  there  was  such 
room,  that,  though  the  plaintiff's  servant  was  on  his  wrong 
side  of  the  road,  there  was  sufficient  room  for  the  defend- 
ant's Carriage  to  pass  between  the  plaintiff's  Horse  and  the 
other  side  of  the  road  {//). 

And  in  another  similar  case  it  was  held  by  the  Court  of  Rule  of  the 
King's  Bench,  that  whatever  might  be  the  law  of  the  road,  ^o^.'^^ot  m- 
it  was  not  to  be  considered  as  inflexible  and  imperatively 
governing  cases  where  Negligence  was  the  question.  In 
the  crowded  streets  of  the  Metropolis  situations  and  cir- 
cumstances might  frequently  arise  where  a  deviation  from 
what  is  called  the  law  of  the  road  would  not  only  be  justi- 
fiable but  absolutely  necessary.  Of  this  the  Jury  are  the 
best  Judges ;  and,  independently  of  the  law  of  the  road,  it 
is  their  province  to  determine  from  whose  Negligence  the 
accident  has  arisen  (*). 

On  the  same  principle,  apparently,  it  has  been  laid  down  Light  load 
in  the  United  States  that  a  traveller  on  foot  or  on  horse-  meeting 
back  must  give  way  to  and,  if  necessary,  cross  the  road  for   ^^^^^' 
a  vehicle  with  a  heavy  load  (/.),  and  that  a  lightly-loaded 
vehicle  must,  in  like  manner,  give  way  to  a  heavily-loaded 
one  (/). 

Though  the  rule  of  the  road  is  not  to  be  adhered  to,  if  Parties  meet- 

Case  of  the  Commerce,  3  Rob.  Adm.  N.  S.  667. 

Cas.  287.  (/)  Beach   v.  Parmcio;   23  Penn. 

[h)   Clay  V.  Wood,  5  Esp.  42.  St.  196. 

(/)    Waijde  V.  Ladij   Can;  2  D.  &  (/)   Gricr  v.   Scidijjso/i,    27    Penn. 

E.  256  ;  Llo>/d  v.  Or/lebij,  5  C.  B.,  St.  183. 


330 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


ing  on  a 
sudden. 


Eule  of  the 
Road  applies 
to  Saddle 
Horses. 


Ordinary 

vehicles  meet- 
ing street  or 
tramcars. 


Foot  pas- 
sengers. 


by  departing  from  it  an  injury  can  be  avoided,  and  tliere 
is  clear  space  enough  to  get  out  of  the  way,  yet  in  cases 
where  parties  meet  o)i  a  sudden,  and  an  injury  results,  the 
party  on  the  wrong  side  is  answerable,  unless  it  clearly  ap- 
pear that  the  party  on  the  right  side  had  ample  means  and 
opportunity  to  prevent  it  (w?). 

The  rule  of  the  road  as  to  keeping  the  proper  side 
applies  to  Saddle  Horses  as  well  as  to  Carriages ;  and  if  a 
Carriage  and  a  Horse  are  to  pass,  the  Carriage  must  keep 
its  proper  side  and  so  must  the  Horse.  But  if  the  driver 
of  a  Carriage  is  on  his  proper  side,  and  sees  a  Horse  coming 
fm'iously  on  its  wrong  side  of  the  road,  it  is  the  duty  of 
the  driver  of  the  Carriage  to  give  way  and  avoid  an  acci- 
dent, although  in  so  doing  he  goes  a  little  on  what  would 
otherwise  be  the  wrong  side  of  the  road  {ii). 

In  America  it  has  been  held  that  the  rule  of  the  road 
has  no  application  to  the  meeting  of  ordinary  vehicles  with 
street  cars.  The  ground  for  such  decision  being,  that  the 
latter  cannot  turn  off  their  path,  and  the  former  should 
turn  to  that  side  which  appears,  under  the  circumstances, 
to  be  the  safest  without  regard  to  the  usual  rule,  and  the 
fact  that  either  was  on  the  left  of  the  road  at  the  time  of  a 
collision,  is  no  evidence  of  negligence  (a).  And  for  the 
same  reason,  when  a  collision  occiu\s  between  an  ordinary 
vehicle  and  a  street  car,  travelling  side  by  side,  the  pre- 
sumption is  that  the  driver  of  the  vehicle  was  negligent, 
the  car  being  unable  to  turn  out(^).  This  rule  appears 
to  be  dictated  by  common  sense,  and  to  be  applicable  to 
similar  cases  of  collision  between  an  ordinary  vehicle  and  a 
tramcar  in  England. 

The  law  as  to  Foot  piassengers  is  laid  down  in  the  fol- 
lowing case,  where  an  action  of  Trespass  was  brought 
for  running  over  a  Foot  passenger  with  a  Carriage  which 
was  on  its  wrong  side  of  the  road,  and  Mr.  Justice  Pat- 
teson  said  to  the  Jury,  "  A  Foot  passenger  has  a  right 
to  cross  a  highway ;  and  it  was  held  in  one  case  {q)  that 
a  Foot  passenger  has  a  right  to  walk  along  the  carriage  way. 
But  without  going  that  length,  it  is  quite  clear  that  a  Foot 
passenger  has  a  right  to  cross,  and  that  persons  driving 
Carriages  along  the  road  ar£  liable  if  they  do  not  take  care 


554. 


C/iapUn  V.  Ilaurs,  3  C.  &  P. 


103. 


(;/)   Ttirle>/  v.  Thomas,  8  C.  &  P. 


(o)  Ucfjan  V.  E'ujlitli  Aajuteltall- 


tcai/  Co.,  15  N.  T.  380. 

{p)  Suijdam  v.  Grand  St.  Eailway 
Co.,  41  Barb.  305;  Siegel  y.  Eisen, 
41  Cal.  109. 

{q)  Host)  V.  lii/on,  5  C.  &  p.  407. 


RULE  OF  THE  ROAD.  331 

SO  as  to  avoid  driving  against  the  Foot  passengers  who  are 
crossing  the  road ;  and  if  a  person  diiviug  along  the  road 
cannot  pnll  up  because  his  reins  break,  that  will  be  no 
ground  of  defence,  as  he  is  bound  to  have  proper  tackle." 

"  With  respect  to  what  has  been  said  about  the  Car-  Rule  of  the 
riage  being  on  the  wrong  side  of  the  road,  I  think  you  ^°^^  <ioes  not 
should  lay  it  out  of  your  consideration,  as  the  Hule  as  to  ^^^  ^' 
the  proper  side  of  the  road  does  not  apply  with  respect  to 
Foot  passengers ;  and  as  regards  the  Foot  passengers,  the 
Carriages  may  go  on  whichever  side  of   the  road  they 
please"  (>•). 

It  is  the  duty  of  a  person,  who  is  driving  over  a  cross-  Going  over  a 
ing  for  Foot  passengers  at  the  entrance  of  a  Street,  to  drive  "'°''*^^^S- 
slowly,  cautiously  and  carefully;  but  it  is  also  the  duty  of 
a  Foot  passenger  to  use  due  care  and  caution  in  going  upon 
such  crossing,  so  as  not  to  get  among  the  Carriages,  and  so 
receive  injury  {s). 

If  there  be  a  nuisance  in  a  public  highway,  a  private  in-  Nuisance  on 
dividual  cannot  of  his  own  authority  abate  it,  unless  it  does  P^^^ilic  lngh- 
him  a  special  injury,  and  he  can  only  interfere  with  it  so  ^^'"^^ 
far  as  is  necessary  to  exercise  his  right  of  passing  along 
the  highway ;  and  he  cannot  justify  doing  any  damage  to 
the  property  of  the  person  who  has  improperly  placed  the 
nuisance  in  the  highway,  if,  avoiding  it,  he  might  have 
passed  on  with  reasonable  convenience  (t). 

A  Tradesman  may  remove  a  Horse  and  Cart  or  Car-  Horse  and 
riage  from  before  his  door,  if   it   impedes   his  business.  1''^.^™^*]  ^,^' 
Thus  if  a  Hackney  Coach  stands  before  a  Shopkeeper's  man's  door, 
door,  and  hinders  customers,  he  may  lawfully  take  hold  of 
the  Horses  and  lead  them  away,  and  is  not  bound  to  take 
his  remedy  for  damages  [u). 

NEGLIGENT   DRIVING    BY    A    SERVANT. 

It  was  formerly  held  that  the  Master  was  liable  only  When  the 
where   his    servant  caused  injury  by  doing   a  lawfal  act  ^^'-^^^^^^  T!^^.^ 
ncfjJicjenthj,  but  not  where  he  icilfuUij  did  an  illegal  one ;  ing  to  former 
and,  therefore,  in  cases  of  negligent  driving,  where  the  decisions. 

(r)   Cotteril  v.  Turin/,    8  C.  &  P.  (0  See   Judgment   of   Court    of 

693.      See    also   Llotjd    v.    Otjlvbi/,  Queen's   Beucli,    JJlmcs   v.   Fctlcij, 

5  C.  B.,  N.  S.  667.  15    Q.    B.    288;    Bridge   v.   Grand 

(s)  See  per  Pollock,  C.  B.,  7/1/-  Jiniction  Railway   Co.,   3  M.  &  W. 

Hams  V.  Richards,    3  C.    &  K.  82  ;  244 ;  Davies  v.  3Iann,   10  M.  &  W. 

and  see  Boxodcn  v.   Sherman,  Ap-  54G;  Mayor  of  Colchester  y.  Brooke, 

pendix.     See  also   Cotton  v.  If^ood,  7  Q.  B.  339. 
8  C.  B.,  N.  S.  568.  («)  Slater  v.  Suwin,  2  Str.  872. 


332 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Liability  uow 
held  to  be 
more  exten- 
sive. 


Zimjms  v.  The 
General  Om- 
nibus C'om- 
paiii/. 


Acts  done 
■within  em- 
ployment and 
for  Master's 
interest. 


Servant  liad  the  autliority  of  bis  Master  to  do  the  par- 
ticular act,  namely,  to  drive  along  the  highway,  which  is 
perfectly  lawful  in  itself,  it  was  held  by  Mr.  Justice 
Patteson  that  the  Master  was  chargeable,  because  the  act 
so  authorized  by  him  had  been  done  negligently ;  but 
that,  if  the  Servant  drove  wilfully  against  another,  the 
Master  was  not  chargeable  for  the  injury  done  (.r). 

But  this  definition  is  not  an  exhaustive  one,  for  the 
liability  of  the  Master  extends  beyond  the  lawful  acts  of 
his  Servant.  And  the  test  of  his  liability  is,  not  whether 
the  acts  of  his  Servant  are  illegal  and  wilful,  or  the  con- 
trary, but  whether  they  are  within  the  scope  of  the 
Servant's  employment  and  in  the  execution  of  the  service 
for  which  he  is  engaged  {>/). 

In  the  case  of  LiiupKS  v.  T//e  Genevol  Omnibus  Com- 
2ianij  (i/),  decided  in  the  Exchequer  Chamber,  which  fixed 
and  defined  the  law  on  this  subject,  the  driver  of  the 
defendant's  Omnibus  drove  it  across  the  road  in  front  of 
a  rival  Omnibus  belonging  to  the  plaintiff,  which  was 
thereby  overturned.  The  driver  said,  that  he  pulled 
across  the  plaintiff's  Omnibus,  to  prevent  it  passing  him. 
The  defendants  had  given  printed  instructions  to  their 
driver  not  to  obstruct  any  Omnibus. 

Mr.  Baron  Martin,  before  whom  the  case  was  tried, 
directed  the  Jury  that,  "When  the  relation  of  Master 
and  Servant  existed,  the  Master  was  responsible  for  the 
reckless  and  improper  conduct  of  his  Servant  in  the 
course  of  the  service  ;  that  if  the  Jury  believed  that  the 
defendant's  driver,  being  dissatisfied  and  irritated  with 
the  plaintiff's  driver,  acted  recklessly,  wantonly,  and 
improperly,  but  in  the  course  of  the  service  and  employ- 
ment, and  doing  that  which  he  believed  to  be  for  the  in- 
terest of  the  defendants,  then  they  were  responsible  ;  that 
if  the  act  of  the  defendants'  driver,  although  a  reckless 
driving  on  his  part,  was  nevertheless  an  act  done  by  him 
in  the  course  of  his  service,  and  to  do  that  which  he  thought 
best  to  suit  the  interest  of  his  employers,  and  so  to  inter- 
fere with  the  trade  and  business  of  the  other  Omnibus,  the 
defendants  were  responsible  ;  that  the  instructions  given  to 
the  defendants'  driver  by  them  were  immaterial  if  he  did 
not  pursue  them ;  but  that,  if  the  act  of  the  defendants' 
Servant  was  an  act  of  his  own,  and  in  order  to  effect  a  pur- 


[r)  Lyons  v.  Martin,  8  A.  &  E. 
515;  S.  C.  SNev.  &P.  509;  and  see 
M'Mauus  V.  Cricket,  1  East,  106. 


(//)   Lhi/pus  V.  T/w  General  Omni- 
bus Co.,  1  H.  &  C.  526. 


KEGLTGENT  DRIVING  BY  A  SERVANT.  333 

pose  of  bis  own,  the  defendants  were  not  responsiljlo." 
This  direction  was  held  to  be  right  by  all  the  Judges  with 
the  exception  of  Mr.  Justice  Wightman. 

Mr.  Justice  Williams  in  the  course  of  the  argument  said,  If  Servant 
"  If  a  driver  in  a  moment  of  passion  vindictively  strikes  a  "vm^ictively 
Horse  with  a  whip,  that  would  not  be  an  act  done  in  the  Horse  with 
course  of  his  employment ;  but  in  this  case  the  Servant  his  wliip. 
was  jDursuing  the  pm-pose  for  which  he  was  employed,  vh. 
to  drive  the  defendants'  Omnibus.     Suppose  a  Master  told 
his  Servant  not  to  drive  when  he  was  drunk,  but  he  never- 
theless did  so,  would  not  the  Master  be  responsible  ?"   And 
in  his  judgment  he  said :  "  If  a  Master  employs  a  Servant 
to  drive  and  manage  a  carriage,  the  Master  is  responsible 
for  any  misconduct  of  the  Servant  in  driving  and  managing 
it,  which  must  be  considered  as  having  resulted  from  the 
performance  of  the  duty  entrusted  to  him,  and  especially 
if  he  was  acting  for  his  Master's  benefit  and  not  for  any 
purpose  of  his  own." 

Mr.  Justice  Willes  said,  with  reference  to  the  question  Instructions 
whether  the  injury  was  done  by  the  driver  in  the  course  °f  Master,  if 
of  his  employment,  "It  may  be  said  that  it  was  no  part  fmmSeriaf' 
of  the  duty  of  the  defendants'  Servant  to  obstruct  the 
plaintiff's  Omnibus,  and  moreover  the  Servant  had  dis- 
tinct instructions  not  to  obstruct  any  Omnibus  whatever. 
In  my  opinion,  those  instructions  are  immaterial.  If  dis- 
obeyed, the  law  casts  upon  the  Master  a  liability  for  the 
act  of  his  Servant  in  the  course  of  his  employment;  and 
the  law  is  not  so  futile  as  to  allow  a  Master,  by  giving 
secret  instructions  to  his  Servant,  to  discharge  himself 
from  liability.  Therefore,  I  consider  it  immaterial  that 
the  defendants  directed  their  Servant  not  to  do  the  act. 
Suppose  a  Master  told  his  Servant  not  to  break  the  law, 
would  that  exempt  the  master  from  responsibility  for  an 
unlawful  act  done  by  his  Servant  in  the  course  of  his 
employment  ?  The  act  of  driving  as  he  did  is  not  incon- 
sistent with  his  employment,  when  explained  by  his 
desire  to  get  before  the  other  Omnibus,"  which  desire  was 
prompted  by  the  fact  "  that  he  was  employed  not  only  to 
drive  the  Omnibus,  which  alone  Avould  not  support  this 
summing-up,  but  also  to  get  as  much  money  as  he  could 
for  his  Master,  and  to  do  it  in  rivalry  with  other  Omni- 
buses on  the  road." 

Mr.  Justice  Byles,  after  expressing  his  agreement  with  Master  liable, 
the  direction  of  Mr.  Baron  Martin,  said,  "  The  direction  '^^0^^*^^'"^^ 
amounts  to  this,  that  if  a  person  acts  in  the  prosecution  of  benefit. 


334 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Unless  done 
out  of  the 
course  of  the 
Servant's  em- 
ployment. 


Liability  of 
Cab  Pro- 
prietor. 


liis  Master's  business  for  tlie  benefit  of  bis  Master,  and  not 
for  the  benefit  of  himself,  the  Master  is  liable,  although 
the  act  may  in  one  sense  be  wilful  on  the  part  of  the 
Servant.  It  is  said  that  what  was  done  was  contrary  to 
the  Master's  instructions ;  but  that  might  be  said  in  ninety- 
nine  out  of  a  hundred  cases  in  which  actions  are  brought 
for  reckless  diiving.  It  is  also  said  that  the  act  was  illegal. 
So,  in  almost  every  action  for  negligent  driving,  an  illegal 
act  is  imputed  to  the  Servant.  If  we  were  to  hold  this 
direction  wrong,  in  almost  every  case  a  driver  would  come 
forward,  and  exaggerate  his  own  misconduct,  so  that  the 
Master  would  be  absolved.  Looking  at  what  is  a  reason- 
able direction,  as  well  as  at  what  has  been  already  decided, 
I  think  tliis  summing-up  perfectly  correct." 

And  Mr.  Justice  Blackburn  said,  with  reference  to  the 
act  being  done  by  the  defendant  when  "  in  the  coiu'se  of 
his  service  and  emplojmient,"  it  is  "  not  universally  true 
that  every  act  done  for  the  interest  of  the  Master  is  done 
in  the  course  of  the  emplojanent.  A  footman  might  think 
it  for  the  interest  of  his  Master  to  drive  the  coach,  but  no 
one  could  say  that  it  was  within  the  scope  of  the  footman's 
employment,  and  that  the  Master  Avould  be  liable  for 
damage  resulting  from  the  wilful  act  of  the  footman  in 
taking  charge  of  the  Horses.  But,  in  this  case,  I  think 
the  direction  given  to  the  Jiuy  was  a  sufficient  guide  to 
enable  them  to  say  whether  the  particular  act  was  done  in 
the  course  of  the  employment.  The  learned  Judge  goes 
on  to  say,  that  the  instructions  given  to  the  defendants' 
Servants  were  immaterial  if  he  did  not  pursue  them  (upon 
which  all  are  agreed) ;  and  at  the  end  of  his  direction  he 
l")oints  out  that,  if  the  Jiuy  were  of  opinion  '  that  the  true 
character  of  the  act  of  the  defendants'  Servant  was,  that 
it  was  an  act  of  his  own  and  in  order  to  effect  a  pm-pose 
of  his  own,  the  defendants  were  not  responsible.'  That 
meets  the  case  which  I  have  already  alluded  to.  If  the 
Jury  should  come  to  the  conclusion  that  he  did  the  act, 
not  to  further  his  Master's  interest  nor  in  the  course  of  his 
emplopnent,  but  from  private  spite,  and  with  the  object  of 
injuring  his  enemy,  the  defendants  were  not  responsible. 
That  removes  all  objection,  and  meets  the  suggestion  that 
the  Jury  may  have  been  misled  by  the  previous  part  of  the 
summing-up." 

Generally,  the  Registered  Proprietor  and  the  Licensed 
Driver  of  a  cab  stand  in  the  relation  of  a  Master  and  Ser- 
vant quoad  the  public,  and  therefore  the  Proprietor  is  liable 


NEGLIGENT  DRIVING  IJY  A  SERVANT.  335 

for  tlie  loss  of  a  Passenger's  luggage  tbrougli  the  negligence 
of  the  driver  (;:),  or  for  personal  injiuy  to  the  passenger 
or  a  stranger,  where  there  is  no  wrongful  user  of  the  cab  by 
the  driver.  Thus,  where  a  driver  who  had  no  specified 
time  for  starting  from  or  returning  to  the  proprietor's 
stables,  made  a  short  deviation  for  his  own  convenience  at 
the  close  of  his  day's  work,  and  while  returning  to  the 
stables  ;  and  after  such  deviation  he  was  again  returning 
when  he  ran  over  and  injured  the  plaintiff;  it  was  held, 
that  the  driver  was  not  on  an  independent  journey,  and 
must  be  considered  to  be  in  the  proprietor's  employ  at  the 
time  of  the  accident  {a) .  But  the  relationship  of  Master 
and  Servant  does  not  necessarily  exist  between  the  proprie- 
tor and  the  driver  of  a  cab ;  there  is  only  a  ■prima  facie 
presumption  that  such  is  their  relation  [h),  which  may  be 
rebutted  by  the  circumstances  of  the  case ;  as  in  King  v. 
Spurr  (b),  where  the  defendant  was  proprietor  of  a  cab 
and  had  let  it  to  the  driver  for  a  weekly  payment,  the 
Horse,  harness,  and  whip  being  provided  by  the  driver ; 
and  it  was  held,  that  the  defendant  was  not  liable  for  in- 
juries done  to  the  plaintiff's  cart  and  Pony  owing  to  the 
negligence  of  the  driver. 

Where  a  Master  and  Servant  are  together  in  a  vehicle.  Master  and 
and  an  accident  occurs  from  which  an  immediate  injury  ?':?^^.'^'^ 
ensues,  the  Master  is  liable,  although  the  Servant  is  driving,  together. 
and    there   is   no   evidence   of    any   interference   on   the 
Master's  part ;  and  even  where  the  evidence  on  the  part  of 
the  defendant  strictly  negatives  an  interference,  the  mere 
presence  of  the  Master  with  the  Servant  will  constitute  him 
a  trespasser  if  the  act  of  the  Servant  amount  to  a  trespass  {c). 
So  where  a  Carriage  and  Horses  are  hired,  and  the  post- 
boys are  servants  of  the  owner,  and  an  accident  ensues  in 
consequence  of  their  Negligence,  the  hirer,  if  he  sit  out- 
side and  have  a  view  of  their  proceedings,  and  do  not  en- 
deavour to  stop  their  misconduct,  is  a  co-trespasser  with 
them  (d). 

A  Master  is  liable  in  an  action  for  damage  resulting  Servant  en- 
from  the  Negligence  with  which  his  Cart  has  been  driven,  *™s*^i^o  t^^Q 

°    °  '   rems  to  a 


Stranger. 


(r)  Poivles    V.  Hidir,    25   L.    J.,  36L.  T.,  N.  S.  509  ;  25W.  E,.  584. 
Q.  B.  331.     See  also  Fowler  V.  Lock,  {b)  Seeper  Bowen,  J.,  in  JiT/w^  v. 

L.  R.,  7  C.  P.  272  ;  41  L.  J.,  C.  P.,  S^pun;  L.  R.,  8  Q.  B.  D.  104,  108. 
99  ;  26  L.  T.,  N.  S.  476  ;  and  1  &  2  (c)   Chamller  v.  Bmir/hton,   1  Cr. 

Will.  4,  c.  22  ;  6  &  7  Vict.  c.  86.  &  M.  29. 

{a)    Vcnables  v.  Smith,  L.  P.,  2  Q.  (rf)  M'LauqhVm  v.  Prtjor,  4  Scott, 

B.  D.   279  ;  46  L.  J.,  Q.  B.  470;  N.  P.  655;  8.  C,  4  M.  &  G.  48. 


336 


NEGLIGENCE  IN  THE  USE  OF  HuRSES,  ETC. 


Servant  strik- 
ing the  Horse 
of  another. 


Servant  strik- 
ing passenger. 


Guard  of 
Omnibus 
using  imdue 
violence  to  a 
passenger. 


altlioiigli  it  should  appear  that  his  Servant  was  not  driving 
at  tlie  time  of  the  accident,  but  had  cutnided  the  reins  to  a 
Stranger  who  was  riding  with  him,  and  who  was  not  in  the 
Master's  service  {c). 

If  a  Servant  driving  his  Master's  Carriage,  in  order  to 
effect  some  purpose  of  his  own,  icantonhj  strike  the  Horse 
of  another  person,  and  produce  an  accident,  the  Master 
will  not  be  liable.  But  if  in  order  to  perform  his  Blas- 
ter's orders  he  strikes,  but  injudiciously,  and  in  order  to 
extricate  himself  from  a  difficulty,  that  will  be  negligent 
and  careless  conduct,  for  which  the  Master  will  he  liable, 
being  an  act  done  in  pursuance  of  the  Servant's  employ- 
ment. And  where  a  Coachman,  in  consequence  of  his 
Master's  Carriage  having  become  entangled  with  another, 
struck  the  other  Horses,  which  were  standing  still  without 
a  driver,  upon  which  they  ran  away  and  upset  the  Carriage, 
the  Jury  thought  that  the  entangling  arose  originally  from 
the  fault  of  the  Coachman,  and  that  as  he  was  acting  irithiii 
the  scope  of  his  employment  in  endeavoming  to  extricate 
himself,  the  Master  was  liable  (/). 

The  fact  that  a  Passenger  in  an  Omnibus  is  struck  by  the 
driver's  whip  is  prinid  facie  evidence  of  negligence  by  the 
driver  in  the  course  of  his  employment ;  and  even  if  it 
appears  that  the  blow  was  struck  at  the  Servant  of  another 
Omnibus,  with  whom  there  had  been  a  dispute,  and  who 
had  jumped  on  the  Omnibus  step  to  get  his  number,  it  is  a 
question  for  the  Jiuy  whether  the  blow  was  struck  by  the 
driver  in  private  spite,  or  in  supposed  fm'therance  of  his 
Employer's  interests  (g). 

It  was  held  by  the  Exchequer  Chamber  in  the  case  of 
Seymour  v.  Greenwood  {h)  that  the  Master  was  liable,  where 
the  Gruard  of  an  Omnibus  belonging  to  him,  in  removing 
therefrom  a  Passenger,  whom  he  deemed  to  be  di'unk, 
dragged  him  out  with  imdue  violence,  and  threw  him  upon 
the  ground,  whereby  he  was  seriously  injm-ed ;  for  the 
Master,  by  giving  the  Gruard  authority  to  remove  offensive 
Passengers,  necessarily  gives  him  authority  to  determine 
whether  any  Passenger  had  misconducted  himseK.  And 
inasmuch  as  the  Master  puts  the  Gruard  in  his  place  because 
it  is  not  convenient  for  him   personally  to  conduct  the 


(e)  Sooth  V.  Mister,  7  C.  &  P.  G6. 

( f)  Per  Curiam  in  Croft  v.  Alison, 
4  B.  &  Aid.  592. 

(g)  Ward  v.  General  Omnibus  Co., 
42   L.  J.,    C.  P.  265  ;  28   L.  T., 


N.  S.  850— Ex.  Ch.,  affirming  the 
decision  of  C.  P.,  27  L.  T.,  N.  S. 
761  ;  21  W.  R.  358. 

{h)  Sei/moicr  v.  Greenwood,  7  H.  & 
N.  355. 


NEGLIGENT  DRIVING  BY  A  SERVANT.  337 

Omnibus,  if   tlie  Guard   forms   a   wrong   judgment,  the 
Master  is  responsible  (/). 

But  where  a  van  was  standing  at  the  door  of  the  plaintiff,  Servant  re- 
from  which  the  plaintiff''s  goods  were  being  unladen,  and  ^°T^°i^^^ 
the  plaintiff's  gig  was  standing  behind  the  van :  and  the 
defendant's  Coachman  drove  her  Carriage  up,  and  there 
not  being  room  for  the  Carriage  to  pass,  the  Coachman  got 
off  his  bos  and  laid  hold  of  the  van  Horse's  head ;  and 
this  caused  the  van  to  move,  and  thereby  a  packing-case 
fell  out  of  the  van  and  broke  the  shafts  of  the  gig ;  it  was 
held,  with  the  assent  of  the  Barons  sitting  in  the  Exchequer 
Chamber,  that  the  defendant  was  not  liable,  as  the  Coach- 
man was  not  acting  in  the  employ  of  his  Mistress,  that  is, 
within  the  scope  of  his  employment,  at  the  time  this  matter 
occurred  [k). 

If  a  Servant  does  what  his  Master  employs  him  to  do  in  Servant  act- 
a  negligent,  improper  or  round-about  way,  and  damage  is  ^°^  ™P^o- 
done,  his  Master  is  liable  (/). 

If  a  Servant  diiving  his  Master's  cart,  on  his  Master's  Making  a  de- 
business,  make  a  detour  from  the  direct  road  for  some  ^"e^- for  his 
pm'pose  of  his  o^vn,  his  Master  ^vill  be  answerable  in  """^  P^^P^^®^- 
damages  for  any  injury  occasioned  by  his  careless  driving- 
while  so  out  of  his  road  (ni).  Because  wherever  the  Master 
has  intrusted  the  Servant  with  the  control  of  the  Carriage, 
it  is  no  answer  that  the  Servant  acted  improperly  in  the 
management  of  it ;  but  the  Master  in  such  case  will  be 
liable,  because  he  has  put  it  in  the  Servant's  power  to 
mismanage  the  Carriage  by  entrusting  him  with  it.  And 
this  was  so  held  by  Mr.  Justice  Erskine,  where  a  Servant, 
having  set  his  Master  down  in  Stamford  Street,  was 
directed  by  him  to  put  up  in  Castle  Street,  Leicester 
Square ;  but  in  so  doing,  he  went  to  deliver  a  parcel  of  his 
own  in  Old  Street  Road,  and  in  retiu-ning  along  it  he 
di-ove  against  an  old  woman  and  injured  her  {ii). 

So,  in  Whatman  \.  Pearson  (o),  the  defendant,  a  contractor 
under  a  district  board,  was  engaged  in  constructing  a 
sewer,  and  employed  men  with  Horses  and  Carts.  The 
men  so  employed  were  allowed  an  hour  for  dinner,  but 
were  not  permitted  to  go  home  to  dine,  or  leave  their 

(«)  Per  Williams,  J.,  Seymour  v.  (jh)  Joel  \.  Morrison,  6  C.  &  P. 

Grcemcood,  7  H.  &  N.  355.  501. 

(A-)  Lamb  v.  Lady  Elizabeth  Fall;  («)  Sleath  v.  Wilson,   9  C.  &  P. 

9  C.  &  P.  629.  608. 

(/)  See  per  Cresswell,  J.,  Mitchell  {o)  L.  E.,  3  C.  P.  422;  and  see 

V.  Crasm-eller,  22Ij.  J.,  CP-lOi.  Burns  v.  Paulson,   L.  E,.,   8  C.  P. 

563;  42  L.  J.,  C.  P.  302. 

O.  Z 


338 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Servant  act- 
ing contrary 
to  his  trust. 


Taking  his 
Master's 
Horse  -with- 
out leave. 


Horses  and  Carts.  One  of  the  men  Avent  home,  about 
a  quarter  of  a  mile  out  of  the  direct  line  of  his  work  to  his 
dinner,  and  left  his  Horse  unattended  in  the  street  before 
his  door.  The  Horse  ran  away  and  damaged  certain 
raihngs  belonging  to  the  plaintiff ;  and  it  was  held  that  it 
was  properly  left  to  the  Jury  to  say  whether  the  driver  was 
acting  within  the  scope  of  his  employment,  and  that  they 
were  justiiEied  in  finding  that  he  Avas. 

But  where  a  Servant  is  acting,  and  knows  that  he  is 
acting,  contrary  to  his  trust,  and  to  his  Master's  employ- 
ment, the  Master  is  not  liable  for  any  damage  which  may 
be  done  by  him  (p). 

Thus  if  a  Servant  without  his  Master's  leave  or  knowledge 
take  his  Cart  or  Carriage  when  it  is  not  wanted,  and  drive 
it  about  for  his  oaati  piu^poses,  the  Master  is  not  answerable 
for  any  injury  he  may  do,  because  he  has  not  in  such  case 
intrusted  him  with  the  Cart  or  Carriage  {q).  So  where  it 
was  the  duty  of  the  defendant's  Carman,  after  having 
delivered  his  Master's  goods  for  the  day,  to  return  to  the 
house,  get  the  key  of  the  Stable,  and  put  up  his  Horse  and 
Cart  in  a  Mews  in  an  adjoining  Street;  on  his  return  one 
eveniug  he  got  the  key,  and  instead  of  going  to  the  Mews, 
and  without  the  defendant's  leave,  he  drove  a  fellow-servant 
in  an  opposite  direction,  and  on  his  way  back  injured  the 
plaintiff  by  his  negligent  driving ;  it  was  held  that  the 
defendant  was  not  liable  (>■). 

And  this  is  fm-ther  illustrated  by  Storey  v.  AsJiton.  In 
that  case  the  defendant,  a  wine  merchant,  sent  his  Carman 
and  clerk  with  a  Horse  and  Cart  to  deliver  some  wine,  and 
bring  back  some  empty  bottles ;  on  their  retm-n,  when 
about  a  quarter  of  a  mile  from  the  defendant's  offices,  the 
Carman,  instead  of  performing  his  duty  and  driving  to  the 
defendant's  offices,  depositing  the  bottles,  and  taking  the 
Horse  and  Cart  to  stables  in  the  neighbom-hood,  was 
induced  by  the  clerk  (it  being  after  business  hoiu-s)  to 
drive  in  quite  another  direction  on  business  of  the  clerk's  ; 
and  while  they  were  thus  driving  the  plaintiff  was  nm 
over,  owing  to  the  negligence  of  the  Carman  ;  it  was  held 
that  the  defendant  was  not  liable,  for  that  the  Carman 
was  not  doing  the  act,  in  doing  which  he  had  been  guilty 
of  negligence,  in  the  com-se  of  his  employment  as  a  Ser- 


{p)  See  per  Cresswell,  J. ,  MitchcU 
V.  Cnissiccllcr,  22  L.  J.,  C.  P.  10-1. 
{'[)  Joel  V.  Morrison,   6  C.  &  P. 


501  ;  Slcath  v.  Wilson,  9  C.   &  P. 
608. 

{)•)  Mitchell  V.  CrasswcUer,  22  L. 
•T.,  C.  P.  100. 


NEGLIGENT  DRIVING  BY  A  SERVANT.  339 

vant  (s).  But  Cockbimi,  C.  J.,  in  delivering  judgment  in 
this  case,  said,  "  I  think  that  the  judgments  of  Maule  and 
Cresswell,  J  J.,  in  Mitchell  v.  Crassiceller  (t),  express  the 
true  view  of  the  law,  and  the  view  which  we  ought  to 
abide  bj :  and  that  we  cannot  adopt  the  view  of  Erskine, 
J.,  in  Sleath  v.  Wilson  {n),  that  is,  because  the  Master  has 
entrusted  the  Servant  with  the  control  of  the  Horse  and 
Cart  that  the  Master  is  responsible.  The  true  Rule  is, 
that  the  Master  is  only  responsible  so  long  as  the  Servant 
can  be  said  to  be  doing  the  act,  in  the  doing  of  which  he  is 
guilty  of  negligence,  in  the  course  of  his  employment  as  a 
Servant.  I  am  very  far  from  saying,  if  the  Servant,  when 
going  on  his  Master's  business,  took  a  somewhat  longer 
road,  that,  owing  to  his  deviation,  he  would  cease  to  be  in 
the  employment  of  the  Master,  so  as  to  divest  the  latter  of 
all  liability ;  in  such  cases  it  is  a  question  of  degree  as  to 
how  far  the  deviation  could  be  considered  a  separate 
journey." 

The  case  of  Eai/ner  v.  Mitchell  {r)  is  another  instance  of  Re-entering 
a  Servant  acting  beyond  the  scope  of  his  authority.  There  ^^  ^^  ^" 
a  Carman,  without  his  Master's  permission,  and  for  a 
purpose  of  his  own  wholly  unconnected  with  his  Master's 
business,  took  out  his  Master's  Horse  and  Cart,  and  on  his 
way  home  negligently  ran  against  a  cab  and  damaged  it. 
The  com"se  of  the  employment  of  the  Carman  was,  that, 
with  the  Horse  and  Cart,  he  took  out  beer  to  his  Master's 
customers,  who  was  a  brewer,  and  in  returning  to  the 
brewery,  he  called  for  empty  casks  wherever  they  would 
be  likely  to  be  collected,  for  which  he  received  from  his 
Master  a  gratuity  of  Id.  each.  At  the  time  of  the 
accident  the  Carman  had  with  him  two  casks,  which  he  had 
picked  up  on  his  return  jom-ney  at  a  public-house  which 
his  Master  supplied,  and  for  which  he  afterwards  received 
the  customary  Id. :  and  it  was  held,  that  the  Carman  had 
not  re-entered  upon  his  ordinary  duties  at  the  time  of  the 
accident,  and,  therefore,  the  Master  was  not  liable. 

And  where  a  Master  sent  his  Servant  on  an  errand,  and  Taking  the 
he  took  and  rode  a  Horse  belonging  to  another  person  j^^^^iJ^er^ 
without  his  Master's   permission,    and  on  his   way  back 
iniiicted   an   injury   on   the   plaintiff,  Mr.   Justice   Park 
said,  "I   cannot  bring    myself  to  go  the  length  of  sup- 

(a)  Storey  v.  Ashton,  L.  E,.,  4  Q.  ((/)  See  note  ((/),  ante. 

B.  476;  38L.J.,  Q.  B.  223;  17  W.  (r)  L.  K,  2  0.  P.  D.  359  ;  2o  W. 

R.  727.  R.  633. 

[t)  See  note  (>•),  ante. 


340 


NEGLIGEXCE  IN  THE  USE  OF  HORSES,  ETC, 


No  express 
authority  of 
Master  ne- 
cessary. 


Master's 
name  on  the 
Cart. 


Giving  an 
address. 


Action  for 
bodily  liui't. 


posing  that  if  a  man  sends  his  Servant  on  an  errand  with- 
out providing  him  with  a  Horse,  and  he  meets  a  friend 
who  has  one,  who  permits  him  to  ride,  and  an  injury- 
happens  in  consequence,  the  Master  is  responsible  for 
that  act.  If  it  were  so,  every  Master  might  be  ruined 
by  acts  done  by  his  Servant,  without  his  knowledge  or 
authority"  (*•). 

But  where  (//)  the  General  Manager  of  the  defendant, 
a  Horsedealer,  had  a  Horse  and  gig  of  his  own,  which  he 
used  for  the  defendant's  business  as  well  as  his  own,  and 
was  allowed  to  keep  them  on  the  defendant's  premises 
at  the  defendant's  expense ;  and,  on  one  occasion,  the 
Manager,  on  putting  the  Horse  into  the  gig,  told  the 
defendant  that  he  was  going  to  S.  to  collect  a  debt  for  him 
and  afterwards  to  see  his  own  doctor ;  and  before  he  got 
to  S.  he  drove  against  and  killed  the  plaintiff's  Horse  ; 
it  was  held  that  there  was  abundant  evidence  to  make 
the  defendant  responsible,  although  he  had  not  expressly 
requested  the  Manager  to  use  the  Horse  and  Grig  on  that 
occasion  ;  and  that  it  is  not  necessary  in  cases  of  this  sort 
that  there  should  be  any  express  request,  as  the  Jury 
may  imply  a  request  or  assent  from  the  general  nature 
of  the  Servant's  duty  and  employment  (s).  And  it  was 
also  held  in  the  same  case  {>/)  that  the  proper  cj[uestion  to 
leave  to  the  Jury  is,  whether  at  the  time  of  the  act  com- 
plained of,  the  Servant  was  driving  on  his  Master's 
business  and  with  his  authority. 

If  it  appear  that  the  Master  holds  himself  out  to  the 
world  as  the  owner  of  a  Cart  by  suffering  his  name  to 
remain  painted  on  it,  and  over  the  door  of  the  house  of 
business  to  which  it  belongs,  an  action  is  maintainable 
against  him,  although  it  is  proved  that  he  had  for  some 
days  ceased  to  be  the  owner  of  the  Cart,  or  to  be  concerned 
in  the  business  {a). 

"Where  a  Carriage  strikes  against  another,  and  a  person 
who  sees  the  transaction  demands  the  addi^ess  of  the  owner, 
the  Address  given  by  a  person  in  the  Carriage  is  admissible 
in  evidence  ;  but  a  statement  that  any  damages  done  will 
be  paid  for  is  not  so  {b). 

"Where  a  party  has  received  a  bodily  hurt  from  negli- 


(.(■)  Goodman  v.  Koinell,  3  C.  &  P. 
167. 

{y)  Paticn  v.  Rea,  26  L.  J.,  C.  P. 
235. 


{z)  Turlervlll'}  v.  Stampe,  1  Lord 
Eaym.  264. 

{a)  Stables  v.  Eky,  1  C.  &  P.  614. 

[b]  Beamon  v.  Elliee,  4  C.  &  P. 
586. 


NEGLIGENT  DRIVING  15Y  A  SERVANT.  341 

gent  driving,  he  may  of  course  personally  recover  damages 
for  the  injiuy  done  to  him. 

If   a  Servant,  in   the  course  of  his  Master's   employ,  Liability  of 
drives  over  any  person  and  does  a  wilful  injiuy  (described  Master  and 
by  Martin,  B.,  as  an  act  of  his  own,  and  in  order  to  effect  gpectlvely^"  ■" 
a  purpose  of  his  own)  (c) ,  the  Servant,  and  not  the  Master, 
is  liable ;  if  the  Servant,  by  his  negligent  driving,  in  the 
course  of  his  employment,  causes  an  injmy,  the  Master  is 
liable  ;    if  the  Master  himself  is  diiviug,  or  though  not 
actually  dii\dng  is  sanctioning  the  conduct  of  his  Servant, 
he  is  liable  whether  the  damage  be  the  effect  of  negligence 
or  of  a  wilfid  act  done  or  sanctioned  by  him  (d). 

It  is  a  well-established  rule  of  law  that  a  Servant  cannot  Negligence 
ordinarily  sue  his  Master  for  an  iniuiT  sustained  thi-oug^h  °*  fellow- 
the  negligence  of  a  fellow-servant  (e).  And  a  stranger 
invited  by  a  Servant,  or  one  who  volunteers  to  assist  a  Ser- 
vant in  his  work,  while  engaged  in  giving  such  assistance, 
bears  the  same  relation  to  the  Master  as  a  Servant,  and  is 
subject  to  the  same  disabilities  in  this  respect  (/).  But  a 
person  who,  with  the  consent  of  a  Railway  Company,  assists 
in  unloading  goods  consigned  to  him  by  their  line,  is  not  a 
volunteer  within  this  rule  (g). 

But  in  all  cases  the  Master  is  bound  to  use  due  care  in  Master  bound 
the  selection  of  competent  Servants,  and  is  liable  for  neg-  *«  ^^^  ^"^ 

%■!       •  •  11  X     1  •     o  X     care  m  selec- 

ence  m  employing  incompetent  persons  to  his  Servants  ^^^^  ^^  g^j.. 

and  to  those  acting  as  such.  Nevertheless  he  is  not  bound  vants. 
to  warrant  the  competency  of  his  Servants ;  and  in  an 
action  against  him  for  an  injury  done  by  one  of  his  Ser- 
vants to  another,  the  question  for  the  Jury  is,  not  whether 
the  Servant  was  incompetent,  but  whether  the  Master  exer- 
cised due  care  in  employing  him  (A). 

The  usual  terms  on  which  a  Cab  Proprietor  lets  a  cab  to  Liability  of 
a  driver  are,  that  the  o^vner  feeds  the  horse,  and  exercises  tor  to  IhivTr 

(c)    Limpus   V.    General    Omnibus  bility   Act,    1880    (43    &   44  Vict. 

Co.,  ante,  p.  332.  c.42) ;  but  that  act  does  not  extend 

{d)  See  per  Parke,  B.,  Gordon  v.  to  domestic  or  menial  servants. 

Rolt,   4  Ex.   366;  -S'.  6'.    18  L.  J.,  {f)  I'otter  \.  Faulkner,  31  L.  J., 

Ex.  433.  Q.B.  30. 

{c)   Tarrant   v.  Webb,    25    L.    J.,  {[/)    U'rlr/ht  v.  London  and  North 

C.  P.  261  ;    Waller  V.  South  Eastern  Western  RaUicaii  Co.,  L.  E.,  10  Q. 

Railway  Co.,   32  L.  J.,  Ex.   205  ;  B.  298;  L.  E.,  1  Q.  B.  D.  252  ;  45 

Ball  V.  Johnson,    13   W.  R.   411  ;  L.  J.,  Q.  B.  570;  33  L.  T.,   N.  S. 

Wlggett  v.  Fox,  25  L.  J.,  Ex.  188.  830— C.  A. 

The  law  relating  to  the  liability  of  {h)   Tarrant  v.   Webb,    25  L.  J., 

employers    to  make   compensation  C.  P.  261  ;    Waller  v.  South  Eastern 

for  injui'ies  suffered  by  workmen  Bailway   Co.,   32  L.  J.,   Ex.    205; 

in  their   service   is   extended   and  Hall  v.  Johnson,    13  W.   R.   411  ; 

regulated  by  the  Employers'  Lia-  Wiggett  v.  Fox,  25  L.  J.,  Ex.  188. 


342 


NEGLIGENCE  IN  THE  USE  OF  HOKSES,  ETC 


Action  by  re- 
presentatives 
of  a  person 
kiUed. 


By  persons 
beneficially 
interested. 


Construction 
to  be  put 
upon  the  con- 
dition in  9  & 
10  Vict.  0.  93. 


no  control  over  the  driver  after  lie  leaves  the  yard,  for 
•wliictL  the  driver  pays  a  fixed  sum  a  day.  It  is  doubtful 
whether  the  relation  between  the  parties  is  that  of  bailor 
and  bailee,  or  of  Master  and  Servant  (h) .  But  the  Pro- 
prietor is  liable  to  the  driver  if  he  do  not  take  reasonable 
precautions  to  provide  a  horse  reasonably  fit  for  the  pur- 
pose, and  injmy  is  thereby  caused  to  the  driver  (i). 

Formerly,  if  a  person  were  killed,  no  action  could  be 
maintained  by  his  representatives.  Now,  however,  Deo- 
dands  are  abolished  (J),  and  under  Lord  Campbell's  Act  (A-) 
a  party  causing  death  is  liable  to  an  action  in  all  cases 
where  the  party  injured  might  himself  have  maintained 
one,  if  death  had  not  ensued.  And  such  action  is  to  be 
brought,  within  twelve  calendar  months  of  the  death  of 
the  injm-ed  party,  by  his  executor  or  administrator,  and  to 
be  "for  the  benefit  of  the  Wife,  Husband,  Parent  and 
Child  of  the  person  whose  death  shall  have  been  so  caused," 
and  among  whom  the  Damages  are  to  be  divided  as  the 
Jury  shall  direct  (/).  A  Child  oi  ventre  sa  mere  is  entitled 
to  sue  under  this  Act  on  the  death  of  its  Father  by  negli- 
gence (in). 

This  Act  is  amended  by  and  is  to  be  read  with  the  27 
&  28  Vict.  c.  95,  called  "An  Act  for  compensating  the 
Families  of  Persons  killed  by  Accident,"  by  the  first 
Section  of  which,  where  no  action  has  been  brought  within 
six  months  of  the  death  by  the  executor  or  administrator 
of  the  person  killed,  then  the  action  may  be  brought  by 
the  persons  beneficially  interested  in  the  result  of  the 
action.  The  action  may  be  sustained  by  a  relative  of  the 
deceased,  though  brought  within  six  calendar  months  from 
the  death,  unless  there  be  at  the  time  an  executor  or  admi- 
nistrator of  the  deceased  («).  By  the  second  Section,  the 
money  paid  into  Court  may  be  paid  in  one  sum,  without 
regard  to  its  division  into  Shares  (o). 

The  condition  contained  in  Lord  Campbell's  Act  (/r),  that 
the  action  is  maintainable  in  all  cases  when  the  party  in- 
jured might  himself  have  maintained  one,  if  death  had  not 


(h)  Foivlcr  V.  Zocl;  L.  E.,  7  C.  P. 
272  ;  41  L.  J.,  C.  P.  99  ;  26  L.  T., 
N.  S.  476.  But  see  Vcnablcs  v. 
Smith,  L.  E,.,  2  Q.  B.  D.  279  ;  46 
L.  J.,  Q.  B.  470;  36  L.  T.,  K  S. 
509  ;  King  v.  Simrr,  L.  P.,  8  Q.  B. 
D.  104  ;  and  ante,  p.  335. 

(»)  ^S".  C.  on  motion  for  second 
new  trial,  43  L.  J.,  C.  P.  394,  n.  ; 
30  L.  T.,  N.  S.  800— Ex.  Ch. 


(/)  9  &  10  Vict.  c.  62. 

(k)  9  &10Vict.  c.  93. 

[l)  9  &  lOVict.  c.  93,  ss.  1,  2,  3. 

(w)  The  George  and  Richard, 
L.  P.,  3  Adm.  466 ;  24  L.  T.,  K 
S.  717. 

(«)  HoUeran  v.  Bagnell,  L.  P.,  4 
Ir.  740— C.  P.  D. 

(o)  27  &  28  Vict.  0.95. 


NEGLIGENT  DRIVING  BY  A  SERVANT.  343 

ensued,  has  reference  not  to  the  nature  of  the  loss  or  injury 
sustained,  but  to  the  circumstances  under  which  the  bodily 
injury  arose,  and  the  nature  of  the  wrongful  act,  neglect 
or  default  complained  of.  Thus,  if  the  deceased  has  by 
his  own  negligence  materially  contributed  to  the  accident 
by  which  he  lost  his  life,  as  he,  if  still  living,  could  not 
have  maintained  an  action  in  respect  of  any  bodily  injury 
thus  sustained,  notwithstanding  there  might  have  been  neg- 
ligence on  the  part  of  the  defendants,  an  action  cannot  be 
maintained  under  Lord  Campbell's  Act  {p) .  But  supposing 
the  circumstances  of  the  negligence  to  be  such  that,  if 
death  had  not  ensued,  the  deceased  might  have  brought 
his  action  in  respect  of  any  injury  arising  to  him  from  it, 
his  representative,  or  a  person  beneficially  interested  in  the 
result  of  the  action  (q) ,  might  maintain  an  action  in  respect 
of  an  injury  arising  from  a  pecuniary  loss  occasioned  by 
the  death,  although  that  pecuniary  loss  would  not  have 
resulted  from  the  accident  to  the  deceased,  if  he  had 
lived  (r).  But  in  order  to  maintain  the  action  the  persons 
on  whose  behalf  it  is  brought  must  prove  that  during  the 
lifetime  of  the  deceased  a  pecuniary  advantage  accrued  to 
them  owing  to  their  relationship  with  him.  They  are  not 
entitled  to  compensation  under  the  statute,  if  the  only 
pecuniary  benefit  to  them  from  his  life  was  derived  from  a 
contract  which  they  had  entered  into  with  him  (s). 

In  an  action  for  negligent  driving,  a  Pkii,  which  is  to  Plan  of  the 
be  put  into  the  hands  of  the  witnesses,  should  merely  show  locality. 
the  street,  the  pavement,  the  turnings,  corners,  &c.,  and 
not  the  supposed  position  of  the  Carriages ;  for  if  it  does, 
the  Judge  will  not  allow  it  to  be  used  (t) . 

An  award  of  compensation  by  a  magistrate  against  the  Conviction  for 
driver  of  a  hackney  or  metropolitan  stage-carriage  upon  j^^°^f^    r^ 
an  information  for  furious  driving  under  6  &  7  Vict.  c.  8G,  to  subsequent 
s.  28  (the  Metropolitan  Police  Act),  is  a  bar  to  a  subsequent  action, 
action  against  such  driver's  employers  by  the  party  injured 
in  respect  of  his  injuries.     And  if  the  party  accepts  such 
compensation  he  is  barred  from  further  proceedings,  even 

{p)  9  &  10  Vict.  c.  93.  and  Rowley  v.  London   and  North 

[q)  27  &  28  Vict.  c.  95,  s.  1,  Western  Raihvay  Co.,  L.  R.,  8  Ex. 

(r)  Per  Cockbum,  C.  J.,  Fi/m  v.  221,  Ex.  Ch.  ;  42  L.  J.,  Ex.  153  ; 

Great  Northern  Railway  Co.,  2  B.  &  29  L.  T.,  N.  S.  180. 

S.  767;  and  per  Erie,  C.  J.,  S.  C.  (s)  Sykes  v.  North  Eastern  Rail- 

4  B.  &  S.  40G.     See  also  Franklin  u-ay  Co.,  44  L.  J.,  C.  P.  191 ;  32  L. 

V.  South  Eastern  Railway  Co.,  3  H.  T.,  N.  S.  199 ;  23  W.  R.  473. 

&  N.  211;  Balton  v.  South  Eastern  {f)  Beamon  y.Ellice,  4   C.    &  P. 

Railway  Co.,   27  L.  J.,  C.  P.  227 ;  586. 


344 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC, 


Damages. 


Responsi- 
bility for  ' '  all 
possible  con- 
sequences." 


Damage  too 
remote. 


wliere  lie   did  not  lay  the  information,  or,  in   tlie   first 
instance,  request  the  magistrate  to  award  compensation  (/). 

Grenerally  speaking,  where  an  injury  arises  from  the 
misconduct  of  another,  the  party  who  is  injured  has  a 
right  to  recover  from  the  injuring  party  for  all  the  con- 
sequences of  that  injury.  And  it  is  quite  clear  that  every 
person  who  does  a  wrong  is  at  least  responsible  for  all  the 
mischievous  consequences  that  may  reasonably  be  expected 
to  result,  under  ordinary  circumstances,  from  such  mis- 
conduct {u). 

But  it  is  doubtful  whether  a  person  guilty  of  negligence 
is  responsible  for  all  possible  consequences  of  it,  although 
they  could  not  have  been  reasonably  foreseen  or  expected. 
For  instance,  if  a  person  chooses  to  w^alk  in  a  crowded 
street  with  an  open  knife  tmder  his  coat,  and  another 
person  negligently  runs  against  him,  is  that  other  person 
to  be  responsible  for  all  the  injury  which  the  knife  may 
inflict  on  the  person  who  carries  it  (.r)  ? 

A  servant,  in  breach  of  the  Metropolitan  Police  Act 
(2  &  3  Yict.  c.  47,  s.  54),  washed  a  van  in  a  public  street, 
and  allowed  the  waste  water  to  run  down  the  gutter 
towards  a  grating  leading  to  the  sewer,  about  twenty-five 
yards  off.  In  consequence  of  the  extreme  severity  of  the 
weather,  the  grating  was  obstructed  by  ice,  and  the  water 
flowed  over  a  portion  of  the  causeway,  which  was  ill-paved 
and  uneven,  and  there  froze.  There  was  no  evidence  that 
the  master  knew  of  the  grating  being  obstructed.  A  Horse, 
while  being  led  past  the  spot,  slipped  upon  the  ice  and 
broke  its  leg.  It  was  held  that  this  was  a  consequence 
too  remote  to  be  attributed  to  the  wrongful  act  of  the 
servant  (//).  And  Bovill,  C.  J.,  said,  "No  doubt,  one  who 
commits  a  wrongful  act  is  responsible  for  the  ordinary 
consequences  which  are  likely  to  result  therefrom ;  but, 
generally  speaking,  he  is  not  liable  for  damage  which  is 
not  the  natm-al  or  ordinary  consequence  of  such  act, 
unless  it  be  shown  that  he  knows,  or  has  reasonable  means 
of  knowing,  that  consequences  not  usually  resulting  from 
the  act  are,  by  reason  of  some  existing  cause,  likely  to 
intervene  so  as  to  occasion  damage  to  a  third  person. 
Where  there  is  no  reason  to  expect  it,  and  no  knowledge 


{()  Wright  V.  London  General 
Omnibus  Co.,  L.  R.,  2  Q.  B.  D.  271  ; 
46  L.  J.,  Q.  B.  429  ;  36  L.  T.,  N. 
S.  590  ;  25  W.  R.  647. 

{u)  Rigby  v.  Heivitt,  5  Ex.  243. 


(.r)  See  quaere  per  Pollock,  C.  B., 
Greenland^.  Chaplin,  5  Ex.  243,  246. 

(v)  Sharp  V.  Foivell,  L.  R.,  7  C. 
P.  253;  41  L.  J.,  G.  P.  95;  26  L. 
T.,  N.  S.  436. 


NEGLIGENT  DRIVING  BY  A  SERVANT.  345 

in  tlie  person  doing  tlie  wrongful  act  that  such  a  state  of 
things  exists  as  to  render  the  damage  probable  if  injury 
does  result  to  a  third  person,  it  is  generally  considered  that 
the  wrongful  act  is  not  the  proximate  cause  of  the  injury, 
so  as  to  render  the  wrongdoer  liable  to  an  action"  (z). 

A  Carriage  was  driven  against  the  wheel  of  B.'s  Chaise,  Injury  done 
and  the  collision  threw  a  person  w^ho  was  in  the  Chaise  *°  ^  Carnage, 
upon  the  dashing-board.  The  dashing-board  fell  on  the 
back  of  the  Horse,  and  caused  him  to  kick,  and  thereby 
the  Chaise  was  injured.  It  was  held,  that  B.  was  entitled 
to  recover  in  Trespass  against  A.  damages  commensurate 
with  the  whole  of  the  injury  sustained  {a). 

Where  a  Horse  has  been  injured  by  negligent  driving,  Measure  of 
the  Jury  must  give  as  Damages  the  expenses  of  curing  <iamages 
the  Horse  and  of  his  keep  during  that  time,  in  addition  jjorse  has 
to  the  difference  between  the  value  of  the  Horse  before  been  injured, 
he  was  injured,  and  his  value  after  he  had  been  cured. 
Thus  in  an  action   for  negligent   driving,  whereby   the 
plaintiff's  Horse  was  injured,  it  appeared  that  the  Horse 
was  sent  to  a  Farrier's  for  six  weeks  for  the  purj)ose  of 
being  cured.     At  the  end  of  that  time  it  was  ascertained 
that  the  Horse  was  permanently  damaged  to  the  extent  of 
20/.     And  it  was  held  by   Mr.   Justice   Coleridge,  that 
the   proper  measure  of   Damages  was   the   Keep  of   the 
Horse  at  the  Fariier's,  the  amount  of  the  Farrier's  bill, 
and   the   difference   between   the   value  of    the   Horse  at 
the  time  of  the  accident  and  at  the  end  of   six  weeks; 
but  that  the  plaintiff   ought  not  to  be  allowed  also   for 
the  hire  of  another  Horse  during  the  six  weeks  {h). 

In  an  action  by  the  personal  representatives  of  a  de-  Damages 
ceased  person,  to  recover  Damages   for  his  death  under  ^q^  {^^^16*611 
9  &  10  Vict.  c.  93,  the  Jury,  in  assessing  the  Damages,  killed, 
are  confined  to  injuries  of    which    a  pecuniary  estimate 
can   be  made,  and   cannot   take  into  their  consideration 
the   mental  suffering  or  the  loss  of  society  occasioned  to 
the  survivors  by  his  death  (c). 

Such  an  action  cannot  be  maintained  without  some  evi-  How  limited. 
dence  of  actual  pecuniary  damage  (<:/),  or  the  loss  of  the 
reasonable  probability  of  pecuniary  benefit  from  the  con- 
tinuance of  the  life  of  the  deceased  {e) . 

[z)  See  note  {y),  ante.  21  L.  J.,  Q.  B.  233  ;  Pijm  v.  Great 

\a)   Gilbcrtson  v.  Richardson,  5  C.  Korthern  Railway  Co.,  4  B.   &  S. 

B.  502.  396. 

{h)  Hughes  V.  Quentin,  8  C.  &  P.  (d)  BucTcworth  v.  Johnson,  4 11.  & 

703  ;  and  see  Percival  v.  Dudgeon,  N.  653. 
Appendix.  (e)  Pym  v.  Great  Northern  Rall- 

(r)  Blake  v.  Midland  Railway  Co.,  way  Co.,  4  B.  &  S.  396. 


346 


NEGLIGENCE  IN  THE  USE  OF  HORSES,  ETC. 


Cannot  be 
given  for 
funeral  ex- 
penses. 


Damages  not 
given  to  a 
class  but  to 
individuals. 


The  expectation  of  life  of  the  deceased  is  an  element 
to  be  considered  by  the  Jury  in  assessing  Damages  (/). 
But  the  Jury  are  to  give  a  fair  compensation,  and  not  to 
treat  the  Damages  on  the  footing  of  the  value  of  an 
annuity  {g). 

No  Damages  can  be  given  for  funeral  expenses  or 
mourning.  For  the  subject-matter  of  the  Statute  is 
compensation  for  injury  by  reason  of  a  relative  not  being 
alive,  and  there  is  no  language  in  the  Statute  referring 
to  the  cost  of  the  ceremonial  of  respect  paid  to  the 
memory  of  the  deceased  in  his  funeral,  or  in  putting  on 
mourning  for  his  loss  (A) . 

The  remedy  given  by  Lord  Campbell's  Act  (?')  is  not 
given  to  a  class  but  to  individuals ;  and,  therefore,  on 
the  death  of  a  person,  whose  income  arose  from  land 
and  personalty  independent  of  any  exertion  of  his  own, 
although  no  portion  of  it  was  lost  to  his  family,  as  a 
whole,  by  his  death,  the  action  is  maintainable,  if,  in  con- 
sequence of  that  death,  the  mode  of  its  distribution  is 
changed  to  the  detriment  of  some  of  the  members  of  the 
family,  though  to  the  advantage  of  others  (/>•). 


(/)  Moivley  v.  London  ami  North 
IFcstcrn  Railway  Co.,  L.  R.,  8  Ex. 
221 ;  42  L.  J.,  Ex.  153— Ex.  Ch. 

{g)  Armsworth  v.  South  Eastern 
Eaihvaii  Co.,  11  Jur.  758  ;  Surrey 
Summer  Assizes,  1847,  cor.  Parke, 
B.,  cited  L.  R.,  8  Ex.  230  ;  Eoscoe, 


N.  P.,  13tb  ed.  753. 

(/;)  Bait  on  v.  South  Eastern  liail- 
u-aij  Co.,  27  L.  J.,  C.  P.  227. 

(0  9  &  10  Vict.  c.  93. 

[k)  Pym  V.  Great  Northern  Rail- 
tcay  Co.,  4  B.  &  S.  396. 


(     347    ) 


CHAPTER  II. 


FEROCIOUS  AND  VICIOUS  ANIMALS. 


JFild  and  Tame  Animals 347 

As  to  Animals  Feroe  Naturpe 
onli/,  Scienter  unnecessarij   . .   348 

What  ought  to  be  the  Liability 
of  the  Person  keeping  them    . .     id. 

The  Athenian  and  Roman  Laws  .     id. 

The  French  Code    349 

Argument  in  Mason  v.  Keeling .    id. 

Decision  in  Scotland id. 

Reversed  in  House  of  Lords  ....     id. 

In  England  a  Scienter  is  held 
necessary     350 

Where  a  Log  bites  a  Perso)i ....     id. 

Not  enough  to  show  that  the  Log 
tvas  of  a  fierce  Lisposition    ..     id. 

Report  that  Log  had  been  bitten 
by  a  Had  Log    id. 

Where  Log  had  bitten  a  Child. .     id. 

Not  necessary  to  show  that  Log 
has  bitten  another  Man 351 

Stray  Log  on  Lefendanf s  pre- 
mises        id. 

Evidence  of  Scienter id. 

Lamage  done  by  Log  to  Game 
ground  of  Action    id. 

Horse  frightened  by  Logs,  and 
thereby  damaged     id. 

Where  a  Log  ivorries  Sheep ....    352 

Lictum  of  Mr .  Justice  Maule  ..     id. 

Evidence  of  mischievous  Pro- 
pensity unnecessary  under  28 
^  29  Vict.  c.  60     id. 

"  Cattle''^  includes  Horses  and 
Mares id. 


Proof  of  Ownership   352 

Scienter  may  be  p)roved  against 

a  Corporation id. 

The  Logs  Act,  1871 353 

Where  a   Horse  bit  some   other 

Horses     354 

Breaking   Horses   in    a    Public 

Place  id. 

Where   a   Mad  Bull  u-ounds  a 

Person     id. 

Where  a  Bull  singled  out  a  Per- 
son wearing  Red     id. 

Where  a  Ram  injured  a  Person  .  id. 
Where   a  vicious  Beast   kills   a 

Person     id. 

Owner  bound  to  secure  a  vicious 

Animal  at  all  events 355 

He   is   liable  to   an  Action  for 

Lamage id. 

The  Gist  of  the  Action id. 

Not  necessary  to  prove  Negli- 
gence       id. 

An  unruly  Horse  escaping  from 

a  Stable id. 

Turning    a    dangerous    Animal 

loose,  Manslaughter   id. 

Turning  a  vicious  Horse  out  on  a 

Commofi id. 

Injury  occasioned  by   a   vicious 

Bull     id. 

Shooting   a  Log   for   ivorrying 

Sheep id. 

Shooting   a   Log   for   worrying 

Fowls 356 


FEROCIOUS  AND  VICIOUS  ANIMALS. 

It   is   laid    down   tliat  "there   is   a   difference   between  wild  and 
things  fene  natune,  as  Lions,  Bears,  &c.,  which  a  man  tame  animals, 
must  always  keep  np  at  his  peril,  and  beasts  that  are 
mansuetcv  natnrw,  and  break  through  the  tameness  of  their 
nature,  such  as  Oxen  and  Horses  {a). 


(«)  Rex  V.  Huggins,  2  Ld.  Kaym.  1583. 


348 


FEROCIOUS  AND  VICIOUS  ANIMALS. 


As  to  Animals 

fera  naturce 
only,  scienter 
unnecessary. 


"What  ought 
to  be  the  lia- 
bility of  the 
person  keep- 
ing them. 


The  Athenian 
and  Roman 
laws. 


Thus  in  the  case  of  Bcsozzi  v.  Ham's  (h),  the  defendant 
was  owner  of  a  bear,  which  he  left  fastened  by  a  chain  six 
feet  long,  on  a  part  of  his  premises  accessible  to  persons 
frequenting  his  house.  The  plaintiff  walking  past  his 
house  was  seized  by  the  bear,  and  injured.  An  action 
being  brought  for  damages  for  this  injury,  it  appeared  at 
the  trial  tliat  there  was  no  notice  or  caution,  written  or 
verbal,  to  those  visiting  the  premises,  but  the  bear  was 
proved  to  have  been  always  tame  and  docile  in  its  habits 
up  to  the  time  of  this  attack  being  made  on  the  plaintiff. 
The  evidence  was  contradictory  as  to  the  plaintiff's  know- 
ledge of  the  bear  being  there.  Mr.  Justice  Crowder  thus 
laid  down  the  law  to  the  Jury,  "The  statement  in  the 
declaration,  that  the  defendant  knew  the  bear  to  be  of  a 
fierce  nature,  must  be  taken  to  be  proved,  as  every  one 
must  know  that  such  animals  as  lions  and  bears  are  of  a 
savage  nature.  For  though  such  nature  may  sleep  for  a 
time,  this  case  shows  that  it  may  wake  up  at  any  time. 
A  person  who  keeps  such  an  animtil  is  bound  so  to  keep  it 
that  it  shall  do  no  damage.  If  it  be  insufficiently  kept,  or 
so  kept  that  a  person  passing  is  not  sufficiently  protected, 
the  owner  is  liable.  If  the  plaintiff,  with  knowledge  that 
the  bear  was  there,  put  herself  into  a  position  to  receive  the 
injury,  she  could  not  recover.  But,  assuming  such  know- 
ledge, it  is  for  you  to  say,  whether  she  had  such  notice  of 
the  proximity  of  the  bear  as  would  amount  to  negligence 
disentitling  her  to  recover."  The  Jury  found  for  the 
plaintiff. 

It  would  appear,  however,  only  fair  and  right  that 
whoever  keeps  an  animal  of  any  description,  should  keep 
it  at  his  risk,  and  that  for  any  injmy  occasioned  by  it  he 
ought  to  be  cirilh/  responsible,  whether  he  know  of  its 
mischievous  propensities  or  not.  And  it  ought  only  to  be 
necessary  to  prove  a  scienter,  where  it  is  sought  to  make 
him  criminally  responsible. 

Neither  the  Athenian  nor  Roman  law  required  it  to  be 
proved,  that  the  owner  had  Notice  of  the  mischievous 
propensities  of  the  animal.  They  probably  thought  that 
for  civil  purposes,  when  A.  sustains  damage  by  the  horns, 
hoofs  or  teeth  of  an  animal  in  which  B.  has  a  beneficial 
property,  and  over  which  he  has  the  exclusive  control,  it  is 
for  B.,  and  not  for  A.,  an  innocent  stranger,  to  ascertain 


[h)  Besozzi  \.  maris,  1  F.  &  F.  92. 


FEROCIOUS  AND  VICIOUS  ANIMALS.  349 

tliat  wliicli  slionld  determine  the  degree  of   care  which 
ought  to  be  exercised  (c) . 

Bo  also  in  the  French  code,  neither  knowledge  in  the  The  French 
owner  of  the  mischievous  qualities  of  the  animal,  nor  even  *^°<^^- 
the  existence  of  these  qualities,  is  regarded  {d). 

In  arguing  the  case  of  Mason  v.  Keeling  ie),  it  was  said,  Argument  in 
"  If  a  man  have  an  unruly  Horse,  which  breaks  through  -''{««c|»  v. 
his  close  or  stable  and  does  mischief,  an  action  will  lie  for     '^  "'^' 
it ;  and  it  is  hard  that  one  should  thus  have  a  remedy  for 
the  least  trespass  done  in  his  laud,  and  none  for  a  trespass 
done  to  his  person,  by  wounding  or  maiming.     Suppose  one 
keep  several  Mastiffs,  shall  he  be  exempt  from  an  action  for 
mischief  done  by  every  one  of  them,  till  he  knows  that  he 
has  done  a  prior  mischief  ?     Is  no  care  to  be  taken  to  pre- 
vent a  first  mischief  ?" 

And  in  accordance  with  this  common  sense  view  of  the  Decision  in 
case,  it  was  decided  in  Scotland,  that  a  scienter  was  not  Scotland, 
necessary ;  and  Lord  Cockburn  said,  "  I  have  always 
thought  that  if  a  Dog  worries  Sheep,  his  Master  is  liable. 
I  do  not  attach  any  weight  to  the  law  of  England.  I  am 
told  that  knowledge  on  the  part  of  the  owner  is  requisite 
to  make  him  liable.  This  is  absurd ;  he  cannot  know  it 
until  it  is  done.  This  would  allow  each  Dog  to  have  one 
worry  with  impunity"  (/). 

But  this  case  was  carried  to  the  House  of  Lords,  where  Reversed  in 
Lord  Cockburn's  judgment  was  reversed  on  the  ground  the  House  of 
of  there  being  no  allegation  of  a  scienter  nor  of  negli- 
gence on  the  part  of  the  defendant,  it  being  held  that 
blame  can  only  attach  to  the  owner  of  a  Dog,  when,  after 
having  ascertained  that  the  animal  has  propensities  not 
generally  belonging  to  his  race,  he  omits  to  take  precau- 
tions to  protect  the  public  against  the  ill  consequences 
of  those  anomalous  habits.  However  in  this  case  Lord 
Campbell  said,  "  If  in  Scotland  it  is  sufficient  to  allege 
negligence  on  the  part  of  the  owner,  without  averring  or 
proving  his  knowledge  of  the  animal's  habits,  it  is  not 
that  the  foundation  of  the  action  is  dijEferent,  but  that  the 
Scotch  law  does  not  so  readily  permit  the  owner  of  the 
annual  to  rely  on  the  general  consequences  from  its  being 
supposed  to  be  an  animal  mansuetce  naturce,  a  supposition 
which  experience  shows  to  be  very  often  far  from  the  truth, 

(c)  SeeCardv.Case,5G.B.627,n.  31,32,36. 

{(l)  Code  Civil,   No.  1385  ;   Card  (e)  Mason    v.  Keeling,    12   Mod. 

V.  Case,   5  C.  B.  627,  n.  ;  see  also  333  ;  S.  C.  I  Ld.  Eaym.  606. 

Exodus,  chap.  21,  vv.  21,  29,  30,  (/)  Orr  y .  Fleming ,  1  W.  R.  339. 


350 


FEROCIOUS  AND  VICIOUS  ANIMALS. 


In  England 
a  scienter  is 
held  neces- 
sary. 


Where  a  Doc 
bites  a  per- 
son. 


Not  enough 
to  show  that 
the  Dog  was 
of  a  fierce 
disposition. 


Report  that 
Dog  had  been 
bitten  by  a 
Mad  DOS'. 


Where  Dog 
had  bitten  a 
child. 


and  wMcli  I  am  inclined  to  think  tliat  we  in  England  have 
sometimes  too  readily  acted  on"  (//). 

By  the  law  of  England,  as  laid  down  in  a  large  number 
of  cases,  a  scienter  is  held  necessary  (A)  ;  and  therefore,  as 
there  is  practically  no  efficient  means  of  keeping  snapping 
Dogs,  &c.  off  the  Highways,  every  Dog  has  the  opportunity 
of  indulging  once  in  the  luxury,  not,  since  the  28  &  29  Yict. 
e.  60  (as  to  which  see  post,  p.  352),  of  worrying  Sheep, 
as  suggested  by  Lord  Cockbm-n,  but  of  biting  men,  women 
and  childi'en.  But  it  was  the  opinion  of  the  Com-t  in 
Smith  V.  Cook  (/)  that  the  rule  requiring  proof  of  scienter 
in  the  case  of  injuries  by  animals  mansuetce  naturce  is  an 
artificial  rule  which  ought  not  to  be  extended. 

Thus,  where  the  plaintiff  was  severely  bit  by  a  fierce 
mongrel  Mastiff,  which  the  owner  allowed  to  range  the 
streets  of  London  unmuzzled,  it  was  held  that  to  recover 
damages  the  plaintiff  must  prove  that  the  defendant  knew 
the  Dog  to  be  of  a  mischievous  natui'e  (/r). 

And  it  was  held  by  Lord  Ellenborough  in  an  action  o)i 
the  Case  for  keeping  a  Dog,  which  bit  the  plaintiff,  that 
it  was  not  sufficient  to  show  that  the  Dog  was  of  a  fierce 
and  savage  disposition,  that  he  was  usually  tied  up  by  the 
defendant,  and  that  the  defendant  promised  to  make  a 
pecuniary  satisfaction  to  the  plaintiff  after  the  latter  had 
been  bitten  by  the  Dog  (/).  But,  in  the  later  case  of 
Thomas  v.  Morgan  {ni),  such  an  offer  to  make  satisfaction 
was  held  to  be  evidence,  though  slight,  of  the  defendant's 
knowdede:e  of  the  habits  of  the  animal: 

In  an  action  on  the  Case  for  keeping  a  mischievous  Dog, 
by  which  the  plaintiff's  child  was  bitten,  Report  of  the 
Dog  having  been  bitten  by  a  Mad  Dog  was  held  to  be 
evidence  to  go  to  the  Jury,  that  the  plaintiff  hneio  the  Dog 
was  mischievous  and  ought  to  be  confined,  and  particularly 
as  by  tying  up  the  Dog  he  had  showTi  some  knowledge  or 
suspicion  of  the  fact  {n). 

It  was  held  also  in  the  case  of  Ge thing  v.  Morgan  (o), 
that  where  a  Dog  had  bitten  a  girl  foui'  years  before  he 
worried  the  plaintiff's  Sheep,  an  action  would  lie. 


iff)  On-  V.  Fleming,  25  L.  T.  73. 

(h)  But  see  dictum  of  Mr.  Justice 
Maule,  post,  in  Cardy.  Case,  5  C.  B. 
634.  See,  however,  per  Erie,  C.  J. , 
and  Willes,  J.,  Cox  v.  Burbridgc, 
13  C.  B.,  N.  S.  430,  436. 

(i)  L.  R.,  1  Q.  B.  D.  79;  45  L. 
J.,  Q.  B.  122  ;  33  L.  T.,  N.  S.  722; 


24  W.  R.  206. 

(/.■)  Mason  v.  Keeling,  12  Mod. 
332. 

{I)  Bed;,  v.  Dyson,  4  Camp.  198. 

{m)  2  C,  M.  &  R.  496. 

(;?)  Jones  v.  rerrij,  2  Esp.  482. 

(o)  Gcthing  v.  Morgan,  N.  P., 
Q.  B.,  May  1,  1857. 


FEROCIOUS  AND  VICIOUS  ANIMALS.  351 

And  it  is  not  necessary  to  show  that  the  Dog  has  bitten  Not  necessary 
another   man   before  it  bit  the  plaintiff ;   it  is  sufficient  *°  ^^9^  ^^'^^ 
to  show  that  the  defendant  knew  it  had  evinced  a  savage  bitten  an- 
disposition  by  attempting  to  bite  (p).  other  man. 

Where  the  defendants  have  done  all  that  is  reasonable  to  stray  Do"'  on 
get  rid  of  a  stray  dog  which  has  come  on  to  their  premises,  defendant's 
they  are  not  liable  for  injury  it  may  do  (q).  prenuses. 

Where  the  defendant  was  a  milkman,  and  his  wife  occa-  Evidence  of 
sionally  attended  to  his  business,  carried  on  in  the  premises  Scienter. 
where  he  kept  the  Dog,  it  was  held  that  a  complaint  that 
the  Dog  had  bitten  a  person,  made  to  the  wife  on  the 
premises,  to  be  communicated  to  the  husband,  was  evidence 
of  scienter  (r).  So,  where  complaint  was  made  to  two  men 
serving  customers  behind  the  bar  of  the  defendant's  public- 
house  out  of  which  the  dog  had  come  ;  not'wdthstanding 
that  there  was  no  evidence  that  these  complaints  were 
communicated  to  the  defendant ;  or  that  either  of  the  men 
spoken  to  had  the  general  management  of  the  defendant's 
business  or  had  the  care  of  the  dog  (s).  These  two  cases 
ajopear  to  have  been  decided  upon  the  inference  that  the 
persons  to  whom  notice  of  the  Dog's  ferocity  had  been 
given  had  communicated  such  notice  to  the  defendant. 

If  the  o"\vner  of  a  Dog  appoints  a  servant  to  keejD  it,  the 
servant's  knowledge  of  the  Dog's  ferocity  is  the  knowledge 
of  the  master  (t).  But  notice  to  an  ordinary  servant  is 
not  sufficient  {u). 

An   action   may  be   maintained   against  a  person  for  Damage  done 
damages  done  to  the  plaintiff's  game  by  his  Dog,  which  by  Dog  to 
was  in  the  habit  of  hunting  game  on  its  own  account,  and  ff^action°"^ 
in  a  peculiarly  destructive  manner,  a  fact  known  to  the 
defendant,  who    also   knew  that   the   plaintiff  preserved 
game  (x). 

And  in  a  case  in  which  the  plaintiff's  Horse  took  fright,  Horse 
and  damaged  itself,  in  consequence  of  the  defendant's  Dogs  frig^^tened  by 
running  out  and  barking  at  him,  a  verdict  was  given  for  thereby 
the  plaintiff  with  damages  to  the  amount  of  53/.  10s.  {//).     damaged. 

{p)    Worth  V.  Gillinff,  L.  R.,  2  C.  {t)  Baldwin    v.    CascUa,    L.    E,., 

P.  1.  7  Ex.    325;  41   L.    J.,    Ex.    167; 

[q)  Smith  V.  Great  Eastern  Rail-  26  L.  T.,  N.  S.  707  ;  21  W.  R.  16. 
way  Co.,  L.  E.,  2  C.  P.  4.  («)  Ibid.     And  see  judgments  of 

(r)  Gladman  v.  Johnson,  36  L.  J.,  Lord  Coleridge,  C.  J.,  and  Brett,  J., 

C.  P.  153.  in  Applehec  v.  Fercy,  uhi  mpra. 

(s)  Applehee  y .  Tercy ,  L.  R.,  9  C.  (.r)  Read  V.  Edwards,   11  L.  T., 

P.  647  ;  43  L.  J.,  C.  P.  365  ;  30  L.  N.  S.  311. 

T.,  N.  S.  785;  22  W.  E.  704.     Per  (y)  Read  v.  Einy,  N.  P.,  Guild- 
Lord  Coleridge,  C.  J.,  and  Keat-  hall,  Jan.  26,  1858. 
ing  J.  (Brett,  .T.,  dissenting). 


352 


FEROCIOUS  AND  VICIOUS  ANIMALS. 


Where  a  Dog 

worries 
Sheep. 


Dictum  of 
Mr.  Justice 
Maule. 


Evidence  of 
mischievous 
propensity- 
unnecessary 
under  28  &  29 
Vict.  c.  GO. 

"Cattle"  in- 
cludes Horses 
and  Mares. 


Proof  of 
ownership. 


Sclent e)-  may 
be  proved 
against  a 
Corporation. 


Where  an  action  on  the  Case  was  broiiglit  for  injury 
done  to  the  plaintiff's  Sheep  by  a  ferocious  Dog  kept  by 
the  defendant,  it  was  held  that  the  ferocity  of  the  Dog  and 
the  scienter  were  the  substance  of  the  charge,  and  that 
an  allegation  of  duty  in  the  defendant,  to  use  due  and 
reasonable  care  and  precaution  in  keeping  the  animal,  was 
immaterial  (s). 

In  this  case,  however,  Mr.  Justice  Maule  is  reported  to 
have  said,  "  It  may  be  that  the  allegation  of  negligence, 
coupled  with  the  consequent  damage  to  the  plaintiff,  would 
show  a  cause  of  action"  [a). 

But  now,  by  the  statute  28  &  29  Yict.  c.  60,  in  the  case 
of  injury  by  a  Dog  to  Sheep  or  Cattle,  evidence  of  a  mis- 
chievous propensity  of  the  Dog  or  of  the  owner's  knowledge 
thereof  is  unnecessary  ;  and  the  act  also  simplifies  in  such 
cases  the  proof  of  the  ownership  of  the  Dog. 

By  sect.  1,  "  the  owner  of  every  Dog  shall  be  liable  in 
damages  for  injury  done  to  any  Cattle  or  Sheep  by  his 
Dog,  and  it  shall  not  be  necessary  for  the  party  seeking 
such  damages  to  show  a  previous  mischievous  propensity 
in  such  Dog,  or  the  owner's  knowledge  of  such  previous 
propensity,  or  that  the  injury  was  attributable  to  neglect 
on  the  part  of  the  owner."  The  word  "Cattle"  in  this 
section  includes  Horses  and  Mares  (i^). 

By  sect.  2,  "  The  occupier  of  any  house  or  premises, 
where  any  Dog  was  kept  or  permitted  to  live  or  remain  at 
the  time  of  such  injury,  shall  be  deemed  to  be  the  owner 
of  such  Dog,  and  shall  be  liable  as  such,  unless  the  said 
occupier  can  prove  that  he  was  not  the  owner  of  such  Dog 
at  the  time  the  injury  complained  of  was  committed,  and 
that  such  Dog  was  kept  or  permitted  to  live  or  remain  in 
the  said  house  or  premises  without  his  sanction  or  know- 
ledge ;  provided  always,  that  where  there  are  more  occu- 
piers than  one  in  any  house  or  premises,  let  in  separate 
apartments  or  lodgings  or  otherwise,  the  occupier  of  that 
particular  part  of  the  premises  in  which  such  Dogs  shall 
have  been  kept  or  permitted  to  live  or  remain  at  the  time 
of  such  injury  shall  be  deemed  to  be  the  owner  of  such  Dog." 

In  the  case  of  Stiles  v.  Cardiff  Steam  Navigation  Com- 
pany (c),  the   plaintiff   was   a  passenger   by   one   of  the 


(z)   Cardv.  Case,  5  C.  B.  622. 

(a)  Ibid.  634.  But  see  Orr  v. 
Fleming,  25  L.  T.  73,  and  Cox  v. 
£Hrbridf/e,U  C.B.,  N.S.  436—439. 


(b)  Wright  Y.  Fcarson,  L.  R.,  4  Q. 
B.  582  ;  38  L.  J.,  Q.  B.  312  ;  20  L. 
T.,  N.  S.  849;  17  W.  R.  1099. 

{c)  Stiles  V.  Cardif  Steam  Naviga- 
tion Co.,  10  Jul-.,  N.  S.  1199. 


FEROCIOUS  AND  VICIOUS  AXIMALS.  35^ 

defendants'  boats,  and  having  gone  to  their  premises  for 
the  piu'pose  of  inquiring  for  his  luggage,  which  had  been 
left  there  with  their  consent,  found  them  closed,  but  was 
directed  to  inquire  at  other  premises  of  the  defendants 
close  at  hand.  He  went  there,  and  while  there  was  bitten 
by  a  Dog  of  the  defendants  chained  up  round  an  angle  of 
the  building,  so  as  to  be  previously  out  of  sight  of  the 
plaintiff.  The  Dog  had  to  the  knowledge  of  persons  in 
the  employ  of  the  defendants  (but  who  had  no  control 
over  their  business,  or  authority  with  respect  to  the  Dog) 
previously  bitten  another  person.  It  was  held  that,  as- 
simiing  the  defendants  to  be  aware  of  the  dangerous  nature 
of  the  Dog,  they  (there  being  no  diiference  in  this  respect  be- 
tween a  corporation  and  individuals)  were  liable  in  damages, 
but  that  there  was  no  evidence  in  this  case  of  scienter 
to  enable  the  plaintiff  to  maintain  his  action,  inasmuch  as 
the  knowledge  was  not  brought  home  to  any  person  com- 
petent to  bind  the  defendants  by  his  admissions,  and  who 
was  entrusted  with  the  control  of  their  business.  And 
Crompton,  J.,  said,  "It  may  be  doubted  whether  the 
knowledge  should  not  be  brought  home  to  somebody  who 
kept  and  had  the  care  of  the  Dog,  and  also  the  power  of 
putting  an  end  to  the  keeping  of  him." 

Sect.  1  of  the  34  &  35  Vict.  c.  56  (The  Dogs  Act,  1871),  The  Dogs 
provides  that  any  police  officer  may  take  possession  of  any  ^^*'  ^^~^^- 
Dog  that  he  has  reason  to  suppose  to  be  savage  or  dan- 
gerous straying  on  any  highway,  and  not  under  the  con- 
trol of  any  person,  and  may  detain  such  Dog  until  the 
owner  has  claimed  the  same,  and  paid  all  expenses  incurred 
by  reason  of  such  detention.  By  sect.  2,  any  Court  of 
Summary  Jurisdiction  may  take  cognizance  of  a  complaint 
that  a  Dog  is  dangerous,  and  not  kept  under  proper  control, 
and  if  it  appears  to  the  Court  having  cognizance  of  such 
complaint  that  such  Dog  is  dangerous,  the  Court  may  make 
an  order  in  a  summary  way  directing  the  Dog  to  be  kept 
by  the  owner  under  proper  control  or  destroyed,  and  any 
person  failing  to  comply  with  such  order  shall  be  liable  to 
a  penalty  not  exceeding  twenty  shillings  for  every  day 
dm'ing  which  he  fails  to  comply  with  such  order.  Under 
this  section  the  Court  may  orcler  a  dangerous  Dog  to  be 
destroyed,  without  giving  the  owner  the  option  of  keeping 
it  under  proper  control  (rf).     By  sect.  3,  power  is  given  to 

{d)  Flrlrring  v.  Marsh,  43  L.  J.,  IM.  ('.  143 ;  22  W.  R.  798. 
O.  A  A 


154 


FEROOTOUS  AND  VICIOUS  ANIMALS. 


Where  a 
Horse  bit 
some  other 
Plorses. 


Breakiug" 
Horses  in  a 
jpublic  place. 


Where  a  IMad 
Bull  wounds 
a  person. 


Wliere  a  Bull 
singled  out  a 
person  wear- 
insr  red. 


Where  a  Earn 
injured  a 
person. 


Where  a 
vicious  beast 
kills  a  person. 


tlie  local  authority  to  place  restrictions  upon  Dogs  being  at 
large,  if  danger  from  mad  Dogs  is  apprehended  {d). 

Where  it  was  stated  in  a  Declaration,  that  the  defen- 
dant kept  his  Horse  so  negligently  that  it  broke  into  the 
plaintiff's  close,  and  bit  some  of  his  Horses,  so  that 
"  they  were  spoilt  and  died,"  a  verdict  was  found  for  the 
plaintiff,  but  Judgment  was  arrested  because  no  scienter 
was  alleged  {e).  But  where,  through  the  defect  of  a  gate 
which  the  defendant  was  bound  to  repair,  the  defendant's 
Horse  strayed  into  a  field  belonging  to  the  plaintiff,  and 
kicked  the  plaintiff's  Horse,  it  was  held  that  the  plaintiff 
was  entitled  to  recover,  as  the  damage  resulted  from  a 
trespass  for  which  the  defendant  was  responsible,  and, 
therefore,  proof  of  scienfer  was  unnecessary  (/). 

Where,  however,  a  servant  breaking  an  ungovenuihle 
pair  of  Horses  in  Lincoln's  Inn  Fields,  ran  over  and  hurt 
a  man,  it  was  held  that  no  scienfer  was  necessary,  as  a 
place  so  frequented  by  the  public  was  an  improper  place 
for  Horse-breaking  (g). 

But  where  a  Bull  made  mad,  from  having  been  "  cut 
or  hoxed,"  escaped  through  the  defendant's  negligence, 
and  tossed,  gored  and  wounded  the  plaintiff',  and  a  verdict 
was  found  for  him,  the  Judgment  was  arrested,  because 
there  was  no  scienfer  alleged  in  the  Declaration  (//). 

And  where  a  Bull  passing  along  a  highway,  seeing 
the  plaintiff  with  a  red  handkerchief,  ran  at  and  gored 
him,  the  decision  turned  upon  the  question,  whether  or  not 
the  owner  of  the  Bull  knew  that  he  had  a  tendency  to  run 
at  any  person  wearing  red  (i). 

So,  too,  in  a  case  in  which  a  Eam,  which  is  an  animal 
known  to  be  mischievous  at  certain  seasons,  butted  and 
injured  the  Plaintiff''s  wife  in  the  street,  the  Court  of 
Exchequer  held  that  the  owner  of  the  animal  was  not  liable 
to  an  action  in  the  absence  of  evidence  that  he  was  aware 
of  its  propensity  to  attack  passers-by  (/.•). 

If  through  negligence  a  vicious  beast  goes  abroad, 
after   warning   or   Nofice   of   his   condition,    and  kills   a 


[d)  As  to  proof  of  ownership 
under  this  section,  see  Wren  v. 
Focock,  34  L.  T.,  N.  S.  C97. 

{()  Scctclictt  v.  FJtham,  Freem. 
o34  (C.P.). 

(/)  Lre  V.  Riley,  18  C.  B.,  N.  S. 
722  ;  34  L.  J.,  C.  P.  212.  See  also 
Fi/ixv.  I.of/iis  Irov  To.,  L.  E,.,  10 
C.  P.  TO;"44L.  .T.,C.P.  24  ;   31  L. 


T.,  K  S.  483;  23W.  R.  246. 

{'l)  3IicJiael  v.  Alestrce,  2  Lev. 
172;  S.  C.  1  Vent.  295. 

(//)  Boyntine  v.  Sharp,  1  Lutw. 
90. 

(0  Iludsou  V.  Foherts,  6  Ex.  697. 

(/•)  Jaekson  v.  S.mithmi,  15  M.  & 
W.  563. 


FEROCIOUS  AND  VICIOUS  ANIMALS,  355 

person,  it  is  the  opinion  of  Hale,  that  it  is  Mamlauglde)' 
in  the  owner  [1).  And  if  he  purposely  let  him  loose,  and 
wander  abroad,  with  a  design  to  do  mischief,  even  though 
it  were  merely  to  frighten  people  and  make  sport,  and  the 
beast  kills  a  man,  it  is  Murder  in  the  owner  (/). 

The   owner  of    a   vicious   animal,    after   Notice   of   its  Owner  bound 
having  done  an  injury,  is  bound  to  secure  it  at  all  events,  *?  ?ecure  a 

i'Tii'T-\  I  1  ^  n      •     •         1     VICIOUS  ammal 

and  IS  liabie  m  Damages  to  a  party  subsequently  injured,  atalleveuts. 
if  the  mode  he  has  adopted  to  secure  it  proves  iusufh- 
cient  {»i). 

A  person  who  keeps  an  animal  accustomed  to  attack  and  He  is  liable 
bite  mankind,  -with  knou-kdge  that  it  is  so  accustomed,  is  ]P  ^^  action 
2)rimd  facie  liable  in  an  action  at  the  suit  of  any  person  °  '  °  ' 
attacked  and  injured  by  such  animal  (^?), 

The  gist  of  the  action  being  the  keeping  of  the  animal  The  gist  of 
after  knowledge  of  its  mischievous  propensities  (n).  the  action. 

And  it  is  not  necessary  to  prove  negligence  or  default  in  Not  necessaiy 
the  seeming  or  taking  care  of  it  («).  to  prove 

If  a  man  has  an  unruly  Horse  in  his  Stable,  and  leaves  ^^°  igence. 
open-  the  Stable  Door,  and  the  Horse  in  consequence  escapes  Hoi-se^e^cap- 
and  does  mischief,  the  ovaier  is  liable  in  an  action  (o).  ing  from  a 

If   a  man   turn  an   animal,  which  he  knows  to  be  a  Stable. 
dangerous  one,  out  of  a  place  where  he  may  be  restrained.  Turning  a 
into   a  public   thoroughfare,  and   the   animal   afterwards  dangerous 
kills  a  man,  it  will  be  Manslaughter,  unless  the   person  ammal  loose, 
accused  can  show  that  the  act  was  done  in  self-preserva-  slaughter. 
tion  [p). 

If  a  man  turn  out  a  Horse,  which  he  knows  to  be  vicious.  Turning  a 
upon  a  Common  with  a  footpath  across  it,  and  it  kills  a  "Vicious  Horse 
child,  he  is  guilty  of  Manslaughter  ((/).  _      Common. 

In  an  action  for  an  injury  by  a  ^deious  Bull,  the  plain-  jjj-,jj.y  Q^^a- 
tiff   recovered,  although   it   appeared  that  the   Bull  was  sioned  by  a 
attracted  by  a  Cow  the   plaintiff   was   driving   past  the  vicious  Bull, 
field  in  which  the  Bull  was,  and  that  the  plaintiif  first 
struck  the  Bull  on  the  head  to  drive  him  away  from  the 
Cow  {m). 

To  justify  a  person  in  shooting  a  Dog  for  worrying  his  Shooting  a 
Sheep,  it  is  not  necessary  to  prove  that  he  was  shot  in  the  ^?g  ^°L^,  "^°^" 

•^  ^  J.  rymg  Sheep. 

{!)  See  judgment— 7?«.r  v.  Hug-  v.  Rylands,  L.  R.,  1  Ex.  265,  281. 

gins,  2  Ld.  Raym.  1583,  cited  May  (o)  Michael  v.  Alestree,    1  Vent. 

V.  Burdett,  9  Q.  B.  107.  295. 

(w)  BlackmauY,  Simmons,  3  C.  &  [p)  Per  Bramwell,  B.,    Eeq.   v. 

P.  138.  John  Child,  C.  G.  C.  Feb.  4,  1858. 

(«)  Ma}/  V.  Burdett,  9  Q.  B.  101.  (?)  Jieg.  v.  Dant,  G.  C.  C.  April 

See  also  Beso::i  v.  Jfarris,  1  F.  &  F.  29,  1865. 
92,  ante,  p.  348.     See  also  J-'l<-fchcr 

A   A  2 


356 


FEROCIOUS  AND  VICIOUS  ANIMALS. 


Shooting  a 
Dog  for  wor- 
rying Fowls. 


act ;  but  it  is  sufficient  if  it  appear  that  he  has  been  accus- 
tomed to  worry  Sheep,  and  that  just  before  he  was  shot  he 
had  been  Avorr^dng  Sheep,  and  could  not  have  been  other- 
wise restrained  from  further  doing-  so  (>•). 

It  has,  however,  been  held  that  a  person  cannot  justify 
shooting  a  Dog  worrjdng  his  Fowls,  unless  it  appear  that 
the  Dog  was  in  the  very  act  at  the  time,  and  could  not 
otherwise  be  prevented  (s) .  But  it  would  seem  that  if  the 
transaction  had  taken  place  in  the  person's  Poultry-yard, 
it  would  be  enough  to  show  that  the  Dog  iras  2)ursHing  the 
Fowl.  Because  when  a  Dog  is  killed  pursuing  Conies  in 
a  warren,  it  is  sufficient  to  state  that  the  Dog  was  pursuing 
Conies  there,  and  it  is  not  necessary  to  prove  that  the  Dog 
could  not  otherwise  be  prevented  killmg  them  {f). 


{>•)  KcUctt  V.  Stannard,  4  Ir.  Jur.  (/)    IJ^adhurst 

50  (Ex.  Ir.).  Jac.  44. 

(s)  Janson  v.  Broioi,  1  Camp.  41. 


V.     Damme,    Cro. 


(  ;557  ) 


CHAPTER  III. 


THE    LIABILITIES    OF   PARTIES    HUNTING    OR    TRESPASSING 
UPON  THE  LANDS  OF  ANOTHER. 


Fresh    Pursuit    over    another'' s 
Land 357 

Pursuing  Vermin id. 

Xo  unnecessary  Damage    ....    358 

Digging  for  a  Fox,  S;c id. 

Hunting  for  Amusemetit id. 

Earl  of  Essex  v.  Capel    ....     id. 

Huntsman     liable    for   Damage 
done  by  the  Field   359 

Master   of  Hounds,    tvhen    re- 
sponsible for  the  Field   id. 

Hunting   a   Hare  on    another^s 
Land 360 

Taking    a    Stag     ofi    another''s 
Land id. 

Hunting  a  stray  Deer   id. 

Dead  Game  Property  of  Owner . ,     id. 
He  has  a  Right  to  have  his 
Game  undisturbed id. 

Cattlegate  Owners  have  not  the 
Right  of  Shooting id. 

Reservation  of  Rights  of  Lords  of 
Manors  under  Enclosure  Acts .     id. 

Who  may  kill  Hares  without  a 
Game  Certificate     361 

Ground  Game  Act,  1880 id. 

Any  Person  may  hunt  Hares   . .     id. 

Continued  Trespass   id. 

Two  Persons  engaged  in  a  com- 
mon Purpose 362 

Trespass  in  Search  of  Game ....     id. 


Hunting  with  Hounds  or  Grey- 
hounds         362 

Jurisdiction  of  Justices  ousted  , ,     id. 

Persons  employed  to  kill  Rabbits 
by  Tenant 363 

Trespass  from  the  Highway . ...     id. 
From  his  own  Land  to  pick  up 

Game id. 

Under  lb  ^  26  Vict.  c.  114  . .     id. 

Laying  Hands  on  a  Trespasser  .    id. 

Opposing  Force  to  Force    364 

Defence  to  an  Action     id. 

Horse  tvith  a  Rider  cannot  be 
distrained   id. 

Action    of   Trespass    lies    for 

riding  over  Land    id. 

But  not  where  a   Dog  jumps 
into  a  Field    id. 

Notice  wider  3^4  Will.  4,  c.  24, 
«.  3 id. 

Notice  transmitted  by  Post    ....     id. 

Maintenance  of  Fences 365 

Gate  of  a  Field  left  open   id. 

Gate  of  a  Railway  Crossing  left 
open  where  there  is  a  statut- 
able Obligation id. 

Gate  of  Station  left  open  tvhere 
there  is  no  statutable  Obliga- 
tion    366 

Fence  within  Station  Yard  ....   367 


HUNTING  AND  TRESPASSING. 


Fresh  pursuit 
over  another's 
land. 


Where  the  Fox,  Gray  or  Otter,  and  other  noxious  ani- 
mals, are  pursued  as  Verniin,  and  the  governing  object 
of  the  pursuers  is  their  extirpation,  as  such,  and  not  merely 
the  amusement  of  "  a  run"  the  law,  as  laid  down  in  the 
older  authorities,  is  to  a  certain  extent  correct  at  the  present 
day. 

It  is  laid  down  that  one  may  justify  hunting  foxes  over  Pursuing- 
the  ground  of  another  because  they  are  noisome  Vermin  {a) ;  ^^™^- 


{a)  Nicholas  v.  Badger,  3  T.  K.  259,  n. ;    Gedge  v.  Slinue,  2  Bulst.  62. 


338 


THE  hlABlLrilES  OF  I'AKTIES  HUNTING,  ETC. 


No  unneces- 
sary damage. 


Digging  for  a 
Fox,  kc. 


Hunting  for 
amusement. 


JEarl  of  Essex 
V.  Cajjel. 


and  also  Gray  or  Otter  aud  other  noxious  animals,  as  tliey 
are  injimoiis  to  the  commonwealth  (6).  And  in  Gundry  v. 
FcHliam  (f).  Lord  Mansfield,  C.  J.,  said,  "By  all  the  cases 
as  far  back  as  the  reign  of  Hemy  the  Eighth,  it  is  settled 
that  a  man  may  follow  a  Fox  into  the  grounds  of  another." 

But  a  person  so  hunting  must  not  unnecessarily  trample 
do"VMi  another  man's  hedges,  nor  maliciously  ride  over  his 
grounds ;  for  if  he  does  more  than  is  absolutely  necessary 
he  cannot  justify  it  {c).  Therefore,  pursuing  an  animal  as 
Yermin  does  not  justify  fifty  or  sixty  people  following  the 
dogs(r/). 

A  man  cannot  justify  entering  a  close  or  digging  up  the 
soil  to  hunt  or  take  a  Fox,  Badger,  &e.,  though  it  be  for 
the  public  good(f).  So  that  it  appears  a  person  cannot 
enter  another's  grounds  to  find  Vermin,  nor  can  he  dig  it 
out  Avhen  it  has  run  to  earth. 

Persons  hunting  for  their  own  amusement,  and  going 
over  the  lands  of  another,  are  trespassers;  and  Fox-hunters, 
like  all  other  Hunters,  may  be  warned  off  (./'). 

This  point  was  decided  by  Lord  Ellenborough  in  the  case 
of  The  Earl  of  Essex  v.  Cape!  (g),  which  settled  the  law  on 
the  subject  and  has  never  been  questioned.  An  action  of 
Trespass  was  brought  for  breaking,  entering  and  hunting 
over  the  plaintiff's  lands,  and  the  defence  was  that  the 
Fox  was  pursued  as  Vermin.  But  Lord  Ellenborough 
said,  "  The  defendant  states  in  his  plea  that  the  trespass 
was  not  committed  for  the  purpose  of  diversion  and  amuse- 
ment of  the  chase  merely,  but  as  the  only  Avay  and  means 
of  killing  and  destroying  the  Fox.  Now  if  you  were  to 
put  it  upon  this  question,  which  ^Ya.s  the  principal  motive  ? 
Can  any  man  of  common  sense  hesitate  in  saying  that  the 
principal  motive  and  inducement  was  not  the  Idlling  of 
Vermin,  but  the  enjojanent  of  the  sport  and  diversion  of 
the  chase  ?  And  we  cannot  make  a  new  law  to  suit  the 
pleasiu-es  and  amusements  of  those  gentlemen  who  choose 
to  hunt  for  their  diversion.     These  pleasm-es  are  to  be 


[b)  Com.  Dig.  Pleader,  3  M.  37. 

(c)  Gundnj  v.  Feltham,  1  T.  E. 
337. 

{(1)  Earl  of  Essex  v.  Capel,  Hert- 
ford Summer  Assizes,  1809. 

(t)  Com.  Dig.  Pleader,  3  M.  37, 
and  the  authorities  there  cited. 

(./■)  Earl  of  Essex  v.  Capel,  Hert- 
ford Summer  Assizes,  1809;  Boici/er 
y.  Cook,  4  C.  B.  236;  >S.  C.  16  L.  J., 


C.  P.  180. 

{g)  Earl  of  Essex  v.  Capel,  Hert- 
ford Summer  Assizes,  1809,  cited 
in  Chitty  on  Game  Laws,  31.  See 
also  Paul  V.  iSiai/iiier/ia>/es,  L.  R.,  4 
Q.  B.  D.  9;  48  L.  J.,  M.  C.  33; 
39  L.  T.,  N.  S.  574  ;  27  W.  R. 
21.5,  in  which  this  case  was  dis- 
cussed and  approved. 


HUNTING  AND  TRESPASSING.  359 

taken  ouly  where  there  is  the  cousent  of  those  who  are 
likely  to  be  inj\irecl  by  them,  but  they  must  be  necessarily 
subservient  to  the  consent  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  cannot  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  therefore  a  right  to  follow  the  Dogs  and 
trespass  on  other  people's  lands.  I  cannot  see  what  it  is 
that  is  contended  for  by  the  defendant.  The  only  case 
which  will  at  all  bear  him  out  is  that  of  Gundry  v. 
Feltham  {//)  ;  if  it  be  necessary  I  shouKl  be  glad  that  that 
case  should  be  fully  considered.  I  have  looked  into  the 
case  in  the  Year  Book  (?')  ;  that  seems  to  be  nothing  more 
than  the  case  of  a  person  who  had  chased  a  Stag  from  the 
forest  into  his  own  land,  where  he  killed  it ;  and  on  an 
action  of  Trespass  being  brought  against  the  forester  who 
came  and  took  the  Stag,  he  justified,  that  he  had  made 
fresh  suit  after  the  Stag ;  and  it  was  held  that  he  might 
state  that  he  was  justified,  and  the  plaintiff  took  nothing 
by  his  wi'it.  This  is  the  case  upon  which  that  of  Gundry 
V.  Feltham  (h)  is  built,  but  it  is  founded  only  on  an  obiter 
dictum  of  justice  Brook,  and  it  does  not  appear  to  me 
much  rehed  on.  But  even  in  that  case  it  is  emphatically 
said  by  the  Judge,  that  a  man  may  not  hunt  for  his 
2}leasure  or  his  profit,  but  only  for  the  good  of  the  common 
weal,  and  to  destroy  such  noxious  animals  as  are  injurious 
to  the  common  weal.  Therefore,  according  to  this  case, 
the  good  of  the  public  must  be  the  governing  motive"  (k). 
The  Jur}^,  under  his  Lordship's  direction,  found  a  verdict 
for  the  plaintiff. 

And  in  an  action  against  a  Huntsman  for  hunting  over  Huntsman 
the  lands  of  another,  Lord  EUenborough,  C.  J.,  held  that  liable  for^da- 
damages  might  be  recovered,  not  only  for  the  mischief  im-  th.e^eld.'^'^    "^ 
mediately  occasioned  by  the  defendant  himself,  but  also  by 
the  concourse  of  people  who  accompanied  him  (/). 

And  in  another  case  it  was  laid  down  by  Lord  Ten-  Master  of 
terden,  C.  J.,  that  if  a  gentleman  sends  out  his  Hounds  and  Hounds,  when 
his  Servants,  and  invites  other  gentlemen  to  hunt  with  him,  for^the'field. 
although  he  does  not  himself  go  on  the  lands  of  another, 

(A)   Gundry  v.  Feltham,  1   T.  R.  ford  Summer  Assizes,   ISflO,  cited 

337.  in  Cliitty  on  G-anie  Laws,  31. 
(0   12  Hen.  8,  p.  9.  (0  llumo  v.  Ohlacrc,  1  Stark.  N. 

(A)  Earl  of  Essex  v.  Copcl,  Hert-  P.  C.  351. 


360 


THE  LIABILITIES  OE  rAIlllES  HL^NTING,  ETC. 


Killing  a 
Hare  on 
another's 
land. 

Taking  a  Stag 
on  another's 
land. 


Hunting  a 
stray  Deer. 


Dead  Game 
property  of 
owner. 

He  has  a 
right  to  have 
his  G-ame  un- 
disturbed. 

Cattlegate 
owners  have 
not  the  right 
of  shooting. 


Eeservation' 
of  rights  of 
Lords  of  the 
Manor  under 
Enclosure 
Acts. 


but  tliose  other  gentlemen  do,  lie  is  answerable  for  the 
trespass  they  may  commit  in  so  doing,  unless  he  distinctly 
desires  them  not  to  go  on  those  lands  (w). 

If  A.  starts  a  Hare  in  the  ground  of  B.,  and  hunts  it 
into  the  ground  of  C.  and  kills  it  there,  the  property  is  in 
A.  the  Hunter ;  but  A.  is  liable  to  an  action  of  Trespass  for 
hunting  in  the  grounds  as  well  of  B.  as  of  C.  {n). 

And  where  a  Stag  hunted  by  the  Hounds  of  B.  was  run 
into  the  barn  of  A.,  it  was  held  that  B.  and  his  servants 
had  no  right  to  enter  the  barn  to  take  the  Stag,  and  that  if 
they  did  so  they  would  be  trespassers  (m). 

But  where  a  Deer  strayed  from  a  Park  on  to  the  plain- 
tiff's land,  and  eat  his  grass,  and  he  hounded  it  with  Grey- 
hounds, which  pursued  it  into  the  owner's  Park,  and  killed 
it  there,  the  Court  of  Common  Pleas  held  that  he  was 
justified  in  doiog  so  (o). 

Grame  taken  on  land,  as  soon  as  killed  there,  becomes  the 
property  of  the  owner  of  the  land(^j),  though  up  to  the 
time  of  its  being  killed,  he  has  no  property  in  it,  yet  he  has 
a  right  to  have  it  kept  undisturbed  (7)  ;  therefore  he  has  a 
right  of  action  against  the  master  of  a  dog,  which  is  in  the 
habit  of  disturbing  and  destroying  it,  after  having  received 
due  notice  of  the  fact,  and  taken  no  steps  to  restrain  it  (q). 

The  customary  right  of  pasture  in  a  manor,  or  Cattle- 
gates,  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  o^Miers,  and  therefore  the  lord  may  maintain 
trespass  against  a  Cattlegate  owner  for  sporting  over  it, 
without  his  permission  (r). 

The  reservation  of  the  rights  of  the  Lords  of  the  Manor 
under  Enclosure  Acts  reserves  the  right  of  shooting ;  there- 
fore in  the  case  of  Graham  v.  Eirart  {s),  in  which  Sir  James 
Graham  was  entitled  under  a  Private  Enclosiu^e  Act  "  to 
all  mines  and  minerals  within  and  under  the  soil,  and  to 
other  rights,  royalties,  liberties  and  pri^dleges  in  and 
over  the  same,"  it  was  held  by  the  Exchequer  Chamber, 


{ni)  Bal;er  v.  BerJcleij,  3  C.  &  P.  34  L.  J.,  C.  P.  286  ;    Ring  v.  Earl 

32.  of  Lonsdale,  1  H.  &  N.  923. 

(m)  Sutton  V.  Moody,  Ld.  Raym.  [q)    Per    Keating,    J.,    Read    v. 

250.  Edwards,  11  L.  T.,  N.  S.  3n. 

(o)  Barrington  v.  Tamer,  3  Lev.  (;•)  Rigq  v.  Earl  of  Lonsdale,   1 

28.  H.  &N.  923. 

(;j)  Blades  V.  7/!>/s,  9  Jur.,  N.  S.  («)   Graham  v.  Ewart,  26  L.   J., 

1040;    10    C.   B.,  N.   S.    713;    30  Ex.97. 
L.  J.,  C.  P.  347;   11  H.  L.  C.  621; 


HUNTING  AND  TRESPASSING.  361 

reversing  the  decision  of  the  Court  below,  and  overruling 
Greathead  v.  Morley  (t),  that  the  right  of  hunting,  fishing, 
shooting  and  fowling  over  the  allotment  in  question  was 
thereby  intended  to  be  included,  and  that  this  right  must 
be  exclusive,  for  that  was  the  character  of  the  right  existing 
before  the  Act  passed,  and  the  object  of  the  proviso  was 
exjDressly  to  preserve  the  former  right  unimpaired  by  the 
consequences  of  the  enclosure.  It  was  also  held  in  this 
case,  that  a  subsequent  conciuTcnt  enjoyment  of  sporting 
for  more  than  twenty  years  by  the  owners  of  the  allot- 
ments, claiming  to  do  so  as  of  right,  did  not  deprive  the 
original  Lord  of  his  exclusive  right. 

Persons  in  the  occupation  of  enclosed  Ground,  and  in  Who  may  kill 
certain  cases  o^vners,  may  kill  (ii)  Hares  without  a  Grame  Hares  without 
Certificate  (x).     The  owner  may  also  give  authority  to  kill  tificate^    ^^' 
Hares,  to  be  limited  to  one  person  at  the  same  time  in  any 
one  Parish.     This  authority  is  to  be  sent  to  the  Clerk  of 
the  Peace  for  Registration,  who  is  also  to  receive  Notice  of 
revocation  {>/). 

And  now  hj  the  Ground  Game  Act,  1880  (43  &  44  Yict.  Ground  Game 
c.  47),  every  occupier  of  land  has  a  right,  inseparable  from  ■^^^'  ^^^^• 
his  occupation,  to  kill  Hares  and  Rabbits  concurrently  with 
any  other  person  entitled  to  kill  the  same  on  land  in  his 
occupation  (sect.  1) ;  where  the  occupier  is  otherwise  en- 
titled to  kill  Ground  Game  on  land  in  his  occupation,  he 
cannot  divest  himself  wholly  of  such  right  (sect.  2)  ;  and 
all  agreements  in  contravention  of  the  right  of  the  occupier 
to  destroy  Game  are  declared  void  (sect.  3).  The  occupier 
and  the  persons  duly  authorized  by  him  do  not  require  a 
Game  Licence  for  the  purpose  of  killing  Ground  Game 
under  the  Act.  But  they  are  not  exempt  from  the  Gun 
Licence  Act,  1870  (sect.  4). 

And  it  is  "lawful  for  any  person  to  pursue  and  kill,  or  Any  person 
join  in  the  pursuit  and  killing  of,  any  Hare  by  coursing  ^^J  ^^^^ 
with  Greyhounds,  or  by  hunting  with  Beagles  or  other     ^^^^' 
Hounds,  without  having  obtained  an  Annual  Game  Cer- 
tificate (s). 

Where  acts  terminate  in  themselves,  and  once  done  can-  Continued 
not  be  done  again,  there  can  be  no  continued  trespass,  as  trespass. 
hunting  and  killing  a  Hare  or  five  Hares.     But  hunting 


[t)  Greathead  v.  Morley,  3  M.  &  (.r)  Ibid.  s.  1. 

G.  139.  (//)  Ibid.  s.  2. 

(?/)  Not  to  authorize  the  laying  {z)  Ibid.  s.  4. 
of  poison,  11  &  12  Vict.  c.  29,  s.  5. 


362 


THE  LIABILITIES  OF  PARTIES  HUINTING,  ETC. 


Two  persons 
engaged  in  a 
common  pur- 
pose. 


Trespass  in 
search  of 
Grame. 


Hunting  with 
Hounds  or 
Greyhounds. 


Jurisdiction 
of  Justices 
ousted. 


may  be  continued  as  well  as  spoiling,  consuming  or  cutting 
grass  (a) . 

When  two  persons  are  engaged  in  a  common  purpose, 
wliat  one  does  is  the  act  of  Loth.  Therefore,  in  a  case  in 
which  A.  and  B.  were  driving  in  a  trap  along  the  turnpike 
road  for  a  lawful  pm-pose,  and  A.  got  out  of  the  trap,  went 
into  a  field,  and  shot  a  Hare,  which  he  gave  to  B.,  who 
had  remained  in  the  trap,  it  was  held  that  there  was  suffi- 
cient evidence  that  B.  was  present  Aiding  and  Abetting  A. 
in  a  trespass  in  pursiiit  of  Game  (under  11  &  12  Vict.  c.  43, 
s.  5),  and  that  he  was  not  the  less  an  Aider  and  Abettor, 
because  he  might  have  been  convicted  as  a  Principal  (h). 

Under  1  &  2  Will.  4,  c.  32  (c),  trespassers  in  pursuit  of 
Game  may  be  required  to  quit  the  land,  and  to  tell  their 
names  and  abodes,  and  in  case  of  refusal  may  be  arrested 
and  brought  before  a  Justice  within  twelve  hours.  And 
any  trespasser,  on  conviction  before  a  Justice,  is  to  forfeit 
a  sum  not  exceeding  o/.,  together  with  the  costs  of  con- 
viction (c). 

But  Hunters  in  fresh  pursuit  of  Deer,  Hare  or  Fox 
(with  Hounds  or  Grreyhounds)  started  on  other  lands, 
are  exempted  from  the  provisions  of  1  &  2  Will.  4,  c.  32, 
against  trespassers  (d). 

By  1  &  2  AVill.  4,  c.  32,  s.  30,  it  is  provided  that  "  any 
person  charged  with  any  such  trespass  shall  be  at  liberty 
to  prove,  by  way  of  defence,  any  matter  which  would  have 
been  a  defence  to  an  action  at  law  for  such  trespass."  But 
the  Jurisdiction  of  the  Justices  is  not  ousted  by  the  claim 
of  a  prescriptive  right  in  gross  to  kill  Game  on  the  land, 
there  being  no  coloiu'  for  such  a  claim ;  nor  by  the  asser- 
tion that  the  land  is  not  in  the  occupation  of  the  Lord  of 
the  Manor,  but  is  vested  in  other  persons,  as  the  claim  of 
title  to  oust  the  jurisdiction  of  the  Justices  must  be  a  claim 
of  title  in  the  party  charged,  and  not  in  a  third  person  [e). 
In  a  case  in  which  a  prescriptive  right  in  gross  to  kill 
Game  is  set  up,  which  is  an  impossible  right,  unkno^vm  to 
the  law,  the  bona  Jides  is  immaterial;  but  where  a  hona  fide 
and  25robable  right  of  property  is  set  up,  the  Justices  are 
bound  to  hold  their  hands  (/).     The  mere  belief,  however, 


(ff)  Monldon  v.  Tasldey,  2  Salk. 
639. 

(i)  Staccy  V.  Whitchurst,  13  W. 
R.  384  ;  Mai/hcw  y.  Jf'ardie!/,  14  C. 
B.,  N.  S.  5.30. 

(e)  1  &2  WiU.  4,  c.  3_>,  s.  31. 


[d)  Ibid.  s.  35. 

((')  CunuceU  V.  Sanders,  3  B.  &  S. 
206. 

(/)  Hrff.  V.  KaJ/h'!/,  10  L.  T.,  N. 
S.  Sod.  See  also  JFatkius  v.  Major, 
L.  R.,  10  C.  P.  G62;  44  L.  J.,  M. 


HUNTING  AND  TRKSrASSlN'G.  363 

on  the  part  of  the  alleged  trespasser  that  he  has  such  a 
right,  is  not  a  bond  fide  claim  of  right  {g). 

A  landlord  may  give  verbal  permission  to  another  to 
take  Grame  on  his  land,  and  such  permission  is  a  justifica- 
tion for  a  fresh  pursuit  of  Game  on  an  adjoining  field 
within  the  meaning  of  sect.  30  (/?). 

Persons  employed  by  a  tenant  to  kill  Eabbits  upon  his  Persons  em- 
farm,  the  right  of  shooting  on  which  is  reserved  to  the  ployed  to  kill 
landlord,  cannot  be  proceeded  against  under  this  section,  ^^^^g^j^t^   ^ 
inasmuch  as  the  tenant  himself  coidd  not  thus  be  con- 
victed, but  Avas  entitled  to  kill  the  Rabbits  himself,  and, 
as  they  were  acting  by  his  directions,  they  had  the  same 
rights  as  he  had  {i). 

It  is  a  trespass  in  pursuit  of  Game  within  the  meaning  of  Trespass  from 
this  statute  to  fire  at  it  from  the  Highway  (y).     But  the  highway, 
merely  sending  a  Dog  into  an  adjoining  cover  in  search  or 
pursuit  of  Grame,  is  not  a  trespass  by  entering  and  being  in 
or  upon  such  cover,  the  Act  requiring  a  personal  trespass  {k) . 

A  person  who  from  his  own  land  shoots  a  Pheasant  in  From  his  own 
the  land  of  another,  and  goes  on  such  land  to  pick  the  bird  land  to  pick 
up,  commits  a  trespass  in  pursuit  of  Game  within  the  Act, 
the  shooting  and  the  picking  up  the  Game  being  one 
transaction  (/).  But  it  is  not  a  trespass  in  pursuit  of  Game 
to  pick  up  dead  Game,  which  rose  from  the  person's  own 
land,  and  fell  dead  within  the  land  of  another  («?) . 

Under  25  &  26  Yict.  c.   114,  s.  2,  a  person  may  be  lTnder25&26 
convicted  of  having  obtained  Game  by  milawfully  going  °"  ^^^' 

on  land  in  search  or  pui'suit  of  Game,  without  evidence  of 
his  having  been  on  any  particular  land  («) . 

The  owner  of  a  close  must  fijst  request  a  trespasser  to  Laying  hands 
depart  before  he  can  lay  hands  on  him  to  tm-n  him  out,  on  a  tres- 
because  every  impositio  inanuum  is  an  assault  and  battery,  r^^^*^^- 

C.  164;    33  L.  T.,  N.  S.  352;    24  (/)  Splcer  v.   Barnard,  28  L.  J., 

W.  R.  164  ;  Lovcseij  t.  Stallard,  30  M.  C.  176. 

L.  T.,  N.  S.  792.  (./)   Mayhew  v.  Wardleij,  14  C.  B., 

{g)  Per  "Wightman,  J.,   Cormcvll  N.  S.  550. 

V.  Sanders,  3  B.  &  S.  213.    See  also  (/.)  R.  r.  Fratt,  24  L.  J.,  M.  C. 

Leatt  V.  Vine,  30  L.  J.,  M.  C.  207;  113. 

M.    V.    Cridlaml,   7  E.   &  B.   853  ;  (/)   Osborn  v.  Meadows,  12  C.  B., 

Morden  v.  Porter,   7  C.  B.,  N.   S.  N.  S.  10. 

641  ;  Lcgg  v.  Fardoe,  9  C.  B.,  N.  S.  {m)  Kcuijon  v.    Eart,    13  W.   R. 

289  ;  Adams  v.  Masters,  24  L.  T.,  406. 

N.    S.    502;    Reg.  v.   Critehhw,   26  [ii)  Evans  v.    Bottcril,  33  L.   J., 

"W.  R.  681;  Birnie  v.  Marshall,  35  M.  C.  50;  and  see  as  to  this  Statute, 

L.  T.,  N.  S.  373.  Broxvn  v.    Turner,  13  C.   B.,  N.  S. 

(//)  Jones  V.  Williams,  40  L.  J.,  485  ;  Hall  v.  Knox,  33  L.  J.,  M.  C. 

M.  C.  270  ;    36  L.  T.,  N.  S.  559  ;  \\    R.   y.  Barker,  33  L.  J.,  M.  C. 

25  W.  R.  501.  135. 


364 


THE  LIABILITIES  OF  PARTIES  HUNTING,  ETC. 


Opposing 
force  to  force. 


Defence  to  an 
action. 


Horse  with  a 
rider  cannot 
be  distrained. 


Action  of 
Trespass  lies 
for  riding  over 
land. 

But  not  ■where 
a  Dog  junifis 
into  a  field. 

Notice  under 
3  &  4  Vict. 
c.  24,  8.  3. 


Notice  trans- 


which  cannot  be  justified  on  the  ground  of  a  person 
breaking  into  the  close,  mthout  a  request  (o) . 

But  in  case  of  actual  force,  as  in  burglary  or  breaking 
open  a  door  or  gate,  it  is  lawful  to  oppose  force  to  force ; 
and  if  one  breaks  down  the  gate,  or  comes  into  my  close 
vi  et  armis,  I  need  not  request  him  to  be  gone,  but  may 
lay  hands  on  him  immediately,  for  it  is  but  returning 
violence  with  violence  (o). 

Therefore  to  Trespass  for  an  assault  and  battery,  it  was 
held  that  the  defendant  might  plead  that  the  plaintiff, 
\vith  force  and  arms  and  with  a  strong  hand,  endeavoured 
forcibly  to  break  and  enter  the  defendant's  close,  where- 
upon the  defendant  resisted  and  opposed  such  entrance, 
&c. ;  and  it  was  held  that  if  any  damage  happened  to  the 
plaintiff  it  was  in  consequence  of  the  defence  of  the  posses- 
sion of  the  close  [p).  And  it  is  also  a  good  defence  to  an 
action  for  an  assault  that  it  was  committed  in  an  attempt 
to  take  from  the  plaintiff  dead  rabbits  of  the  defendant's 
master,  which  he  refused  to  give  up  {q). 

A  Horse  cannot  be  distrained  damage  feasant  if  there  be 
a  rider  upon  him  ;  for  if  such  a  distress  were  permitted,  it 
would  perpetually  lead  to  a  breach  of  the  peace  (r) ,  And 
indeed  if  a  man  or  woman  be  riding  a  Horse,  it  cannot  be 
distrained  at  all  (.s). 

A  man  has  an  action  of  Trespass  against  another  for 
riding  over  his  ground,  though  it  do  him  no  damage ;  for 
it  is  an  invasion  of  his  property,  and  the  other  has  no 
right  to  come  there  (/). 

But  where  a  Dog  jumps  into  a  field  A^dthout  the  consent 
of  its  master,  it  is  not  a  trespass  for  which  an  action  will 

lie  00- 

Under  3  &  4  Vict.  c.  24,  s.   3,  the  "Notice  not  to 

trespass  thereon  or  therein  "  must  be  "  served,  by  or  on 

behalf  of  the  OwTier  or  Occupier  of  the  land  trespassed 

over,  upon,  or  left  at  the  last  reputed  place  of  abode  of  the 

defendant  or  defendants." 

In  the  case  of  Boinjer  v.  Cook  (x)  the  Notice,  although 


(o)  Green  v.  Goddard,  2  Salk. 
640. 

[p)   Weaver  v.  B\ish,  8  T.  R.  78. 

(V)  Blades  v.  Higgs,  10  C.  B., 
N.  S.  713;  30  L.  J.,  C.  P.  347;  11 
H.  L.  C.  621;  34  L.  J.,  C.  P. 
286. 

(r)  Storey  v.  Robinson,  6  T.  R. 
138. 


(s)  Co.  Litt.  47  a,  cited  Farsons 
V.  Givgell,  4  C.  B.  550  ;  and  see 
Webb  V.  Bell,  1  Sid.  440. 

(;■)  See  per  Holt,  C.  J.,  Ashby  v. 
White,  1  Smith's  L.  C.  125. 

(m)  See  per  Parke,  J.,  Brown  v. 
Giles,  1  C.  &  P.  119;  Ready.  Ed- 
wards, 11  L.  T.  311. 

{x)  Boiajer  v.  Cook,  4  C.  B. 
237,  n. 


HUNTING  AND  TRESPASSING.  365 

not  "  served  on  tlie  defendant  or  left  at  his  last  reputed  or  mitted  bj- 
known  place  of  abode,"  but  transmitted  to  his  address  by  -P"^*- 
Post,  was  admitted  imder  a  Judge's  Order,  and  read  at  the 
trial. 

The  obligation  to  make  and  maintain  Fences,  both  at  Maintenance 
common  law  and  by  the  Railway  Clauses  Consolidation  ^^  fences. 
Act  (//),  is  only  as  against  the  owners  or  occupiers  of  the 
adjoining  close.  If  the  company  neglect  to  fence,  neither 
they  nor  their  servants  can  recover  for  injury  caused  by 
animals  straying  on  their  land  (s),  nor  can  the  tenants  of 
the  land  [a).  And  where  the  plaintiff's  Sheep  trespassing 
on  A.'s  close,  strayed  upon  the  defendant's  Railway  which 
adjoined,  through  a  defect  of  Fences  which  the  defendants 
were  bound  as  against  A.  to  make  and  maintain,  and  was 
killed ;  it  was  held  by  the  Coui't  of  Common  Pleas  that  the 
plaintiff  could  not  recover  {b).  . 

But  a  person  using  the  lands  of  an  adjoining  owner  by 
his  permission  is  in  the  same  position  as  he  is  (c). 

A  person  whose  field  adjoins  a  Highway  may  leave  his  Gate  of  afield 
field  open  and  permit  cattle  to  pass  over  it.     He  cannot  ^®^*  open, 
distrain  them  if  he  has  suffered  them  to  come  there ;  but  he 
commits  no  breach  of  duty  by  leaving  the  field  open  (d). 

The  following  important  case  decided  that  where  a  Pail-  Gate  of  a 
way  Company  is  by  statute  boimd  absolutely  to  keep  the  I^ailyay 
Gates  of  its  level  crossings  closed,  it  is  liable  for  damage  open^where 
occasioned  to  a  trespasser  in  consequence  of  one  of  these  there  is  a  sta- 
Gates  having  been  left  open.     It  appeared  that  the  Y.  Pail-  tutable  obli- 
way  passed  over  a  Highway  on  a  level,  and  that  there  were  ^*  ^*^°' 
Gates  across  each  end  of  the  road  so  crossed  by  the  line  of 
Railway.     Some  Horses  belonging  to  the  plaintiff  leaped 
over  the  fence  of  a  field,  in  which  they  had  been  placed, 
into  a  second  field,  and  from  that  over  a  broken  gate  into 
a  third  field,  all  three  being  the  plaintiff's  fields ;  they 
then  strayed  through  an  open  gate  of  the  third  field  into 

( y)  8  &  9  Vict.  c.  20,  s.  68  ;  and  (b)  Rickctts    v.    East    and    West 
see  Buxton  V.  North  Eastern  Railway  India  Docks  and  Birminqham  June- 
Co.,  L.  R.,  3  Q.  B.  549;  37  L.  J.,  tion  Railway  Co.,   21  L.  J.,  C.  P. 
Q.  B.  258  ;   18  L.  T.,  N.  S.  795  ;  201. 
16  W.  R.  1194.                                              (c)  Dawson   v.   Midland  Railway 

{:)   Child  V.  mam,  L.  R.,  9  Ex.  Co.,  L.  R.,  8  Ex.  8  ;  42  L.  J.,  Ex. 

176  ;  43  L.  J.,  Ex.  100  ;  22  W.  R.  49  ;  21  W.  R.  56. 
864.  {d)  See  per  Patteson,  J.,  Fawcett 

{a)    Wiseman  Y.Booker,  L.  R.,  3  v.  York  and  North  Midland  Railway 

■C.  P.  D.  184  ;  .38  L.  T.,  N.  S.  392;  Co.,  IG  Q.  B.  617  ;  S.  C,  20  L.  J., 

26  W.  R.  634.  Q.  B.  222. 


366 


THE  LTARIUTIES;  OF  PARTIES  IIIIXTING,  ETC. 


Gate  of 
Station  left 
open  where 
there  is  no 
statutable 
oblig'ation . 


the  liighway  crossed  by  tlie  Railway  on  a  level.  One  of 
the  gates  across  the  end  of  the  road  where  it  was  crossed 
by  the  line  of  Railwaj'  having  been  left  open,  the  Horses 
strayed  through  it  on  to  the  Railway,  where  they  were 
soon  afterwards  killed  by  one  of  the  Company's  Trains. 
An  action  was  brought  by  the  plaintiif  against  the  Railway 
Company,  who  contended  that  the  Horses  were,  under  the 
circumstances,  trespassers  on  the  Highway.  But  it  was 
held  by  the  Court  of  Queen's  Bench,  that  the  plaintiif  was 
entitled  to  recover  the  value  of  his  Horses  from  the  Com- 
pany, because  the  obligation  imposed  on  them  bj^  Statute 
5  &  6  Vict.  c.  55,  s.  9,  to  keep  the  Grates  closed,  was  not 
only  against  Cattle  travelling  on  the  road  but  also  against 
all  Cattle  straying  there  (e). 

In  the  preceding  case  it  will  be  observed  that  there  was 
an  express  statutable  obligation  to  keep  the  gate  closed 
across  the  road  under  all  circumstances  ;  consequently,  the 
Company  were  guilty  of  committing  a  wrong,  in  omitting 
to  do  so.  But  under  the  Railway  Clauses  Consolidation 
Act(/),  s.  68,  the  obligation  of  a  Railway  Company  is 
merely  to  fence  against  the  owners  and  occupiers  of  adjoin- 
ing lands,  and  therefore  where  some  Horses  strayed  into  a 
high  road,  and  thence  into  the  yard  of  a  Railway  Station, 
the  gate  of  which  was  open,  from  which  they  got  on  the 
line  through  a  gap  in  the  fence,  and  were  killed  by  a  train, 
it  was  held  that  the  Company  were  not  responsible  for  the 
injury,  inasmuch  as  their  obligation  under  8  &  9  Yict. 
e.  20,  s.  68,  is  co-extensive  only  with  the  Common  Law 
prescriptive  obligation  to  repair  fences,  which  would  only 
render  them  responsible,  if  the  Horses  were  using  the  high- 
way according  to  the  dedication  of  the  ow^ner  of  the  soil  (r/). 
So,  where  a  Colt  had  strayed  on  to  a  highway,  and  whilst 
being  driven  home  escaped  into  a  Railway-yard  and  thence 
on  to  the  line,  and  was  killed,  the  Company  were  held 
liable,  as  the  Colt  was  then  lawfully  using  the  highway  (A). 
But  if  the  adjoining  land  belongs  to  the  Company,  and 
Cattle  stray  thence  on  to  the  line,  and  are  killed,  the  Com- 
pany are  not  liable ;  nor  if  Cattle  are  by  the  permission 
of  the  Company  grazing  on  the  slopes  or  embankments  of 


(«)  Faiccett  v.  York  and  Korth 
Midland  Baihray  Co.,  16  Q.  B. 
610;  -S'.  C,  15  "Jur.,  Q.  B.  173; 
S.  C,  20  L.  J.,  Q.  B.  222. 

(/)  8  &  9  Vict.  e.  20. 


(ff)  Manchester,  Sheffield  and  Lin- 
colnshire Raihcay  Co.  v.  WalUs,  14 
C.  B.  213. 

(/()  Midland  Eaihvai/  Co.  v.  Bay- 
l-in,  17  C.  B.  12G. 


HUNTING  AND  TRESPASSING.  367 

tte  Railway,  or  in  a  yard  belonging  to  the  Company,  and 
stray  thence  on  the  line,  and  are  injured  {i). 

There  is  no  obligation  upon  a  Railway  Company  car-  Fence  within 
rying  Cattle  to  provide   fences  or  guards  at  the  station  Station  Yard, 
where  the  Cattle  may  be  landed,  between  the  line  and 
the  station-yard,  so  as  to  prevent  them  straying  on  the 
line  (/.•). 

(0  Marfcll  V.  SoHth   Wales  Rail-  {k)  Roberts  y.  Great  Western  Rail- 

way  Co.,  29  L.  J.,  C.  P.  315.  nm;/  Co.,  4  Jur.,  N.  S.  1240. 


(     368     ) 


PART  III. 
EACING,  WAGEES,  AND  GAMING. 

CHAPTER  I. 


THEIR  HISTORY,  RISE,  AND  PROGRESS  IN  THIS  COUNTRY. 


The  time  of 
the  Pharaohs. 


Used  mostly 
for  warlike 
purposes. 


The  Time  of  the  Fharaohs   .... 
Horses  used  mostly  for  Warlike 

FtirjMses  in  Early  Times  . 
The  Time  of  Julius  Ceesar    . 

Reign  of  Athelstan    

Reiyn  of  William  the  Conqueror 

Reiyn  of  Henry  the  First 

Feign  of  Henry  the  Second  . . . 
Feign  of  Fiehard  the  First  , . . 

Feign  of  John     

Feign  of  Edward  the  Second . . , 
Feign  of  Edward  the  Third . , . 
Feign  of  Fiehard  the  Second  . 
Feign  of  Henry  the  Fourth  . . . 
Feign  of  Henry  the  Seventh. . . 
Feign  of  Henry  the  Eighth  . . . 
Feign  of  Edward  the  Sixth  . . . 


368 

id. 

269 

id. 

id. 

id. 

id. 
370 

id. 

id. 

id. 

id. 

id. 

id. 
371 
374 


Feign  of  Fhilip  and  Mary    .... 

Feign  of  Queen  Elizabeth 

Feign  of  James  the  First 

Feign  of  Charles  the  First  .... 
Ftign  of  Charles  the  Second. . . , 
Feign  of  William  the  Third     , . 

Feign  of  Queen  Anne    

Feign  of  George  the  First 

Feign  of  George  the  Second  .... 
Feign  of  George  the  Third  .... 
Feign  of  George  the  Fourth  .... 
Feign  of  William  the  Fourth  . . 
Feign  of  Queen  Victoria    

Fepeal  of  Duty  on  Faeehorses 

16  #  17  Vict.  c.  119 

37  cj-  38  Vict.  c.  15   

Faceco  urses  L  icensingAct,  1879 


374 

id. 
375 
376 

id. 
377 

id. 
378 
379 
381 

id. 
382 

id. 
385 
386 

id. 
387 


During  tlie  Pharaoli  Dynasty  the  Egyptians  seem  to 
have  been  well  acquainted  with  the  use  of  the  War-horse, 
and  from  dealers  out  of  Egypt  Solomon  derived  a  great 
supply  of  Horses,  not  only  for  his  own  use,  but  also  for 
the  purposes  of  resale  to  the  people  living  between  Pales- 
tine and  the  Euphrates  (a).  It  has  been  thought,  from 
the  name  given  by  the  Egyptians  to  the  Horse,  that  it  was 
introduced  into  Egypt  originally  from  Persia  {b). 

The  most  striking  feature  in  the  Bibhcal  notices  of  the 
Horse  is  the  exclusive  application  of  it  to  warlike  pur- 
poses (c),  with  one  exception,  when  it  is  mentioned  as 
employed  in  threshing  by  trampling  upon  the  strewed 
grain  {d). 


(a)  1  Kings,  X.  28. 

[b)  Smith's    Dictionary    of    the 
Bible,  tit.  Horse. 


{e)  Ibid. 

(d)  Isa.  xxviii.  28. 


RACING,  WAGERS  AND  GAMING,  THEIR  HISTORY,  RISE,  ETC.  369 

The  first  mention  of  the  British  Horse  is  made  by  Julius  The  time  of 
Ceesar ;  and  when  he  invaded  the  Island,  he  was  opposed  J^^s  Caesar. 
by  a  host  of  war- Chariots,  which  must  have  been  drawn 
by  active  powerful  Horses.  They  seem  to  have  been 
pretty  numerous,  as  Cassivelaunus,  on  dismissing  the 
main  body  of  his  army,  retained  fom*  thousand  war- 
Chariots  (e). 

Athelstan,  who  was  second  in  succession  from  Alfred  Reign  of 
the  Great,  received  from  Hugh  Capet  of  France,  as  an  ^t^elstan. 
acceptable  present,  several  German  Running  Horses  (/) ; 
and  in  a.d.   930,  he  decreed  that  no  Horses  should  be 
sent  abroad  for  sale,  or  on  any  account,  except  as  Royal 
presents  {g). 

William  the  Conqueror  was  very  much  indebted  to  his  Reign  of 
superiority  in   Cavalry  for  the  Victory  at  Hastings  ;   he  William  the 
introduced  the  Spanish  Horse,  and  his  favourite  charger     °'^1^®^'^^- 
was  a  Spaniard.     In  his  Reign  there  was  a  marked  im- 
provement in  the  breed  of  Horses,  and  about  a.u.  1066, 
we  have  on  a  piece  of  tapestry  wove  at  Bayonne,  the  figure 
of  a  man  driving  a  Horse  and  harrow,  being  the  earliest 
notice  of  the  use  of  Horses  in  Field  labour  {g). 

In  the  Reign  of  Henry  the  First,  a.d.  1121,  the  first  Eeign  of 
Arabian  Horse  on  Record  was  introduced  by  Alexander  ^^°f"y  *^° 
King  of  Scotland,  who  presented  it  and  its  furniture  to  a 
Church  [g). 

In  the  reign  of  Henry  the  Second,  forty  years  after-  Reign  of 
wards,  Smithfield  was  celebrated  as  a  Horse  Market.  Henry  the 
Fitz  Stephen  gives  the  following  animated  account  of  the 
manner  in  which  Hackneys  and  Charging  Steeds  were 
tried  there  by  racing  against  one  another :  "  When  a 
Race  is  to  be  run  by  this  sort  of  Horses,  and  perhaps  by 
others,  which  also  in  their  kind  are  strong  and  fleet,  a 
shout  is  immediately  raised  and  the  common  Horses  are 
ordered  to  withdraw  out  of  the  way.  Three  jockeys,  or 
sometimes  only  two,  as  the  match  is  made,  prepare  them- 
selves for  the  contest.  The  Horses  on  their  part  are  not 
without  emulation  ;  they  tremble  and  are  impatient,  and 
are  continually  in  motion.  At  last  the  signal  once  given, 
they  start,  devour  the  coui'se,  and  hurry  along  with  un- 
remitting swiftness.  The  jockeys,  inspired  with  the 
thought  of  applause  and  the  hope  of  victory,  clap  spurs 

(e)  See  Cses.  Bell.  G.  5,  Szc,  and       Peece,  16th  editiou. 
Lib.  U.  K.  "The  Horse,"  22.  {(/)  Lib.  U.  K.   "The  Horse," 

(/)  See     Markham's    Maister-       23. 

O.  B  B 


370 


ItACING,  WAGERS  AND  GAMING. 


Reign  of 
Richard  the 
First. 


Reign  of 
John. 


Reign  of 
Edward  the 
Second. 


Reign  of 
Edward  the 
Third. 


Reign  of 
Richard  the 

Second. 


Reign  of 
Henry  the 
Fourth. 

Reign  of 
Henry  the 
Seventh. 


to  their  willing  Horses,  brandisli  their  whips  and  cheer 
them  with  their  cries"  (A). 

An  old  Metrical  Romance  records  the  excellence  and 
great  value  of  two  Horses  belonging  to  Richard  Coeur 
de  Leon,  which  he  purchased  at  Cyprus,  and  which  there- 
fore were  probably  of  Eastern  origin  (/). 

John  accumulated  a  very  numerous  and  valuable  stud 
of  Horses ;  and  he  formed  our  breed  of  draught  Horses 
by  importing  one  hundred  chosen  Flemish  Stallions  (,/). 

Edward  the  Second,  one  hundred  years  afterwards,  in 
the  beginning  of  the  fourteenth  century,  purchased  thirty 
Lombardy  JFar  Horses,  and  twelve  heavy  draught  Horses. 
Lombardy,  Italy  and  Spain  at  that  time  suppUed  the  most 
valuable  Cavalry  or  Parade  Horses  {j). 

Edward  the  Third  devoted  one  thousand  marks  to  the 
purchase  of  fifty  Spanish  Horses,  and  formal  applications 
were  made  to  the  Kings  of  France  and  Spain  for  their 
safe  conduct.  The  King  had  many  Running  Horses  [k), 
the  precise  meaning  of  which  term  is  not  quite  clear  ;  and 
he  prohibited  the  exportation  of  Horses  under  very  heavy 
penalties  (/). 

In  the  Reign  of  Richard  the  Second,  the  price  of 
Horses  rapidly  increased,  and  to  such  an  extent,  that  in 
A.D.  1386,  a  proclamation  was  issued  regulating  their  price; 
and  it  was  ordered  to  be  published  in  Lincolnshire,  Cam- 
bridgeshu'e,  and  the  East  and  West  Ridings  of  York- 
shire {m).  In  this  Reign  Grames  are  first  mentioned  in  the 
Statute  Book ;  and  we  find  that  in  a.d.  1389,  Servants 
in  husbandry  or  Laboui-ers  were  prohibited  wearing  any 
sword,  buckler,  or  dagger ;  or  plaj'ing  at  Tennis,  Football, 
Uuoits,  Dice,  Casting  of  Stone  kails,  and  such  like  importune 
Games  {n). 

This  Statute  was  confirmed  and  extended  in  the  Reign 
of  Henry  the  Fourth,  a.d.  1409,  and  an  additional  penalty 
of  six  days'  imprisonment  was  imposed  (o). 

In  the  Reign  of  Henry  the  Seventh,  a.d.  1494,  we  find 
the  Legislature  paying  much  attention  to  the  breed  of 
Horses,  as  being  of  great  importance  to  the  defence  of  the 
kingdom.     It  appears  that  Horses  had  at  this  time  become 


(A)  See  Fitz  StejAen,  and  Lib. 
U.  K.  "The  Horse,"  24. 

(0  Lib.  U.  K.  "The  Horse,"  24. 

(.;)  Ibid.  25. 

(/)  See  Marldiam's  Maister- 
Peece,  16th  edition,  and  Lawrence 
on  "  The  Horse,"  vol.  1,  cap.  5. 


(/)  Lib. U.K.  "The  Horse,"  25. 

{m.)  Ibid.  26. 

(«)  12Ric.  2,  c.  6;  see  26  &  27 
Vict.  0.  125. 

{o)  11  Hen.  4,  c.  4,  repealed  by 
33  Hen.  8,  c.  9. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  371 

scarce  and  expensive,  and  it  was  supposed  to  "be  the  con- 
sequence of  many  Horses  and  Mares  having  been  exported. 
To  remedy  this  evil  an  Act  was  passed,  which  prohibited 
any  Horse  or  Mare  being  carried  out  of  the  Eeahn  without 
the  King's  Licence.  But  any  Denizen  might  carry  a  Horse 
beyond  the  sea  on  making  oath  that  it  was  for  his  own  use  ; 
and  any  Mare  of  three  years  old  or  upwards,  whose  price 
Avas  not  above  six  shillings  and  eight  pence,  might  be 
exported,  the  owner,  however,  being  compelled  to  sell  her 
at  the  port  to  any  person  who  shoulcl  bid  him  seven 
sliillings  {p). 

In  the  Reign  of  Henry  the  Eighth,  a.d.  1530,  it  was  Reign  of 
fm'ther  enacted,  that  any  person  conveying  any  Horses,  5-^;!|^T  ^^^ 
Geldings  or  Mares  to  any  parts  beyond  the  sea,  without  ° 
the  King's  Licence,  should  forfeit  forty  shillings  for  every 
Poll  {q).  It  appears,  however,  that  notwithstanding  these 
enactments,  good  Horses  continued  to  be  scarce,  aud  the 
breed  of  "good,  swift  and  strong  Horses"  was  supposed 
to  have  decayed  on  account  of  "  little  Horses  and  Nags 
of  small  stature  and  value  being  suffered  to  depastui'e  and 
also  to  cover  Mares  and  Felys  of  very  small  statm'e." 
To  remedy  this,  an  Act  was  passed  in  a.u.  1535,  com- 
pelling the  owners  and  occupiers  of  Deer-parks  of  a  mile 
or  upwards  in  cu^cumference,  to  keep  a  certain  number  of 
foal  Mares,  in  proportion  to  the  extent  of  their  grounds, 
such  Mares  to  be  at  least  thirteen  hands  in  height,  and  to 
be  covered  by  Horses  of  fom-teen  hands  or  upwards  (r). 
This  Act  did  not  extend  to  the  counties  of  Westmore- 
land, Cumberland,  Northumberland  and  the  Bishoprick  of 
Dm-ham  («). 

The  breed,  however,  still  continued  to  decay  and  di- 
minish ;  and  it  was  supposed  to  be  in  consequence  of 
"  little  stoned  Horses  and  Nags,  of  small  stature  and  of 
little  value,"  being  suffered  to  depasture  in  "the  Forests, 
Chases,  Moors,  Marshes,  Heaths,  Commons  and  waste 
Grounds  in  the  Realm,"  and  also  to  cover  Mares  feeding 
there.  The  legislature,  to  remedy  this  evil,  passed  another 
Act  in  A.D.  1540,  which  prohibited  any  stoned  Horse, 
under  fifteen  hands,  being  pastured  on  such  lands  through- 
out the  greater  part  of  England  and  the  whole  of  Wales, 
or  under  fom^teen  hands  elsewhere  {t).     Any  person,  on 

{p)  11  Hen.  7,  c.  13,  repealed  by  pealed  by  26  &  27  Vict.  c.  125. 

25  Car.  2,  c.  6.  (*)  27  Hen.  8,  c.  6,  s.  5. 

(y)  22  Hen.  8,  c.  7.  (0  32  Hen.    8,   c.  13,   s.   2,   re- 

(>•)  27  Hen.  8,  c.  G,  ss.  2,  4,  ro-  pealed  by  19  &  20  Vict.  c.  64. 

15  H  2 


]72  RACING,  WAGERS  AND  GAMING. 

measm-ing  a  Horse  whicli  was  under  the  lawful  height, 
might  seize  and  retain  it  for  his  own  use  {ii)  ;  the  pastures 
were  to  he  driven  once  a  year,  and  any  unlikely-looking 
beasts  were  to  be  killed  (r) ;  and  the  owner  of  every  Horse, 
Mare  or  Gelding  infected  with  the  Scab,  at  any  time 
pasturing  on  these  grounds,  was  to  forfeit  ten  shillings  {ic). 
An  Act  was  also  passed  prescribing  the  number  of  stoned 
troti'mg  Horses  for  the  saddle  each  man  was  to  keep,  ac- 
cording to  his  degree  (.r).  However,  these  enactments  do 
not  seem  to  have  had  the  desired  effect,  as  the  breed  of 
Horses  had  sadly  degenerated ;  for  Blundeville,  who  wrote 
in  the  Beign  of  Queen  Elizabeth,  tells  us  that  they  con- 
sisted principally  of  strong  clumsy  beasts,  the  few  lighter 
ones  being  weak  and  without  bottom. 

It  appears  that  in  this  Beign  Races  were  first  established 
in  various  parts  of  England,  and  the  first  meetings  were 
held  at  Chester  and  Stamford,  but  there  was  no  regular 
system,  and  all  sorts  of  Horses  ran.  The  Prize  was  usually 
a  wooden  bell  adorned  with  flowers ;  and  this  afterwards 
was  exchanged  for  a  silver  bell,  and  "  given  to  him  who 
should  run  the  best  and  furthest  on  Horseback  on  Shrove 
Tuesday."  Hence  the  phrase  of  "  bearing  away  the 
beir'(//). 

In  this  Reign  also  a  variety  of  regulations  were  made 
with  regard  to  Qaming,  some  of  which  are  in  force  at  the 
present  day.  The  object  of  the  legislature  was  to  encour- 
age Archery,  and  in  a.d.  1511  it  was  enacted,  that  "  all 
sorts  of  men  under  the  age  of  foiiy  years"  should  "have 
bows  and  arrows  and  use  shooting,"  and  that  "  imlawful 
Games"  should  not  "  be  used."  This,  however,  was  fol- 
lowed by  a  much  more  comprehensive  Act,  which  was 
passed  in  a.d.  1541 ;  namely,  33  Hen.  8,  c.  9,  being  a 
"  Bill  for  the  maintaining  Artillery  and  the  debarring 
imlawful  Games."  It  professes  in  its  preamble  to  be 
founded  on  a  petition  from  the  Bowmen  and  others  con- 
cerned in  the  making  of  implements  of  Archery  ;  and  they 
complained  that  "  many  and  sundry  new  and  crafty  Games 
and  Plays,  as  Logetting  in  the  field.  Slide-thrift,  otherwise 
called  Shove-groat,"  had  caused  the  decay  of  Archery  (s). 
It  made  various  regulations  concerning  the  use  of  bows  and 

(«)  32  Hen.  8,  c.  13,  s.  3.  (y)  Lib. U.K.  "The  Horse,"  28. 

(r)  Ibid.  8S.  6,  7.  [z)  33  Hen.  8,  c.  9  (now  virtu- 

(m)  Ibid.  s.  9.  ally  repealed  by  3  Geo.  4,  c.  41,  s.  4, 

{x)  33  Hen.  8,  c.  5,  now  vii-tu-  and  8  &  S  Vict.  c.  109,  s.  1),  8S.  1,  2. 

ally  repealed  by  21  Jac.  1,  c.  28.  See  Appendix. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  373 

arrows,  and  imposed  a  penalty  of  foi-ty  shillings  a  day  for 
the  maintenance  of  "  any  common  House,  Alley  or  Place 
of  Bowling,  Coyting,  Cloyshcayles,  Half-bowl,  Tennis, 
Dicing  Table  or  Carding,"  or  any  Game  previously  pro- 
hibited by  Statute,  or  any  unlawful  new  Grame  which 
might  afterwards  be  invented  (a). 

There  was  a  penalty  of  six  shillings  and  eightpence  each 
time  for  using  and  haunting  any  of  the  above-mentioned 
"  Houses  or  Plays  and  there  playing''  (b). 

Any  Justice  of  the  Peace,  Mayor,  Sheriff,  Bailiff,  &c. 
had  authority  to  enter  any  houses  or  places  where  un- 
lawful Games  were  suspected  to  be  held,  and  take  and 
imprison  both  the  keepers  and  persons  resorting  and 
plajdng  there,  until  the  keepers  should  find  sureties  and 
the  other  parties  should  give  security  to  abstain  from  such 
practices  for  the  future  (c).  The  chief  authorities  in 
To\vns  were  to  make  weekly  search  in  such  places  as 
were  suspected  of  being  Gaming-houses,  or,  at  the  fur- 
thest, once  a  month,  under  a  penalty  of  forty  shillings  (d) ; 
and  the  Leases  of  Houses  used  for  unlawful  Games  were 
to  be  void  (e) . 

"  No  manner  of  artificer  or  craftsman,  husbandman, 
apprentice,  labourer,  servant  at  husbandry,  jomnejonen, 
mariners,  fishermen,  watermen  or  any  serving  man,"  was 
to  play  at  "  the  Tables,  Tennis,  Dice,  Cards,  Bowles, 
Closh,  Coyting,  Legating,  or  any  other  unlawful  Game 
out  of  Christmas,  imder  the  pain  of  twenty  shillings  for- 
feit each  time  ;"  and  in  Christmas  they  were  to  play  in 
"  their  master's  houses  or  in  theii'  master's  presence,"  and 
no  person  was  to  play  at  any  "  Bowl  or  Bowls  in  open 
places  out  of  his  garden  or  orchard,"  under  the  penalty  of 
six  shillings  and  eightpence  (/). 

Under  certain  restrictions  and  regulations,  however,  and 
on  giving  sufficient  security,  a  person  might  sue  for  a 
Placard  to  have  common  Gaming  in  his  house  (g) .  And  a 
master  might  license  his  servant  to  play  with  him  or  any 
other  gentleman  at  his  own  house  or  in  his  presence  (h) . 
Also  a  nobleman  or  person  with  an  income  of  100/.  a-year 
might  license  his  servants  to  play  among  themselves  at  his 
or  their  houses,  gardens  or  orchards  (i) . 

(a)  33  Hen.  8,  c.  9,  s.  11.  27  Vict.  c.  125. 

{b)  Ibid.  8.  12.  (/)  Ibid.  s.  16. 

(c)  Ibid.  s.  14.  (ff)  Ibid.  s.  13. 

(d)  Ibid.  s.  15.  (70  Ibid.  s.  22. 

(e)  Ibid.  s.  21,  repealed  by  26  &  (J)  Ibid.  s.  23. 


374 


RACING,  WAGERS  AND  GAMING. 


Reign  of 
Edward  the 
Sixth. 


Reign  of 
Philip  and 
Mary. 


Reign  of 
Queen  Eliza- 
beth. 


In  tlie  Eeign  of  Edward  the  Sixth,  it  was  found  that  a 
great  many  Horses  had  been  exported  to  foreign  countries, 
and  particularly  to  Scotland,  which  was  supposed  to  have 
been  "  the  occasion  of  strength  to  the  King's  enemies," 
and  to  have  caused  the  decay  of  the  breed  of  good  Horses ; 
and  consequently  the  Legislature  in  a.d.  1547  passed  "An 
Act  for  not  conveying  Horses  out  of  the  Realm;"  by 
which  every  person  endeavouring  to  convey  a  Horse  into 
Scotland,  not  only  forfeited  the  animal,  but  became  liable 
to  a  penalty  of  forty  pounds  {j).  But  every  person  was 
permitted  to  take  abroad  with  him  Horses  or  Greldings,  on 
making  oath  that  he  took  them  for  his  own  use  on  the 
journey,  and  not  with  intent  to  sell  them  (k) ;  and  any 
Mare  whose  value  did  not  exceed  ten  shillings  might  be 
exported  (/). 

It  appears  that  so  far  the  Statutes  on  the  subject  of 
Gaming  had  been  directed  against  it,  because  it  was  sup- 
posed to  '\\ithdi'aw  men  from  the  practice  of  Archery,  which 
seems  to  have  been  neglected,  where  these  other  sports  had 
obtained  popularity.  But  in  the  Reign  of  Philip  and 
Mary,  Gaming  had  become  very  inconvenient  on  other 
grounds ;  for  it  appeared,  that  "by  reason  of  divers  sundry 
licenses  theretofore  granted  to  divers  persons,  as  well  within 
the  City  of  London  and  the  Suburbs,  as  elsewhere,"  for 
"  keeping  of  houses,  gardens  and  places  for  Bowling, 
Tennis,  Dicing,  White  and  Black,  Making  and  Marring, 
and  other  unlawful  Grames,  many  unlawful  assemblies, 
conventicles,  seditions,  and  conspiracies,"  had  been  daily 
and  secretly  practised,  and  robberies  and  other  misde- 
meanours had  been  committed  by  idle  and  misruled  people 
resorting  there.  To  remedy  these  evils  an  Act  was  passed 
in  A.D.  1555,  "to  avoid  divers  Licenses  for  houses  where 
unlawful  Grames  be  used,"  and  all  Placards,  Licenses  or 
Grrants  were  made  void  (;;?) .  In  the  same  year  of  the 
Reign  an  Act  was  passed,  "  Against  the  buying  of  Stolen 
Horses,"  and  certain  regulations  were  prescribed  for  the 
sale  of  Horses  at  Markets  and  Fairs  («) . 

Notwithstanding  the  regulations  made  in  the  Reign  of 
Edward  the  Sixth,  it  appears  that  a  large  number  of  Horses 
were  exported  by  persons  who  unscrupulously  took  the 


{j)  1  Edw.  6,  c.  5,  s.  1,  now  re-  {in)  2  &  3  Ph.  &  M.  c.  9,  repealed 

pealed  by  3  Geo.  4,  c.  41.  by  26  &  27  Vict.  c.  125. 

{k)  Ibid.  s.  6.  («)  2  &  3  Ph.  &  M.  c.  7,  Appen- 

(/)  Ibid.  8.  9,  di.x; ;  and  see  Stolen  Horses,  ante, 

Part  1,  Chap.  3. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  375 

required  oath,  and  the  difficulty  of  punishing  then  was  so 
great,  that  in  the  Reign  of  Queen  Elizabeth,  a.d.  1562, 
the  permission  to  persons  to  take  Horses  abroad  for  their 
own  use  was  repealed  (o). 

It  was  now  found  that  in  the  Isle  of  Ely  and  in  the 
Counties  of  Cambridge,  Huntingdon,  Northampton,  Lin- 
coln, Norfolk  and  Suffolk,  the  fens  were  so  wet  and  rotten 
that  they  could  not  carry  Stoned  Horses  of  the  size  men- 
tioned in  the  Act  of  Henry  the  Eighth  (7;),  without  danger 
of  their  being  mired  or  drowned.  The  Horses  of  many 
poor  men  had  been  seized  as  being  beneath  the  statutable 
height,  and  the  breed  of  Horses  and  all  the  tillage  and 
carriage  within  the  district  had  been  very  much  hindered. 
To  remedy  these  evils,  an  Act  was  passed  in  this  Reign, 
A.D.  1565,  by  which  the  statutable  height  of  Stoned  Horses 
in  those  fen  Counties  was  reduced  to  thirteen  hands  {q) . 

We  have  seen  that  in  the  Reign  of  Philip  and  Mary, 
certain  forms  were  prescribed  to  give  publicity  to  the  sale 
of  Horses  at  Markets  and  Fairs,  so  that  if  the  Horse  had 
been  stolen,  the  owner  might  have  an  opportunity  of  claim- 
ing it  (r).  But  these  forms  seemed  to  have  entirely  failed 
in  their  object,  because  in  this  Reign,  Horse-stealing  had 
grown  so  common,  that  Horses  were  not  safe  in  Pastures 
or  Closes,  and  hardly  so  in  their  Stables ;  and  there  was 
always  a  ready  sale  for  them  in  distant  Fairs  and  Markets. 
However,  in  a.d.  1589,  an  Act  was  passed  prescribing  cer- 
tain additional  forms  to  be  observed  in  sales  at  such  places, 
and  making  it  a  matter  of  greater  difficulty  to  sell  a  stolen 
Horse  (s).  _  This  is  the  Act  now  in  force,  and  which  we 
have  already  considered. 

In  the  Reign  of  James  the  First,  an  immaterial  and  Reign  of 
trifling  alteration  was  made  in  the  Law  of  Gaming  by  the  ^^^^  *^^® 
repeal  of  the  Statute  of  Richard  the  Second  in  A.D.  1623  (/). 
But  an  important- change  took  place  with  regard  to  Horse 
Racing.  Before  this  time,  Horse  Races  were  mere  trials 
of  speed  and  strength,  without  any  acknowledged  system, 
and  were  mixed  up  with  other  exercises  of  skill  and  activity. 
The  pastime  had  continued  on  the  same  footing  since  the 
time  of  Henry  the  Eighth,  but  this  Reign  may  be  con- 
sidered the  era  in  which  Racing  began  to  be  ranked  as  a 

(0)  5  Eliz.  c.  19,  repealed  by  26  («)  31    Eliz.    c.    12,    Appendix  ; 

&  27  Vict.  c.  125.  and  see  Stolen  Horses,  ante,  Part  1, 

{p)  32  Hen.  8,  c.  13.  Chap.  3. 

(?)  8  Eliz.  c.  8,  repealed  by  19  &  (t)  21   Jac.    1,   c.    28,   s.   11,  re- 

20  Vict.  c.  64.  pealed  by  10  &  20  Vict.  c.  64. 

(>■)  2  &  3  Ph.  &  M.  0.  7. 


376 


KACING,  WAGERS  AND  GAMING. 


Reign  of 
Charles  the 
First. 


Reign  of 
Charles  the 
Second. 


distinct  sport.  James  the  Fii-st  was  extremely  fond  of 
field  sports  ;  he  established  Races  on  a  new  footing ;  under 
his  patronage  Rules  were  promulgated  for  their  regulation, 
and  his  favoiuite  coui"ses  were  Croydon  and  Enfield  Chase. 
From  this  period  also  began  the  practice  of  breeding  a 
distinct  kind  of  Horse  for  the  especial  purpose.  And  we 
find  that  about  this  time  an  Arabian  Horse,  and  also  the 
White  Turk,  the  Helmsly  Turk,  and  Fairfax's  Morocco 
Barb,  were  brought  into  the  kingdom ;  and  a  considerable 
improvement  in  the  breed  of  the  animal  was  thus  effected  (u). 

Charles  the  First  established  Races  in  Hyde  Park  and  at 
Newmarket ;  yet,  although  these  were  discontinued  during 
the  Protectorate,  attention  was  not  withdrawn  from  breed- 
ing, and  Cromwell  had  his  stud  of  Race  Horses  (,r). 

On  the  Restoration,  a  new  impulse  was  given  to  gaiety 
and  amusement  of  every  kind,  and  the  Newmarket  meet- 
ings were  revived.  Charles,  who  was  a  great  patron  of 
Horse  Racing,  encouraged  it  by  the  gift  of  Royal  Plates 
at  the  principal  Courses.  He  pm-chased  brood  Mares  and 
Stallions  in  the  Levant,  which  were  principally  Barbs  and 
Turks  ;  and  the  breed  was  also  much  improved  by  Horses 
brought  over  from  Tangiers,  as  part  of  the  Dowry  of  his 
Uueen,  Catherine  of  Braganza  (/y). 

No  sooner  had  Horse  Racing  been  fully  established, 
than  we  find  an  Act  was  passed  to  endeavoui*  to  prevent 
the  evils  which  have  unfortunately  always  attended  it. 
The  Act  was  16  Car.  2,  c.  7,  which  came  into  operation 
A.D.  1664,  and  in  it  Horse  Racing  is  mentioned  for  the 
first  time  in  the  Statute  Book.  It  is  intituled  "An  Act 
against  deceiffiil,  dhorderhj  and  excessive  Gamhig^^  and 
recites  that  "  all  lawful  Grames  and  exercises  should  not 
be  otherwise  used  than  as  innocent  and  moderate  recrea- 
tions, and  not  as  constant  trades  or  callings  to  gain  a 
living  or  make  unlawful  advantage  thereby ;  and  that  by 
the  immoderate  use  of  them  many  mischiefs  and  incon- 
veniences arise,  to  the  maintaining  and  encouraging  of 
sundry  idle,  loose  and  disorderly  persons  in  their  dishonest, 
lewd  and  dissolute  course  of  life,  and  to  the  circumventing, 
deceiving,  couzening  and  debauching  of  many  of  the 
younger  sort,  both  of  the  Nobility  and  Gentry,  and  others, 
to  the  loss  of  their  precious  time  and  the  utter  ruin  of  their 


{n)  Lib.  IT.  K.  "The  Horse," 
28;  and  31  Law  Mag.  65. 

(x)  Lawrence  on  "The  Horse," 
vol.    i.    p.   218;   and   Lib.    U.   K. 


"The  Horse,"  28. 

(y)  Lib.  U.  K.  "The  Horse," 
29  ;  and  Martin  arqucndo,  Apple- 
garth  V.  Collcy,  10  M.  &  W.  728. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  377 

estates  and  fortunes,  and  withdrawing  them  from  noble 
and  laudable  employments  and  exercises"  (s).  By  this 
Act  persons  winning  by  fraud,  or  cheating  at  Cards,  Dice, 
Tables,  Tennis,  Bowles,  Kittles,  Shovel-board,  Cock-fight- 
ings, Horse  Eacings,  Dog-matches,  Foot  Eaces,  and  all  other 
Grames  and  Pastimes,  were  to  forfeit  treble  the  sum  or 
value  of  the  money  so  won  {a). 

Every  person  losing  above  100/.  on  ticket  or  credit  at 
these  or  any  other  Games  and  Pastimes,  either  by  bearing 
a  pai-t  in  them  or  betting,  was  discharged  from  paying  any 
part  of  the  money;  all  secmities  given  for  it  were  to  be 
void ;  and  the  winner  was  to  forfeit  treble  the  sum  above 
100/.  so  won  {b)  ;  and  it  was  held  that  an  agreement  to  run 
a  Horse  Eace  for  more  than  100/.  a-side  w^as  prohibited  by 
this  statute  (r). 

In  the  Eeign  of  William  the  Third,  a.d.  1699,  it  Reign  of 
appears  that  certain  Grames  called  Lotteries  had  been  set  ^^^^"^  ^^^'^ 
up  throughout  England  and  Wales,  by  means  of  which 
great  sums  of  money  had  been  fraudulently  got  from 
unwary  persons,  and  from  the  Childi'en  and  Servants  of 
several  Greutlemen  and  Merchants;  to  remedy  this,  an  Act 
was  passed  "  for  suppressing  Lotteries,"  which  declared 
them  to  be  public  nuisances,  and  imposed  a  penalty  of 
500/.  on  every  keeper  of  a  Lottery,  and  20/.  on  every 
player  (r/). 

In  the  Eeign  of  Queen  Anne  the  Darley  Arabian  was  Eeign  of 
introduced  by  Mr.  Darley,   which  tended  very  much  to  Queen  Anne, 
form  our  present  breed  of  Horses.     People  began  to  pay 
more  attention  to   Pedigree  and  Breed,  and  we  find  it 
noticed  as  remarkable,  that  a  Horse  called  Bay  Bolton  was 
got  by  a  farmer's  Horse  without  a  Pedigree  {e). 

It  was  found  in  this  Eeign  that  the  Act  of  Charles  the 
Second  was  insufficient  to  prevent  the  mischiefs  arising 
from  the  spirit  of  Grambiing  then  existing,  and  which  it 
appears  had  become  so  very  prevalent  that  further  legisla- 
tion was  required.  Therefore,  in  a.d,  1710,  9  Anne, 
c.  14,  was  passed,  being  "  An  Act  for  the  better  prevent- 
ing of  excessive  and  deceifful  Gaming.^'  It  recited  that 
"  the  laws  now  in  force  for  preventing  the  mischiefs 
which  may  happen  by  Gaming  have  not  been  found  suf- 

(z)   16  Car.  2,  c.  7,  now  repealed  (c)  Edgebury  v.  Rosindah,  2  Lev. 

by  9  Anne,  c.  19,  and  5  &  6  Will.  4,  94  ;  .S'.  C.  1  Ventr.  253. 
c.  41.  {d)   10  &  11  Will.  3,  c.  17. 

(rt)  Ibid.  s.  2.  (e)  Lawrence  on  "  The  Horee," 

[b)  Ibid.  s.  3.  vol.  i.  p.  222. 


378  RACING,  WAGEES  AND  GAMING. 

ficient  for  tliat  piu'pose ;"  and  enacted,  that  all  moi'tgages 
and  securities,  where  the  consideration  was  for  money 
won  by  Graming  or  Betting,  or  for  repayment  of  money 
lent  at  Gaming  or  Betting,  were  to  be  void ;  that  all 
property  so  encumbered  was  to  devolve  to  such  person  as 
would  have  been  entitled  to  it  in  case  the  owner  were 
dead ;  and  that  all  grants  or  conveyances  made  to  prevent 
this  were  to  be  deemed  fraudulent  and  void  (/). 

The  loser  of  10/.  or  upAvards  by  playing  or  betting  at 
any  Grame  might  sue  for  the  money  so  lost  within  three 
months  ;  and  if  he  did  not  sue  mthin  that  time  any  other 
person  might  do  so,  and  recover  treble  the  value,  one 
moiety  to  go  to  the  informer  and  the  other  to  the  poor  of 
the  parish  where  the  oifence  was  committed  {g) ;  any 
person  winning  by  fraud  by  betting  or  playing  at  any 
Grame,  or  any  person  winning  above  10/.  at  one  sitting, 
might  be  indicted,  and  on  conviction  forfeit  five  times  the 
value  so  won,  and  if  he  had  cheated,  be  deemed  infamous, 
and  suffer  such  corporal  punishment  as  in  eases  of  wilful 
perjury  (70.  _ 

Two  Justices  might  cause  persons  suspected  of  having 
no  visible  estate  or  calling,  and  who  appeared  to  support 
themselves  by  Gaming,  to  be  brought  before  them,  and 
find  sureties  for  their  good  behavioiu'  for  the  space  of 
twelve  months  (/)  ;  clming  which  time,  if  they  played  or 
betted  to  the  amount  of  twenty  shillings  at  any  one  time 
or  sitting,  they  were  to  forfeit  their  recognizances  {j)  ; 
and  any  person  assaulting  or  challenging  another  on  ac- 
count of  money  won  at  play  was  to  forfeit  all  his  goods, 
and  be  imprisoned  two  years  (/»■).  But  this  Act  was  not 
to  prevent  Graming  in  any  of  the  Queen's  Palaces  duiing 
her  residence  there  (/).  The  word  "  Games  "  used  in  this 
Act  was  held  to  comprehend  Horse  Races  {m)  and  other 
Games  mentioned  in  16  Car.  2,  c.  7,  and  therefore  any 
race  for  10/.  a- side  or  upwards  was  illegal.  In  this  Eeign 
two  Acts  were  passed  to  enforce  10  &  11  Will.  3,  c.  17, 
with  regard  to  Lotteries  {)i). 
Eeign  of  In  a.d.  1721,  and  the  following  year  of  the  Reign  of 

(/)  9  Anne,  c.  14,  s.  1.  {m)  Blaxton  v.  Pijc,  1  Wils.  309 ; 

[g)  Ibid.  s.  2;    FredericJc,  Bart.       Cla>/toii  v.  Jc>i?iiii(/s,  2  W.Bla.  706. 
v.  Zool-xp,  4 'Burr.  2018.  (;/)  These  -were  9  Anne,  g.  6,  ss. 

(/()  Ibid.  s.  5.  56,  57,  now  virtually  repealed;  and 

(j)  Ibid.  s.  6.  10  Anne,  c.  26,  s.  109,  repealed  by 

(J)  Ibid.  s.  7.  49  Geo.  3,  c.  109,  and  1  &  2  Will.  4, 

{/>■)  Ibid.  s.  S.  c.  36. 
(/)  Ibid.  s.  9. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  379 

George  the  First,  an  attempt  was  made  by  fiu-ther  legis-  George  the 
lation  to  suppress  unlawful  Lotteries  (o),  and  to  prevent  3^"'^^- 
foreign  Lotteries  being  carried  on  in  this  kingdom  {p). 

In  the  Eeign  of  Greorge  the  Second  it  appears  that  Reign  of 
there  was  an  excessive  increase  in  Gaming,  and  to  re-  ^eorge  the 
medy  the  evil,  12  Geo.  2,  c.  28,  was  passed,  a.d.  1739, 
being  "  An  Act  for  the  more  effectual  preventing  of  cx- 
cessire  and  deceitful  Gaming.''  This  Act  declares  the 
Games  of  the  Ace  of  Hearts,  Pharaoh,  Bassett  and 
Hazard  to  be  Games  or  Lotteries  by  cards  or  dice  within 
the  meaning  of  the  Act,  and  imposes  a  penalty  of  200/. 
on  every  person  setting  up  such  Games  or  Lotteries,  and 
a  penalty  of  50/.  on  every  person  adventuring  at  them  {q). 
An  Act  was  also  passed  to  make  more  effectual  33  Hen.  8, 
c.  9  (r)  ;  and  another  to  prevent  the  selling  chances  in 
Foreign  Lotteries  (s) . 

It  was  foimd  after  the  passing  of  9  Anne,  c.  14,  that 
the  number  of  Horse  Races  had  very  much  increased ; 
and  in  consequence  of  their  being  run  imder  10/.  a-side, 
and  therefore  for  small  Plates,  they  had  contributed  very 
much  to  the  encouragement  of  idleness,  and  the  breed  of 
strong  and  useful  Horses  was  supposed  to  have  been  much 
prejudiced.  The  Legislatin-e,  endeavouring  to  remedy 
these  evils,  passed  13  Geo.  2,  c.  19,  in  a.u.  1740,  which 
was  "An  Act  to  restrain  and  prevent  the  excessive  in- 
crease of  Horse  Races."  By  this  Act  all  Horses  were  to 
be  entered  by  their  real  owners,  and  no  person  was  to 
start  more  than  one  for  the  same  Plate,  under  pain  of 
forfeiting  the  Horse  (/).  No  Plate  was  to  be  run  for 
under  the  value  of  50/.,  and  any  person  starting  a  Horse 
for  a  Plate  of  smaller  value  was  to  forfeit  200/.,  and  any 
person  advertising  such  a  Race  was  subject  to  the  penalty 
of  100/.  {ii).  An  arbitrary  standard  of  weights  was  fixecl, 
a  five-year-old  Horse  was  to  carry  ten  stone,  a  six-year- 
old  eleven  stone,  and  a  seven-year-old  twelve  stone,  under 
a  penalty  of  200/.  (jic),  and  every  Race  was  to  be  begun 
and  ended  in  the  same  day  (?/) .     The  entrance  money  was 

(o)  8  Geo.  1,  0.  2,  ss.  36,  37.  (.?)  6  Geo.  2,  c.  35,  ss.  29,  30. 

(p)  9   Geo.    1,    c.    19,    virtually  (t)   13  Geo.  2,  c.  19,  repealed  in 

repealed  by   7   Geo.  3,   c.   48,   ss.  so  far  as  it  relates  to  Horse-Racing 

4,  5.  by  3  &  4  Vict.  c.  5. 

(g)  12  Geo.  2,  c.  28,  ss.  1,  2,  3.  (u)   13  Geo.  2,  c.  19,  s.  2. 

{r)  2  Geo.  2,  c.  28,  s.  9,  Appen-  (.))  Ibid.  s.  3. 

dix.  ( I/)  Ibid.  8.  4. 


580  RACING,  WAGERS  AND  GAMING. 

to  be  repaid  to  the  second  best  Horse  (;:).  And  gifts  left 
for  annual  Races  were  not  to  be  altered  [a] . 

There  appears  to  have  been  a  distinction  in  this  statute 
between  a  Match  and  a  Race,  for  at  whatever  place  a 
Race  might  be  run,  it  must  always  have  been  for  a  Plate 
of  50/,  or  upwards  {b).  But  it  seems  that  a  Match  was 
either  to  be  run  at  Ne^svanarket  or  Black  Hambleton,  or 
the  Plate  was  to  be  worth  50/.  or  upwards  (c).  This  Act 
also  prohibited  a  Game  called  Passage,  which  had  just 
then  been  invented,  and  was  in  great  vogue,  and  also  all 
Grames  with  Dice  except  Backgammon  {d). 

These  enactments  with  regard  to  weights  were  pro- 
bably found  so  very  inconvenient  and  useless,  that  in 
A.D.  1745,  18  Geo.  2,  c,  34,  was  passed,  which  was  "  An 
Act  to  explain,  amend  and  make  more  effectual  the  Laws 
in  being  to  prevent  excessive  and  deceiffid  Gaming ;  and 
to  restrain  and  prevent  the  excessive  increase  of  Plorse 
Races."  It  appears  that  a  Game  called  Roulet  or  Roly- 
poly  was  then  very  much  played,  and  though  many  had 
been  ruined  by  it,  the  law  was  found  insufficient  to  pre- 
vent it.  This  statute  therefore  enacted,  that  any  person 
keeping  a  place  for  playing  Roulet  or  other  Games  with 
Cards  or  Dice,  or  himself  playing  at  any  of  these  Games, 
shoidd  be  liable  to  the  several  penalties  of  12  Geo.  2, 
e  28  (e).  The  privilege  of  Parliament  was  taken  away 
from  persons  against  whom  proceedings  had  been  com- 
menced either  for  keeping  a  common  Gaming-house,  or 
for  playing  at  unlawf id  Games  (/ ) .  And  any  person 
winning  or  losing  by  play  or  by  betting  the  value  of  10/. 
at  one  time,  or  20/.  within  twenty-four  hours,  might  be 
indicted  and  fined  five  times  the  value  so  won  or  lost  (g). 

It  appears  that  the  circumstance  of  thirteen  Royal 
Plates  of  one  hundred  guineas  each  being  annually  given 
to  be  run  for,  and  the  high  prices  which  were  constantly 
paid  for  Horses  of  strength  and  size,  was  considered  a 
sufficient  encouragement  to  breeders  to  raise  their  cattle 
to  the  utmost  possible  size  and  strength  ;  and,  therefore, 
some  of  the  restrictions  which  had  been  thought  favom-- 
able  to  the  breed  of  Horses  were  removed,   and  it  was 

(2)   13  Geo.  2,  c.  19,  s.  7.  (e)   18   Geo.    2,    c.   34,  ss.    1,_  2, 

(«)  Ibid.  s.  8.  Appendix,  repealed  by  8  &  9  Vict. 

(b)  Ibid.  s.  2.  c.  109,  s.  15. 

(c)  Ibid.  s.  5.  (/)  Ibid.  s.  7. 
{d)  Ibid.  8.  9,  Appendix.  (ff)  Ibid.  s.  8. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  381 

made  lawful  for  a  person  to  run  any  Matcli,  or  to  start 
and  run  for  any  Plate  worth  50/.  or  upwards,  at  any 
weights,  and  at  any  place,  without  being  liable  to  the 
penalties  of  13  Geo.  2,  e.  19,  relating  to  weights  {//),  and 
in  the  same  manner  as  if  that  Act  had  not  been  made. 
And  it  was  held  that  this  sum  might  be  made  up  by  two 
parties  staking  25/.  a-side  (/). 

In  the  Reign  of  George  the  Third,  a.d.  1774,  it  having  Reign  of 
been  found  by  experience  that  making  Insm-ances  on  lives  ^??^§^  *^® 
or  other  events  in  which  the  Assured  had  no  interest,  had  ^^  ' 
introduced  a  mischievous  kind  of  Gambling,  an  Act  was 
passed  "  for  regulating  Insurances  upon  lives,  and  for 
prohibiting  all  such  Insurances,  except  in  cases  where  the 
persons  insuring  shall  have  an  interest  in  the  life  or  death 
of  the  person  insured"  {k).  In  the  same  Reign,  a.d. 
1787,  an  Act  w^as  passed  to  render  more  effectual  the  laws 
then  in  being  for  suppressing  unlawful  Lotteries  (/)  ;  but 
the  Government  raised  money  by  State  Lotteries.  In 
A.D.  1802  an  Act  was  passed  to  suppress  certain  Games  or 
Lotteries  called  Littlegoes,  under  very  heavy  penalties  (m). 
In  this  Reign  there  was  no  legislative  interference  with 
regard  to  Racing,  but  the  breed  of  Horses  continued  to 
improve.  In  a.d.  1809  an  Act  was  passed  by  which  the 
duty  payable  on  the  exportation  of  a  Horse,  Mare  or 
Gelding  was  fixed  at  two  guineas  each(;?),  and  on  the 
importation  at  four  guineas  each(o).  But  in  ten  years 
this  Act  was  repealed,  and  six  pounds  thirteen  shillings 
was  fixed  as  the  duty  payable  on  impoi-ting  a  Horse, 
Mare  or  Gelding,  and  they  were  not  mentioned  in  the 
table  of  commodities  paying  duty  on  exportation  ( p) . 

George  the  Fourth  was  a  great  patron  of  Horse-racing,  Reign  of 
and  was  owner  of  some  first-rate  Horses.  In  this  Reign,  S®"Ti^  *^^ 
A.D.  1823,  an  act  was  passed  authorizing  the  infliction 
of  imprisonment  and  hard  labour  on  persons  convicted  of 
keeping  a  common  Gaming  House  (q) ;  and  people  playing 
or  betting  on  any  Game  of  chance  in  the  Street  or  High- 
way are  to  be  deemed  rogues  and  vagabonds,  and  be  liable 


[k]  18  Geo.  2,  c.  34,  s.  11.  (w)  49  Geo.  3,  c.  98,  Sched.  (A.), 

(i)  Bidmead    v.    Gale,    4    Burr.  Outwards,  repealed  by  6  Geo.  4, 

2432.  c.  105. 

(A-)  14  Geo.  3,  c.  48.  (o)  Ibid.  Inwards. 

(0  27  Geo.  3,  c.   1,  repealed  by  [p]  59  Geo.   3,  c.  52,  s.  1,  and 

46  Geo.  3,  c.  148,  s.  64.  Table   (B.),   Inwards,  repealed  by 

{m)  42  Geo.  3,  c.  119.  C  Geo.  4,  c.  105. 

[q)  3  Geo.  4,  c.  114. 


382 


RACINO,  WAGERS  A^'D  GAMING. 


Reign  of 
"William  the 
Fourth. 


Reign  of 
Queen  Vic- 
toria. 


to  imprisonment  with  liard  laLoiir  for  any  term  not  ex- 
ceeding three  calendar  months  (/■) . 

In  tlie  Eeign  of  William  the  Fom'th  an  Act  was  passed, 
A.D.  1835,  which  is  now  in  force.  It  is  5  &  6  Will.  4,  c.  41, 
heing  "  An  Act  to  amend  the  Law  relating  to  Secmities 
given  for  Considerations  arising  ont  of  Graming,  usurious, 
and  certain  other  illegal  Transactions."  It  repealed  so 
much  of  16  Car.  2,  c.  7,  and  9  Anne,  c.  14,  as  made  void 
any  Note,  Bill  or  Mortgage  given  for  any  illegal  consi- 
deration, or  made  such  securities  enure  for  the  benefit  of 
parties  in  remainder,  and  enacted  that  such  secm-ities  should 
not  be  deemed  void,  but  to  have  been  given  for  an  illegal 
consideration  (s).  So  that  money,  paid  to  the  holder  of  any 
such  security,  shall  be  deemed  and  taken  to  have  been  paid 
on  account  of  the  person  to  whom  the  same  was  originally 
given  on  such  illegal  consideration,  and  to  be  deemed  a 
debt  due  from  the  last -named  person  to  the  person  who  has 
paid  the  money,  and  be  recoverable  accordingly  in  an  action 
at  law  {t).  In  this  Eeign  also  an  Act  was  passed  to  pre- 
vent the  advertising  of  any  foreign  or  illegal  Lottery  under 
a  penalty  of  50/.  {u). 

When  Queen  Victoria  ascended  the  throne,  the  law  of 
Racing,  Wagers  and  G-aming  was  in  a  most  unsatisfactory 
condition;  but  the  Judges  began  to  look  more  favourably 
upon  Sporting  transactions.  Formerly,  the  tendency  of 
the  Com'ts  was  towards  an  extension  of  the  prohibitory 
enactments,  and  a  corresponding  strict  construction  of  any 
relaxations  of  them.  But  now  the  current  of  j  udicial  opinion 
took  another  direction,  and  a  different  view  of  the  subject 
prevailed.  Racing  and  matters  connected  with  it  Avere  no 
longer  regarded  in  Westminster  Hall  \\i\h.  an  unfavourable 
eye,  and  it  is,  perhaps,  hardly  going  too  far  to  assert,  that 
some  transactions  were  supported  which  former  Judges 
would  barely  have  allowed  to  be  argued  {x) .  Steeple- 
chases were  held  to  be  legal  (//),  as  also  Trotting  matches 
along  a  road  (s) .  We  have  at  length,  however,  had  the 
law  on  these  subjects  simplified  and  put  upon  a  rational 
footing ;  and  for  this  change  we  are  indebted  to  the  common 
informers  who  brought  qui  tani  actions  against  certain  in- 
fluential individuals. 


(r)  5  Geo.  4,  c.  83,  s.  4,  Appen- 
dix. 

(.y)  5  &  6  Will.  4,  c.  41,  ss.  1,  3, 
Ajipendix. 

{t)  Ibid.  8.  2,  and  see  Gaming, 
post,  Chap.  4. 


(«)  6  &  7  WiU.  4,  c.  66. 

{x)  31  Law  Mag.  72. 

( y)  Ecans  v.  Pratt,  4  Scott,  N. 
R.  378  ;  S.  C,  1  DowL,  N.  S.  oOo. 

(:;)  Challand  v.  Bra>j^  1  Dowl., 
N.  S.  783. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  383 

In  A.D.  1840,  3  &  4  Vict.  c.  5  was  passed,  winch  re- 
pealed so  much  of  13  Geo.  2,  c.  19,  as  relates  to  the 
subject  of  Horse  Racing  [a)  ;  and  persons  sued  for  penalties 
under  that  Act  might,  on  application  to  the  Court,  have 
an  order  granted  for  the  discontinuance  of  the  suit  {b). 
At  this  period  then  the  statutes  in  force  with  regard  to 
liacing  and  Gaming  were  nearly  the  whole  of  33  lien.  8, 
c.  91,  so  much  of  16  Car.  2,  c.  7,  and  9  Anne,  c.  14,  as  had 
not  been  repealed  and  altered  by  5  &  6  Will.  4,  c.  41  ; 
2  Geo.  2,  c.  28,  s.  9  ;  12  Geo.  2,  c.  28 ;  so  much  of 
13  Geo.  2,  c.  19,  as  does  not  relate  to  Racing  ;  18  Geo.  2, 
e.  34 ;  b  Sc  Q  Will.  4,  c.  41  ;  and  3  &  4  Vict.  c.  5. 

Such  being  the  state  of  the  law,  the  famous  case  of 
Applcgarth  v.  Colley  (c)  came  before  the  Court  of  Ex- 
chequer on  special  demurrer ;  and  after  taking  time  to 
consider,  an  elaborate  judgment  was  delivered  by  Mr. 
Baron  Rolfe,  in  which  it  was  held  that  at  that  time  a 
Horse  Race  for  money  of  any  amount  whatever,  given 
by  third  persons  by  way  of  Prize,  was  not  illegal ;  that 
a  Horse  Race  might  be  run  for  a  sweepstakes  of  21.  each, 
as  there  could  not  be  any  loser  to  the  amount  of  10/.; 
and  therefore  it  was  not  within  sect.  2  of  9  Anne,  c.  14, 
and  probably  not  within  sect.  5  of  the  same  statute ;  and 
that,  though  in  balancing  the  earlier  decisions  there 
might  be  some  doubt  whether,  under  9  Anne,  c.  14,  not 
only  the  securities  given  for  a  gaming  debt,  but  the  co)i- 
tract  itself,  was  avoided,  at  all  events  this  must  be  taken  to 
be  the  case  since  5  &  6  Will.  4,  c.  41. 

Soon  after  this  decision,  nmnerous  qui  tarn  actions  were 
brought  by  common  informers  and  others  for  penalties 
incurred  under  16  Car.  2,  c.  7,  and  9  Anne,  c.  14,  by 
betting  on  Horse  Races  and  running  Coursing  matches, 
&c.;  and  to  stop  these  proceedings  7  &  8  Vict.  c.  3  was 
passed,  which  was  afterwards  extended  by  7  &  8  Vict. 
c.  58.  By  these  Acts  all  proceedings  were  to  be  stayed, 
on  apphcation  to  the  Court,  which  had  been  commenced 
by  common  informers  or  persons  other  than  the  actual 
losers,  for  penalties  incurred  by  playing  at,  or  betting  on, 
certain  sports,  pastimes  and  games,  viz.,  Horse  races,  Foot 
races,  Boat  races.  Regattas,  Rowing  matches.  Sailing 
matches.  Coursing  matches.  Fencing  matches,  Golf, 
Wrestling  matches.  Cricket,  Tennis,  Fives,  Rackets,  Bowls, 

(«)  3  &  4  Vict.  c.  5,  s.  1.  (c)  Applcgarth  v.  C'o/fcy,  10  M.  & 

(A)  Ibid.  s.  2.  "W.  728  ;  and  see  post,  Chap.  4. 


384  RACING,  WAGERS  AND  GAMING. 

(iuoits,  Curling,  Putting  Stone,  FootLall  or  any  hoxa  fide 
variety,  or  any  aimilar  description  of  these  sports,  pastimes 
and  games  [d)  ;  no  common  informers,  but  only  the  actual 
loser,  or  his  representatives,  were  to  commence  any  proceed- 
ings for  penalties  under  16  Car.  2,  c.  7  ;  9  Anne,  c.  14,  or 
any  other  Act,  for  playing  at,  or  betting  on,  any  of  the 
sports  or  pastimes  above  enumerated  [e).  And  if  such 
proceedings  were  in  the  nature  of  an  indictiuent,  the 
consent  in  writing  of  her  Majesty's  Attorney- General 
must  first  have  been  obtained  (_/'). 

These  Acts  were  to  continue  in  force  until  the  end  of 
that  Session  of  Parliament.  Before  the  expiration  of 
that  time,  however,  8  &  9  Yict.  c.  109  was  passed,  in- 
tituled "  An  Act  to  amend  the  Law  concerning  Games 
and  Wagers,"  and  received  the  Poyal  Assent  on  the  8th 
of  August,  1845.  It  recites  that  "  The  Laws  heretofore 
made  in.  restraint  of  unlawful  Gaming  have  been  found 
of  no  avail  to  prevent  the  mischief  which  may  happen 
therefrom,  and  also  apply  to  sundry  Games  of  skill  from 
which  the  like  mischiefs  cannot  arise."  It  repeals  so 
much  of  '6'6  Hen.  8,  c.  9,  whereby  any  Game  of  mere  skill 
is  declared  unlawful,  or  which  enacts  a  penalty  for  play- 
ing at  any  such  game,  or  for  lacking  Bows  or  Arrows, 
or  for  not  making  and  continuing  Butts,  or  which  regu- 
lates the  making,  selling  or  using  of  Bows  and  Arrows, 
and  also  so  much  of  the  Act  as  requires  the  Mayors, 
Sheriffs,  Bailiffs,  Constables  and  other  head  officers  within 
every  City,  Borough  and  Town  in  the  Realm,  to  make 
search  weekly,  or,  at  the  furthest,  once  a  month,  in  all 
Places  where  Houses,  Alleys,  Plays,  Places  of  Dicing, 
Carding  or  Gaming  shall  be  suspected  to  be  had  or  kept, 
and  also  so  much  of  the  Act  as  makes  it  lawful  for  every 
master  to  license  his  servant,  and  for  every  Nobleman  or 
other  person  worth  100/.  a  year,  to  license  his  servants  or 
family  to  play  {(j).  It  repeals  the  whole  of  16  Car.  2,  c.  7, 
and  so  much  of  9  Ann.  c.  14,  as  was  not  altered  by  5  &  6 
Will.  4,  c.  41,  and  also  so  much  of  18  Geo.  2,  c.  34,  as  re- 
lates to  9  Ann.  c.  14,  or  as  renders  any  person  liable  to  be 
indicted  and  punished  for  winning  or  losing  at  play  or  by 
betting  at  any  one  time  the  smn  or  value  of  10/.,  or  within 
the  space  of  twenty-foui'  hom's  the  smn  or  value  of  20/.  [h). 

{d)  7  &  8  Vict.  c.  3,  8.  1.  {g\  8  &  9  Vict.  c.  109,  s.  1,  Ap- 

{e)    Ibid.  s.  3.  pendix. 

(/)  Ibid.  s.  4.  [h)  Ibid.  s.  15,  Appendix. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  385 

This  Statute  and  the  17  &  18  Yict.  c.  38,  which  is  supple- 
mentaiy  to  it,  make  a  variety  of  regulations  and  enact- 
ments which  will  be  considered,  both  with  reference  to  the 
decisions  which  have  been  come  to  under  the  old  law,  and 
as  showing  the  present  state  of  the  law  of  Racing  and 
Gaming. 

It  may  here  be  mentioned,  that  the  Statutes  now  in 
force  with  reference  to  Racing  and  Graming,  are  33  Hen. 
8,  c.  9,  sections  11,  12,  14,  16,  17,  18,  19,  20,  21 ;  but  only 
so  far  as  they  relate  to  unlawful  Graming ;  2  Greo.  2,  c.  28, 
s.  9  ;  12  Geo.  2,  c.  28  ;  13  Geo.  2,  c.  19,  sections  9  and  10; 
18  Geo.  2,  c.  34,  sections  1,  2,  4,  5,  6,  7,  9 ;  5  &  6  Will.  4, 
c.  41,  which  incorporates  and  alters  9  Ann.  c.  14,  s.  1,  and 
given  in  the  Appendix ;  8  &  9  Yict.  c.  109  ;  16  &  17  Vict, 
c.  119;  17  &  18  Vict.  c.  38,  which  is  a  supplementary  Act 
to  8  &  9  Vict.  c.  109 ;  and  37  &  38  Vict.  c.  15. 

By  the  19  &  20  Vict.  c.  82,  the  duty  of  3/.  17.s'.  payable 
on  every  Horse  kept  or  used  for  the  purpose  of  Racing  {i) 
was  made  payable  for  every  Horse  which  should  start  or 
run  for  any  Plate,  Prize  or  sum  of  money  or  other  thing  {k) . 

The  whole  of  this  Act  is,  however,  repealed  by  the  37  &  Repeal  of 

38  Vict.  c.  16,  ss.  11,  21,  and  the  duty  on  Race  Horses  is  5"*^°^ 

T    T  ^     ^  "^  Kace  Horses, 

abonshed. 

By  an  Act  passed  in  this  Reign  the  duty  on  importing 
a  Horse  was  reduced  to  1/.  (/) ;  and  now  Horses  may  be 
imported  duty  free  {m).  Acts  were  passed  from  time  to 
time  to  indemnify  persons  connected  with  Art  Unions 
from  certain  penalties  {n)  ;  and  at  last  an  Act  was  passed 
under  which  they  may  be  legalized  by  charter  (o),  which, 
was  supplemented  by  another  Act  to  remove  certain  doubts 
which  had  arisen  as  to  their  legality  (p).  The  6  &  7  Will. 
4,  c.  66,  was  also  amended  so  as  more  effectually  to  prevent 
the  advertising  of  foreign  and  other  illegal  Lotteries  (q). 

After  the  passing  of  8  &  9  Vict.  c.  109,  an  attempt  was 
made  to  set  up  Racing  Lotteries  and  Sweeps,  and  it  was 
suggested  diuing  the  argument  of  the  case  of  Gatty  v. 
Field  (r),  that  under  the  proviso  of  the  18th  section  of  the 
above   Statute,  Derby  Lotteries   were   no  longer  illegal. 

(i)  16  &  17  Vict.  c.  90.  Vict.  c.  57. 

[k]   19  &  20  Vict.  c.  82,  s.  2.  (o)  9   &   10  Vict.  c.  48,  Appen- 

[l)  5  &  6  Vict.  c.  47,  Table  (A),  dix. 
Class  1,  repealed  by  8   &  9  Vict.  {p)  21    &   22  Vict.   c.    102,    re- 

c.  84.  pealed. 

(»«)  9    &    10  Vict.   c.   23,  Table  (?)  8  &  9  Vict.  c.  74. 

(IV.).  {>■)   Gatti/  V.  Field,  9  Q.  B.  431  ; 

(«)  7    &  8  Vict.   c.   109  ;  8  &  9  S.  C.  15  L.  J.,  Q.  B.  408. 

o.  c  c 


386  RACING,  WAGERS  AND  GAMING. 

They  were  liowever  held  to  be  on  the  same  footing  as 
other  Lotteries,  and  after  that  time  were  gradually  super- 
seded by  Offices  kept  for  the  purpose  of  Betting.  In  these 
places  Lists  were  exhibited  and  Odds  given  in  sums  high 
or  low,  to  suit  each  customer.  Every  person  was  required 
to  stake  his  money  at  the  time,  and  leave  it  to  abide  the 
event  of  the  Eace.  The  natural  consequence  ensued ; 
persons  entrusted  with  money,  embezzled  it,  to  make  a 
venture,  and  clerks,  servants  and  mere  children  were  thus 
corrupted  and  ruined. 
16  &  17  Vict.  To  remedy  these  evils,  16  &  17  Yict.  c.  119  was  passed, 
^-  11^-  being  "An  Act  for  the  Suppression  of  Bettiug  Houses," 

which  received  the  Eoyal  Assent  on  the  20th  of  August, 
1858.  It  recites  that  "  a  kind  of  Gaming  has  of  late 
sprung  up,  tending  to  the  injury  and  demoralization  of 
improvident  persons,  by  the  opening  of  places  called  Bet- 
ting Houses  or  Offices,  and  the  receiving  of  money  in 
advance  by  the  owners  or  occupiers  of  such  Houses  or 
Offices,  or  by  other  persons  acting  on  their  behalf,  on  their 
promises  to  pay  money  on  events  of  Horse  Races  and  the 
like  contingencies."  It  prohibits  any  such  Betting  Houses 
being  kept  (.s),  and  makes  them  Graming  Houses  within 
8  &  9  Yict.  c.  109  (/).  It  forbids  any  person  using  a  place 
for  the  purpose  of  betting  with  persons  resorting  there,  or 
using  a  place  for  the  piu-pose  of  receiving  deposits  on 
Bets  {i(),  and  imposes  penalties  on  persons  connected  with 
Betting  Houses  (.r),  or  exhibiting  placards  or  advertising 
them  (y).  This  most  stringent  Act  (c),  containing  various 
other  provisions,  has  had  the  effect  of  putting  down  Bet- 
ting Houses  in  those  parts  of  Grreat  Britain,  to  which  it 
extends.  It  does  not  extend  to  Scotland  {a). 
37Vict.  c.  15.  The  37  Yict.  c.  15  (The  Betting  Act,  1874),  amends 
the  16  &  17  Yict.  c.  119,  and  extends  its  provisions  to 
Scotland,  and  by  sect.  1  it  shall  be  construed  as  one 
with  that  Act,  which  is  referred  to  as  the  Principal  Act. 
By  sect.  3,  where  any  letter,  circular,  telegram,  placard, 
handbill,  card  or  advertisement  is  sent,  exhibited  or  pub- 
lished, (1)  whereby  it  is  made  to  appear  that  any  person, 
either  in  the  United  Kingdom  or  elsewhere,  will,  on  appli- 
cation, give  information  or  advice  for  the  purpose  of  or 
with  respect  to  any  such  Bet  or  Wager,  or  any  such  event 

(«)   16   &  17  Vict.   0.    119,   s.  1,           (.r)  Ibid.  ss.  3,  4. 

Appendix.  (y)  Ibid.  s.  7. 

(0  Ibid.  s.  2.  (z)  See  post,  Chap.  5. 

{ii)  Ibid.  ss.  1,  3,  Appendix.  («)  Ibid.  s.  20. 


THEIR  HISTORY,  RISE  AND  PROGRESS.  387 

or  contingency  as  is  mentioned  in  the  Principal  Act,  or 
will  make  on  behalf  of  any  other  person  any  such  Bet  or 
Wager  as  is  mentioned  in  the  Principal  Act ;  or  (2)  with 
intent  to  induce  any  person  to  apply  to  any  house,  office, 
room  or  place,  or  to  any  person,  with  the  view  of  obtaining 
information  or  advice  for  the  purpose  of  any  such  Bet  or 
Wager,  or  with  respect  to  any  such  event  or  contingency  as 
is  mentioned  in  the  Princii^al  Act ;  or  (3)  inviting  any  per- 
son to  make  or  take  any  share  in,  or  in  connexion  with, 
any  such  bet  or  wager ;  every  person  sending,  exhibiting 
or  publishing,  or  causing  the  same  to  be  sent,  exhibited  or 
published,  shall  be  subject  to  the  penalties  provided  in  the 
seventh  section  of  the  Principal  Act  with  respect  to  offences 
under  that  section  (b). 

The  42  &  43  Vict.  c.  18,  after  reciting  that  "  the  fre-  Racecourses 
quency  of  Horse  Races  in  the  immediate  neighbourhood  Licensing 
of  the  Metropolis  is  productive  of  much  mischief  and  °  '  '  " 
inconvenience,  and  the  holding  of  such  Paces  in  thickly- 
populated  places  near  the  Metropolis  is  calculated  to  cause, 
and  does  in  fact  cause,  annoyance  and  injury  to  persons 
resident  near  to  places  where  such  Paces  are  held ;"  and 
(sect.  1)  enacting  that  "  a  Horse  Pace  within  the  meaning 
of  this  Act  shall  mean  any  Pace  in  which  any  Horse, 
Mare  or  Gelding  shall  run,  or  be  made  to  run,  in  competi- 
tion with  any  other  Horse,  Mare  or  Gelding,  or  against 
Time,  for  any  prize  of  what  nature  or  kind  soever,  or  for 
any  Bet  or  Wager  made  or  to  be  made  in  respect  of  any 
such  Horse,  Mare  or  Gelding,  or  the  riders  thereof,  and  at 
"which  more  than  twenty  persons  shall  be  present,"  pro- 
ceeds (sect.  2)  to  declare  all  Horse  Paces  unlawful  within 
ten  miles  of  Charing  Cross  unless  licensed  pursuant  to  the 
provisions  contained  in  sects.  3  and  4  of  the  Act.  The 
Act  also  imposes  certain  penalties  on  persons  convicted  of 
taking  part  in  unlicensed  Horse  Paces,  and  on  the  owners 
and  occupiers  of  the  ground  where  the  unlicensed  Horse 
Paces  take  place ;  and  (sect.  7)  enacts  that  every  Horse 
Pace  held  or  taking  place  in  contravention  of  the  provi- 
sions of  the  Act  shall  be  deemed  to  be  a  nuisance,  and 
shall  be  liable  accordingly  (c). 

{b)  37  Vict.  c.  15,  Appendix.  (r)  42  &  43  Vict.  c.  18,  Appendix. 


cc2 


(     388 


CHAPTER  II. 


RACING,    STAKEHOLDERS,    AND    STEWARDS, 


Racing. 

The  Law  as  to  Racing 389 

liights  of  Fart-Oivners id. 

Custom  to  Race id. 

To  resort  to  Races id. 

Rut  though  a  good  Custom,  not 
an  Easement  within  the  Pre- 
scription Act 390 

Stakeholdees. 

Swcepstahcs    390 

Mcdches id. 

The  Act  for  the  Suppression  of 

Betting  Houses id. 

Entry  for  a  Race   391 

Race  not  to  be  rumvithin  a  Year  id. 

^'- Scratching''"'  a  Race  Horse    ..  id. 
Clerh    of    the     Course     usually 

Stakeholder     392 

Has  no  Right  to  the  Stakes  ....  id. 
Ground  of  Action  against  Stake- 
holder    id. 

Position  of  Stakeholder  towards 
the  Parties,  if  the  Race  is  not 

to  be,  or  cannot  be,  run      ....  id. 

Cannot  set  off  an  unpaid  Stake  ..  393 

Where  he  may  cash  a  Cheque   . .  id. 
Stake  must  abide  the  Event  of  a 

legal  Contract id. 

A  Foot  Race id. 

Batty  v.  Marriott  overruled  by 

Diggle  V.  Higgs 394 

Judgment  of  Lord  Cairns,  L.  C.  id. 
Recovery  of  Money  paid  on  an 

illegal  Contract 396 

What  the  Party  should  do    ....  id. 
Demand  before  the  Money  is  paid 

over id. 

Bringing  anActioti  not  sufficient.  397 
Where  the  Money  is  paid  over 

without  Dispute id. 

Where  a  Horse  is  disqualified  . .  id. 
Where  Owner  knows   the  Dis- 

qualif cation    398 

.  Proper  Party  to  receive  the  Stakes    id. 
Under  xvhat  Circumstances  Win- 
ner may  maintain  cm  Action  ..  id. 

A  Cricket  Match    399 

A  Wrestling  Match id. 

A  Dog  Fight id. 


Loser  may  recover  his  Stake 
ivhere  there  has  been  Fraud  . .    399 

How  he  may  waive  his  Claim  . .   400 

Where  a  Stakeholder  may  re- 
cover from,  the  Winner id. 

3Ioney  in  the  hands  of  a  Stake- 
holder does  not  pass  as  "  his 
Moneys'^  under  Depositor's 
Will    id. 

Stewaeds. 

Their  Duties 401 

Disputes  to  be  settled  by  them  . ,     id. 

Award  should  be  made  by  all  . .     id. 

Custody  of  the  Stakes  in  the 
meantime     402 

Legal  Position  of  Steicards   ....     id. 

Decision  not  necessarily  invali- 
dated by  one  of  them  being 
interested    id. 

Decision  of  two  out  of  three 
Stewards  held  binding   id. 

Stewards  differ  from  legal  Arbi- 
trators        403 

Judge's  Powers  do  not  accrue  if 
Jtace  is  invalid id. 

SteivarcVs  Decision  maintained 
by  the  Court  of  Exchequer    . .     id. 

Newcomen  v.  Lynch   404 

Provisional  Decision id. 

Appointment  of  a  Judge    40-5 

Negligence  in  not  appointing  one  406 

Decision  of  the  Umpire  or  Com- 
mittee       id. 

When  Jurisdiction  has  not  at- 
tached       id. 

Terms  of  a  Race    408 

Rules  of  a  Regatta     id. 

Stnvards,  ^-c.  cannot  waive  any 
Condition  of  a  Race   409 

Rules  of  the  Jockey  Club   410 

Arbitration  of  the  Jockey  Club . ,     id. 

Sporting  Phraseology     id. 

A  "■Selling''  Race    411 

A  professional  Jockey    id. 

Horse  regularly  hunted  with 
Hounds   id. 

Match  for  a  particular  Meeting  .    id. 

Ordering  off  the  Grand  Stand  ...   412 

Ordering  Goods 413 


RACING.  389 

RACING. 

There  are  now  no  longer  any  restrictions  witli  regard  to  The  law  as  to 
Racing,  and  transactions  of  this  description  are  governed  ^'^cmg. 
by  the  same  laws  as  all  other  contracts. 

Race  Horses  may  be  owned  by  two  persons  as  tenants  Rights  of 
in  common,  claiming  under  different  titles,  and  each  part-owners, 
having  the  right  to  take  the  Horse,  and  to  use  it  exclu- 
sively, not  destroying  it.  And  such  being  their  rights, 
money  expended  by  one  according  to  a  previous  arrange- 
ment for  their  common  benefit,  is  recoverable  from  the 
other  (a).  Thus  in  a  case  in  which  the  plaintiff  and  de- 
fendant, owning  a  Horse  in  this  way,  agreed  that  the 
plaintiff'  should  have  the  entire  management  of  the  Horse, 
and  that  the  expenses  of  keeping,  training,  and  running 
him  should  be  borne,  and  his  winnings  shared,  by  both 
equally  ;  and  the  Horse  having  won  nothing,  the  plaintiff 
paid  the  whole  expenses  ;  it  was  held  that  even  if  a  partner- 
ship existed  between  the  plaintiff  and  defendant  (and  it 
was  held  by  Cockbiu^n,  C.  J.,  that  it  did)  in  the  manage- 
ment 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  (a). 

A  custom  for  the  freemen  and  citizens  of  a  particular  Custom  to 
town  to  enter  upon  a  certain  piece  of  land  on  a  particular  ^^^^' 
day  for  the  purpose  of  Horse-Racing  is  a  good  custom, 
and  in  pleading  it,  it  is  not  necessary  to  aver  that  the 
particular  day  was  a  seasonable  one  {b).  But  such  a 
customary  right  can  only  be  applicable  to  certain  inha- 
bitants of  the  district  where  the  custom  is  alleged  to  exist, 
and  cannot  be  claimed  by  the  public  at  large  ;  and  there- 
fore if  alleged  to  be  in  all  the  Queen's  subjects,  it  is 
bad  (c). 

A  right  to  race,  and  a  right  to  resort  to  races,  are  on  the  To  resort  to 
same  footing ;  accordingly  where  a  person  pleaded  to  an  races, 
action  of  trespass  on  Newmarket  Heath  during  the  Races 
a  common  right  for  all  persons  to  go  and  remain  for  a 
reasonable  time  for  the  purpose  of  witnessing  the  Races, 
the  plea  was  held  to  be  a  bad  one  (c) .  Nor  does  a  right  of 
highway  include  a  right  to  race  {d),  or  a  right  in  the  public 
to  resort  to  Races  (c). 

(«)  French  v.  Styring,   26  L.  J.,  (c)  Earl  of  Coventry  v.  Willes,  9 

C.  P.  181.  L.  T.,  N.  S.  384. 

{b)  Mounsey  v.  Ismay,  1  H.  &  C.  {d)  Sowerby  v.  Wadsivorth,  3  F. 

729.  &  F.  734. 


390 


RACING,  ^STAKEHOLDERS  AND  STEWARDS. 


But  though 
a  good  Cus- 
tom, not  an 
Easement 
within  the 
Prescription 
Act. 


But  thougli  it  is  a  good  custom  at  Common  Law  for  tlie 
citizens  of  a  particular  town  to  enter  upon  a  certain  piece 
of  land  on  a  particular  day  for  tlie  purpose  of  Horse- 
Racing,  this  is  not  "  an  easement"  mtbin  the  Prescription 
Act  (e),  the  words  of  which  are  "  no  claim  which  may  be 
lawfully  made  at  common  law  by  custom,  prescription,  or 
grant,  to  any  way  or  other  easement,  or  to  any  water- 
course, or  to  the  use  of  any  water  to  be  enjoyed  upon  any 
land,  &c.,  when  such  way  or  other  matter  shall  have  been 
actually  enjoyed  by  any  person  claiming  right  thereto 
without  interruption  for  twenty  years,  shall  be  defeated  or 
destroyed  by  showing  only  that  such  way,  &c.  was  first 
enjoyed  at  any  time  prior  to  such  period  of  twenty  years." 
To  make  this  custom  to  race  a  claim  of  right  within  the 
term  "  easement"  in  this  section,  it  must  be  one  analogous 
to  that  of  a  right  of  way,  and  a  right  of  watercourse  which 
follows  it,  and  must  be  a  right  of  utility  and  benefit,  and 
not  one  of  mere  recreation  and  amusement  (/). 


Sweepstakes. 


Matches. 


The  Act  for 
the  sujjpres- 
sion  of  Bet- 
ting Houses. 


STAKEHOLDERS. 

A  Sweepstakes  is  a  Stake  or  Fund  for  which  at  least 
three  entrances  must  be  made.  There  may  be  any  num- 
ber of  Subscribers  or  Contributors,  and  the  whole  Stake  or 
Fund  becomes,  under  certain  regulations,  the  property  of 
the  Winner  {(/). 

Many  Races  run  with  Horses  are  Matches,  that  is, 
where  the  Horse  of  one  person  runs  against  the  Horse  of 
another  for  certain  Stakes  to  be  awarded  to  the  Winner. 
Such  Matches  are  no  doubt  lawful,  but  it  seems  that  the 
Winner  would  not  be  entitled  to  recover  the  Stakes  from 
the  Stakeholder,  or  from  the  Loser,  if  they  were  in  his 
hands,  as  the  transaction  is  simply  a  Wager  and  void 
under  the  8  &  9  Yict.  c.  109,  s.  18  (//). 

The  "  Act  for  the  Suppression  of  Betting  Houses  "  (?) 
does  not  "  extend  to  any  person  receiving  or  holding  any 
money  or  valuable  thing  by  way  of  Stakes  or  Deposit  to 


(e)  2  &  3  Will.  4,  c.  71,  s.  2. 

(/■)  Per  Martin,  B.,  Moioiseij  v. 
Ismaij,  34  L.  J.,  Ex.  52. 

{g)  Batty  v.  Marriott,  5  C.  B. 
831. 

(A)  Batson  v.  Xeicman,  L.  E,.,  1 

C.  P.  D.  573  ;  25  W.  K.  85  ;  and 
see  Bifjglc  v.  Higos,  L.  P.,  2  Ex. 

D.  422;  46   L.    J.,   Ex.    721.     A 
contrary  opinion  was  expressed  in 


the  third  edition  of  this  work ;  hut 
the  authority  for  that  opinion,  viz. , 
Batty  V.  Marriott,  5  C.  B.  831,  has 
since  been  overruled  by  I)iggle  v. 
Hiqgs.     See  post,  p.  394. 

{()  16  &  17  Vict.  c.  119,  s.  6,  Ap- 
pendix ;  and  see  Wagers,  post, 
Chap.  5  ;  Betting  Houses,  post, 
Chap.  6. 


STAKEHOLDERS.  391 

be  paid  to  tlie  winner  of  any  Race,  or  lawful  Sport,  Game 
or  Exercise,  or  "to  be  paid  "  to  the  Owner  of  any  Horse 
engaged  in  any  liace,"  as,  for  instance,  to  the  second 
Horse. 

The  18th  section  of  8  &  9  Yict.  c.  109,  which  makes  Entry  for  a 
void  all  contracts  or  agreements  by  way  of  Graming  or  ^'^'^s- 
Wagering,  and  prohibits  the  Winner  in  such  transactions 
from  recovering  either  at  Law  or  Equity,  does  not  "  apply 
to  any  Subscription  or  Contribution,  or  agreement  to  sub- 
scribe or  contribute,  for  or  towards  any  Plate,  Prize  or 
Sum  of  Money  to  be  awarded  to  the  Winner  or  Winners 
of  any  lawful  Granie,  Sport,  Pastime  or  Exercise,"  and  the 
entry  for  a  Race  which  is  to  be  run  within  a  year  of  the 
time  of  such  entry  may  be  effected  in  the  usual  manner. 

Many  of  the  great  Races  are  not  run  within  a  year  liace  not  to  _ 
from  the  time  the  Horses  are  entered,  and  therefore  to  ^®  ^^^  withm 
attach  a  liability  to  a  loser  who  has  not  paid  his  entrance, 
it  would  appear  necessary  under  29  Car.  2,  c.  3,  s.  4,  that 
some  memorandum  or  note  in  writing  of  the  agreement  to 
-pay  the  entrance  money,  signed  by  the  party  to  be  charged, 
or  by  some  other  person  lawfully  authorized  by  him  to  do 
so,  should  be  given  to  the  Stakeholder  at  the  time  of 
entry  {k) .  However,  this  need  not  cause  any  trouble,  as  it 
maybe  effected  by  letter  (/). 

The  owner  of  a  Horse  entered  for  a  Race  can  withdraw,  "Scratching" 
or,  as  it  is  termed,  "  scratch  "  him  before  the  Race  is  run.  aEaceHorse. 
A  curious  application  was  made  to  Vice-Chancellor  Knight 
Bruce  on  this  point.  The  Racing  Stud  of  the  late  William 
Charles  Earl  of  Albemarle,  including  a  valuable  Racehorse 
and  the  stallion  "  Emperor,"  was  bequeathed  to  his  wife 
Charlotte  Susannah  Countess  of  Albemarle.  The  executor 
filed  a  Bill,  alleging,  among  other  things,  that  the  personal 
estate  of  the  late  Earl  was  insufficient  to  pay  his  debts, 
and  considering  that  the  two  Horses  in  question  and  the 
Racing  Stud,  unless  sold  immediately,  would  be  greatly 
depreciated  in  value,  and  that  the  Countess  was  unwilling 
they  should  be  sold,  it  was  prayed  that  a  sufficient  part  of 
them  might  be  sold,  and  that  the  Countess  might  be 
restrained  from  withdrawing  or  erasing  the  above-men- 
tioned Racehorse  from  the  Book  in  which  his  name  was 
entered  for  the  Derby  or  St.  Leger  Stakes,  or  any  other 
Race. 

(/■)  See  Bentinvk  v.  Connop,  5  Q.  (/)  See  Requisites  of  the  Statute 

B.  693  \  S.G.I  Day.  &  M.  536.  of  Frauds,  ante,  Part  1,  Chap.  1. 


392 


RACING,  STAKEHOLDERS  AND  STEWARDS. 


Clerk  of  the 
Course 
usually 
Stakeholder. 


Has  no  right 
to  the  stakes. 


Ground  of 
action  against 
Stakeholder. 


Position  of 
Stakeholder 
towards  the 
parties,  if  the 
Race  is  not 
to  be,  or  can- 
not be,  run. 


The  Countess  also  filed  a  Bill  in  the  Court  of  the  Yice- 
Chancellor  of  England,  stating* that  the  personal  .estate 
was  sufficient,  and  praying  the  executor  might  be  re- 
strained from  selling  or  removing  the  Racehorse,  or  'the 
stallion  "  Emperor,"  or  the  Racing  Stud  of  the  late  Earl, 

The  executor  by  his 'petition  prayed  the  direction  of 
Yice-Ohancellor  Knight  Bruce's  Court  as  to  the  manner 
in  which  these  two  Horses  and  the  Stud  should  be  dealt 
with,  and  that  the  Dowager  Countess  might  be  ordered 
to  concur  in  any  sale  which  the  Court  might  direct,  and 
for  the  injunction  as  to  erasing  the  name  of  the  Race- 
horse from  the  Race  Book,  or  otherwise  depreciating  his 
value. 

An  arrangement  was  eventually  made  between  the 
parties,  and  in  the  meantime  an  undertaking  was  given 
on  behalf  of  the  Countess,  that  no  step  should  be  taken  to 
"  scratch"  or  withdraw  the  Racehorse  from  the  Book  (m). 

The  Clerk  of  flie  Course  is  usually  the  Stakeholder  at 
Races,  and  he  is  bound  to  retain  the  Stake  till  some  party 
be  clearly  entitled  to  receive  it ;  and  if  he  pays  it  to  a 
party  not  entitled  to  it,  he  is  still  liable  to  pay  -it  to  the 
party  who  has  a  proper  title  to  it,  and  until  all  disputes 
are  settled  he  is  the  proper  person  to  keep  it  (;?). 

But  he  has  no  rigJd  to  the  Stakes  till  he  gets  the  money 
into  his  hands  ;  he  is  never  more  than  a  mere  Stakeholder. 
Indeed,  if  he  could  bring  actions  for  unpaid  Stakes,  he 
would  be  liable  to  have  actions  brought  against  him  for 
every  Stake  that  was  won,  whether  he  had  received  it  or 
not;  and  his  situation  would  not  be  a  very  enviable  one(o). 

In  order  to  enable  one  of  the  parties  to  maintain  an 
action  against  a  Stakeholder  to  recover  the  amount  of 
Stakes  deposited  with  him  to  abide  the  determination  of 
the  Stewards,  the  plaintiff  must  either  have  the  decision 
in  his  favour,  or  show  that  it  was  no  longer  practicable  to 
obtain  it  {jy). 

The  position  of  the  Stakeholder  towards  the  parties, 
where  the  Race  has  not  and  cannot  be  run,  is  that  of  a 
debtor  to  each  party  for  the  amount  deposited  by  each. 
It  appears,  therefore,  that  in  that  case  a  specific  demand 
of  ■  the  Stake  fi'om  the  Stakeholder  is  unnecessary ;  but 


{»))  Kcppclx.  Coxjitess  Boxcagcr  of 
Albemarle^  before  Vice -Chancellor 
Knight  Bruce,  Feb.  18,  1850. 

(/*)  Burrough  v.  Skinner,  5  Burr. 
2639  ;  Marnjat  v.  Broderick,  2  M. 


&  W.  369. 

(o)  Per  Patteson,  J.,  Charlton  v. 
Hill,  5  C.  &  P.  147. 

{}j)  Brown  v.  Occrbury,  25  L.  J., 
Ex.  169. 


STAKEHOI.DERS.  393 

where  the  Race  might  still  bo  nm  and  decided,  each  party 
must  make  a  specific  demand  of  his  Stake  from  the  Stake- 
holder before  he  can  recover  from  him,  because  in  this 
ease  it  is  necessary  to  inform  the  Stakeholder,  that  the 
authority  given  to  him  to  keep  the  money  has  been 
revoked  (q). 

He  cannot  set  off  a  claim  of  an  unpaid  Stake  due  from  Cannot  set  off 
a  person  on  one  Race  against  a  Stake  won  by  the  same  ^  uupai^l 
person  in  another  Race  (r). 

If  he  cashes  a  Cheque  deposited  with  him,  he  is  not  Where  he 
guilty  of  a  breach  of  duty,  if  the  parties  agreed  to  treat  the  ^^-y  ^^^^  ^ 
Cheque  as  money  (s). 

When  the  eijtrance  money  has  been  paid  or  agreed  to  Stake  must 
be   paid  to  the  Stakeholder,  it  must,   according   to   the  ^^^*^®  *^*^ 
general  principle  of  all  contracts,  abide  the  result  of  the  i^^^i  c^^. 
Race,  which,  being  a  legal  contract,  it  cannot  be  recovered  tract, 
by  the  party  who  has  made  the  entry,  unless  there  be  a 
mutual  agreement  for  the  rescission  of  the  contract,  which 
is   called   being    "off   by    consent."      On   this   point    an 
opinion  was  expressed  by  Mr.   Baron  Parke,  where  an 
action  had  been  brought  by  a  party  to  recover  back  his 
own  entrance  money,  after  a  Race  had  been  run,  for  which 
his  Horse  had  not  started.     It  was  held  he  could  not 
recover   it,  because  he  had  given  no  Notice  before  the 
Race  ;  and  his  Lordship  said,  "  Even  if  the  plaintiff  had 
given  notice  in  due  time  that  he  should  require  his  Stake 
to  be  retiu"ned,  this  being  a  legal  Horse  Race,  I  have 
great  doubts  that  it  would  be  recoverable,  the  agreement 
being  that  it  should  be  deposited  to  abide  the  event,  which 
agreement  cannot,  as  it  seems  to  me,  be  varied  without  the 
assent  of   all  parties.     But   here  there  was  no    demand 
made  ;  no  rescission  of  the  contract  before  the  Race  "  (/). 

And  where  before  8  &  9  Yict",  c.  109,  the  sum  of  ten  A  Foot  Race, 
shillings  was  deposited  with  a  Stakeholder  to  abide  the 
event  of  a  Foot  Race,  Mr.  Baron  Parke  said,  "  The  trans- 
action is  valid  and  the  contract  binding ;  and  therefore  one 
of  the  parties  cannot  determine  it  by  a  simple  countermand, 
without  the  consent  of  all  the  other  parties  depositing  "  {u). 

After  the  passing  of  8  et  9  Vict.  c.  109,  where  two 

{q)  Carr  v.  Martinson,  28  L.  J.,  (0  Marryat  Y.BrodericJc,  2  M.  & 

Q.  B.  126.  W.  369.     See  also  Broicn  v.  Over- 

{r)   Charlton  v.  BUI,  5   C.   &  P.  hur>i,  25  L.  J.,  Ex.  169. 
147.  (")  Emery  v.  Richards,   14  M.  & 

(«)    Wilkinson  v.  Godcfroy,  9  A.  &  W.  729. 
E.  536.  .         - 


SM 


RACING,  STAKEHOLDERS  AND  STEWARDS. 


J]atti/  V.  Mar- 
riott over- 
ruled by 
Dif/ffle  V. 
Biggs. 


Judgment  of 
Lord  Cairns, 
L.  C. 


persons  agreed  to  run  a  Foot  Eace,  and  eacli  of  them 
deposited  10/.  with  the  third  person,  the  whole  20/.  to  be 
paid  by  him  to  the  Winner  of  the  Race ;  it  was  held  by 
the  Court  of  Common  Pleas  that  the  loser  could  not  recover 
back  his  deposit  from  the  Stakeholder  {x) . 

This  case  appears  to  have  been  decided  on  the  ground 
that  the  game  was  not  an  unlawful  one,  and  that  there 
was  nothing  in  the  case  that  was  struck  at  by  the  Act  of 
Parliament ;  but  the  true  test  appears  to  be  whether  the 
deposit  was  in  the  nature  of  a  wager  or  of  a  subscription 
or  contribution  to  a  prize  to  be  awarded  to  the  winner  of 
any  laAvful  game,  sport,  pastime,  or  exercise.  And  tliis 
has  been  so  held  by  the  Coiu't  of  Appeal  in  the  recent  case 
of  Diggle  v.  HigO'i  {y),  overruling  Batty  v.  Harriott  (s),  on 
very  similar  facts.  The  law  on  the  subject  being  very 
clearly  laid  down  in  the  following  judgment  of  Lord 
Cairns,  L.  C. : — 

"  The  first  question  which  we  must  ask  ourselves  is, 
was  this  contract  a  Wager?  It  seems  to  me  beyond  a 
doubt  that  it  was  a  Wager ;  it  was  a  Wager  between  two 
men  for  a  walking  match.  They  agreed  to  walk  at  the 
Higginshaw  Grounds  for  200/.  a-side ;  it  is  not  the  less  a 
Wager  because  the  money  was  deposited  with  the  de- 
fendant as  Stakeholder.  When  the  Wager  was  decided, 
the  winner  would  be  paid  the  200/.  deposited  by  the  loser, 
and  receive  back  his  own  200/.  Now  upon  that,  what  is 
the  construction  of  sect.  18  of  8  &  9  Yict.  c.  109  ?  Is  a 
contract  of  this  kind  excepted  by  the  proviso  ?  We  start 
with  this,  that  the  contract  was  clearly  a  Wager,  and  was 
within  the  first  part  of  the  section.  But  the  section  says 
all  contracts  and  agreements,  whether  by  parol  or  in  writing, 
by  way  of  Graming  or  Wagering,  shall  be  null  and  void ; 
and  then  there  is  a  proviso  which  follows  upon  an  inter- 
vening sentence  in  these  words — 'And  no  suit  shall  be 
brought  or  maintained  in  any  court  of  law  or  equity  for 
recovering  any  simi  of  money  or  valuable  thing  alleged  to 
have  been  won  upon  any  Wager,  or  which  shall  have  been 
deposited  in  the  hands  of  any  person  to  abide  the  event  on 
which  any  wager  shall  have  been  made.'  Then  comes  the 
proviso  on  which  this  question  mainly  rests — '  Provided 
always,  that  this  enactment  shall  not  be  deemed  to  apply 


(.r)  Batty  Y.  Marriott,  5  C.  B.  818. 

hj)  L.  E.,  2  Ex.  D.  422;  46  L. 
J.,  Ex.  721  ;  37  L.  T.,  N.  S.  27; 
25  W.  K.  777.     Reversing  the  de- 


cision  of   Huddleston,   B.,   25  W. 
R.  607.     And  see  Trimble  v.  Mill, 
L.  R.,  5  App.  Cas.  342. 
{•)  5  C.  B.  818. 


STAKEHOLDERS.  395 

to  any  subscription  or  contribution,  or  agreement  to  sub- 
scribe or  contribute,  for  or  towards  any  plate,  prize  or  sum 
of  money  to  be  aAvarded  to  tbe  winner  or  winners  of  any 
lawful  game,  sport,  pastime  or  exercise.' 

"  It  is  clear  that  there  may  be  in  scores  of  forms  '  sub- 
scriptions or  contributions'  towards  a  plate  or  prize  "with- 
out there  being  any  AVager,  and  I  cannot  read  this  proviso, 
which  has  a  natural  and  intelligible  meaning,  in  a  different 
way,  and  one  which  would  have  the  effect  of  neutralizing 
the  enactment.  The  legislatiu-e,  I  think,  never  intended 
to  say  that  there  should  be  no  action  brought  to  recover  a 
sum  of  money  which  shall  have  been  deposited  in  the  hands 
of  any  person  to  abide  the  event  on  which  any  Wager  shall 
have  been  made,  and  yet  that  if  the  Wager  is  in  the  form 
of  a  subscription  or  contribution  the  winner  may  recover  it. 
I  read  the  proviso  thus — '  Provided  that  so  long  as  there  is 
a  subscription  which  is  not  a  Wager,  the  second  part  of  the 
section  shall  not  apply  to  it.'  There  is  no  authority  in 
favour  of  the  view  of  the  defendant,  except  Batty  v.  Mar- 
riott (a),  and  if  that  authority  is  to  be  followed,  it  cannot 
be  denied  it  is  a  very  strong  authority  for  the  defendant. 
What  the  Court  had  in  their  minds  in  that  case  was  the 
question  whether  the  Grame  was  a  lawful  or  an  unlawful 
Game,  and  having  come  to  the  conclusion  that  it  was  a 
lawful  Game,  they  were  of  opinion  that  there  was  nothing 
in  the  case  which  was  struck  at  by  the  Act  of  Parliament, 
and  that  the  Act  was  only  intended  to  strike  at  unlawful 
Games.  That  view  seems  to  me  to  be  erroneous,  and  I 
think  that  the  Court  overlooked  the  first  part  of  the  section, 
which  applies  to  all  contracts,  lawful  or  unlawful,  by  way 
of  Gaming  or  Wagering.  When  Batson  v.  Newman  (b) 
came  before  this  Court,  although  there  was  a  certain  de- 
gree of  difference  between  that  case  and  Batty  v.  Mar- 
riott (a),  yet  it  is  obvious  that  Batty  v.  Marriott  did  not 
meet  with  approval.  I  cannot  follow  that  case.  I  there- 
fore think  that,  although  there  was  a  deposit  of  money,  the 
contract  in  this  case  was  a  Wager,  and  that  all  the  con- 
sequences which  are  imposed  by  sect.  18  on  contracts  by 
way  of  Wagering  follow. 

"  Then  it  is  said  that  this  is  an  action  by  a  party  to  the 
contract,  and  that  he  has  revoked  the  authority  given  to 
the  defendant  to  pay  over  the  money,  on  the  ground  that 
the  contract  is  void,  and  that  section  18  has  taken  away  his 

(a)  5  C.  B.  818.  {b)  L.  R.,  1  C.  P.  D.  573. 


396 


RACING,  STAKEHOLDERS  AND  STEWARDS. 


Recovery  of 
money  paid 
on  an  illegal 
Contract. 


What  the 
party  shoiild 
do. 


Demand  be- 
fore the 
money  is 
paid  over. 


riglit  to  maintain  an  action  under  that  part  of  tlie  section 
which  says  no  suit  shall  be  brought  for  recovering  money 
which  shall  have  been  deposited  in  the  hands  of  any  person 
to  abide  the  event  on  which  any  wager  shall  have  been 
made.  On  that  I  must  observe  that  in  Hampden  v. 
Wahh  {e)  the  Queen's  Bench  Division  appeared  to  have 
been  of  opinion  that  an  action  under  similar  circumstances 
could  be  maintained;  and  in  Batty  v.  3Iarriott  (d),  the 
objection  was  not  taken.  Be  that  as  it  may,  I  am  of 
opinion  that  that  objection  cannot  be  maintained.  The 
section  amounts  to  this :  All  contracts  by  way  of  gaming 
and  wagering  are  null  and  void  ;  and  then,  dealing  with 
those  contracts,  it  says  that  no  action  shall  be  brought 
with  respect  to  them  ;  that  is  to  say,  all  gaming  contracts 
are  void,  and  the  winner  of  the  game  or  wager  shall  not 
maintain  a  suit  against  his  antagonist  or  the  stakeholder. 
This  construction  makes  one  member  of  the  section  in 
unison  with  the  other.  What  legal  right  there  may  be  to 
recover  back  money  paid  under  a  contract  that  is  void,  the 
statute  leaves  it  untouched.  The  decision  of  the  learned 
Judge  was  wrong,  and  I  think  that  judgment  ought  to  be 
entered  for  the  plaintiff." 

If  two  parties  enter  into  an  illegal  or  void  contract,  and 
money  is  paid  upon  it  by  one  to  the  other,  or  to  a  Stake- 
holder, it  may  be  recovered  back  before  the  execution  of 
the  contract,  but  not  afterwards  (e)  :  unless,  if  paid  to  a 
Stakeholder,  the  Stakeholder  has  paid  it  over  contrary  to 
notice  given  to  him  by  one  of  the  parties  not  to  do  so  (./). 

A  person  who  has  staked  his  money  on  an  illegal  or 
void  transaction,  and  wishes  to  recover  it,  should  do  some 
act  to  put  an  end  to  the  atfair.  And  he  should  demand 
back  his  deposit  before  the  illegal  or  void  transaction  has 
taken  place  {g),  and  the  money  has  reached  the  other 
party's  hands  (/),  because  if  he  does  not,  he  permits  the 
Stakeholder  to  dispose  of  it  (//). 

It  was  held  in  the  case  of  Hastelow  v.  Jaclsoii  (/)  that 
where  the  event  in  such  case  has  been  decided,  but  before 
the  money  has  been  paid  over,  and  one  party  expresses  his 


(c)  L.  R.,  1  Q.  B.  D.  189. 

{d)  5  C.  B.  818. 

(c)  Hastcloiv  V.  Jackson,  8  B.  &  C. 
226  ;  and  see  Mearintj  v.  IlcUhtgs, 
14  M.  &  W.  712  ;  Varnetj  v.  Hick- 
man, 5  C.  B.  281.  See  also  Bone  v. 
Ekless,  5  H.  &  N.  925. 


(/)  Hastelow  v.  Jackson,  8  B.  & 
C.  226  ;  Bone  v.  Ekless,  5  H.  &  N. 
925. 

(9)  Martin  Y.Heivson,  10  Ex.  737. 

\h)  See  Gatty  v.  Field,  9  Q.  B. 
440. 


STAKEHOLDERS.  397 

dissent  from  the  payment,  lie  may  recover  it  from  the 
Stakeholder.  For  although  the  event  has  happened,  yet 
the  contract  is  not  completely  executed  until  the  money 
has  been  paid  over,  and  therefore  the  party  may  retract  at 
any  time  before  that  has  been  done  {i).  Some  doubt  in- 
deed has  been  thrown  upon  this  case,  Mr.  Baron  Alderson, 
in  Mearing  v.  Hellings  [k),  saying  of  it,  "I  accede  to  its 
authority,  though  I  think  it  a  very  strong  decision.  It 
does  not  convince  me.  It  overcomes  me."  And  Pollock, 
C.  B.,  in  the  same  case  said,  "  With  respect  to  the  case  of 
Ilastclow  V.  Jackson,  I  forbear  saying  anything  about  it 
at  present ;  it  is  binding  upon  us  until  reviewed  by  a  Court 
of  Error.  If  the  same  question  arose  before  me,  I  should 
certainly  advise  a  bill  of  exceptions."  And,  in  the  case  of 
IPEhcaine  v.  Mercer  (/),  Hastelow  v.  Jaekson  was  held  by 
the  Irish  Court  of  Common  Pleas  to  be  irreconcilable  with 
the  law  as  established  by  8  &  9  Yict.  c.  109,  s.  18.  But 
it  has  never  been  expressly  overruled,  and  indeed  with 
these  exceptions  it  has  been  treated  uniformly,  both  from 
the  Bench  and  by  text  writers,  as  an  authority  (^m) . 

If  it  be  pleaded  to  an  action,  for  3Io)iei/  had  and  received,  Bring-ing  an 
that  the  money  was  staked  on  an  illegal  Game,  the  plaintiff  ^^^2^^  ^°* 
must  show  in  answer  that  he  demanded  back  the  Stake 
before  it  was  paid  over,  the  mere  bringing  an  action  before 
payment  over  not  being  a  sufficient  demand  (//). 

But  although  the  contract  be  illegal  or  void,  yet  if  the  Wliere  the 
event  happens,  and  the  money  is  paid  over  by  the  Stake-  ^^JfJ  ^^ 

K  ^  t  •  -I  •  puicl  over 

holder  without  dispute,  there  is  a  complete  execution  of  without  dis- 
the  contract,  and  the  money  cannot  be  reclaimed  (o).  pute. 

If  a  person  pays  his  entrance  money  to  the  Clerk  of  the  Where  a 

(j)  Hastelow  Y.  Jackson,  8  B.  &  C.  {m)  Per  Bramwell,   B.,  Bone  v. 

227.     And  see  Hampden  v.  TFalsh,  Ekless,  5  H.  &  N.  928.     Per  Cock- 

L.  R.,  1   Q.  B.  D.  189  ;  45  L.  J.,  b\im,  C.  J.,  Hampden  v.  Walsh,  L. 

Q.   B.   238 ;  33  L.  T.,  N.  S.  852  ;  R.,   1   Q.  B.  D.  193  ;  45  L.  J.,  Q. 

24  W.  R.  607  ;  Biggie  v.  Higgs,  L.  B.  238  ;  33  L.  T.,  N.  S.   852  ;  24 

R.,   2  Ex.  D.  422  ;  46  L.  J.,  Ex.  W.  R.  607  ;  Higgle  y.  Higgs,  L.  R., 

721  ;   37   L.  T.,   N.   S.   27  ;  25  W.  2  Ex.  D.  422  ;  46  L.  J.,   Ex.  721  ; 

R.  777— C.  A.  37  L.  T.,  N.  S.  27  ;  25  W.  R.  777 

(k)  Mearing  v.  Hellings,  14  M.  &  — C.  A.     See  also  Selw.  N.  P.  r2th 

W.  712.  ed.  97,  and  2  Sm.  L.   C.  7th  ed. 

(;)  3PElwaine   v.   Mercer,    9    Ir.  530. 

Com.   Law  Reps.  13.     The  judg-  («)   GattyY.  Field,9)  Q.-'B.  iZl. 

ment   in   this   case  appears  to   he  (o)  Hastelow   v.  Jackson,    8   B.   & 

founded  upon  a  misconception  of  the  C.  226;  and    see  Moore  v.    Cooper, 

principle  which  rules  the  English  before   Mr.    R.    Gumey,    Sheriffs' 

decisions,  and  of  the  facts  in  the  Court,    Dec.    10,    1853.     And   per 

case  of  Hastelow  v.  Jackson.  Erie,  J.,   Q.  B.,  N.  P.,  Guikllaall, 

in  Pike  x.Alcock,  Jan.  26,  1858. 


398 


RACING,  STAKEHOLDERS  AND  STEWARDS. 


Eorse  is  dis- 
qualified. 

Where  Owner 
knows  the  dis- 
qualification. 


Proper  party 
to  receive  the 
Stakes. 


Under  what 
circumstances 


Course  bond  fide  and  without  any  attempt  to  impose  upon 
the  other  subscribers,  and  then  finds  his  Horse  disqualified, 
he  may  recover  his  Stake  {p). 

But  the  owner  cannot  recover  his  own  Stake  after  the 
Eace,  if  before  the  Eace  he  hncic  that  his  Horse  was  dis- 
quahfied.  Thus  where  the  conditions  of  a  Race  were  that 
the  Horses  were  not  to  be  thorough-bred,  nor  to  have 
started  against  thorough-bred  Horses,  nor  to  have  run 
for  a  Plate,  the  plaintiff  started  his  Mare  Funny,  and 
she  came  in  first,  but  the  Clerk  of  the  Course  refused  to 
pay  the  Stakes,  as  it  appeared  that  under  the  name  of 
Fkifihy  Moll  she  had  started  against  thorough-bred  Horses, 
run  for  Plates,  and  had  won  many  Races.  Upon  this  !li3 
plaintiff  brought  an  action  to  recover  back  his  own  entrance 
money.  However,  Mr.  Baron  Yaughan  said  to  the  Jury, 
"  It  will  be  for  you  to  say  whether  the  plaintiff  has  been 
guilty  of  an  attempt  to  impose  upon  the  other  subscribers 
to  the  Race  by  a  misrepresentation  of  his  Mare  ;  for  if  so, 
he  will  not  be  entitled  to  recover  back  any  share  of  the 
Stake.  H  the  plaintiff  knew  of  the  disqualification  of  his 
Mare,  the  law  will  not  assist  him  in  the  recovery  of  the 
deposit."     A  verdict  was  found  for  the  defendant  {-p). 

A  Stakeholder  should  pay  the  Stakes  to  the  Winner  or 
his  Agent.  For  where  the  holder  of  a  Ticket  in  a  Derby 
Lottery  sold  it  to  the  Plaintiff  before  the  Race,  and  the 
Horse  named  in  it  was  ultimately  declared  the  Winner,  it 
was  held  that,  even  supposing  the  Lottery  were  legal,  the 
plaintiff  could  not  sue  the  Stakeholder,  in  an  action  for 
3Io)teij  had  and  received,  for  the  amount  to  which  the  holder 
was  by  the  conditions  of  the  Lottery  entitled.  Because  a 
Ticket  of  this  sort  could  not  be  negotiable  like  a  Pro- 
missory note,  and  parties  could  not,  by  agreement  among 
themselves  simply,  make  a  transfer  of  such  a  Ticket,  so  as 
to  give  the  assignee  a  right  of  action  {q).  But  now,  by 
sect.  25,  sub-sect.  6  of  the  Judicature  Act,  1873  (36  &  37 
Yict.  c.  66),  the  owner  of  any  debt  or  other  chose  in  action 
may  assign  the  same  to  a  third  person  absolutely,  and  place 
such  person  in  the  position  he  himself  was  in  at  the  time 
of  the  transfer,  and  with  the  same  legal  and  equitable 
rights. 

The  actual  Winner  may  maintain  an  action  against  a 
Stakeholder  for   all  moneys   actually  in  his  hands,  and 


[p)  Weller  v.  Beakins,  2  C.  &  P. 
618  ;  Goldsmith  v.  Martin,  4  M.  & 
G.  5. 


{<])  Jones  V.  Carter,   15  L.  J.,  Q. 
B.  96. 


.STAKEHOLDERS.  399 

against  the  party  who  has  agreed  to  subscribe  or  con-  Winner  may 

tribute  to  the  Stakes,  where  it  has  not  been  paid  up,  and  mamtam  an 

this  however  great  the  amount  may  be  ;  provided  that  the 

game  is  lawful  and  that  the  transaction  is  not   in  the 

nature  of  a  Wager.     But  it  is  a  good  answer  to  an  action 

for  money  had  and  received,  that  the  money  w^as  deposited 

in  the  hands  of  the  defendant  to  abide  the  event  on  which 

a  Wager  was  made,  and  was  claimed  by  the  plaintiff  as 

the  Winner  of  the  Wager,  and  that  he  did  not  repudiate 

the  Wager,  or  demand  back  his  money  before  the  event 

thereof,  and  had  never  repudiated  the  Wager,  or  claimed 

the  money  on  any  ground  than  as  Winner  of  the  Wager, 

and   that  no   part  of   the  money  was  a  subscription  or 

contribution,   or  due  on   any  agreement   to   subscribe   or 

contribute  towards  any  plate,  prize  or  sum  of  money  to  be 

awarded  to  the  Winner  or  Winners  of  any  lawful  Game, 

Sport,  Pastime,  or  Exercise  (r). 

An  action  might  probably  be  maintained  for  the  Stakes 
or  Prize  by  the  Winner  in  every  lawful  Sport,  Pastime,  or 
Exercise,  which  a  Judge  in  his  discretion  might  not  think 
too  frivolous  to  try.  And  he  would  probably  allow  an 
action  to  be  tried,  should  its  subject-matter  be  a  claim  by 
the  Winner  of  Stakes  in  any  of  the  sports  mentioned  in 
7  &  8  Yict.  c.  3  (s).^ 

Where  five  shillings  a  head  had  been  staked  by  the  -^  Cricket 
eleven  players  on  each  side  in  a  Cricket  Match,  an  action     ^  °  ' 
was  tried,  and  the  Winners  recovered  the  Stake  from  the 
Stakeholder  {t). 

But  Lord  Tenterden  refused  to  try  an  action  to  recover  A  Wrestling 
back  a  deposit  on  a  Wrestling  Match  {u) .  Match. 

So  also  Abbott,  C.  J.,  refused  to  try  an  action  brought  A  Dog  Fight, 
against  the  Stakeholder  on  a  Dog  Fig  Jit,  and  said,  "  The 
time  of  the  Court  is  not  to  be  wasted  in  trying  which  Dog 
or  which  Man  won  a  battle"  (.r). 

Where  fraud  has  been  practised  the  loser  of  a  Pace  may  Loser  may- 
recover  his  Stake  from  the  Stakeholder,  and  produce  the  g^t^kTwhere 
agreement  without  a  Stamp.     In  the  following  case  the  there  has 
plaintiff  entered  into  a  written  agreement  with  a  third  been  Fraud, 
party  to  race  their  Horses  upon  certain  terms,  and  he  de- 

(r)  Savage  v.  Madder,   36  L.  J.,  [t)  Walpole  v.  Saimders,   7  D.  & 

Ex.  78  ;   16  L.  T.,  N.  S.  600  ;  16  R.  130. 

W.    R.    910;    and   see  Diffgle  v.  {u)  Kennedij  v.  Gad,   3  C.   &  P. 

Biggs,  L.  R,  2  Ex.  D.  422  ;  46  L.  376. 

J.,  Ex.  721 ;  37  L.  T.,  N.  S.  27.  [x)  Egcrton  v.  Furzeman,  1  C.  & 

(s)  See  Gaming,  post,  Chap.  4.  P.  613. 


400 


RACING,  STAKEHOLDERS  AND  STEWARDS. 


How  he  may 
waive  liis 
Claim. 


Where  a 
Stakeholder 
may  recover 
from  the 
Wioner. 


Money  in  the 
hand  of 
Stakeholder 
does  not  pass 
as  ' '  his 
moneys" 
nndcr  the 
Depositor's 
will. 


posited  the  amount  of  his  Stake  with  the  defendant.  The 
Race  was  run  and  the  plaintiff's  Horse  was  beaten  ;  but 
he  afterwards  discovered  that  the  whole  transaction  was  a 
concocted  fraud.  After  Notice  had  been  given  not  to  pay 
over  the  amount,  an  action  was  brought  to  recover  the 
Stakes,  and  it  was  held  by  the  Court  of  Exchequer,  that 
the  written  instrument,  although  unstamped,  was  properly 
admitted  in  evidence  in  proof  of  the  fraud  {//). 

But  if  a  person  once  affirms  the  contract  by  claiming 
the  Stake,  he  cannot  afterwards  turn  round  and  claim  a 
return  of  his  money  on  the  ground  of  the  agreement  being 
void  by  reason  of  fraud  (;:) . 

Where,  however,  the  Stakes  have  been  paid  over  to  a 
fraudulent  winner,  they  may  even  then  be  recovered  from 
him  in  an  action  by  the  Stakeholder.  Thus  a  Bitch  called 
Emily  Deans  was  entered  for  the  "  Great  Open  Puppy 
Stakes"  in  Northumberland.  The  Stakes  were  run  for 
and  a  Bitch  described  as  Emily  Deans  Avon  them,  and  the 
money  was  paid  over  by  the  Secretary  to  the  defendant. 
It  was  subsequently  ascertained  that  the  Bitch  which  had 
run  was  not  Emily  Deans,  but  one  called  Miami.  An 
action  was  brought  by  the  Secretary,  who  was  also  Stake- 
holder, to  recover  the  Stakes  from  the  defendant.  It  was 
submitted  by  the  counsel  for  the  defendant  that  the  plain- 
tiff was  not  the  proper  person  to  bring  the  action,  and  also 
that  Miami  being  in  every  way  qualified  in  point  of  age  to 
run  for  the  Stakes,  there  was  no  fraud  committed.  But 
Mr.  Baron  Martin  was  of  opinion  that  Emily  Deans  being 
the  animal  entered  for  the  match,  the  defendant  had  no 
more  right  to  substitute  another  Dog  in  her  place,  than  a 
person  entering  a  Hunter  for  a  Sweepstakes,  had  to  run  a 
Racehorse  instead.  A  verdict  was  found  for  the  plaintiff, 
and  a  rule  for  a  new  trial  was  refused  by  the  Court  (a). 

A  sum  of  money  deposited  with  Stakeholders,  to  abide 
the  result  of  a  Wager,  which  sum  was  repaid  by  them  on 
the  death  of  the  party  depositing  to  the  Administratrix,  does 
not  pass  under  the  words  "  I  give  all  7nt/  moneys,  house- 
hold furniture,  &c.,  &c.,"  because  this  sum  of  money  being 
in  the  hands  of  Stakeholders,  could  not  be  said,  after  being 
so  deposited,  to  have  been  in  the  possession  or  power  of  the 
Testator  at  any  subsequent  moment  of  his  existence  {b). 


{y)  Holmes  v.  Sixsmiih,  7  Ex. 
802. 

{z)  See  per  Pollock,  C.  B.,  Holmes 
V.  Sixsmiih,  7  Ex.  808. 


((?)  Emerson  v.  Dickson,  before 
Mr.  Baron  Martin,  Durham  Spr. 
Ass.  March  4,  1853. 

(i)  Manning  \.Furcell,2i  L.T.317. 


STEWARDS.  4  0  [ 

STEWARDS. 

The  Stewards  are  generally  the  proper  parties  to  decide  Their  duties, 
all  disj)utes  in  a  Race,  and  all  matters  which,  according  to 
the  conditions  of  the  Race,  are  to  he  referred  to  them.  In 
order  to  their  award  being  a  satisfactory  one,  they  should 
hear  both  sides  and  all  join  in  making  it ;  or  if  one  make 
an  award  for  all,  the  disputing  parties,  and  probably  also 
the  Clerk  of  the  Course  or  Stakeholder,  should  exj)ressly 
submit  themselves  to  his  authority ;  though  it  would  ap- 
pear that  without  a  strict  adherence  to  this  procedure  their 
award  might  be  a  legal  one  (r).  The  judgment  of  the 
Stewards  should,  if  possible,  be  obtained ;  and  recourse 
should  not  be  had  to  legal  proceedings,  unless  it  can  be 
shown  that  it  is  no  longer  practicable  to  get  judgment  from 
the  Stewards  (d).  But  if  the  Stewards  are  unable  or  in- 
competent to  determine  it,  the  case  must  go  to  a  Jury,  and 
the  Stakes  in  the  meantime  must  remain  in  the  hands  of 
the  Clerk  of  the  Course  where  he  is  the  Stakeholder.  The 
law  as  to  the  decision  of  Stewards  is  fully  laid  down  in  the 
following  cases. 

There  was  a  Sweepstakes  at  Newport  Pagnell  Races  for  Disputes  to 
Horses  not  tJtorough-hred.  Before  the  Race  was  run,  the  ^^  settled  by 
plaintiff,  who  was  owner  of  a  Horse  afterwards  second  in  ^™" 
the  Race,  gave  Notice  to  the  defendant,  who  was  Clerk  of 
the  Course,  that  a  Horse  belonging  to  one  Shaw,  which 
afterwards  came  in  first  for  the  Race,  was  thorough-bred, 
and  therefore  disqualified  to  start.  The  Rule  of  the  Races 
was,  that  all  disputes  were  to  be  settled  by  the  Stewards 
A.  and  B.,  whose  decision  was  to  be  final;  and  B.  had 
agreed  to  acquiesce  in  whatever  A.  did  as  Steward.  Neither 
of  the  Stewards  were  present,  and  on  A.'  being  referred  to, 
he  submitted  the  question  to  the  Jockey  Club,  who  refused 
to  entertain  it,  on  the  ground  that  it  was  a  mere  question 
of  fact,  and  referred  it  back  to  the  decision  of  the  Stewards. 
A.  afterwards  wrote  a  letter  to  the  plaintiff,  saying  he  con- 
sidered him  entitled  to  the  Stakes ;  but  no  proof  was  given 
that  the  first  Horse  was  thorough-hred. 

It  was  decided  that  the  letter  was  no  authority,  but  that  Award  should 
there   ought  to   have    been   an   express   award    by   both  ^^  °^ade  by 
Stewards;    or  to  make   an  award   by  A.  binding,  there  ^  ' 
ought  to  be  clear  proof  that  both  the  disputing  parties, 

(c)  See  post,  p.  403.  [d)  Brown  v.  Ofcrlunj,  25  L.  J., 

Ex.  169. 

O.  D  D 


402 


RACING,  STAKEH0],1)ERS  AND  STEWARDS. 


Custody  of 
Stakes  in  the 
meantime. 


Legal  position 
of  Stewards. 


Decision  not 
necessarily 
invalidated 
by  one  of 
them  being 
interested. 


Decision  of 
two  out  of 
three  Stew- 
ards held 
binding. 


and  probably  also  the  Clerk  of  the  Course,  submitted  to 
his  authority.     And  Mr.  Baron  Parke  said, — 

"  The  Stakes,  therefore,  remain  in  the  defendant's  hands 
until  it  be  determined  by  due  coiu-se  of  law  who  is  winner ; 
that  is,  by  the  Stewards,  if  they  are  competent  to  deter- 
mine it,  if  not,  by  a  Jury.  The  plaintiff  may  now  submit 
the  case  to  the  Stewards  if  they  are  competent  to  entertain 
it ;  if  not,  he  may  bring  an  action  and  show  himself  the 
winner,  by  showing  that  Shaw's  Horse  was  thorough-hrcd 
and  that  his  own  was  not"  {e). 

The  decision  of  the  Stewards  is  not  invalidated  by  the 
fact  of  one  of  them  being  interested  in  the  decision,  inas- 
much as  it  does  not  appear  to  be  in  the  contemplation  of 
the  parties,  that  they  shoidd  be  excluded  on  that  ground, 
nor  are  they  arbitrators  in  the  strict  legal  sense  (/"),  the 
intention  of  the  parties  being  to  constitute  a  tribunal  for 
the  termination  of  any  dispute  without  litigation  of  any 
kind  either  by  arbitration  or  action,  and  therefore  the 
principle  of  law  as  to  interested  judges  is  not  applicable 
to  them. 

Thus  in  the  case  of  Ellis  v.  Hopper  (rj),  where  a  Steeple- 
chase was  run  according  to  certain  rules  and  conditions, 
one  of  which  was  that  all  disputes  should  be  settled  by  the 
Stewards,  whose  decision  was  to  be  final,  it  was  held  that 
the  fact  that  one  of  the  Stewards  joined  in  the  award, 
where  the  winning  or  not  of  his  own  Horse  was  in 
question,  did  not  render  the  award  void.  And  Bramwell, 
B.,  said  in  his  judgment,  "If  in  the  betting  code  no  such 
implied  condition  exist,  that  the  appointed  arbitrators  or 
judges  shall  cease  to  be  empowered  to  act,  if  one  of  them 
becomes  interested  in  the  event ;  the  only  remaining  ques- 
tion is,  is  there  a  general  proposition  of  law,  that  whenever 
a  matter  is  referred  to  one  or  several  persons,  his  or  their 
powers  shall  cease,  if  one  of  them  becomes  interested  in 
the  event  ?  I  know  of  no  such  rule.  When  parties  agree 
to  refer  a  matter,  they  may,  if  they  please,  put  in  a  con- 
dition to  that  effect ;  but  if  they  clo  not,  why  should  the 
law  make  such  a  condition  for  them." 

It  appears  to  be  at  present  undecided  whether,  on  one  of 
the  Stewards  becoming  disqualified,  the  tribunal  would  still 
be  in  its  integrity  (A).     But  it  has  been  held  that  a  de- 


{e)  Marnjat  v.  JBroderick,  2  M. 
&  W.  369. 

(/)  Ellis  V.  Hopper,  4  Jur., 
N.  S.  1025 ;  S.  C.  28  L.  .J.,  Ex.  1 ; 
I'lUT  V.   WiHlrrhxiliam,    2S    L.    .T., 


Q.  B.  123. 

{g)  Ellis  T.  Hopper,  4  Jur.,  N.  S. 
1025  ;  S.  C.  28  L.  J.,  Ex.  1. 

{/>)  Ibid. 


STEWARDS.  403 

cisiou  made  by  two  of  the  Stewards,  three  having  been 
appointed,  was  valid  and  binding,  although  it  was  made  in 
the  absence  of  the  third  Steward,  and  although  he  dissented 
from  that  decision  {i). 

In  the  case  of  Parr  v.  Wintennrjhani  (/),  Lord  Campbell,  Stewards 
C,  J.,  thus  defined  the  position  of  Stewards  : — "  If  Stewards  '^^^^^  *™™ 
were  in  the  position  of  arbitrators,  they  would  have  to  meet  trators!^^" 
together,  to  deliberate  together,  and  to  give  a  joint  judg- 
ment.    But  they  are  judges  of  a  peculiar  character,  and  to 
avoid  the  technicality  of  a  legal  proceeding,  it  is  intended 
that  each  should  give  a  final  judgment,  and  not  that  they 
should   give  a  joint   judgment.     Accordingly   it   is   not 
necessary  that  they  should  meet  together  and  make  a  joint 
decision.     And  it  may  be  stated  as  a  general  principle, 
that  if  that  decision  is  a  fair  and  honest  one,  it  will  be 
upheld  by  the  Courts  of  Law"  (?'). 

Although  the  Judge  of  a  Horse-race  has  power  to  decide  Judge's 
finally  who  is  entitled  to  the  Stakes  as  Winner,  such  power  po^^rs  do 
does  not  accrue  to  him,  until  the  Race  has  been  run ;  and  -^^heu  Race 
the  Race  has  not  been  run,  if,  what  has  been  made  a  Con-  is  invalid, 
dition  Precedent  to  the  running,  e.  g.  that  a  certain  person 
should  be  the  Starter,  has  not  been  performed  (A-). 

Whore  the  printed  conditions  of  a  Steeple  Chase  in  1843  Steward's  de- 
contained  the  following  (amongst  other)  stipulations:  "A^o  cisionmain- 
Groom  or  Professional  Jockey  will  he  alloiced  to  ride,"  and  Oourt  o/ex- 
"  all  disputes  and  other  matters  shall  be  decided  by  the  chequer. 
Steward,   whose   decision   shall  be   final,    and  who  shall 
have  the  power  of  appointing  an  umpire :"  the  plaintiff 
who  had  a  Horse  to  run,  which  he  intended  should  be 
ridden   by  one  Walker,  was   informed  by  order  of  the 
Steward,  before  the  day  of  the  Race,  that  the  Steward  con- 
sidered Walker  as   a   Professional  Jockei/,   and  that  the 
Horse,  if  ridden  by  him,  would  be  no  Horse  in  the  Race. 
On  the  day  of  the  Race,  Walker  appeared  in  the  field, 
mounted  and  prepared  to  ride  the  plaintiff's  Horse,  when 
the  Steward  intimated  to  the  plaintiff  and  others  near  him 
that  his  Horse  would  be  no  Horse  in  the  Race,  as  Walker 
had  been  forbidden  to  ride.    Notwithstanding  this  intima- 
tion. Walker  rode  the  plaintiff's  Horse,  and  came  in  first. 
On  the  following  day  the  Steward  pronounced  the  second 
Horse  to  be  the  winner  and  entitled  to  the  Stakes.     The 

(i)  Parr     v.      Whiterlwjham,     5  [k)  Carr  v.  Martinson,  28  L.  J., 

Jur.,   N.  S.    787;  S.  C.  28  L.  J.,       Q.  B.  126. 
Q.  B.  123. 

D  D  2 


404 


KACIXG,  STAKEHOLDERS  AND  STEWARDS. 


Neiccomen  v. 
Lynch. 


Provisional 
decision. 


plaintiff  then  brought  an  action  against  the  defendant,  who 
was  Secretary  to  the  Eace  Committee,  and  holder  of  the 
Stakes.  A  verdict  was  found  for  the  plaintiff,  reserving 
leave  to  the  defendant  to  enter  a  nonsuit.  The  Court  of 
Exchequer  made  the  rule  absolute  to  enter  a  nonsuit,  and 
Chief  Baron  Pollock  said,  "  The  question  is,  whether  the 
Steward  has  decided  this  point,  and  whether  his  decision  is 
good  in  point  of  law.  I  am  of  opinion  that  he  has  come 
to  a  decision,  and  that  that  decision  is  sufficient."  And 
Mr.  Baron  Alderson  said,  "  It  would  be  strange,  if  in  a 
case  like  this  a  formal  and  solemn  decision  was  necessary ; 
if,  for  instance,  it  were  requisite  that  a  point  should  be 
regularly  raised  before  the  Steward,  that  witnesses  should 
be  examined  upon  oath,  and  the  same  strictness  required  as 
in  arbitrations  under  the  sanction  of  a  Court  of  Justice"  (/). 

At  a  Steeple  Chase,  weight  for  age — run  under  certain 
rules,  one  of  which  made  the  decision  of  the  Stewards 
final,  and  another  required  that  upon  entering  a  Horse  his 
age  should  be  stated — the  defendant's  Horse  was  entered 
as  "aged;"  he  came  in  first,  but  was  objected  to  as  being 
a  "  six-year-old,"  and  not  an  "  aged"  Horse  ;  the  Stewards 
decided  that,  though,  as  a  matter  of  fact,  the  Horse  was  a 
"  six-year-old,"  and  not  "  aged,"  the  misstatement  in  the 
entry  was  immaterial,  inasmuch  as  the  weight  imposed  on 
a  "six-year-old"  and  on  an  "aged"  Horse  was  the  same. 
The  Irish  Court  of  Exchequer  Chamber  held,  that  the 
Stewards  had  not  exceeded  their  jurisdiction,  that  there 
being  no  question  as  to  the  bona  fides  of  their  judgment, 
their  decision  on  the  construction  of  the  rules,  as  well  as  on 
the  matters  of  fact,  was  final  and  conclusive  between  the 
parties,  and  accordingly  that  the  defendant's  Horse  was 
entitled  to  the  Stakes  {ni). 

Where  by  the  conditions  of  a  Race  the  decision  of  the 
Stewards  in  all  cases  of  dispute  is  to  be  final,  they  need  not 
decide  on  the  whole  case  at  once,  but  may  come  to  a  pro- 
visional decision  on  the  facts  before  them,  and  subsequently 
reopen  the  question  and  decide  on  the  whole  case,  and  such 
ultimate  decision  will  bn  final.  Thus,  in  SmitJt,  v.  Little- 
dale  [n),  the  plaintiff's  Horse  ran  in  a  Eace  subject  to  the 
following  conditions,  viz.: — that  he  had  been  fairly  hunted 
with  certain  hounds  during  the  season,  that  he  had  been 


(/)  Bcnhow  V.  Jones,  14  M.  &  W. 
193;  S.  C.  14  L.  J.,  Ex.  257. 

(m)  Neivcomen  v.  Lynch,  10  Ir.  R., 
C.  L.  248— Ex.  Ch.  'Eerersing  the 


decision  of  the  Queen's  Bench,  9 
Ir.  R.,  C.  L.  1. 

(«)  15  W.  R.  69—0.  P. 


STEWARDS.  405 

a  certain  time  in  the  possession  of  his  owner;  and  the 
Stewards  w' ere  to  disqualify  any  Horse  that  they  did  not 
consider  to  have  been  hunted  in  a  genuine  bond  fide 
manner,  and  their  decision  in  all  cases  of  dispute  to  be 
final.  The  Horse  came  in  first,  and  the  owner  claimed  the 
►Stakes.  On  an  objection  that  the  Horse  had  not  been 
fairly  hunted,  the  Stewards  at  once  went  into  the  question 
in  the  weighing-room,  and  held  that  he  had,  leaving  the 
question  whether  the  plaintiff  was  owner  within  the  condi- 
tions for  future  decision.  They  subsequently  decided  that 
he  was  such  owner,  but  at  the  same  time  disqualified  the 
Horse  as  not  being  fairly  hunted  because  he  had  not  been 
ridden  by  his  owner.  In  an  action  for  the  Stakes,  the 
Jury  found  that  the  decision  in  the  weighing-room  was  in 
favour  of  the  Horse  subject  to  the  question  of  ownership, 
and  that  the  Stewards  afterwards  decided  that  question  in 
favour  of  the  plaintiff,  and  at  the  same  time  disqualified 
the  Horse.  Cockburn,  C.  J.,  told  the  Jury  that  in  his 
opinion  the  Stewards  could  not  make  a  conditional  decision, 
and  that  the  decision  in  the  weighing-room  was  a  provi- 
sional decision  only,  and  directed  the  verdict  to  be  entered 
for  the  defendant,  leaving  it  to  the  plaintiff  to  move  to 
enter  it  for  him,  if  on  the  findings  of  the  J  ury  on  the  facts 
of  the  case  the  Court  should  think  him  entitled  to  it.  The 
plaintiff's  counsel  moved  accordingly,  and  contended  that 
the  decision  of  the  Stewards  in  the  weighing-room  was  con- 
clusive, and  that  as  no  further  evidence  was  brought  before 
them,  they  could  not  reopen  it.  Erie,  C.  J.,  said,  "I  am 
of  opinion  that  there  should  be  no  rule :  the  action  is 
against  a  Stakeholder;  the  Ivace  was  run,  and  the  Stewards 
decided  that  the  Stakes  should  not  be  given  to  the  plaintiff, 
but  to  another  person.  The  Race  was  subject  to  this  con- 
dition :  '  The  Stewards  will  strictly  carry  out  the  object 
of  this  meeting  by  disqualifying  any  Horse  they  do  not 
consider  to  have  been  hunted  in  a  genuine  and  bond  fide 
manner,  and  their  decision  in  all  cases  of  dispute  will  be 
final.'  That  makes  them  absolute  judges  of  fact  and  law, 
and  they  have  ultimately  decided  against  the  plaintiff's 
Horse.  The  decision  in  the  weighing-room  was  an  inchoate 
decision  only.  A  Stakeholder  is  not  to  be  made  liable  to 
an  action  where  there  is  a  stipulation  in  such  terms  as 
these."  Willes  and  Keating,  JJ.,  concurred,  and  the  rule 
was  therefore  discharged. 

The  Stewards  of  a  Race  are  the  proper  parties  to  ap-  Appointment 
point  the  Judge,  who  may  decide  which  is  the  winning  °^  ^  Judge. 


406 


RACiiS'G,  ^STAKEHOLDERS  AND  STEAVARDS. 


Negligence  in 
not  appoint- 
ing one. 


Decision  of 
the  Umpire 
or  Committee. 


"Wlien  Juris- 
diction has 
not  attached. 


Horse  ;  and  if  tliey  are  paid  for  their  trouble,  or  enter  upon 
tlieir  duties,  they  are  liable  to  an  action  for  not  doing  so  (o) . 

But  a  person  gratuitously  undertaking  the  duties  of 
Steward  of  a  Horse  Race,  is  not  liable  for  negligent  non- 
feasance in  not  appointing  a  Judge,  unless  it  appears  that 
he  commenced  to  perform  the  duties  of  the  office  [p). 

Where  by  the  conditions  of  a  Race  the  decision  of  the 
Umpire  or  Committee  is  to  be  final,  the  parties  are  bound 
by  it  in  the  same  way  as  in  the  case  of  Stewards.  Thus 
where  a  Match  was  made  between  two  Mares  under  the 
following  agreement : — 

"Pratt  and  Evaxs. 
''  Thomas  Holyoake,  Esq.,  Umpire. 
"  Frederick  Pratt  bets  Thomas  Evans  100/.  to  25/.  p.p. 
\_phi>/  or  pay'],  Mr.  Ryley's  brown  Mare  [late  his  pro- 
perty] beats  Thomas  Evans's  Mare,  Matilda,  four  miles 
across  a  coimtry,  thirteen  stone  each.  To  come  off  1st 
March,  1811.     The  Umpire.' s  decision  to  he  final. 

(Signed)         "  Thomas  Evans, 

"Frederick  Pratt." 

The  Match  came  off  on  the  day  appointed.  Mr.  Ryley's 
brown  Mare  came  in  first ;  but  Mr.  Holyoake,  the  Umpire, 
decided  that  the  other  Mare  was  the  winner,  in  con- 
sequence of  the  former  having  passed  through  a  gateway 
instead  of  goiug  over  the  hedge,  which  the  rules  of  Steeple- 
chasing  seem  to  require.  It  was  held  that  it  was  not  com- 
petent to  either  party  to  dispute  the  decision  of  the  Umpire, 
as  they  had  constituted  him  Judge  of  the  law  and  the 
fact(^). 

But  it  may  be  that  the  jurisdiction  of  the  Referee  has 
not  properly  attached,  in  which  case  his  decision  will  not 
be  final,  and  the  party  against  whom  his  award  has  been 
made  will  be  entitled  to  recover  in  an  action  against  the 
Referee  for  the  Stakes  (r).  In  Sadler  y.  Smith,  the  plaintifi 
and  Kelley,  watermen  on  the  Thames,  agreed  to  row  a 
right-away  Scidler's  Race,  according  to  the  recognized 
rules  of  boat  racing,  the  decision  of  the  Referee  to  be 
final.     The  stakes  were  deposited  A^dth  the  defendant.     In 


(o)  See  the  principle  stated  in 
Smith's  JVIerc.  Law,  112,  and  cited 

by  Jervis,  C.  J.,  Balfey.  West,  22 
L.  J.,  C.  P.  176. 

{p)  Balfe  V.  West,  22  L.  J.,  C. 

P.  175  ;  S.  C.  1  C.  L.  Ecp.,  C.  P. 
225. 


(<l)  Evans  v.  Trait,  4  Scott,  N.  Pt. 
378. 

(r)  Sadler  v.  Smith,  10  B.  &  S. 
17;  L.  R.,  5  Q.  B.  40;  39  L.  J., 
Q.  B.  17;  21  L.  T.,N.  S.  502;  18 
W.  R.  148— Ex.  Ch. 


STEWARDS.  407 

Sculling  Eaces  between  professional  watermen  it  is  tlie 
custom  for  the  competitors  to  start  themselves,  but  if  either 
should  make  default  in  starting,  and  any  question  should 
in  consequence  arise,  it  would  be  in  the  power  of  the 
Referee  to  determine  that  question.  The  plaintiff  and 
Kelley  attempted,  unsuccessfully,  to  start,  and  Kelley  rowed 
to  the  Eeferee,  who  ordered  him  to  tell  the  plaintiff  that  if 
he  would  not  start  Kelley  must  start  without  him.  Kelley 
rowed  over  the  course  without  the  plaintiff,  and  the  Referee 
awarded  the  Race  and  Stakes  to  him,  without  hearing  any 
evidence  or  taking  any  steps  to  ascertain  if  his  order  had 
been  communicated  to  the  plaintiff,  and  without  having 
any  means  of  acquiring  the  knowledge  of  the  fact.  The 
plaintiff  brought  an  action  to  recover  his  deposit.  The 
Jmy  found  that  the  order  of  the  Referee  was  not  com- 
municated to  him,  and  that  he  had  not  a  fair  opportunity 
of  starting.  It  was  held  by  the  Exchequer  Chamber, 
affirming  the  judgment  of  the  Court  of  Queen's  Bench, 
that  the  jurisdiction  of  the  Referee  never  attached,  and 
therefore  his  decision  was  not  final,  and  the  plaintiff  was 
entitled  to  recover.  And  Kelly,  C.  B.,  said,  "  In  giving 
judgment  in  the  present  case,  the  Court  has  no  desire  to 
cast  the  slightest  doubt  upon  the  principle  that  whenever 
a  Referee,  Arbitrator  or  Umpire  has  given  a  decision  upon 
a  question  within  his  jurisdiction,  a  Court  of  Law  has  no 
power  to  interfere.  And  if  the  Referee  in  the  case  now 
before  us,  having  the  materials  before  him,  had  pronounced 
a  decision,  it  would  not  have  been  within  the  province  of 
any  Judge  or  any  Jury  to  overrule  it.  But  on  examining 
the  facts  of  the  case  it  will  appear  that  the  Referee  had  no 
jurisdiction,  his  jurisdiction  was  to  be  founded  upon  the 
performance  of  a  condition  which  he  himself  prescribed, 
and  that  condition  never  was  performed.  Kelley  was  to 
tell  the  plaintiff  that  if  he  did  not  start,  Kelley  was  to 
start  without  him.  The  Referee  thereby  imposed  a  specific 
condition,  upon  the  fulfilment  of  which,  but  not  otherwise, 
the  start  might  take  place.  If  the  plaintiff,  on  receiving 
the  message  from  the  Referee,  had  refused  or  forborne  to 
start,  and  Kelley  had  started,  the  condition  imposed  by  the 
Referee  would  have  been  so  far  complied  with  as  to  give 
him  jm-isdiction  to  determine  that  a  start  had  taken  place. 
But  we  must  assume  that  the  message  from  the  Referee 
was  never  communicated  by  Kelley  to  the  plaintiff,  who 
therefore  had  no  means  of  knowing  that  he  was  to  start  at 
the   time  at  which   Kelley  started.     Therefore  the  start, 


408  RACING,  STAKEHOLDERS  AND  STEWARDS. 

which  according  to  the  terms  imposed  by  the  Referee  was 
to  he  a  condition  precedent  to  the  Race,  never  took  place." 
Also  where  a  Race  was  run,  subject  to  certain  con- 
ditions, one  of  which  was,  that  the  riders  should  be  "  gen- 
tlemen, farmers  or  tradesmen,  being  persons  never  having 
ridden  as  regular  Jocl-eijs  or  paid  lliders^  Another,  that 
the  decision  of  the  Committee  on  any  dispute  that  might 
arise  should  be  final.  At  the  trial  it  appeared  that  the 
rider  of  the  plaintiif's  Horse,  which  came  first  to  the 
mnning  chair,  had  been  in  the  habit  of  riding  at  Races, 
sometimes  receiving  his  expenses,  but  never  having  been  paid 
for  his  services,  and  that  the  plaintiff's  right  to  the  Stakes 
was  disputed  on  the  ground  of  an  alleged  cross.  Imme- 
diately after  the  Race,  the  Jockey  was  required  to  attend 
before  the  Committee,  but  omitted  to  do  so.  The  Com- 
mittee therefore  entered  upon  the  inquiry,  and  ultimately 
came  to  the  resolution,  that  unless  the  plaintiff  would  pro- 
duce evidence  before  them  on. the  following  morning  to 
induce  them  to  alter  their  minds,  their  decision  was  that  the 
second  Horse  was  the  winner.  This  was  communicated  to 
the  plaintiff,  but  no  evidence  was  offered,  and  nothing 
more  was  done. 

Mr.  Justice  Coleridge  told  the  Jury,  that  they  must 
consider,  first,  whether  the  Committee  had,  before  the 
commencement  of  the  action,  decided  the  dispute ;  se- 
condly, whether  or  not  the  Jockey  was  a  rider  qualified 
within  the  language  of  the  issue ;  thirdly,  whether  he 
unfairly  crossed.  And  he  further  told  them,  that  if  the 
Committee  had  decided  the  matter,  their  decision  would 
be  conclusive,  but  that  it  must  have  been  come  to  before 
action  brought,  as  to  which  the  evidence  was  not  satis- 
factory ;  and,  in  his  opinion,  the  Jockey's  disqualification 
had  not  been  established.  The  Jmy  returned  a  verdict 
for  the  plaintiff,  and  the  Court  of  Common  Pleas  dis- 
charged a  rule  for  a  new  trial  («). 

Terms  of  a  All  the  parties  whose  Horses  are  entered  must  of  course 

^^^'  adhere  to  the  terms  of  the  Race,  such  as  the  weights,  pay- 

ment of  entrance  money,  &c.,  because  no  single  condition 
can  be  waived  without  the  unanimous  consent  of  the  Sub- 
scribers (/). 

Rules  of  a  According  to  the  Rules  by  which  a  Regatta  was  regu- 

ega  a.  lated,  and  which  had  been  signed  by  all  the  parties  taking 

[s]    Walmslcy     v.     Mattheus,      3  (0    WcUcr  v.  Deakins,  2  C.   &  P. 

Scott,  N.  E.  584.  618  ;    and  see  Lacey  v.    Umbers,  2 

C.  M.  &R.  116. 


STEWARDS.  409 

part  in  tlie  Eace,  tlie  Prize,  Avhieli  was  a  Boat,  was  not  to 
be  delivered  np,  unless  it  was  fairly  won  to  the  satisfaction 
of  the  Managers.  In  consequence  of  some  Fouling  the 
Managers  were  dissatisfied,  and  called  upon  both  parties 
to  stop  the  Race.  One  of  the  parties,  however,  continued 
to  row  on  alone,  until  he  reached  the  Goal ;  and  then, 
assisted  by  his  friends,  he  took  possession  of  the  Prize  Boat, 
and  deposited  it  in  the  defendant's  yard.  An  action  of 
Trover  was  brought  against  the  defendant  by  the  Managers 
to  recover  the  Boat,  and  Lord  Denman  being  of  opinion 
that  the  evidence  of  conversion  on  the  part  of  the  defen- 
dant was  very  strong,  the  Jury  found  a  verdict  for  the 
plaintiff  («). 

Neither  the  Stewards,  Clerk  of  the  Course,  nor  any  stewards,  &c. 
other  persons,  can  waive  or  vary  the  published  conditions  cannot  waive 
of  any  Race  without  the  consent  of  all  the  Subscribers.  of^aKaceV°^ 
Thus  where  an  action  for  Money  had  and  received  was 
brought  against  the  defendant,  who  was  Clerk  of  the 
Course  at  the  Mostyn  Hunt  Races,  for  the  amount  of 
Stakes  held  by  him  as  the  Stakeholder  on  a  Race  won 
by  a  Mare  of  the  plaintiff's  called  Funny :  the  follow- 
ing was  the  printed  advertisement  of  the  Race : — "  A 
Sweepstakes  of  ten  guineas  each,  five  forfeit,  for  Horses 
not  thorough-bred  that  have  never  started  against  a  thorough- 
bred one  or  run  for  a  Plate;  that  have  been  regularly 
hunted  with  Sir  Thomas  Mostyn's,  the  Duke  of  Beaufort's 
or  the  Duke  of  Grafton's  hounds,  up  to  the  day  of 
naming,  and  are  bond  fide  the  property  of  the  Subscribers, 
&c.  One  guinea  entrance.  Ilorses  to  be  named  by  Mr. 
E.  Deakins  on  or  before  the  22nd  of  March."  The 
plaintiff  paid  his  share  of  the  Stake,  and  his  Mare  came  in 
first ;  but  it  appeared  that  the  Mare  had  been  only  once 
hunted  with  the  hounds  of  Sir  Thomas  Mostyn.  A  wit- 
ness proved  that  about  half-an-hour  before  the  Race  was 
run,  the  plaintiff  said  to  the  defendant,  that  he  hoped  he 
was  satisfied  about  the  Mare's  hunting,  and  that  the 
defendant  replied,  "  Quite  so :  you  run  your  Mare,  we 
have  arranged  that."  But  Mr.  Baron  Yaughan  said,  "  It 
must  be  shown  that  the  Clerk  of  the  Course  had  authority 
from  the  Subscribers  to  waive  the  conditions  of  the  Race. 
It  is  not  enough  for  the  Clerk  of  the  Course  to  say,  half- 
an-hour  before  the  running,  that  he  would  waive  a  par- 

(m)   Chccscman  v.  Hart,  before  Lord  Denman,  C.  J.,  Guildhall,  Dec.  23, 
1847. 


410 


KACING,  STAKEHOLDEKS  AND  STEWARDS. 


Arbitration 
of  the  Jockey 
Club. 


ticular  condition.  I  take  it  that  there  was  a  printed  pro- 
posal to  run  Horses  on  certain  terms ;  what  the  Clerk  said 
after  this  was  published  cannot  have  the  effect  of  waiving 
any  of  those  terms  without  all  the  other  Subscribers  are 
proved  to  have  consented  to  it"  (.r). 
Rules  of  the  On  those  Courses  which  are  governed  by  the  Rules  of 
Jockey  Club,  ^j^^  Jockey  Club  (//),  the  Stakeholders,  Stewards,  and  all 
persons  concerned  in  the  llaces,  must  regulate  their  pro- 
ceedings accordingly,  unless  there  be  a  waiver  of  any 
of  these  Rules  by  mutual  consent.  But  the  Jockey  Club 
will  not  entertain  any  mere  matter  of  fact  submitted  to 
them,  but  will  send  it  back  for  the  decision  of  the . 
Stewards  (z)  ;  and  the  Courts  will  receive  the  Rules  of 
the  Jockey  Club  as  evidence  with  respect  to  the  laws  of 
Racing  (a). 

A  submission  to  the  Arbitration  of  the  Jockey  Club 
of  a  disputed  account,  amounts  to  an  agreement  which 
cannot  be  impeached  under  the  Acts  against  Graming,  if 
any  part  of  the  accounts  between  the  parties  is  legal. 

Thus,  the  plaintiff  in  1833  gave  a  post  obit  security  on 
his  expectancy  in  a  certain  Fund,  payable  on  the  death 
of  his  Father  to  W.,  in  consideration  of  certain  Gaming 
debts.  He  subsequently  won  a  larger  sum  of  W.  by 
Bets  on  Horse  Races,  and  both  parties  having  submitted 
to  the  arbitration  of  the  Jockey  Club  in  1837,  the  Steward 
decided  that  one  debt  should  be  set  off  against  the  other, 
and  the  secmity  given  up.  And  on  the  plaintiff  filing 
his  Bill  to  have  the  Security  delivered  up  to  be  cancelled, 
the  Master  of  the  Rolls  received  in  evidence  the  entry  of 
the  transaction  in  the  Books  of  the  Jockey  Club,  and  also 
the  testimony  of  Mr.  Grreville,  the  Steward  ib). 
Sporting  The    Courts   will   not   take   judicial   notice  of  sporting 

phraseology.  pJirascolofjij,  but  tliey  will  admit  evidence  to  explain  it. 
Thus,  where  a  Match  was  made  between  two  Mares 
"  across  a  country"  it  was  held  that  although  the  Court 
could  not  take  judicial  notice  of  such  phrase,  yet  evidence 
was  admissible  to  show  that  in  Sporting  phraseology  it 
means  over  all  obstructions,  and  prohibits  the  rider  from 
availing  himself  of  an  open  gate  (r).     And  in  another  case 

{x)    WeUcr  v.  JJealclns,  2  C.  &  P.  (/)   GreviUe  v.  Chapman,  5  Q.  B. 

618.  745  ;  and  see  the  Riiles  of  Racing-, 

(y)  For  the  Rules  of  the  Jockey  Appendix. 

Club,    see    Racing    Calendar    for  [b)  Uawl-er  \.    TTood,   I    W.   R. 

1882.  31G  (M.  R.). 

(?)  Marryat  v.  Broderick,  2  M.  &  (r)  Evans  v.  Pratt,  4  Scott,  N.  R. 

W.  369.  378. 


STEWARDS.  411 

evidence  was  admitted  to  sliow  tliat  tlie  letters  "  P.  P." 
signified  that  the  parties  were  bound  either  to  run  the 
match  or  forfeit  the  Stakes  {d). 

So,  also,  where  the  Eace  was  what  is  termed  a  "Selling"  ^  "  Selling" 
Race,  evidence  was  admitted  to  explain  that  it  meant  a  '^^^' 
Race  for  which  Horses  were  entered  upon  the  terms  that 
the  Horse  which  won  the  Race  was  to  be  sold  by  Auction 
to  the  highest  bidder,  but  the  owner  was  only  to  receive 
the  price  put  upon  the  Horse  when  it  was  entered,  the 
balance  going  to  the  Racing  Fund,  That  Horses  thus 
entered  were  weighted  according  to  the  amount  put  upon 
them,  those  of  the  highest  price  carrying  the  greatest 
weight  (e). 

Where  by  the  terms  of  a  Race  the  riders  were  to  be  A  professional 
persons  who  had  never  ridden  as  Regular  JocJiC//s  or  Paid  Jockey. 
Riders,  it  was  held  by  Chief  Justice  Tindal,  in  the  Court  of 
Common  Pleas,  that  a  Reejular  Joclicy  or  Raid  Rider  is  a 
person  who  follows  the  business  of  a  Jockey  or  Rider  as  a 
means  of  gaining  a  livelihood.  But  that  a  person  who  had 
sometimes  received  his  expenses,  but  had  never  been  paid 
for  his  services,  was  clearly  not  disqualified  (/). 

Where  by  the  terms  of  a  Race  the  Horse  must  have  been  Horse  regu- 
recjularhj  hunted  with  some  particular  Hounds,  it  is  not  larly  hunted 
necessary  to  qualify  a  Horse  to  run  that  he  should  have  ^^       °^°  ^' 
been  hunted  every  day  the  Hounds  went  out.     It  is  sufii- 
cient  to  show  that  the  Horse  has  been  hunted  frequently, 
but  one  day's  hunting  is  decidedly  not  enough  ( g). 

Where  a  Match  is  made  for  a  particular  Meeting  which  Match  for  a 
depends  upon  weather  or  other  circumstances,  of  course  the  ^^^\'^^]^^ 
Match  must  be   run  when  such   Meeting   actually   takes  °' 

place.  Thus  where  an  agreement  in  writing  was  made 
between  the  plaintiff  and  the  defendant  to  run  a  Match 
with  Greyhounds  "  on  the  Wednesday  during  the  New- 
market Meeting,  1841,  P.  P."  It  appeared  that  the 
Newmarket  Meetings  were  Meetings  of  a  Coursing  Club ; 
that  the  power  of  appointing  and  adjourning  them  was 
vested  in  the  Stewards,  who  were  governed  by  printed 
Rules  ;  and  that  the  practice  of  the  Club  was  to  hold  the 
February  Meetings  on  the  first  or  second  Tuesday  in  that 
month,  weather  permitting ;  and  if  at  the  Meeting  the 
ground  proved  unfit  for  Coursing,  their  practice  was  to 

{d)  Daintree   v.    Hutchinson,     10  ( /")   Wahnesley    v.    Matthews,    3 

M.  &  W.  89.  Scott,  N.  R.  584. 

{e)  See  Hadhnd  v.    Trice,    Ap-  (//)   WcUer  v.  Lcakins,  2  C.  &  P. 

pendix.  618. 


412  RACIKG,  STAKEHOLDERS  AND  STEWARDS. 

adjourn  to  a  given  day,  or  the  first  open  day.  At  the 
time  when  the  contract  in  question  %yas  made,  the  day 
appointed  for  the  February  Meeting  was  Tuesday  the 
2nd  of  February,  18-11.  On  Wednesday  the  3rd,  the 
plaintiff  and  defendant  were  there,  but  frost  prevented  the 
Meeting  from  being  then  held,  and  it  was  adjoiu'ned  to 
Tuesday  the  9th,  veathcr  permitting.  The  frost,  however, 
continued  beyond  that  day,  and  the  Meeting  was  ultimately 
held  on  Tuesday  the  16th.  On  Wednesday  the  17th  the 
plaintiff  came  with  his  Dog  ready  to  run  the  Match,  but 
defendant  did  not  appear. 

It  was  held,  first,  that  the  construction  of  the  contract 
was,  that  the  Match  should  be  run  on  the  Wednesday  during 
the  February  Meeting,  whenever  it  should  be  actually 
held,  and  that  the  plaintiff  performed  his  part  of  the  con- 
tract by  being  ready  to  run  on  Wednesday  the  17th; 
secondly,  that  the  plaintiff  was  not  bound  to  produce  the 
printed  llules,  but  that  it  was  enough  for  him  to  show  that 
the  February  Meeting  was  then  actually  held ;  and  also 
that  evidence  was  admissible  to  show  what  the  joarties 
intended  by  the  letters  "P.  P."  subjoined  to  the  agree- 
ment {/i). 
Ordering  off  ^]^q  Steward  of  a  Race-course  can  order  any  person 
Stand^^^  off  the  Gfrand  Stand  or  Inclosure,  though  he  has  paid  for 
his  Ticket ;  but  in  such  case  the  Steward  or  his  Agent  had 
better  tender  the  price  of  the  Ticket  to  the  party  at  the 
time  of  giving  him  Notice  to  quit  the  Stand  or  Inclosure 
to  which  the  Ticket  had  giving  him  admittance.  But  the 
person  who  had  sold  it  to  him  should  return  the  money, 
for  otherwise  the  holder  of  it  would  probably  have  a  right 
of  action  against  the  person  from  whom  he  had  purchased 
it,  or  against  those  who  had  authorized  its  being  issued  and 
sold ;  such  action  however  would  be  founded  on  a  breach 
of  contract,  and  not  on  his  having  acquired  by  the  Ticket 
any  right  to  go  on  the  Stand  or  Inclosure  in  spite  of  the 
owner  of  the  soil.  The  authority  of  the  Steward  was 
confirmed  in  the  following  case,  where  the  question  was 
fully  discussed  before  the  Court  of  Exchequer. 

In  184'i,  Lord  Eglinton  being  Steward  of  Doncaster 
Races,  Tickets  were  sold  in  Doncaster  at  one  guinea  each, 
which  were  understood  to  entitle  the  holders  to  admission 
into  the  Gfrand  Stand  and  its  Inclosure,  and  to  remain 
there  during  the  Races.     They  were  issued  with   Lord 

{h)  Baintrec  v.  Hntchinson,  10  M.  &  W.  87,  89. 


STEWARDS.  413 

Eglinton's  privity,  but  they  were  not  sealed  nor  signed 
by  him.  It  appeared  that  the  plaintiff,  Wood,  having 
purchased  one  of  these  Tickets,  came  to  the  Stand  during 
the  Races  of  the  year  1843,  and  was  there  or  in  the  Inclo- 
sure  while  the  Races  were  going  on  ;  and  while  there,  and 
during  the  Races,  the  defendant,  by  the  order  of  Lord 
Eglinton,  desired  him  to  depart,  and  gave  him  Notice  that 
if  he  did  not  go  away  force  would  be  used  to  turn  him  out. 
The  plaintiff  had  in  no  respect  misconducted  himself ;  and 
it  was  admitted  that,  if  he  had  not  been  required  to  depart, 
his  coming  upon  and  remaining  in  the  Inclosure  would 
have  been  an  act  justified  by  his  purchase  of  the  Ticket. 
The  plaintiff  refused  to  go,  and  thereupon  the  defendant, 
by  order  of  Lord  Eglinton,  forced  him  out,  using  no 
unnecessary  violence.  It  was  held,  that  even  assuming 
the  Ticket  to  have  been  sold  to  the  plaintiff  under  the 
sanction  of  Lord  Eglinton,  still  it  was  lawful  for  Lord 
Eglinton,  without  returning  the  guinea,  and  without  as- 
signing any  reason  for  what  he  did,  to  order  the  plaintiff 
to  quit  the  Inclosure  ;  and  that  if  the  Jury  were  satisfied 
that  Notice  was  given  to  the  plaintiff  requiring  him  to 
quit  the  ground,  and  that  before  he  was  forcibly  removed 
by  the  defendant  a  reasonable  time  had  elapsed,  during 
which  he  might  conveniently  have  gone  away,  then  the 
plaintiff  was  not,  at  the  time  of  the  removal,  on  the  place 
in  question  by  the  leave  and  licence  of  Lord  Eglinton. 

On  this  direction  a  verdict  was  found  for  the  defendant, 
and  a  rule  nisi  having  afterwards  been  obtained  by  the 
plaintiff  to  have  this  verdict  set  aside  on  the  ground  of 
misdirection,  the  Court  of  Exchequer,  after  hearing  both 
sides  and  taking  time  to  consider,  in  an  elaborate  judgment 
delivered  by  Mr.  Baron  Alderson,  discharged  the  rule(/). 

In  ordering  goods  or  work  for, the  purpose  of  Races,  the  Ordering 
Stewards  should  expressly  inform  the  parties  who  it  is  that  goods, 
intends  to  be  answerable  for  the  payment,  otherwise  they 
will  be  personally  liable.  In  the  case  of  Storr  and  another 
v.  Scott,  Bart.  (A-),  it  appeared  that  the  defendant,  being 
one  of  the  Stewards  of  Lichfield  Races,  at  the  request  of 
the  Clerk  of  the  Course  chose  a  Gold  Cup  at  Storr  and 
Mortimer's,  who  brought  an  action  against  him  for  the 
price  ;  it  being,  however,  shown  that  they  had  given  credit 
for  it  to  the  Clerk  of  the  Course,  and  had  accordingly  sent 
him  an  invoice,  a  verdict  was  found  for  the  defendant. 

(j)    Wood  V.  Lcadbitter,  13  M.  &  {k)  Storr   and   another  v.    Scott, 

W.  838.  ^ff/Y.,  6C.  &P.  241. 


(    414     ) 


CHAPTER  III. 


WAGERS. 


Wagers  at  Common  Laic 

Wager  on  the  Life  of  Kapolcon  . 

Wager  on  the  Eesiilt  of  an 
Election 

Betting  on  a  Race 

Bets  not  recoverable    

Deposit  recoverable  before  tJie 
Event 

Eccision  of  the  Court  of  Common 
I'leas   

irhat  is  a  Wagering  Contract  . . 

Money  advanced  icith  Stipula- 
tion   

Trice  of  Mare  to  be  increased,  if 
she  won,  hy  her  Winnings    . . 

Billiard  3Iatch 

Eotundity  of  Earth   

Trotting  against  Tune 

Agreement  with  Tipster    

Walking  Match 

Contribution  to  Terson  nominat- 
ing the  Winner  not  within 
Troviso    

Second  Horse  may  receive  Tart 
of  the  Stakes  within  the  Tro- 
viso   

Effect  of  Wagers  being  void  on 
Xote  given  in  Taymcnt 

Wagering  Contracts  by  Brokers 
void  but  not  illegal     

Contracts  may  be  illegal,  which 
are  not  void    

Money  paid  on  void  Contract    . . 


414  Lecision  in  Equity     

415  Money  paid  on  illegal  Game  not 

recoverable 

id.       The  Act  for  the  Suppression  of 

id.  Betting  Llouses 

id.        The  Stock  Jobbing  Act 

Gaming  on  the  Stock  Exchange  . 
id.  As  in  a  Time  Bargain 

Question  to  be  left  to  the  Jury  . . 

416  Statute     only     affects     Contract 

417  tchich  makes  Wager 

Statute  against  Wagering  Toli- 

id.  cies 

What  held  to  be  such  a  Tolicy  . . 

418  irar/er  as  to    a   Eeelaration   of 

id.  War    

id.        What  was  held  not   to  be  such 

id.  a  Tolicy 

id.       Taying  a  Bet 

419  Giving  a  Security 

Where  a  Note  or  Bill  is  a  Gift  . 
Taking  a  stolen  Bank  Note  in 

id.  Tayment     

Taking  a  stopped  Note  in  I\(y- 
ment    

420  What   invalidates    the   Holder's 

Bight 

id.       Mala   fides   must   be    distinctly 
proved 

421  Money  borrowed  to  pay  Bets .... 
A  Betting  Agent   

id.       A  Betting  Tartner    

id.    I    Cheating  Wager 


422 

id. 

id. 
423 

id. 
id. 
id. 


424 
id. 

id. 

id. 
425 
id. 
id. 

426 

id. 

id. 

id. 
427 

id. 

id. 
428 


Wagers  at 
common  law. 


WAGERS. 

Ai.L  Wagers  wliicli  were  not  against  the  principles  of 
morality,  public  decency  or  sound  policy,  were  held  good 
at  common  law ;  and  a  Wager  or  Bet  was  defined  to  be 
a  contract  'entered  into  without  colour  or  fraud,  between 
two  or  more  persons,  for  a  good  consideration,  and  upon 
mutual  promises  to  pay  a  stipulated  sum  of  money,  or  to 
deliver  some  other  thing  to  each  other,  according  as  some 
prefixed  and  equally  uncertain  contingency  should  happen 
within  the  terms  upon  which  the  contract  was  made  {a). 

(a)  Junes  V.  Bandall,  C'uwp.  09  ;  2  IIa-\vk.  c.  92. 


WA(iERS.  415 

A  Wager  by  wliicli  A.  received  from  B.  one  hundred  Wager  on  tlie 
guineas  on  tlie  31st  of  May,  1802,  in  consideration  of  pay-  j^^*^  ^^  Napo- 
ing  him  a  guinea  a  day  so  long  as  Napoleon  Bonaparte 
(then  First  Consul  of  the  French  Eepublic)  should  live, 
was  held  to  be  roid  on  the  grounds  of  immorality  and 
imjDolicy.  This  Bet  arose  out  of  a  conversation  upon  the 
probability  of  his  coming  to  a  violent  death  by  assassination 
or  otherwise  (b). 

So  also  a  Wager  made,  before  the  poll  began,  between  Wager  on  the 
two  voters  with  respect  to  the  event  of  an  election  of  a  ^f^^l*  o*  ^^ 

GiGCtlOU 

member  to  serve  in  Parliament,  was  held  to  be  void,  as 
such  contract  is  corrupt  in  the  eye  of  the  law  and  against 
the  fundamental  principles  of  the  constitution  (r). 

Until  the  late  Act  of  Victoria  ((i?),  Wagers  above  a  cer-  Betting  on  a 
tain  amount  were  declared  to  be  illegal  by  Statute ;  now,  ,  ^^^  ^?„      , 

o    ^      */  /  ?   longer  iii6^3-l, 

however,  the   illegality  no   longer   exists,   and   therefore       '^         " 
Betting  on  a  Eace  may  now  be  practised  to  any  extent 
without  any  penalty  being  incurred  (e). 

But  by  the  above-mentioned  Act  (/)  it  is  provided,  that  Bets  not  re- 
"  all  contracts  or  agreements,  whether  by  parol  or  in  writ-  <^overable. 
ing,  by  way  of  Gaming  or  Wagering,  shall  be  null  and 
void ;  and  no  suit  shall  be  brought  or  maintained  in  any 
Court  of  Law  or  Equity  for  recovering  any  sum  of  money 
or  valuable  thing  alleged  to  be  won  upon  any  wager,  or 
which  shall  have  been  deposited  in  the  hands  of  any  per- 
son to  abide  the  event  on  which  any  Wager  shall  have 
been  made;  but  this  enactment  is  not  "to  apply  to  any 
subscription  or  contribution,  or  agreement  to  subscribe  or 
contribute,  for  or  toward  any  Plate,  Prize  or  sum  of  Money, 
to  be  awarded  to  the  winner  or  winners  of  any  lawful 
Game,  Sport,  Pastime,  or  Exercise"  (/). 

However,  a  party  depositing  a  sum  of  money  with  a  Deposit  re- 
Stakeholder,  by  way  of  Wager  and  not  as  a  Stake  (g),  may  f^^^^^'"^^^^® 
recover  his  money  back,  if  he  give  Notice  to  the  Stake-  event, 
holder,  before  the  event  comes  off,  that  he  shall  break  off 
the  Bet,  and  require  him  to  return  his  money.     In  a  case 
tried  before  Chief  Justice  Wilde  at  Nisi  Prius  in  the  Court 
of  Common  Pleas,  Westminster,  Nov.  30th,  1846,  it  ap- 
peared that  a  match  in  harness  had  been  made  between  one 
Isaacs,  a  Jew  dustman,  and  the  plaintiff,  who  was  a  Cab 

(i)  Gilbert    v.    iS>/kes,    16    East,  (r)  See  the    Eules    of    Eacing, 

150.  '  Appendix,  Part  3. 

(c)  Allen  V.  Hearn,  1  T.  R.  56.  (/)  8  &  9  Vict.  c.  109,  s.  18. 

{(I)  8  &  9  Vict.  c.  109,  s.  15.  (y)  Distinction   taken  in   Connor 

V.  Qi<ic/c,  cited  2  W.  Ela.  708. 


41G  AVAGERS. 

owner,  aud  on  the  event  of  this  Race  they  had  made  a 
Wager  of  20/.  a-side,  which  each  party  had  deposited  with 
the  defendant,  a  Publican.  Previous  to  the  Race,  the 
plaintiff  gave  Notice  to  the  defendant  that  he  should  "  break 
off"  the  Bet,  and  he  should  require  back  his  money.  The 
defendant  however  did  not  return  it,  but  paid  the  whole 
deposit  to  the  other  party  after  he  had  walked  over  the 
course ;  an  action  was  then  brought  to  recover  the  20/. 
which  had  been  deposited  by  the  plaintiff. 

At  the  trial,  it  was  contended  on  the  part  of  the  de- 
fendant that,  under  8  &  9  Yict.  c.  109,  s.  18,  the  action 
was  not  maintainable.  But  the  learned  Judge  overruled 
the  objection,  and  held  that  the  Statute  was  not  meant  to 
apply  to  a  case  like  the  present,  in  which  the  party  de- 
positing the  money  had  given  Notice  to  the  Stakeholder  to 
pay  him  it  back  before  the  time  had  arrived  for  the  Wager 
to  be  decided.  And  the  Jmy,  on  the  evidence,  found  a 
verdict  for  the  plaintiff  (A). 
Decision  of  A  rule  uini  for  a  new  trial,  on  the  ground  of  misdirec- 

the  Court  of     f [gn,  was  afterwards  obtained  in  the  Court  of  Common 
Pleas.  Pleas,  and  in  discharging  the  rule  Mr.  Justice  Maule  said : 

— "  Looking  at  the  whole  section  (/),  critically  and  gram- 
matically, I  am  of  opinion  that  it  does  not  apply  to  any 
action  like  this,  where  a  party  seeks  to  recover  his  deposit 
from  a  Stakeholder  upon  a  repudiation  of  the  Wager. 
This  cannot  be  considered  as  an  action  brought  for  re- 
covering a  sum  of  money  alleged  to  be  won  upon  a 
Wager  ;  nor  do  I  think  it  is  an  action  brought  to  recover  a 
sum  deposited  in  the  hands  of  the  defendant  to  abide  the 
event  of  a  Wager.  That  must  necessarily  mean  an  action 
to  be  sustained  on  the  ground  of  the  existence  and  the 
determination  of  the  Wager.  Here  the  money  is  not 
claimed  on  that  ground.  Quite  the  reverse.  The  plaintiff 
insists  that  the  sum  he  seeks  to  recover  is  money  which 
belongs  to  him,  and  which  the  defendant  has  no  right  to 
keep,  and  which  he  is  under  no  legal  or  moral  obligation 
to  pay  to  anybody  else.  As  soon  as  the  defendant  received 
Notice  from  the  plaintiff  that  he  declined  to  abide  by  the 
Wager,  the  money  ceased  to  be  money  dej)osited  in  the 
hands  of  the  former  to  abide  the  event,  and  became  money 
of  the  plaintiff's  in  his  hands,  without  any  good  reason  for 
detaining   it.     PTpon   these   grounds   I   think   this  point 

{h)    Varney  v.  Hichnan,  Nov.  30,  (/)  8    &   9  Vict.    c.   109,    s.    18, 

1846;  5  C.  B.  281.  Appendix. 


WAGERS.  417 

ought  to  be  determined  in  favour  of  the  plaintiff.  It  was 
said  in  the  course  of  the  argument  that  the  general  scope 
of  the  Act  is  to  prohibit  Gaming  and  Wagering ;  and  that 
this  object  would  be  best  attained  by  holding  moneys  depo- 
sited with  Stakeholders  not  to  be  recoverable  in  this  way. 
But  I  see  no  pretence  for  construing  the  Act  to  mean 
anything  so  penal  without  express  words."  And  in  this 
opinion  Cresswell  and  V.  "Williams,  JJ.,  agreed  (,/). 

The  test  applicable  in  some  cases  to  the  determination  What  is  a 
of  the  question  whether  a  Contract  is  a  Wagering  Con-  Wagering 
tract  or  not  within  this  Statute,  is,  whether  the  price  of  *^°^  ^^°  ' 
the  subject-matter  is  to  vary  according  to  the  issue  of  an 
event  totally  unconnected  with  its  actual  value.  Thus 
in  a  case  in  which  the  plaintiff  and  defendant,  while  con- 
versing as  to  some  rags,  which  the  plaintiff  proposed  to 
sell,  and  defendant  to  buy,  disputed  as  to  the  price  of  a 
former  lot  of  rags,  the  plaintiff  asserting  the  pjice  to  have 
been  lower  than  the  defendant  asserted  it  to  have  been. 
They  agreed  that  the  question  should  be  referred  to  M.,  a 
spirit  merchant,  and  that  Avhichever  party  was  wrong, 
should  pay  M.  for  a  gallon  of  brandy,  and  that  if  the 
plaintiff  was  right,  the  price  of  the  lot  now  on  sale  should 
be  G.s.  per  cwt.,  but,  if  the  defendant  was  right,  it  should 
be  3s.  per  cwt.  M.  decided  that  the  plaintiff  was  right. 
The  plaintiff  thereupon  sent  the  rags  to  the  defendant,  but 
the  defendant  refused  to  accept  them  at  6b\,  offering  5.s. 
An  action  having  been  brought  for  goods  bargained  and 
sold,  it  was  held  by  the  Court  of  Queen's  Bench  that  this 
was  a  Wagering  Contract,  which  could  therefore  not  be 
enforced  by  legal  process,  and  that  it  made  no  difference 
that  there  was  a  real  intention  to  part  with  the  goods  {k). 

If  money  is  advanced  upon  the  security  of  a  deed  in  Money  ad- 
pm'suance   of    a   stipulation    or   agreement   between   the  danced  with, 
plaintiff  and  defendant,  that  out  of  it  money  lost  by  the  ^  ^^^  ^  ^°°" 
defendant  to  the  plaintiff  on  betting  transactions  should 
be  paid  to  the  jDlaintiff,  it  is  a  mere  colourable  loan  and 
evasion  of   the  Statute,  and   the  deed  is  invalid ;   but  if 
there  be  no  such  stipulation  or  agreement,  and  the  plaintiff 
advance  the  money  as  a  loan  for  the  defendant  to  dispose 
of  as  he  pleased,  though  the  plaintiff  expected  to  be  paid 
out  of  the  money  so  lent,  the  deed  is  valid  (/). 

[j)    Varneij  v.  Hickman,  5  C.  B.  90-t.     And  see    Wihon  v.  Cole,    36 

282.    And  see  further,  ante,  pp.  393  L.  T.,  N.  S.  702. 

—397,  "Stakeholders."  [1)  Millx.  Fox,   4  H.   &  N.   359 

(/.•)  Roiirke  v.  Short,  5  E.  &  B.  [Ex.  Ch.). 

O.  E  E 


418 


"WAGERS. 


Price  of 
Mare  to  be 
increased,  if 
she  won,  by 
her  Avin- 
ninofs. 


Billiard 
Match. 


Rotundity  of 
earth. 


Trotting 
ao'ainst  time. 


Agreement 
■with  Tipster. 


In  a  ease  where  the  plaintiff  and  defendant  agreed  that 
the  plaintiff  should  take  the  defendant's  Mare  in  exchange 
for  that  of  the  plaintiff;  and  that  the  defendant  should 
give  the  plaintiff  half  of  the  winnings  of  her  first  two  races, 
or,  in  case  she  should  be  sold  before  then,  that  the  defen- 
dant should  pay  the  plaintiff  one-third  of  what  she  should 
have  been  sold  for;  it  was  held  by  the  Irish  Coui-t  of 
Common  Pleas,  that  the  above  agreement,  being  one 
simply  to  give  an  increased  price  for  the  Mare,  upon 
the  occurrence  of  a  state  of  facts,  which  might  add  to  her 
value,  was  a  legal  Contract,  and  not  in  the  nature  of  a 
Wager  {m). 

Where  an  action  was  brought  to  recover  a  sum  of  money 
lost  by  playing  in  the  ordinary  way  with  two  persons  at 
billiards,  the  players  having  staked  sums  of  money  on  suc- 
cessive games ;  it  was  held  that  such  a  transaction  was  not 
within  the  proviso  of  the  8  &  9  Vict.  c.  109,  s.  18,  inas- 
much as  the  players  did  not  contribute  or  agree  to  contri- 
bute any  sum  to  be  awarded  to  the  winner  (;?). 

Where  the  plaintiff  and  W.  deposited  each  500/.  with 
the  defendant,  on  an  agreement  that  if  W.  on  or  before 
the  15th  of  March,  1870,  proved  the  convexity  or  ciu-vatiu-e 
to  and  fro  of  the  surface  of  any  canal,  river,  or  lake,  by 
actual  measurement  and  demonstration  to  the  satisfaction 
of  the  defendant,  W.  would  receive  the  two  sums  de- 
posited ;  but  if  W.  failed  in  doing  this,  the  two  sums  were 
to  be  paid  to  the  plaintiff — it  was  held  that  the  agreement 
was  a  wager,  and  consequently  null  and  void  within  the 
statute  (o). 

So  where  H.  and  the  plaintiff  deposited  50/.  each  with 
the  defendant  and  entered  into  a  written  agreement  that 
the  100/.  shoidd  be  paid  to  H.  if  his  horse  trotted  eighteen 
miles  in  an  hour,  and  if  not  then  to  the  plaintiff ;  it  was 
held  that  the  transaction  was  simply  a  wager,  and  did  not 
come  within  the  proviso  in  8  &  9  Vict.  c.  109,  s.  18,  as  to 
contributions  to  a  prize  or  sum  of  money  to  be  awarded  to 
the  winner  of  any  lawful  game,  sport,  pastime  or  exer- 
cise (p). 

And  a  wager  under  the  disguise  of  a  contract  to  pay  a 


{m)  Crofton  v.  Colffaii,  10  Ir. 
Com.  Law.  Reps.  133. 

(«)  Farso)is  Y.  Alexander,  1  Jur., 
N.  S.  660. 

(o)  Ilampdcji  v.  Wahh,  L.  R., 
IQ.B.  D.  189  ;  45  L.  J.,  Q.  B.  238  ; 


33  L.  T.,  N.  S.  852  ;  24  W.  R.  607. 
(  p)  Batson  v.  Newman,  L.  R.,  1 
C.  P.  D.  573  ;  25  W.  R.  85.  And 
see  Coombs  v.  Dibble,  L.  R.,  1  Ex. 
248  ;  35  L.  J.,  Ex.  167  ;  14  L.  T., 
N.  S.  415. 


WAGERS.  419 

reward  for  information  will  not  evade  the  Act.  In  Ilig- 
(jinson  v.  SiDfpson  {q),  the  plaintiff  was  a  tipster,  i.e.  gave 
information  as  to  the  probable  winners  of  Horse  races. 
Upon  his  giving  the  name  of  a  Horse  to  the  defendant  as 
the  probable  winner  of  a  certain  race,  it  was  agreed  between 
them  that  the  plaintiff  shonld  have  21.  on  the  Horse  at  25 
to  1 ,  that  is  to  say,  that  if  the  defendant  backed  the  Horse 
and  won,  the  j)laintiff  should  have  50/.  out  of  his  winnings, 
but  if  the  Horse  lost  the  plaintiff  should  pay  the  defendant 
21.  The  defendant  did  back  the  Horse  and  it  won,  and 
the  plaintiff  thereupon  claimed  50/.  out  of  the  defendant's 
winnings ;  and  it  was  held  that  the  agreement  was  void, 
and  that  the  50/.  could  not  be  recovered. 

It  was  laid  down  in  the  case  of  Batty  v.  Marriott  (r).  Walking 
that  though  there  be  but  two  subscribers  to  a  plate,  prize,  or  ^^atch. 
sum  of  money  to  be  awarded  to  the  winner  of  a  lawful 
game,  and  those  two  subscribers  the  competitors  themselves, 
yet  it  is  not  less  a  contribution  within  the  exception  in  the 
statute,  (8  &  9  Yict.  c.  109,  s.  18,)  if  the  agreement  be, 
that  the  whole  sum  subscribed  shall  be  paid  over  to  the 
winner,  and  if  it  be  a  bond  fide  subscription  or  contribution 
on  the  part  of  those  two  persons.  But  what  the  court  had  in 
their  minds  in  that  case  was  the  question  whether  the  game 
was  a  lawful  or  unlawful  game,  and  having  come  to  the 
conclusion  that  it  was  a  lawful  game,  they  were  of  opinion 
that  there  was  nothing  in  the  case  which  was  struck  at  by 
the  Act  of  Parliament,  and  that  the  Act  was  only  intended 
to  strike  at  unlawful  games  (s).  This  view  has,  however, 
been  recently  held  by  the  Court  of  Appeal  to  be  erro- 
neous {t)  ;  and  it  has  been  decided  that  an  agreement  to 
walk  a  match  for  200/.  a-side,  the  money  being  deposited 
with  a  stakeholder,  is  a  wager,  and  null  and  void  under 
the  statute ;  and  that  the  deposit  of  the  money  is  not  a 
subscription  or  contribution  for  a  sum  of  money  to  be 
awarded  to  the  winner  of  a  lawful  game  within  the  proviso. 

And  in  a  case  in  which  the  plaintiff  agreed  with  B.  Contribution 
and  others,  that  a  match  should  be  made  between  a  Mare,  **^  person 
the  property  of  M.,  and  a  Mare,  the  property  of  the  plain-  ^"^er  nof 
tiff,  and  that  the  party  nominating  the  winner  should  receive  within  pro- 
from  the  others  100/.,  and  that  100/.  should  be  forfeited  ^^i^*^- 

(?)  L.    R.,    2  C.  P.   D.   76;  46  Biggie  \.  Eiqgs,  L.  R,  2  Ex.  D. 

L.  J.,  C.  P.  192 ;  36  L.  T.,  N.  S.  422  ;  46  L.  J.,  Ex.  721  ;   37  L.  T., 

17  ;  25  W.  R.  303.  N.   S.  27  ;  25  W.  E.  777— C.  A., 

(r)  5  C.  B.  832.  and  ante,  p.  394. 

(n)  See  per  Lord  Cairns,  L.  C,  (/)  JDigglry.  Higgf,  xbl  xiijirr. 


V.  E 


O 


420 


WAGERS. 


Second  Horse 
may  receive 
part  of  the 
Stakes  with- 
in the  pro- 
viso. 


Effect  of 
wagers  being 
void  on  note 
given  in  pay- 
ment. 


by  the  party  making  default  in  causing  tlie  Mare  nominated 
by  him  to  run,  it  was  held  by  the  Irish  Court  of  Queen's 
Bench  that  no  action  was  maintainable  upon  such  an 
agreement,  inasmuch  as  it  did  not  come  within  the  proviso 
of  the  Section  (i^),  which  excepts  "any  Subscription  or 
Contribution,  or  agreement  to  subscribe  or  contribute,  for 
or  toward  any  plate.  Prize,  or  Sum  of  Money,  to  be  awarded 
to  the  Winner  or  Winners  of  any  lawful  Grame,  Sport, 
Pastime,  or  exercise,"  from  the  operation  of  the  previous 
part  of  the  Section ;  and  that  this  Contract  was  a  mere 
Wager  depending  upon  an  accidental  circumstance,  and 
not  upon  the  running  of  a  Pace  (.r). 

The  proviso  that  the  foregoing  part  of  this  Section  shall 
not  apply  to  any  Subscription  or  Contribution,  for  or 
towards  any  plate,  &c.  to  be  awarded  to  the  Winner  or 
Winners  of  any  lawful  game,  is  not  the  less  applicable 
where  the  entire  sum  of  money  subscribed  is  not  awarded 
to  the  fii'st  Horse.  Therefore  where  the  conditions  of  a 
Pace  were  that  a  subscription  should  be  made  up  of  the  sum 
of  3/.  each,  subscribed  by  the  owners  of  the  Horses,  and 
a  sum  of  thirty  sovereigns  added  thereto  out  of  the  Pace 
Fund,  out  of  which  the  expenses  and  a  sum  of  1/.  10s.  were 
to  be  deducted  and  paid  to  the  Treasurer,  and  3/.  '6s.  to 
the  owner  of  the  second  Horse,  they  were  held  to  be  good, 
and  satisfied  the  requirements  of  the  proviso  (?/). 

The  onus  of  proving  the  consideration  to  be  a  good 
one  does  not  lie  with  the  subsequent  holder  of  a  promissory 
note  given  in  payment  of  money  lost  on  a  wager,  such 
wager  not  being  within  the  statutes  to  which  the  5  &  6 
Will.  4,  c.  41,  is  applicable,  and  being  therefore  simply  void 
within  8  &  9  Yict.  c.  109,  s.  18.  Thus  in  a  case  {z)  in 
which  a  promissory  note  was  given  in  payment  of  a  bet 
(upon  the  amount  of  hop  duty  payable  in  1851,  which  was 
not  therefore  within  5  &  6  Will.  4,  c.  41  (a)  ),  and  an 
action  was  brought  upon  it,  it  was  held  that  it  lay  upon 
the  defendant  to  prove  the  absence  of  consideration  for  it ; 
for,  though  proof  that  a  negotiable  instrimient  was  affected 
with  fraud  or  illegality  in  the  hands  of  a  jorevious  holder 
raises  a  presumption  that  he  would  indorse  it  away  to  an 
agent  without  value,  and  consequently  calls  on  the  plaintiff 


(m)  8  &  9  Vict.  c.  109,  8.  18. 

(z)  Iricin  v.  Otborne,  5  Ir.  Com. 
Law  Eeps.  404. 

{y)  Crofton  V.  CoJgnn,  10  Tr.  Com, 
Law  Reps.  133. 


(.-)  Fitch  V.  Jones,  5  E.  &  B.  238  ; 
S.  v.,  24  L.  J.,  Q.  B.  293. 

(")  As  to  the  scope  of  this  Sta- 
tute, see  post.  Chap.  5,  and  see 
also  the  Statute,  Appendix. 


^YAGERS.  421 

for  proof  that  he  gave  value,  yet  the  presumption  does  not 
arise,  when  the  previous  holder  merely  held  without  con- 
sideration. "The  note  was  given  to  secure  payment  of  a 
Wagering  Contract,  Avhich  even  before  8  &  9  Yict.  c.  109, 
the  law  would  not  enforce,  but  it  was  not  illegal,  and  there 
is  no  penalty  attached  to  such  a  Wager ;  it  is  not  in  viola- 
tion of  any  Statute  nor  of  the  common  law,  but  is  simply 
void,  so  that  the  consideration  was  not  an  illegal  con- 
sideration, but  equivalent  in  law  to  no  consideration  at 
all"{b). 

In  accordance  with  the  same  principle  it  was  held  by  Wagering 
the  Exchequer  Chamber  in  the  case  of  Smith  v.  Liiu/o  {c),  ^^^^^^^^^^^ 
that  although  an  unlicensed  person  who  assumes  to  act  as  void  but  not 
a  broker  (in  London)  in  the  buying  of  shares  in  a  public  illegal. 
Company,  is,  by  reason  of   6  Anne,  c.  16,  incapacitated 
from  suing   for  commission,  yet  he  may  recover  money 
which  by  the  usage  of  the  share-market  he  has  been  obliged 
to  pay  to  the  seller  as  the  price  of  the  shares ;  there  being 
nothing  to  show  that  the  payment  was  made  in  pursuance 
of  any  illegal  Contract,  or  that  it  was  a  necessary  part  of 
the  duty  of  a  broker,  as  such,  to  pay  the  money. 

A  Contract  may  be  illegal  without  being  void.     Thus  Contracts 
by  1  &  2  Vict.  c.  106,  s.  29,  it  is  rendered  illegal  for  any  "Jf/^^j^JT" 
spiritual  person  holding   a  benefice  to  engage  in  trade,  fre'not  void, 
except  in  certain  cases.     And  by  section  31  it  is  expressly 
provided  that  no  Contract  shall  be  deemed  to  be  void  by 
reason  only  of  the  same  having  being  entered  into  by  a 
spiritual  person  trading  or  dealing ;  but  that  every  such 
Contract  may   be  enforced  by  or  against  such  spiritual 
person.     The  effect   of   this   Statute  is  to  allow  a  Con- 
tract, which  it  pronounces  to  be  illegal,  to  be  enforced, 
although  the  party  with  whom  it  was  made  was  at  the 
time   aware   that   the   other  party  was  a  spiritual  person 
holding  a  benefice.     The  party  offending  is  liable  to  the 
penalty,  but  at   the  same   time  must  perform  the  Con- 
tract (f/). 

The  fact  that  the  Contract  was  originally  void  cannot  Money  paid 
be  set  up  as  a  defence  to  an  action  for  money  paid,  in  ^^  ^^^  ^"^* 
satisfaction  of  that  Contract,  to   the   defendant    for   the 

(i)  Per  Lord  Campbell,   C.    J.,  K.  80G- C.  A. 

Fitch  V.  Joues,  5  E.  &  B.  238.     And  (r)  Smith  v.  Undo,  5  C.  B.,  N.  S. 

see  Li/)m  v.  Bell,  10  Ir.  R.,  C.  L.  587. 

487 ;  Fi/ke,  Ex  parte.  Lister,  lit  re,  {d)  Leivis  v.   Briffht,    24    L.    J,, 

L.  E,.,  8  Ch.  D.  754  ;  47  L.  J.,  Bk.  Q.  B.  191. 
100  ;  38  L.  T.,  N.  S.  923  ;   26  W. 


422 


AVAGERS. 


Decision  in 
Equity. 


Money  paid 
on  illegal 
game  not  re- 
coverable. 


The  Act  for 
the  suppres- 


use  of  the  plaintiff  (o) ,  and  where  money  has  been  paid 
by  a  third  party  for  the  Loser  of  a  Wager  to  the  Winner, 
it  is  no  answer  to  an  action  for  money  paid  by  the  third 
party  for  the  use  of  the  Loser  at  his  request  (./),  or 
without  his  request,  if  the  third  party  is  his  agent  for 
making  bets,  unless  deprived  of  the  authority  to  do  so 
in  express  terms  (g),  that  the  money  was  paid  in  respect 
of  losses  on  Wagering  Contracts  made  void  by  8  &  9  Vict, 
c.  109,  s.  18. 

But  in  the  case  of  Beyer  v.  Adams  (//),  in  which  the 
amount  of  a  bet  lost  at  a  race  was  paid  by  the  Loser  into 
the  hands  of  a  third  party,  who  was  the  Betting  Agent 
of  the  Winner,  and  who  died  before  he  had  paid  it  to  the 
Winner,  it  was  held  by  Yice-Chancellor  Stuart,  upon  a 
claim  being  made  by  the  Winner  for  payment  out  of  the 
deceased's  estate  of  the  amount  due  to  him,  and  which 
had  been  paid  to  the  deceased,  that  this  case  was  within 
the  words  of  the  Statute  that  "no  action  or  suit  shall  be 
brought  for  recovering  any  sum  of  money  won  upon  any 
wager"  («),  and  the  claim  was  thereupon  disallowed.  It 
must  be  observed  that  this  decision  is  contrary  to  the 
whole  current  of  authority  embodied  in  the  decisions  of 
the  Courts  of  Common  Law  (A-) . 

When  the  game  itself  is  illegal,  or  the  money  has  been 
won  by  some  fraud  or  unlawfid  device,  so  as  to  render  the 
winning  of  it  illegal  under  the  8  &  9  Vict.  c.  109,  s.  17,  it 
is  probable  that  an  action  would  not  lie  to  recover  money 
knowingly  paid  by  the  plaintiff  (being  a  third  party),  at 
the  defendant's  request,  to  a  person  to.  whom  the  defendant 
has  thus  lost  it  (/). 

The  Act  for  the  Suppression  of  Betting  Houses  (;;?), 
which  is  treated  of  in  the  Chapter  on  Betting  Houses  and 


{e)  Johnson  v.  Lansley,  12  C.  B. 
468. 

(/)  Knight  v.  Cambers,  15  C.  B. 
562  ;  Knight  v.  Fitch,  15  C.  B. 
566  ;  Jessop  v.  Lutivi/tch,  24  L.  J., 
Ex.  65  ;  Lyne\.  Siesfdd,  1  H.  &N. 
278;  Rosewarnc  N.  Billing,  lOJur., 
K.  S.  496. 

[g)  Oiilds  V.  Harrison,  24  L.  J., 
Ex.  66  ;  Bnhb  v.  Yclverton,  Kcr, 
In  re,  24  L.  T.,  N.  S.  822;  19 
W.  R.  739  ;  Oalcham  v.  Banndvn, 
44  L.  J.,  C.  P.  309;  32  L.  T., 
N.  S.  825. 


{h)  Beyer  v.  Adams,  26  L.  J., 
Ch.  841. 

(0  8  &  9  Vict.  c.  109,  s.  18. 

(/.')  Knight  v.  Cambers,  15  C  B. 
562  ;  Knight  v.  FUch,  15  C.  B.  566  ; 
JessopY.  Lntxcgtch,  24L.  J., Ex.  65; 
Quids  V.  Harrison,  24  L.  J.,  Ex.  66 ; 
Ly7w  V.  Siesjeld,  1  H.  &  N.  278  ; 
Bosocarnc  v.  Billing,  10  Jur.,  N.  S. 
496. 

(/)  Chitty  on  Contracts,  1 1th  ed. 
548.  See  M^Kinnell  v.  Bobinson,  3 
M.  &  W.  434  ;  also  post. 

(m)  16  &  17  Vict.  c.  119,  Ap- 
pendix. 


A\  AGE  lis.  423 

Gramiug  Houses  {)>),  has  made  various  important  provisions  sion  of  Bet- 
witli  respect  to  Betting,  and  with  respect  to  receiving  ^^^S  Houses, 
money,  &c.,  as  the  consideration  for  any  assui-ances,  &c., 
to  pay  money,  &c.  (o) — or  as  a  Deposit  on  any  Bet,  on 
condition  of  paying  any  money,  &c. — "  on  the  happening  of 
any  event  or  contingency  of  or  relating  to  a  Horse  Race,  or 
any  other  Eace,  or  any  Fight,  Game,  Sport  or  Exercise  "  {p) . 

The  Stock- Jobbing  Act  (7  Greo.  2,  c.  8),  which  is  inti-  The  Stock- 
tuled  "  An  Act  to  prevent  the  infamous  Practice  of  Stock-  Jobbing  Act. 
Jobbing,"  was  passed  with  a  view  to  prevent  a  common 
practice  which  had  been  found  destructive  to  the  interests 
of  the  country.  It  rendered  illegal  all  Time  bargains  in 
the  Public  Funds  (q),  but  Time  bargains  relating  to 
Shares  (r),  or  in  Foreign  Funds  (s),  were  held  not  to  be 
void  either  under  the  Act  or  at  Common  Law.  The  Act 
was  repealed  in  18G0  by  the  23  &  24  Yict.  c.  28. 

AVhere  each  i^arty  means  to  break  the  contract,  but  to  Gaming  on 
ffive  the  other  a  remedy  ao:ainst  him  for  the  difference  of  ^^  ^^ock 

O  I/O  ^  ^  JTi  X  C  n  cjTl  Q*6 

price,  according  as  the  Market  may  rise  or  fall,  it  is  a  °  ' 

Gfambling  transaction,  being  a  mere  Bet  upon  the  futm-e 
price,  and  the  contract  is  therefore  void  under  8  &  9  Viet, 
c.  109  {f). 

Thus  in  a  Time  bargain  in  Shares,  it  is  understood  by  As  in  a  time 
both  parties  that  the  Shares  are  never  to  be  delivered  into  ^^rgam. 
the  hands  of  the  purchaser.  It  is  nothing  more  than  a 
Wager  made  between  the  parties  upon  the  diif erence  of  the 
price  at  the  time  that  the  supposed  purchase  is  made,  and 
the  price  on  the  settlement  day.  If  the  shares  rise  one 
party  is  to  receive,  and  if  they  fall  he  is  to  be  at  a  loss. 

And  the  question  to  be  left  to  the  Jury  in  such  case  is.  Question  to 
whether  it  be  a  bond  fide  contract,  which  each  party  at  the  Je  Mt  to  the 
time  meant  to  perform,  or  whether  the  transaction  was  not 
a  mere  Bet  upon  the  future  price  of  the  commodity.     And 
that  if  neither  party  intended  to  buy  or  sell,  it  would  be  no 
bargain,  but  a  mere  Gambling  transaction  {ii). 

But  the  statute  only  atfec-ts  the  contract  which  makes  Statute  only 

(h)  See    Eetting     Houses     and  (a)    Wells  -v.  Porter,  3  Scott,  141. 

G-aming  Houses,  post,  Chap.  5.  [t)   Grizetcoodr.  Blane,  11  C.  B. 

(o)  16  &   17  Vict.  c.    119,  s.   1,  540.     Aijd  f-.ee  Barry  r.  Croske}/,  2 

Appendix.  J.  &  H.  1  ;  Coojoer  v.  Neil,  27  W.  R. 

{p)  Ibid.  ss.  3.  o.  159. 

Iq)   Oakley  v.JUffbi/,  S  Scott,  I9i.  («)  Ibid.    541;   Bennett  v.  Kail, 

(r)  Hewitt  v.  Price,  4  M.   &  G.  before     Mr.     Justice     Crompton, 

355;    Williams  v.   True,  23    L.  T.  Guildhall,  .Tan.  23,  1853.     See  Hill 

72.  V.  Fox,  4  H.  &  N.  359. 


424 


WAGERS. 


affects  Con- 
tract ■which 
makes  Wiiffer. 


Statute 
against  Wa- 
gering Poli- 
cies. 


What  held  to 
be  such  a 
Policy. 


Wager  as  to 
declaration 
of  War. 


What  was 
held  not  to 
be  such  a 
Policy. 


tlie'Bet  or  "Wager  (.r).  Thus  where  the  plaintiff,  a  broker, 
was  employed  by  the  defendant  to  speculate  for  him  on 
the  Stock  Exchange  ;  to  the  knowledge  of  the  plaintiff  the 
defendant  did  not  intend  to  accept  the  stock  bought  for 
him,  or  to  deliver  the  stock  sold  for  him,  but  expected  that 
the  plaintiff  would  so  arrange  matters  that  nothiug  but 
differences  should  be  payable  by  him ;  and  the  plaintiff 
accordingly  entered  into  contracts  on  behalf  of  the  defen- 
dant upon  which  he  became  personally  liable,  and  sued  the 
defendant  for  indemnity  against  the  liability  incurred  by 
him,  and  for  commission  as  a  broker;  it  was  held  by  the 
Court  of  Appeal,  affirming  the  judgment  of  Lindley,  J., 
that  the  contract  was  not  illegal  at  common  law,  and  was 
not  in  the  nature  of  a  Gaming  and  Wagering  contract 
against  the  provisions  of  the  statute  (>/). 

It  is  enacted  by  14  Greo.  3,  c.  48,  s.  1,  that  "  No  In- 
surance shall  be  made  by  any  Person  or  Persons,  Bodies 
Politic  or  Corporate,  on  the  life  or  lives  of  any  person 
or  persons,  or  on  any  other  event  or  events  whatsoever, 
wherein  the  person  or  persons  for  whose  use,  benefit,  or 
on  whose  account  such  Policy  or  Policies  shall  be  made, 
shall  have  no  interest,  or  by  way  of  Gaming  or  Wagering ; 
and  that  every  Assurance  made,  contrary  to  the  true 
intent  and  meaning  hereof,  shall  be  null  and  void  to  all 
intents  and  pm-poses  whatsoever." 

An  engagement,  in  consideration  of  forty  guineas,  to 
pay  100/.  in  case  Brazilian  Shares  should  be  done  at  a 
certain  sum  on  a  certain  day,  subscribed  by  several  per- 
sons, each  for  themselves,  is  a  Policy  void  mider  14 
Geo.  3,  c.  48  (;:). 

Where  a  Wager  was  made  that  war  would  be  declared 
against  France  within  three  months,  it  was  held  by  the 
Courts  of  Queen's  Bench  and  Common  Pleas,  although 
the  Coiu't  of  Exchequer  was  of  a  contrary  opinion,  that 
the  Wager  was  void  under  14  Geo.  3,  c.  48.  No  Judg- 
ment, however,  was  ever  given  on  the  case  {a). 

Where  money  was  advanced  upon  an  Assignment  of 
an  expected  devise,  with  a  condition  that  if  there  should 
not  be  such  a  devise,  then  that  the  money  should  be  re- 


[x)  Per  Brett,  L.  J.,  Cooper  v. 
Niel,  27  W.  R.  1.59. 

(y)  Hardy  v.  Thacker,  L.  R.,  4 
Q.  B.  D.  685  ;  48  L.  J.,  Q.  B. 
289;   39  L.  T.,  N.  S.  595;  27  W. 


R.  158— C.  A. 

(z)  ratersoii  v.  Toivell,  9  Bing. 
320. 

[ii)  See  Foatcr  v.  Thackeray,  cited 
in  Allen  v.  Hearyu  1  T.  R.  57,  n. 


^": 


WAGERS.  425 

paid  witliout  interest ;  it  was  lield  not  to  be  a  Policy  on 
the  life  of  the  testator  within  ]■!  Gfeo.  3,  o.  48  {b). 

As  no    Wager  can  be  tried  in  any  Com't  of  Law  or  Paying  a  Bet. 
Equity,  the  "Winner   cannot    compel   payment  from  the 
Loser  (c)  ;  and  therefore  if  the  money  be  paid,  it  is  in  fact 
giving  a  gratuity. 

If  a  Note,  Bill  or  Mortgage  be  taken  as  a  secmity  for  Giving  a 
money,  either  won  by  betting  on  the  sides  and  hands  of  security, 
persons  Gaming,  or  hnoiiinghj  lent  for  the  purpose  of  such 
betting^  or  where  such  betting  is  going  on,  the  consideration 
is  illegal  under  5  &  6  Will.  4,  c.  41.  But  any  other 
secmity  under  seal  would  appear  to  be  good,  where  the 
Graming  is  not  illegal  {d). 

A  bond  given  to  persons  to  whom  the  obligor  has  lost 
Bets  on  Horse-races,  which  he  is  unable  to  pay,  in  order  to 
prevent  them  from  taking  the  steps  which,  under  the  con- 
ventional code  established  among  betting  men,  they  are 
entitled  to  take,  and  which  would  be  followed  by  conse- 
quences involving  the  obligor  in  considerable  pecuniary 
loss,  is  valid  [e). 

So  that  if  a  Note  or  Bill  be  given  in  payment  of  any  Where  a  note 
Bet,  except  such  as  has  been  made  on  the  sides  or  hands  '^\^^^  ^^  ^ 
of  persons  Gaming,  it  is  in  reality  a  gift,  and  its  value  ^^ 
will  depend  upon  circumstances.     Thus  where  a  bill  had 
been  given  gratuitously,  Lord  Abinger,  C.  B.,  in  deliver- 
ing the  Judgment  of  the  Court  of  Exchequer,  in  Easton  v. 

ratehett  {/),  said,  "If  a  man  give  money  as  a  gratuity, 
it  cannot  be  recovered  back,  because  the  act  is  complete ; 
yet  a  man  who  promises  to  give  money  cannot  be  sued  on 
such  promise ;  and  if  so,  I  do  not  see  how  a  promise  in 
writing  not  under  seal  can  have  any  binding  effect.  The 
law  makes  no  difference  between  such  a  promise  and  a 
verbal  one.  There  is  the  same  distinction  as  to  a  Bill  of 
Exchange.  If  a  party  gives  to  another  a  negotiable  in- 
strument on  which  other  pai-ties  are  liable,  the  man  w^ho 
makes  the  gift  cannot  recover  the  bill  back,  and  the  man 
to  whom  the  bill  is  given  may  recover  against  the  other 
parties  on  the  bill ;    but  it  is  a  very  different  question 

{b)  Cook  V.  Field,  15  Q.  B.  475.  [e)  Bulb  v.    Yelverton,  L.   R.,    9 

(c)  8  &  9  Vict.  c.  109,  s.  18.  And  Eq.  471  ;  39  L.   J.,   Ch.   428  ;  22 

see  per  Lord  Cairns,  L.  C,  JJifi'ile  L.  T.,  N.  S.  258 ;   18  W.  R.  512. 

V.   Iliqgs,   L.   R.,   2  Ex.   D.    422;  if)  Easton  \.  Pratchctt,  1  C.  M. 

46  L.J.,  Ex.  721  ;  37  L.  T.,  N.  S.  &  R.   798  ;  8.  C.   3  Dowl.   472  ;  1 

27.  Gale,  83  ;  and  see  the  same  case  in 

{d)  See  Gaming,  post,  Chap.  4.  error,  2  C.  M.  &  R.  542  ;  4  Dowl. 

549  ;   1  Gale,  250  ;  6  C.  &  P.  736. 


426 


"VVAGERS. 


Taking  a 
stolen  Bank 
Note  in  pay- 
ment. 


Taking  stop- 
ped Note  in 
payment. 


Wliat  invali- 
dates the 
holder's 
right. 


Mala  Jill es 
must  be  dis- 
tinctly 
proved. 


wliether  the  giver  binds  himself  by  the  indorsement  so  as 
to  make  himself  liable  thereupon  to  the  person  to  whom 
he  gives  it.  There  is  no  decision  that  he  does,  and  there 
is  a  strong  authority  the  other  way ;  and  the  prevailing 
opinion  in  the  profession  is,  that  a  parol  promise  of  a  gift, 
whether  verbal  or  in  writing,  will  not  be  binding." 

A  Race  Cburse  is  a  mart  where  stolen  or  lost  Notes  may 
be  readily  disposed  of,  and  therefore  a  party  should  always 
use  due  caution  in  taking  a  Bank  Note  from  a  stranger, 
either  in  pajonent  of  a  Bet,  or  in  change  out  of  payment 
for  Bds  lost,  and  the  larger  the  amomit  of  the  Note  the 
greater  the  care  required. 

A  loud  fide  holder  of  a  stopped  note,  or  other  negotiable 
secimty,  that  is  to  say,  a  person  who  has  giv^en  value  for 
it,  and  who  has  had  no  notice  at  the  time  that  the  party 
from  whom  he  takes  it  has  no  title,  is  entitled  to  recover 
upon  it,  even  although  he  may  at  the  time  have  had  the 
means  of  knowledge  of  that  fact,  of  which  means  he  neg- 
lected to  avail  liimself.  Thus,  where  a  money-changer  at 
Paris,  twelve  months  after  he  had  received  notice  of  a 
robbery  of  bank-notes  at  Liverpool,  took  one  of  the  stolen 
notes  (for  500/.)  at  Paris,  giving  cash  for  it,  less  the  cur- 
rent rate  of  exchange,  from  a  stranger,  whom  he  merely 
required  to  produce  his  passport,  and  Tvaite  his  name  on 
the  back  of  the  note,  it  was  held  that  the  circumstance  of 
his  forgetting  or  omitting  to  look  for  the  notice  was  no 
evidence  of  mala  fides  {[/). 

In  Goodman  v.  Harvey  (h),  the  Court  of  Queen's  Bench 
held  that  there  must  be  actual  mala  fides  to  invalidate  the 
right  of  the  holder  of  a  Bill  or  Bank  Note,  received  from 
a  person  having  no  title  to  it.  And  also  that  the  existence 
even  of  gross  negligence  was  unimpoi*tant,  except  so  far  as 
it  might  be  evidence  of  mala  fides  {//). 

This  decision  was  confirmed  by  the  case  of  Ufl/er  v. 
liich  (/),  where  the  Com't  of  Queen's  Bench  held  that  mala 
fides  in  the  holder  of  a  negotiable  security,  if  relied  on, 
must  be  distinctly  alleged.  And  that  the  only  proper 
way  of  implicating  him  in  an  alleged  fraud,  is  by  averring 
that  he  had  Notiee  of  it,  and  that  an  allegation  that  he  was 
not  a  houd  fide  holder,  is  not  equivalent  to  an  averment  of 
such  Notice. 


(ff)  JiapJiael  v.  Hank  of  JEtigland, 
17  C.  B.  161. 

(/*)  Goodman  v.  Ilorvcy,  4  A.  & 
E.  870. 


(;)  Uther  V.  Rich,  10  A.  &  E. 
784  ;  and  sec  Arboin  v.  Anderson, 
1  Q.  B.  498. 


AVAGERS.  427 

Formerly  money  borrowed  for  the  express  purpose  of  Money  bor- 
settling  losses  on  a  Race  to  the  amount  of  10/.  or  upwards  rowed  to  i^ay 
could  not  be  recovered  by  the  lender,  although  he  bore  no 
part  in  the  transaction  (/.•).  This  was  so  held  on  the 
groimd  of  illegality ;  but  as  that  no  longer  exists,  it  would 
appear  that  a  person  borrowing  money  for  the  purpose  of 
paying  his  betting  losses  on  a  liace,  whatever  their  amount 
may  be,  is  as  completely  indebted  to  the  lender  as  if  he 
had  borrowed  it  for  any  other  purpose  whatsoever.  For 
in  a  case  where  an  I  0  IJ  afforded  prima  facie  evidence  of 
a  debt,  and  an  injunction  was  sought  to  restrain  the  party 
from  suing  on  it,  on  the  ground  that  a  great  part  of  the 
consideration  was  money  lent  for  gambling  purposes ;  on 
its  appearing  that  the  transaction  had  taken  place  in  a 
foreign  country,  where  such  Grames  were  not  illegal,  the 
injunction  was  refused  (/). 

An  Agent  authorized  by  a  party  to  lay  Bets  for  him  on  A  Betting 
a  Eace  to  the  amount  of  10/.  or  upwards,  could  not  if  he  Agent, 
lost  pay  the  winner  without  an  express  direction  so  to 
do  (vi).  But  now  since  8  &  9  Yict.  c.  109,  has  done  away 
with  the  illegality  of  all  wagers  on  Races,  a  Betting  Agent 
may  pay  all  losses  within  the  scope  of  his  commission,  and 
recover  the  money  so  disbursed  from  his  Principal  (;?). 
And  an  agreement  between  a  Principal  and  his  Agent  that 
the  Agent  shall  employ  moneys  of  the  Principal  in  betting 
on  IPorse-races,  and  pay  over  the  winnings  therefrom  to 
his  Principal,  is  not  a  contract  by  way  of  Gaming  and 
Wagering,  and  it  is  not  illegal  (o) . 

The  Act  (p)  does  not  make  gaming  contracts  illegal^  but  A  Betting- 
null  and  void,  and  therefore  it  would  be  contrary  to  public  Partner, 
morality  to  lay  down  that  a  party  who  has  received  money 
lost  in  a  Wager  should  by  pleading  this  statute  escape 
paying  over  the  fair  share  to  his  partner  {q).  Where 
therefore  a  Bill  of  Exchange  was  given  as  a  security  for 
a  share  of  money  won  in  betticg  transactions  a  plea  of 
Gaming  under  8  &  9  Yict.  c.  109,  s.  18,  was  held  to  be 
bad  ((/). 

[k)  iPKinneU  v.  Rohlnson,  3  M.  562;  Knight  v.  Fitch,  15  C.  B.  566; 

&  W.  434  ;   Canne  v.  Bryan,  3  B.  Oulds   v.  Harrison,  24  L.   J.,  Ex. 

&  Aid.  179.  66  ;  Buhb  v.  Yeherton,  Ker,  In  re, 

(0   Quarricrv.  C'ohtoi,  1  Turn.  &  24  L.   T.,  N.    S.    822;   19  W.  R. 

Ph.  147.     And  see  Fi/f:e,  i:.v  2]arfc,  739.     See  ante,  p.  422. 

Lister,  In  re,  L.  E..,  8  Cli.  D.  754  ;  (o)  Becston  v.   Beeston,  L.   R.,   1 

47  L.  J.,  Bk.  100  ;  38  L.  T.,  N.  S.  Ex.  D.  13  ;  45  L.  J.,  Ex.  230  ;   33 

923  ;  26  W.  R  806— C.  A.  L.  T.,  N.  S.  700  ;  24  W.  E,.  96. 

(;h)   Clayton  v.  Lilly,    4   Taunt.  {p)  8  &  9  Vict.  c.  109,  s.  18. 

165.  [q]  Johnson  v.  Lansley,  12  C.  B. 

(«)  Knight  x.  fambcrs,   15  C.   B.  168.     Sec  ante,  pp.  420,  122. 


428 


WAGERS. 


Cheating  In  the  casG  of  Reg.  v.  Orbcn{r),  it  was  held  to  be  an 

wager.  indictable  offence  to  get  a  person  to  lay  money  on  a  Race, 

and  prevail  with  the  party  to  run  booty ;  for  though  the 
Cheat  was  pricate  in  this  particular,  yet  it  was  puhllc  in  its 
consequences.  Cheatiu(i,  however,  is  now  specially  pro- 
vided against  by  the  17th  section  of  8  &  9  Vict.  c.  109, 
where  it  is  enacted  that  "  every  person  who  shall  by  any 
fraud  or  unlaivful  device  or  ///  practice,  in  icagering  on  the 
event  of  any  Game,  Sport,  Pastime  or  Exercise,  win  from 
any  other  person  to  himself,  or  any  other  or  others,  any 
sum  of  money  or  valuable  thing,  shall  be  deemed  guilty 
of  obtaining  such  money  or  valuable  thing  from  such  other 
person  by  a  False  pretence  with  intent  to  checd  or  defraud 
such  person  of  the  same,  and  being  convicted  thereof  shall 
be  punished  accordingly;"  and  therefore  every  such  per- 
son is  guilty  of  a  misdemeanor,  and  on  conviction  is  liable 
at  the  discretion  of  the  Court  to  Penal  Servitude  for  the 
term  of  five  years  (.s),  or  to  be  imprisoned  for  any  term 
not  exceeding  two  j^ears  {t),  and  the  prosecutor  is  entitled 
to  his  costs  under  7  Geo.  4,  c.  64,  s.  23  [u). 

(r)  Reg.  v.   Orbell,  6  Mod.  42.  {l)  24  &  25  Vict.  c.  96,  s.  88. 

(«)  24  &  25  Vict.   0.   96,    s.  88,  {ii)  Per  Patteson  and  Talfourd, 

amended  by  27   &  28  Vict.  c.  47,  JJ.,     Reg.   v.    Gardner,   "Worcester 

8.  2.  Spr.  Ass.  1851. 


(     4-29     ) 


CHAPTER  IV. 


GAMING. 


Gaming  not  unlawful    429 

Where    a     Loiulon    Apprentice 

'■'■frequents^''  Gaming    430 

Where  a  Clergyman  plays  at  tin- 
lawful  Games     id. 

Unfair  or  excessive  Gaming  ....     id. 

Using  false  Bice     id. 

Winning  exorbitant  Sums     ....     id. 

Losses  by  a  Bankrupt    431 

Cheating  in  a  Game  or  at  Play. .  id. 
The  Fraud  or  unlauful  Device. .  id. 
Conspiracy  to  cheat  at  Skittles. .  432 
Conspiracy  to  cheat  at  Cards  . .  id. 
Where  a  Criminal  Information 

tvas  refused     id. 

Contracts  for  Gaming    id. 

Money  deposited  for  Gaming     . .     id. 

French  Law  as  to  Games 433 

English  Laiv  as  to  Games id. 

The  ivord  Game id. 

Laivful  Games,  ^r id. 

Lawful  Gaming  or  Play 434 

"  Game''''    under    the   Highway 

Act id. 

Unlawful  Games    id. 

Lotteries    435 

lotteries  declared  Nuisances , . . .     id. 
Penalty  for  keep'ing  a  Lottery  . .     id. 
Penalty  for  drawing  at  a  Lot- 
tery          id. 

Lietlegoes  declared  Nuisances  . .  id. 
Penalty  for  keeping  a  I'laee  for 

a  Lottery  or  Littlego id. 

Penalty  for  suffering  any  Lot- 
tery to  be  drawn    436 

Justices  have   Summary   Juris- 
diction          id. 

5  Geo.  4,  c.  83,  s.  4,    "Instrtf- 

ments  of  Gam'ing'''' id. 

36  ^-  37  Vict.  c.  38,  s.  3 id. 

Racing  Sweeps   437 

Sale  of  Property  by  Lot     id. 

Attempt  to  evade  the  Law  ....  438 
Art  Unions    id. 


A  Lottery  of  Houses 438 

Ballot  in  Land  Societies    439 

Allotment  or  Partition  by  Lots  .  id. 

Choice  of  Allotments id. 

The  Conservative  Land  Society . .  id. 

Periodical  Braw'mgs 440 

Repayment  of  Money     id. 

Cock-jight'ing ,  Bull-baiting,   ^r.  id. 

Keeper  of  a  Place  for  this  pur- 
pose       id. 

Within  the  Metropolitan  Dis- 
trict      441 

Gaming  in  a  Public  House    ....  id. 

Where  Money  is  staked     id. 

Where  Money  is  not  staked  ....  442 

Money  lent  for  Gaming     id. 

Money  lent  for  the  Stakes  of  a 

Prize  Fight     id. 

Test  ichere   the    Transaction    is 

illegal id. 

Securities  for   Money    lent    for 

Gaming 443 

Action  on  a  Promissory  Note   . .  id. 

Identification      of     Promissory 

Note    id. 

An  I  0  U id. 

Money  lost  at  Play    id. 

Securities  for  3Ioney  so  lost  ....  444 

General  Effect  of  5^-6  Will.  4, 

f.  41    id. 

Action  against  Acceptor  of  Bill 

of  Exchange   446 

Action  by  Acceptor  of  Bill   of 

Exchange    447 

Recovery  of  Principal  and  In- 
terest    id. 

Evidence  of  Owner  of  a  Gaming 

House id. 

Summons  to   set  aside   a    War- 
rant of  Attorney    id. 

A  Post  Obit  Security  held  good .  id. 

Deed  substituted  for  one  tainted 

with  Illegality id. 


GAMING. 

Gaming,  by  playing  at  Cards,  Dice,  or  any  other  Games,  Gaming  not 
and  all  exercises,  when  practised  without  fraud  and  as  a  unlawful. 


430 


GAMING. 


Where  a 
London 
apprentice 
' '  frequents ' ' 
Gaming. 

Where  a 
Clergyman 
plays  at  un- 
lawful 
Games. 

Unfair  or 
excessive 
Gaming. 
Using  false 
Dice. 

Winning  ex- 
orbitant 
sums. 


recreation,  are  not  offences  at  common  law ;  sneTi  trans- 
actions, however,  have  never  met  with  much  encourage- 
ment when  brought  into  a  Court  (a). 

By  the  custom  of  London,  it  is  a  sufficient  cause  for  a 
Master  to  turn  away  his  Apprentice,  that  he  frequents 
Graming,  and  he  may  justify  it  before  the  Chamberlain  (b). 

But  it  is  laid  down  that  the  Bishop  cannot  refuse  to 
induct  a  Clergyman  when  presented  to  a  living,  merely 
because  he  is  a  Player  at  unlawful  Gfames,  or  a  Haunter 
of  Taverns  {c)  ;  because,  as  Sir  Simon  Degge  says,  each  of 
these  is  not  malum  in  sc,  but  only  malum  prohibitum  {d). 

An  Indictment  lies  for  unfair  or  excessive  Gaming, 
which  has  always  been  considered  illegal  {e). 

"Common  players  and  hazarders  with  false  Dice"  are 
indictable  (/"),  and  even  an  infant  may  be  indicted  for 
cheating  with  false  Dice  {cj). 

The  winning  of  exorbitant  sums  of  money  has  been  dis- 
couraged both  by  Courts  of  Law  and  Equity.  Thus,  in 
the  case  of  Sir  Bazil  FirehmMc  v.  Brett  (A),  it  appeared 
that  the  defendant  and  Sir  William  Eussell  dined  with 
the  plaintiff  at  his  house,  and  after  dinner  fell  into  play. 
When  they  began,  the  defendant  and  Sir  William  Eussell 
had  not  above  eight  guineas  between  them,  but  they  won 
about  900/.  in  ready  money,  which  the  defendant  brought 
away  with  him.  The  plaintiif,  upon  losing  this,  being 
somewhat  inflamed  by  wine,  brought  down  a  bag  of 
guineas,  containing  about  1,500/.,  which  the  defendant 
also  won ;  but  as  he  was  leaving  the  house  witli  it  in  his 
possession,  the  plaintiff  and  his  servants  seized  upon  it, 
and  took  it  from  him.  The  plaintiff  had  brought  an  in- 
formation against  the  defendant  for  playing  with  false 
Dice,  but  he  was  acquitted.  The  defendant  then  brought 
an  action  of  Trespass  against  the  plaintiff  for  taking  from 
him  in  a  forcible  manner  this  bag  of  guineas.  The  Lord 
Chancellor  granted  an  injunction  to  stay  these  proceedings 
at  law,  though  the  defendant  had  by  answer  denied  all  the 
circumstances  of  fraud  charged  in  the  Bill.  And  his  Lord- 
ship said,  that  he  thought  the  sum  very  exorbitant  for  a 


(ff)  Bac.  Abr.  tit.  Gaming,  A.  ; 
Dalton,  c.  23  ;  Shcrhon  v.  Colthacl:, 
2  Vent.  175  ;  Crockford  v.  Lord 
Maidstone,  Appendix. 

(i)  Woodroffe  v.  Farnham,  2  Vem. 
291. 

[c)  Specofs  case,  5  Rep.  58  a, 
p.  118. 


{d)  Degge's  P.  C,  Part  1, 
Chap.  1. 

{e)  2  Rol.  Abr.  78. 

( /')   LecHer  s  crtse,  Cro.  Jac.  497. 

iff)  Bac.  Abr.  Infant  (H.). 

(h)  Sir  Basil  Fircbrasse  v.  Brett, 
1  Vem.  489  ;  Sir  Bazill Firehraas  v. 
Brett,  2  Vern.  70. 


(iAMiX(;.  4:31 

man  to  los^  at  play  in  one  night,  and  that  if  it  was  in  Lis 
power  he  would  prevent  it ;  and  cited  the  case  of  Sir  Cecil 
Bishop  V.  Sir  John  Staples  in  the  time  of  Lord  Chief  Jus- 
tice Hale,  about  a  Wager  upon  a  Foot  race,  and  that  the 
Chief  Justice  said,  in  that  case,  that  those  great  Wagers 
proceeded  from  avarice  and  were  founded  in  corruption,  and 
decided  that  he  would  give  the  defendant  leave  to  imparl 
from  time  to  time.  His  Lordship  then  said,  that  if  such 
discouragement  was  given  to  Gaming  at  Common  Law,  it 
ought  much  more  to  be  done  in  a  Court  of  Equity. 

By  12  &  1;}  Yict.  c.  106,  s.  201,  no  Bankrupt  was  enti-  Losses  by  a 
tied  to  his  Certificate  if  he  should  have  lost  by  any  sort  of  bankrupt. 
Gaming  or  Wagering  in  one  day  20/.,  or  within  one  year 
next  preceding  his  Bankruptcy  200/.,  either  by  Gaming 
or  Wagering,  or  "by  any  Contract  for  the  purchase  or 
sale  of  any  Government  or  other  Stock,  when  such  contract 
was  not  to  be  performed  within  one  week  after  the  con- 
tract, or  where  the  Stock  bought  or  sold  was  not  actually 
transferred  or  delivered,  in  pursuance  of  such  contract"  (/). 
But  this  clause  was  repealed  by  24  &  25  Yict.  c.  134. 

Cheating  in  a  Game  or  at  Play  is  now  an  indictable  Cheating  in  a 
offence;  for  by  the  17th  section  of  8  &  9  Vict.  c.  109,  it  Gjimeorat 
is  enacted,  "  that  every  person  who  shall  by  any  fraud  or     *^' 
nnlauful  device  or  ill  p)raeticc  in  playing  at  or  with  Cards, 
Dice,  Tables,  or  other  Games,  or  in  bearing  a  part  in  the 
Stakes,  Wagers,  or  Adventures,  or  in  betting  on  the  sides 
or  hands  of  them  that  do  play,  or  in  wagering  on  the  event 
of  any  Game,  Sport,  Pastime,  or  Exercise,  win  from  any 
other  person  to  himself,  or  any  other  or  others,  any  sum  of 
money  or  valuable  thing,  shall  be  deemed  guilty  of  obtain- 
ing such  money  or  valuable  thing  from  such  other  person 
by  a  False  Pretence  with  intent  to  cheat  or  defraud  such 
person  of  the  same,  and  being  convicted  thereof  shall  be 
punished  "accordingly"  {j). 

Tossing  coins  for  wagers  is  a  sport,  pastime  or  exercise 
if  not  a  game  within  this  section  (/r) . 

The  "fraud  or  unlawful  device"  must  be  practised  The  fraud  or 
during  the  Game  itself  to  support  an  indictment  for  obtain-  ^^J^^^ful  <ie- 
inrj  moncii  hy  a  false  pretence,  under  8  &  9  Yict.  c.  109, 

(0  12  &  13  Vict.  c.  106,  8.  201.  equally  divided  as  to  whether  the 

(V)  8  &  9  Vict.   c.    109,   s.    17;  term  '''blackleg"    was  x>er   se   de- 

and  see  Cheating  in  a  Wager,  ante,  f  amatory  or  not. 

Part  3,   Chap.  3.     In  the  case  of  (/.)  liecj.  v.   O'Connor,  45  L.  T., 

Burnett  v.    Allen    (4   Jur.,    N.    S.  N.  S.  512— C.  C.  K. 

488),  the  Court  of  Exchequer  were 


432 


GAMING, 


Conspiracy 
to  cheat  at 

Slcittles. 


Conspiracy 
to  cheat  at 
Cards. 


Where  a  cri- 
minal infor- 
mation was 
refused. 


Contracts  for 
Gaming'. 


Money  de- 
positf  d  for 
Gaming-. 


s.  17  ;  aud  it  is  not  sufficient  that  a  fraud  was  resorted  to, 
to  induce  the  prosecutor  to  play  (/). 

Where  several  persons  confederated  and  combined  to- 
gether to  play  at  Skittles,  so  that  the  play  of  one  of  them 
should  betoken  his  skill  to  be  much  less  than  it  really  was, 
in  order  that  the  prosecutor  (a  looker-on)  might  be  induced 
to  play  with  him,  and  thereby  lose  to  him  his  money :  it 
was  held  to  be  an  indictable  conspiracy  {ui). 

So,  also,  where  C.  and  J.  were  indicted  for  conspiring  to 
cheat  certain  persons  out  of  money  by  playing  at  Cards, 
it  appeared  that  J.  went  first  into  an  Inn  and  sat  down 
to  drink ;  after  some  time  C.  made  his  appearance  with  a 
bag  of  nuts :  he  took  not  the  slightest  notice  of  J.,  but 
in  a  short  time  he  pulled  some  cards  out  of  his  pocket,  and 
proposed  to  play  for  the  nuts.  Tliere  were  three  Cards, 
and  any  person  who  selected  the  highest  was  to  have  a 
pennyworth  of  nuts  for  a  halfpenny.  Several  persons 
played,  and  were  allowed  to  win  until  all  the  nuts  were 
gone.  C.  then  proposed  that  they  should  play  for  a 
shilling ;  J.  played  and  lost  the  first  shilling ;  he  then 
played  again  and  won.  Others  played,  but  eventually  C, 
who  had  won  some  money,  was  discovered  cheating  in 
concert  with  J. ;  upon  this  0.  left  the  room,  but  was  after- 
wards apprehended  in  J.'s  company.  It  was  shown  that 
they  were  travelling  and  lodging  together,  notwithstanding 
they  had  pretended  that  they  were  strangers.  The  Jury 
found  them  both  guilty  (;?)• 

A  Criminal  information  was  refused  by  the  Court  of 
Queen's  Bench  for  a  conspiracy  to  cheat,  where  it  appeared 
that  the  persons  making  the  application,  as  well  as  the 
other  parties  against  whom  it  was  made,  were  a  set  of 
Cheats  and  Gamblers  (o). 

By  8  &  9  Yict.  c.  i09  (p),  "all  contracts  or  agreements, 
whether  by  parol  or  in  writing,  by  way  of  Gaming  or 
wagering,"  are  null  and  void. 

And  where  money  has  been  paid  to  a  Stakeholder,  in 
pursuance  of  a  contract  by  way  of  Gaming,  either  party 
may  recover  back  his  share  before  it  has  been  paid  over  [q). 
But  in  no  case  can  the  ichole  be  recovered  by  the  Winner. 


ij)  Reg.  V.  Bailcu,  4  Cox,  C.  C. 
397. 

(;«•)  Beg.  v.  Bailey,  4  Cox,  C.  C. 
390. 

(«)  Reg.  V.  Clark  and  Jervis,  be- 
fore Mr.  Justice  Erie,  Bodmin  Spv. 
Ass.  March  23,  1853. 


(rt)  Rex  Y.  Peach,  1  Burr.  548. 

Ip)  8  &  9  Vict.  c.  109,  s.  18, 
Appendix. 

(q)  Cotton  V.  Thurland,  5  T.  Ri 
408  ;  Smith  v.  Bickmore,  4  Taunt. 
474  ;  lladchw  v.  Jackson,  8  B.  &  C. 
221  ;    Hodson  v.  Terrell,  1  C.   &  M. 


(ixynsG.  433 

The  French  law  does  not  allow  an  action  for  a  debt  at  French  law 
play.     But  Gaines  proper  in  the  exercise  of  Feats  of  arms,  ^^  *o  ^^^  ^^' 
Foot  races,  Horse  or  Chariot  races.  Tennis,  and  other  sports  stakes  ° 
of  the  same  nature,  which  require  address  and  agilitj  of  ^ 

body,  are  excepted,  subject  to  the  power  of  the  Court  to  re- 
ject the  demand  where  the  sum  appears  to  be  excessive  (>•). 

Under  the  Proviso  in  the  18th  section  of  8  &  9  Yict.  English  law 
c.  109,  the  enactment  in  that  section  is  "  not  to  be  deemed  ^^  ^°  *^*^  ^^- 
to  apply  to  any  subscription  or  contribution,  or  agreement  stakes  ° 
to  subscribe  or  contribute,  for  or  toward  any  Plate,  Prize, 
or  Sum  of  money  to  be  awarded  to  the  winner  or  winners 
of  any  lawful  Game,  Sport,  Pastime  or  Exercise"  (s).  It 
is  not  clear  what  is  excepted  by  the  word  Game  in  that 
Proviso,  but  it  seems  probable  that  the  "  Sum  of  money  to 
be  awarded  to  the  winner  "  at  the  termination  of  "  any 
lawful  Gfame,  Sport,  Pastime,  or  Exercise,"  is  meant  to  be 
a  sum  ascertained  before  the  commencement  of  such  Game, 
&c.,  as  distinguished  from  the  case  where  it  is  uncertain 
what  sum  may  be  won  or  lost  until  the  Grame  has  con- 
eluded.  It  would  appear,  therefore,  that  so  long  as  the 
money  won  is  a  SfaJie  and  not  a  JBef,  and  the  Game,  &c.  is 
lawful,  and  perhaps  the  sum  ascertained  before  the  com- 
mencement of  such  Game,  &c.,  the  winner  may  maintain 
an  action  against  a  loser  for  his  Subscription  or  Contribu- 
tion to  the  Stake  {t). 

The  following  are  lawful  Games,  Sports,  Pastimes  or  Lawful 
exercises  : — Plorse  Paces  («),  Steeple  Chases  (.r).  Trotting  Games,  &c. 
Matches  (^),  Coursing  Matches  (;:),  Foot  Races  («),  Boat 
Paces  {b),  Eegattas  (c),  Powing  Matches  (c),  Golf,  Wrest- 

802;  Hampden  V.  Walsh,  Ij.  R.,   1  37    L.    T.,   N.  S.    27;  25   W.   R. 

Q.  B.  D.  189  ;  45  L.  J.,  Q.  B.  238;  777— C.  A.,  ante,  p.  394. 

33  L.  T.,  N.   S.   852;  24  W.  R.  («)  See  the  Law  as  to  Racing, 

607 ;    Bifjgle   v.    Higgs,    L.    R.,    2  ante,  Part  3,  Chap.  2. 

Ex.  D.  422  ;  46  L.  J.,  Ex.  721  ;  37  [x)  See  Evans  v.  I'ratt,  4  Scott, 

L.  T.,  N.  S.  27  ;  25  W.  R.  777—  N.  R.  378. 

C.   A. ;   Trimble  v.  Hill,  L.  R.,  5  (y)  See    Holmes    v.    Sixsmith,    7 

App.  Cas.  342.     See  ante,  p.  396.  Exch.  802. 

(?•)  Code  Civil,    Book  3,   tit.    3,  {z)  See   Daintree   v.    Hutchinson, 

Chap.   1,  art.  1905,  1966.  16  M.  &  W.  87  ;  Emerson  v.  Dick- 

(a)  8   &  9  Vict.    c.    109,    8.    18,  son,  ante,  p.  400. 
Appendix ;  and  see  "Wagers,  ante,  [n)  See  Battij  v.  Harriott,    5  C. 

Part  3,  Chap.  3.  B.  818  ;   Coates  r.  Hatton,  3  Stark, 

{t)  The    distinction    between    a  61. 
Stake   and   a   Bet    was    taken    in  {l>)  See  Cheeseman  v.  Hart,  ante, 

Connor  v.    Quick,  cited  2  W.  Bla.  p.  409. 

708.     See  also  liatti/  v.  Marriott,  5  (c)  See  Bostock  v.  North  Stafford- 

C.  B.  818;   Biggie  Y.  Higgs,  L.  R.,  shire  Hail icag  Co.,  4  E.  &  B.  798: 
2  Ex.  D.  422  ;  46  L.  J.,  Ex.  721  ; 

O.  F  F 


434 


CAMINf;, 


Lawful 
Gaming  or 
Play. 


"Game" 
under  the 
Highway- 
Act. 


Unlawful 
Games. 


ling  Matches  (rf),  Cricket  (e),  Tennis,  Fives,  Rackets, 
Bowls  (./),  Skittles  (g),  Quoits,  Curling,  Putting  Stone, 
Football  {//),  and  every  bo)id  fide  variety,  or  similar  de- 
scription of  sucli  Games,  &c.  (/).  The  winner  therefore, 
in  any  of  these,  may  recover  from  the  loser,  or  each  of  the 
losers,  his  Subscription  or  Contribution  to  the  Stake  (/.•). 

The  following  lawful  Games  when  played  for  money  {I) 
may  be  called  Lawful  Gaming  or  Piay : — Whist  and 
other  lawful  Games  at  Cards,  Backgammon  {m),  Bil- 
liards (»),  Bagatelle  (»),  Chess  (o).  Draughts  (o),  Domi- 
noes (o),  &c. 

By  the  72nd  section  of  the  Highway  Act  (p)  a  penalty 
is  imposed  upon  any  person  "  who  shall  play  at  Football 
or  any  other  Game  on  any  part  of  the  Highw\ay,  to  the 
annoyance  of  any  passenger  or  passengers."  Therefore 
where  a  number  of  persons  assembled  together  in  a  public 
Highway  to  enjoy  a  diversion  called  "  a  Stag-hunt," 
which  consisted  in  one  of  the  number  representing  a  Stag, 
and  the  others  chasing  him,  whereby  an  obstruction  was 
caused,  it  was  held  that  this  was  "  a  Game  "  within  the 
meaning  of  the  Act  {q). 

A  variety  of  Games  are  prohibited  by  Statute.  Thus 
all  Lotteries  are  declared  to  be  jjublic  nuisances  in  what- 
ever way  they  may  be  drawn  or  arranged  (r).  The 
Games  of  The  Ace  of  Hearts,  Pharaoh,  Basset  and 
Hazard  («)  are  to  be  deemed  Games,  or  Lotteries  by  Cards 
or  Dice,  and  are  iinlaicfnl,  whether  played  at  a  public  table 
or  in  private  (/).  Also  the  Game  of  Passage  and  every 
other  Game  with  Dice,  except  Backgammon  and  other 
Games  played  with  Backgammon  tables,  are  to  be  deemed 


((/)  See  Kennedy  v.  Gad,  3  C.  «& 
P.  ;i76;   Ma)ihy\.  Scott,  1  Mod.  136. 

{e)  See  Jeffreys  y.  Walter,  iWils. 
220  ;  Walpole  v.  Sanders,  7  D.  &  R. 
130  ;  Hodson  v.  Terrill,  1  C.  <S:  M. 
797 ;  Holmes  v.  Bagge,  17  Jur.  1095. 

(/)  See  Slgel  v.  Jebb,  3  Stark.  2. 

[g)  See  Foot  v.  Baker,  5  M.  &  G. 
339;  Batti/Y.  Marriott,  5  C.  B.  818; 
Seg.  V.  Bailey,  4  Cox,  C.  C.  396. 

(A)  See  Manby  v.  Scott,  1  Mod. 
136. 

(J)  See  7  &  8  Vict.  c.  3. 

(A-)  See  8  &  9  Vict.  c.  109. 

(/)  If  money  is  not  staked,  it  is 
not  Gaming,  lieg.  v.  Ashton,  22  L. 
J.,  M.  C.  1,  Q.B. 


{m)  See  13  Geo.  2,  c.  19,  s.  9, 
Appendix. 

(«)  See  8  &  9  Vict.  c.  109,  s.  13, 
Appendix.  See  I'arsons  v.  Alex- 
ander, 1  Jur.,  iSr.  S.  660. 

(o)  See  Ecg.  \.  Ashton,  22  L.  J., 
M.  G.  1,  Q.  B. 

{p)  5  &  6  Will.  4,  c.  50. 

[q)  Pappin  V.  Maynard,  9  L.  T., 
N.  S.  327. 

{r)   10  &  11  Will.  3,  c.  17,  s.  1. 

(.S-)  See  Crocl-ford  v.  Lord  Jfaid- 
stone,  Ajjpendix ;  Bex  v.  Liston, 
0  T.  R.  240. 

(0  12  Geo.  2,  c.  28,  s.  2,  Appen- 
dix ;  and  see  M^Einnell  v.  Robinson, 
3  M.  &  W.  441 ;  Rex  v.  Listou, 
5  T.  R.  240. 


GAMING.  435 

Games  or  Lotteries  by  Dice  within  12  Geo.  2,  c.  28  {ii). 
The  Game  of  Kolypoly,  or  Roulet,  is  also  prohibited  under 
the  same  penalties  (r). 

The  Statutes  containing  provisions  concerning  Lotteries  Lotteries. 
and  Littlegoes  are  10  &  11  Will.  3,  c.  17;  9  Ann.  c.  6  ; 
10  Ann.  c.  2G ;  8  Geo.  1,  c.  2 ;  9  Geo.  1,  c.  19  ;  6  Geo.  2, 
c.  35 ;  12  Geo.  2,  c.  28  {ic) ;  13  Geo.  2,  c.  19 ;  42  Geo.  3, 
0.  119;  46  Geo.  3,  c.  148 ;  6  &  7  Will  4,  c.  66;  and 
7  &  8  Vict.  c.  109 ;  and  are  to  be  found  in  Burn's  Jus- 
tice (.r),  under  the  head  of  "Gaming  and  Lotteries." 
Also  see  the  late  Acts  8  &  9  Vict.  c.  74,  with  regard  to 
advertising  Lotteries,  and  9  &  10  Vict.  c.  48,  for  legalizing 
Art  Unions. 

The  statute  10  &  11  Will.  3,  c.  17,  recites  the  mischiefs  Lotteries  de- 
arising  from  Lotteries  under  colour  of  certain  patents  and  clared  nui- 
grants ;  and  then  enacts,  not  only  that  all  such  Lotteries, 
but  also  that  all  other  Lotteries,  are  public  nuisances  [ij). 

It  imposes  a  Penalty  of  500/.,  to  be  recovered  in  any  of  Penalty  for 
her  Majesty's  Courts  at  Westminster,  upon  every  person  LQ^j.^g'^^  ^ 
who  may  "  exercise,  expose,  open  or  show  to  be  played, 
thrown  or  drawn  at,  any  such  Lottery,  Play,  or  Device,  or 
other  Lottery"  (;:). 

Also  a  Penalty  of  20/.  to  be  recovered  in  like  manner  Penalty  for 
upon  every  person  who  "  shall  play,  throw  or  draw  at  any  ^  ^7^°^  ^*  ^ 
such  Lottery,  Play  or  Device,  or  other  Lotteries"  {a). 

The   statute   42  Geo.  3,  c.   119,  recites  the  mischiefs  Littlegoes 
occasioned  by  certain  Lotteries  called  Littleejoes,  and  de-  declared  uui- 
clares  that  "  all  such  Games  or  Lotteries  called  Littlegoes  '''^^°^''^- 
are  public  nuisances  "  {h). 

And  it  is  enacted  that  no  person  "  shall  publickly  or  Penalty  for 
privately  keep  any  Office  or  Place,  to  exercise,  keep  open,  keeping  a 
show,  or  expose  to  be  played,  dra^^oi,  or  thrown  at  or  in.  Lottery  or 
either   by  Dice,  Lots,    Cards,  Balls,   or   by  numbers   or  Littlego. 
figm'es,  or  by  any  other  way,  contrivance,  or  device  what- 
soever, any  Game   or   Lottery  called  a  Littlecjoe,  or  any 
other  Lottery  whatsoever  not  authorized  by  Parliament," 
under  a  Penalty  of  500/.,  to  be  recovered  in  the  Court  of 
Exchequer  at  the  suit  of  the  Attorney- General  (c). 

(«)   13  Geo.  2,  c.   19,  s.  9,  Ap-  and  see  AUport  v.  Xntt,    1  C.  B. 

pendix.  989. 

(r)   18  Geo.  2,  c.  34,  s.    1,  Ap-  (-)  10  &  11  Will.  3,  c.  17,  s.  2. 

pendix.  [a)   10  &  11  Will.  3,  c.  17,  s.  3. 

(m)  See  Appendix.  {b)  42  Geo.  3,  c.  119,  s.  1  ;  and 

(V)  3   Bere    &    Chitty's   Burn's  see  AUport  v.  Nuit,  1  C.  B.  989. 

Justice,  322.  {<■)  42  Geo.  3,  c.  119,  ss.  1,2;  and 

(//)    10   &  11  Will.  3,  0.  17,  s.  1  ;  see  JUport  v.  Xidf,  1  C.  B.  989. 

F  f2 


436 


GAMING. 


Penalty  for 
suffering  any 
Lottery  to  be 
drawn,  &c. 


Justices  have 

summary 

jurisdiction. 


5  Geo.  4, 
c.  83,  s.  4, 
"  Instru- 
ments of 
Gaming'." 


The  same  Penalty  is  also  incurred  by  any  person  who 
"  shall  knowingly  suffer  to  be  exercised,  kept  open,  shown, 
or  expose  to  be  played,  drawn,  or  thrown  at  or  in,  either 
by  Dice,  Lots,  Cards,  Balls,  or  by  Numbers  or  Figures,  or 
by  any  other  Way,  Contrivance,  or  Device  whatsoever,  any 
such  Game  or  Lottery,  in  his  or  her  House,  Room,  or 
Place"  (r/). 

Before  the  passing  of  the  Vagrant  Acts,  3  Greo.  4,  c.  40, 
and  5  Geo.  4,  c.  83,  Offenders  not  proceeded  against  for  the 
above  Penalty  were  punishable  as  lioyues  and  Vagabonds, 
imder  17  Geo.  2,  c.  o.  But  though  by  5  Geo.  4,  c.  83, 
s.  1,  it  is  enacted  "That  all  provisions  heretofore  made 
relative  to  Rogues  and  Vagabonds''^  are  repealed,  yet  it 
would  appear  that  the  combined  operation  of  3  Geo.  4, 
c.  40,  s.  21,  and  5  Geo.  4,  c.  83,  s.  21,  continues  to  Justices 
of  the  Peace  their  jurisdiction  under  42  Geo.  3,  c.  119  {e). 

By  5  Geo.  4,  c.  8-J,  s.  4,  people  playing  or  betting  "in 
any  street,  road,  highway,  or  other  place,  at  or  with  any 
table  or  instrument  of  Gaming,  at  any  Game  or  pretended 
Game  of  Chance,  are  to  be  deemed  Pogues  and  Yaga- 
bonds,"  and  to  be  liable  to  imprisonment  with  hard  labour 
for  any  term  not  exceeding  three  calendar  months.  The 
words  "instruments  of  gaming"  here  signify  things  des- 
tined for  that  purpose,  and  therefore  were  held  not  to  apply 
to  halfpence  used  for  pitch  and  toss  (/)  ;  nor  to  cards,  as, 
in  a  case  in  which  the  defendant  was  seen  to  play  with 
three  cards,  they  were  held  by  Erie,  J.,  not  to  come  within 
this  designation  in  this  statute  {g).  But  it  is  now  provided 
by  the  Yagrant  Act  Amendment  Act,  1873  (36  &  37  Yict. 
c.  38),  s.  3,  that  "  every  person  playing  or  betting  by  way  of 
wagering  or  gaming  in  any  street,  road,  highway,  or  other 
open  and  public  place,  or  in  any  open  place  to  which  the 
public  have  or  are  permitted  to  have  access,  at  or  with  any 
table  or  instrument  of  gaming,  or  any  coin,  card,  token  or 
other  article  used  as  an  instrument  or  means  of  such  wager- 
ing or  gaming  at  any  game  or  pretended  game  of  chance, 
shall  be  deemed  a  rogue  and  vagabond  within  the  true  in- 
tent and  meaning  of  5  Geo.  4,  c.  83,  and  as  such  may  be 
convicted  and  punished  under  the  provisions  of  that  Act, 
or  in  the  discretion  of  the  Justice  or  Justices  trying  the 
case,  in  lieu  of  such  punishment,  by  a  penalty  for  the  first 


{d)  42  Geo.  3,  c.  119,  s.  2. 

[e)  Case  of  H.  King,  Bristol, 
Dec.  6,  1853  ;  S.  C.  nom.  Err/,  v. 
Justices  of  Bristol,  Jan.  11,  1854, 
Q.  B. 


(/)  Watson  V.  Martin,  13  W.  R. 
144. 

{g)  li.  v.  Itoach,  Judge's  Cham- 
bers, July  12,  1856. 


GAMING.  ,       437 

offence  not  exceeding  forty  shillings,  and  for  the  second  or 
any  subsequent  offence  not  exceeding  five  pounds."  Where 
the  defendants  were  charged  with  being  on  a  Racecourse 
taking  deposits  on  the  bets  made  and  amounts  staked  on 
the  several  Horses,  and  soliciting  bystanders  to  make  bets, 
charging  ten  per  cent,  on  the  amounts  won,  for  the  use  of  an 
instrument  which  displayed  the  state  of  the  odds,  and  by  a 
mechanical  arrangement  varied  the  announcement  from  time 
to  time  according  to  the  bets  made,  and  they  having  been 
convicted,  it  was  held,  that  such  a  machine  was  "  an  instru- 
ment or  means  of  wagering"  (A).  But  betting  odds  on 
one  of  several  Dogs  about  to  run  in  a  race  and  paying  half 
a  sovereign,  is  not  jolaying  or  betting  with  a  coin  as  an 
instrument  of  gaming  (?).  It  would  appear  that  a  railway 
carriage  {k),  no  less  than  an  omnibus  (/),  is  an  "  open  and 
public  place  "  within  this  statute  (k) .  And  a  field  belonging 
to  a  company  which  they  allow  their  workmen  and  their 
families  to  use  for  recreation  and  bowling  matches,  and 
where  strangers  are  also  allowed  to  play  and  are  not  turned 
away,  is  a  place  to  which  "the  public  have  access" (w?). 

Derby  Lotteries  or  Sweeps  on  Races,  &c.  are  illegal.  Racing 
and  within  the  express  words,  and  clear  intention,  of  the  Sweeps. 
Statutes  against  Lotteries  (;?).  And  this  was  so  held  by 
the  Court  of  Queen's  Bench  in  a  case,  where  subscribers 
paid  1/.  each,  on  condition  that  the  subscriber  whose 
name  should  be  drawn  out  of  a  box,  next  after  the  name 
of  the  Horse,  which  afterwards  should  be  placed  first  in 
the  Race,  was  drawn  out  of  another  box,  should  be  en- 
titled to  receive  100/.  (o). 

The  mischief  intended  to  be  remedied  by  the  Laws  Sale  of  Pro- 
against  Lotteries  was  not  the  gain  acquired  by  the  indi-  P^^'^^y  ^7  ^°^- 
vidual  keeping  a  Lottery,  but  the  introduction  of  a  spirit 
of  speculation  and  gambling,  tending  to  the  ruin  and 
impoverishment  of  families.  Therefore  if  a  Horse  were 
sold  by  Tickets  amounting  in  the  aggregate  to  no  more 
than  his  true  value,  that  would  be  a  Raffle  or  Lottery  (p). 

(h)  Eeg.  v.  Wolverham ptoti    {Jus-  {m)   TurnbuU  Y.Ap2)Ieton.  Ab  3 .V. 

tices),  Tollett  v.  Thomas,  L.  R.,  6  Q.  469. 

B.  514  ;  40  L.  J.,  M.  C.  209  ;  24  L.  {u)  The  proviso  in  s.  18  of  8  &  9 

T.,N.  S.  508;   19  W.  R.  890.  Vict.    c.    102,    has  no   relation  to 

(i)  Hirst  v.lfolesbHn/,  Ij.Ti.,  6  Q.  Racing   Lotteries,     and    therefore 

B.  130  ;  40  L.  J.,  M.  'C.  76  ;  23  L.  does  not  make  them  legal;   Gattij 
T.,  N.  S.  55  ;   19  W.  R.  240.  v.  Field,  15  L.  J.,  Q.  B.  408. 

[k)  Ex  parte  Freestone,  25  L.  J.,  [o)  Allport  v.  Nutt,  1  C.  B.  988. 

M.  C.  121.  \p)  See  Al^wrt  v.  Nutt,  1  C.  B. 

(0  Reg.  V.  Holmes,  22  L.  J.,  M.  984. 

C.  122. 


438 


GAMING. 


Attempt  to 
evade  the 
Law. 


Ai't  Union.s. 


A  Lottery  of 
Houses. 


Where  an  announcement  was  made  by  a  dramatic  per- 
former that  the  holder  of  a  certam  Ticket  of  admission  to 
the  Theatre  should  be  entitled  to  a  gold  watch  of  a  spe- 
cified value,  and  the  price  of  Tickets  had  been  consequently 
raised,  it  was  held  that  the  holder  of  the  Ticket  could  not 
recover  the  value  of  the  watch,  as  such  a  proceeding  was 
in  point  of  fact  a  Lotlenj  (q). 

So,  too,  the  distribution  of  presents,  accordingto  a  previous 
announcement  after  a  musical  entertainment  to  persons 
occupying  certain  numbered  seats,  who  with  the  rest  of  the 
audience  had  paid  a  sum  of  money  for  admission  generally 
to  the  room,  the  numbers  of  the  fortunate  recipients  being 
called  out,  and  the  presents  handed  to  them,  was  held  to 
be  a  Lottery  within  42  Greo.  3,  c.  119,  s.  2  (r). 

By  the  Act  legalizing  Art  Unions  (s),  it  is  provided 
that  voluntary  associations  constituted  for  the  distribu- 
tion of  Avorks  of  art  by  lot  are  to  be  deemed  legal,  where 
a  royal  charter  has  first  been  obtained. 

An  action  was  brought  to  recover  a  sum  of  money 
upon  a  covenant  contained  in  a  deed  which  the  defendant 
had  executed  on  the  27th  of  October,  1849,  whereby  he 
covenanted  to  pay  the  plaintiff  the  sum  of  630/.  on  the 
27th  of  April,  1850.  The  defendant  pleaded  that  the 
deed  in  question  was  founded  upon,  and  was  executed  in 
pursuance  of,  an  unlawful  agreement  which  had  pre- 
viously been  entered  into  between  the  parties,  whereby 
it  was  agreed  that  certain  Houses  should  be  conveyed  by 
the  plaintiff  to  the  defendant,  to  the  intent  and  for  the 
purpose  that  they  should  be  disposed  of  by  the  defendant 
by  Lotfcnj.  The  defendant  contended  that  the  agreement 
was  illegal  under  10  &  11  Will.  3,  c.  17,  and  the  deed 
founded  upon  it  void.  The  issue  being  upon  the  defen- 
dant, the  defendant  himself  was  put  into  the  box,  and 
stated  that  a  scheme  had  been  adopted  at  Manchester  for 
disposing  of  house  property  by  Lottery,  and  that  he  had 
entered  into  an  agreement  with  the  plaintiff  for  the 
purchase  of  seventeen  houses  in  Sheffield,  which,  it  was 
understood  between  them,  were  to  be  disposed  of  in  the 
same  manner.  The  shares  were  publicly  advertised  at 
Sheffield,  and  the  first  drawing  took  place  in  August, 
1849,  when  a  portion  of  the  property  was  disposed  of  by 
the  defendant,  with  the  concurrence  and  assistance  of  the 


('/)  Roddi/  V.  Stanleij,   5  Ir.  Jur.  ()■)  Morris  v.  BIackina»,  10  Jur., 

10.  N.  S.  520. 

(.s')  9  &  10  Vict.  c.  48,  s.  1. 


(.•AMIJS(;.  4-i9 

plaintiff.  It  was  then  agreed  that  the  remaining  portion 
of  the  property  should  be  transferred  to  the  defendant, 
which  was  done  accordingly,  and  on  the  same  day  the 
deed  was  executed  upon  which  the  present  action  was 
brought.  All  this  was  done,  as  the  defendant  stated, 
with  the  full  knowledge  of  the  plaintiff  that  the  houses 
were  to  be  disposed  of  by  Lottery ;  and,  in  fact,  the 
price  which  he  was  to  pay  for  the  same  was  much  exag- 
gerated by  the  illegal  nature  of  the  contract.  The  plain- 
tiff had  taken  a  book  containing  shares  Avhich  he  sold,  and 
accounted  for  the  proceeds  to  the  defendant,  who,  at  the 
time  of  the  purchase,  had  no  other  means  of  paying  for 
the  propert}',  except  from  any  proceeds  which  he  might 
obtain  from  the  sale  of  the  shares,  and  that  was  well 
known  to  the  plaintiff.  The  Jury,  upon  this  statement, 
immediately  found  a  verdict  for  the  defendant  {t). 

A  question  arises  whether  the  Ballot  which  takes  place  Ballot  in 
in  Land   Societies  for  the  choice  of  allotments  constitutes  ^^^^  Socie- 
a  Lottery  within  the  meaning  of  the  Lottery  Acts,  and 
particularly  12  Geo.  2,  c.  28  [u). 

It  is  provided  by  the  11th  section  of  this  Act  {x)  that  Allotment  or 
nothing  contained  in  it  is  to  affect  any  interest  in  lands,  Partition  by 
&c.,  held  by  any  Allotment  or  partition  by  lots.  But 
that  all  who  may  at  any  time  become  "  part  owners,  joint 
tenants  or  tenants  in  common"  of  any  land,  &c.,  may 
take  such  interest  as  they  might  have  done  by  virtue  of 
any  "Lot,  scroll,  chance  or  allotment  whatsoever,"  if  this 
Act  had  never  been  passed  (//). 

"Where  there  are  a  great  many  subscribers  to  a  Land  Choice  of 
Society,  and  Allotments  only  for  a  few,  it  may  very  fairly  Allotments, 
be  said  that  it  shall  be  decided  by  Lot  whether  a  par- 
ticular shareholder.  A.,  shall  have  the  choice  of  one  of 
these  Allotments,  or  whether  he  shall  remain  for  the  pre- 
sent in  statu  quo,  that  is,  without  the  land,  but  with  the 
same  account  in  the  books  of  the  Society  as  before  the 
Allotment. 

•  The  plan  of  drawing  by  Ballot  for  priority  of  the  right  The  Conser- 
of  choice,  as  adopted  by  the  Conservative  Land  Society,  g^*":^^  ^^^^^ 
is  not  unlawful.     This  balloting,  which  does  no  more  than 
determine   and  regulate  the  order  and  priority  in  which 
the  members  are  to  be  entitled  to  the  right  of  selecting 

(0  Fisher  v.  Bridges,  before  Lord  [x)  12  Geo.  2,  c.  28,  s.  11,  Ap- 

Campbell,  C.  J.,  Queen's  Bench,  penclix. 

Feb.  1,  1853.  («/)  See  ff  Cuinior  \.  Bradshaic,  5 

(«)  See  Appendix.  Exch,  890. 


440 


GAMING. 


Periodical 
Drawinars. 


Kepayment 
of  money. 


Cock-fig-ht- 
ing,  BuU- 
baiting,  &c. 


Keeper  of  a 
place  for  this 
purpose. 


allotments,  and  to  advances  upon  them  when  selected, 
does  not  appear  to  fall  within  the  words  or  spirit  of  the 
Lotie)'!/  Ads. 

A  Society  constituted  avowedly  for  the  benefit  of  its 
members,  making  certain  of  them  entitled  to  particular 
benefits  by  the  process  of  periodical  drawings,  does  not 
come  within  the  Lottery  Acts  {z). 

And  the  only  system  of  allotment  which  could  be  con- 
sidered a  Ldttenj,  is  where  there  are  a  number  of  subscribers 
who  absolutely  pay  over  their  money  for  the  chance  of 
obtaining  by  the  Ballot  a  portion  of  Land,  but  who  have 
not  the  option  of  receiving  back  again  the  money  after  they 
have  lost  their  chance. 

Cod:-fi(jhtin(j  is  illegal,  and  indictable  at  common  law  {a). 
Coclx-fi(jhUncj  and  a  variety  of  other  cruel  sports  were 
prohibited  under  a  penalty  by  5  &  6  Will.  4,  c.  59,  s.  3, 
which  however  was  repealed  by  12  &  13  Yict.  c.  92,  s.  1. 
By  the  2nd  section  of  this  Act  it  was  enacted  that  any 
person  "  cruelly  beating,  ill-treating,  over-driving,  abusing, 
or  torturing,  or  causing  or  procuring  to  be  cruelly  beaten, 
ill-treated,  over-driven,  abused  or  tortured,  any  animal, 
shall  pay  a  penalty  not  exceeding  5/."  A  cock  has  been 
held  to  be  "  an  animal "  within  this  section,  and  therefore 
a  person  who  takes  an  active  part  in  a  cock-fight  after  one 
or  both  is  disabled,  is  liable  to  be  convicted  under  this 
section  for  causing  or  procuring  a  cock  to  be  cruelly  ill- 
treated,  abused  or  tortured  (i). 

And  by  s.  3  of  this  Act  it  is  enacted,  that  "every  person 
who  shall  heep  or  use  or  ad  in  the  management  of  any  place 
for  the  purpose  of  fighting  or  baiting  any  bull,  bear,  badger, 
dog,  cock,  or  other  bird  or  animal,  whether  of  domestic  or 
wild  nature,  or  shall  permit  or  suffer  any  place  to  be  so 
used,  shall  be  liable  to  a  penalty  not  exceeding  5/.  for 
every  day  he  shall  so  keep  or  use  or  act  in  the  manage- 
ment of  any  such  place,  or  permit  or  sufi^er  any  place  to 
be  used  as  aforesaid :  provided  always,  that  every  person 
who  shall  receive  money  for  the  admission  of  any  other 
person  to  any  place  kept  or  used  for  any  of  the  purposes 
aforesaid,  shall  be  deemed  to  be  the  keeper  thereof ;  and 


{z)  Jl'dllhu/ford  V.  Ilutual  Societii, 
L.  R.,  5  App.  Cas.  685  ;  43  L.  T., 
iSr.  S.  258;  2D  W.  R.  81— H.  L. 
And  see  Smith  v.  Anderson,  L.  E., 
15  Ch.  D.  at  p.  269,  disapproving 
Sykes  w.Beadon,  L.  E..,  11  Ch.  D. 


170. 

{a)  Bac.  Abr.  Gaming  (A.)  ;  3 
Keb.  403,  510. 

{h)  Bridge  v.  Parsons,  32  L.  J., 
M.  C.  95. 


GAMING.  441 

every  person  who  shall  in  any  manner  encourage,  aid  or 
assist  at  the  fighting  or  baiting  of  any  bull,  bear,  badger, 
dog,  cock,  or  other  animal  as  aforesaid,  shall  forfeit  and 
pay  a  penalty  not  exceeding  5/.  for  every  such  offence." 
It  has  been  held  to  be  no  offence  under  this  section  to 
assist  at  a  cock-fight  unless  in  a  place  kept  or  used  for  the 
purpose  (c). 

By  the  Metropolitan  Police  Act  (2  &  3  Yict.  c.  47),  s.  47,  Within  the 
it  is  enacted,  "  that  every  person  who  within  the  Metro-  Metropolitan 
politan  Police  District  shall  keep  or  use  or  act  in  the  ^®*^^'^*- 
management  of  any  House,  Room,  Pit,  or  other  Place  for 
the  purpose  of  fighting  or  baiting  Lions,  Bears,  Badgers, 
Cocks,  Dogs,  or  other  Animals,  shall  be  liable  to  a  penalty 
of  not  more  than  5/.,  or  in  the  discretion  of  the  magistrate 
may  be  committed  to  the  House  of  Correction,  with  or 
without  hard  labour,  for  a  time  not  more  than  one  calendar 
n;ionth ;  and  it  shall  be  lawful  for  the  Commissioners  of 
Police,  by  order  in  writing,  to  authorize  any  Superinten- 
dent belonging  to  the  Metropolitan  Police  Force,  with  such 
Constables  as  he  shall  think  necessary,  to  enter  any  Pre- 
mises kept  or  used  for  any  of  the  purposes  aforesaid,  and 
take  into  custody  all  persons  who  shall  be  found  therein 
without  lawful  excuse,  and  every  person  so  found  shall  be 
liable  to  a  penalty  of  not  more  than  6s.,  and  a  conviction 
under  this  Act  of  this  offence  shall  not  exempt  the  owner, 
keeper,  or  manager  of  any  such  House,  Room,  Pit  or 
Place  from  any  penalty  or  penal  consequence  to  which  he 
may  be  liable  for  the  nuisance  thereby  occasioned." 

It  is  an  offence  against  the  tenor  of  a  Publican's  Licence  Gaming  in  a 
to  suffer  any  gaming  or  any  unlawful  game  to  be  carried  P^^^lic 
on  on  his  premises  (r/).  ^^'^''^• 

If  money  is  staked  at  a  lawful  Game  played  in  a  Public  Wliere  money 
House  it  is  an  offence  against  the  tenor  of  the  Licence  ((?).  ^^  staked. 
Accordingly  it  is  an  offence  against  the  tenor  of  his  Licence, 
if  a  licensed  person  allow  private  friends  of  his  own,  in  his 
own  private  room  in  the   Licensed  Premises,  to  play  at 
Cards  for  money  (/). 

But  it  is  no  offence  on  the  part  of  a  private  friend  of 
a  licensed  person  entertained  by  him  after  the  hours  of  - 
closing  at  his  own  expense  within  the  Licensing  Act,  1874 

{c)  3Iorlci/  V.    Greenhaigh,    32  L.  {c)   Eerj.  v.  Asliton,  22  L.  J.,  M. 

J.,  M.  C.  93  ;    Clarke  v.  Hague,  29  C.  2,  Q.  B.     Decided  under  9  Geo. 

L.  J.,  M.  C.  105;   Coy7ie  v.  Brady,  4,  c.  61. 
9  L.  T.,  N.  S.  30.  (/)  Pntten  v.  Ttliymer,  29  L.  J., 

{d)  Licensing  Act,  1872  (35  &  36  M.  C.   189.     See  also  Hare  v.  Os- 

Vict.  c.  94),  8.  17.  home,  34  L.  T.,  N.  S.  294. 


442  GAMING. 

(37  &  38  Viet.  c.  49),  s.  30,  that  lie  was  playing  Cards  for 
money  on  tlie  Licensed  Premises  (g).  If  a  licensed  person 
permits  on  the  Licensed  Premises  a  Grame  to  be  played,  in 
which  each  person  contributes  a  certain  sum  towards  the 
purchase  of  a  prize  to  be  given  to  the  winner,  he  is  properly 
convicted  of  unlawfully  suffering  Graming  to  be  carried  on 
on  his  licensed  premises  contrary  to  s.  17  of  the  35  &  36  Vict. 
c.  94  (A).  But  in  order  to  support  a  conviction  under 
s.  17  it  is  necessary  to  give  some  evidence  of  actual  or  con- 
structive knowledge  on  the  part  of  the  person  charged  that 
Graming  was  carried  on  on  his  premises  (/) .  The  offence 
may,  however,  be  committed  by  connivance,  either  on  the 
part  of  the  principal  or  the  person  in  charge  {j  ) . 
Where  money  But  not  if  there  is  no  money  staked.  Therefore  a  con- 
is  not  staked,  yiction  was  held  to  be  bad  which  stated  that  the  keeper  of 
a  Public  House  licensed  under  9  Greo.  4,  c.  61,  had  been 
"  Gruilty  of  an  oifence  against  the  tenor  of  his  Licence,  that 
is  to  say,  that  he  knowingly  suffered  a  certain  unlawful 
Game,  to  wit,  the  Game  of  Dominoes,  to  be  played  in  his 
house ; "  because  the  Game  of  Dominoes  is  not  itself  un- 
lawful, and  playing  at  Dominoes  does  not  necessarily 
amount  to  "  Gaming"  within  the  meaning  of  the  Licence  {k). 
Money  lent  '  Moucy  lent  f  or  the  purpose  of  Gaming  would  appear  to 
for  Gaming,  "be  now  recoverable,  unless  it  is  lent  where  the  Gaming  is 
unlawful ;  as,  for  instance,  by  a  licensed  Publican  to  game 
on  his  own  premises  (/)  ;  or  by  any  party  to  play  Hazard, 
&c.  And  the  principle  is,  that  the  repayment  of  money 
lent  for  the  express  purpose  of  accomplishing  an  illegal 
act  cannot  be  enforced  (w) . 
Money  lent  Thus  in  a  case  in  which  an  action  was  brought  to  recover 

for  the  Stakes  ^^^  g^^^^  of  money  which  was  lent  for  the  express  purpose  of 
fio-ht.  ^^^  "        making  up  to  the  required  sum  the  stakes  to  be  deposited 
by  one  of  the  parties  to  a  Prize-fight,  Mr.  Justice  Shee 
nonsuited  the  plaintiff,  on  the  ground  that  it  was  money 
deposited  by  the  plaintiff  for  an  imlawful  purpose  (ii). 
Test  where  The  Test  whether  a  demand  connected  with  an  illegal 

the  transac-     transaction    is    capable    of    beino'    enforced    at    law,    is, 

tion  IS  illegal.                                            '-  ^ 

(ff)  Cooper  V.  Osborne,  35  L.  T.,  L.  T.,  N.  S.  779. 

N.'S.  347.  (a-)  lirff.  V.  As/>(oii,  22  L.  J.,  M. 

(//)  JBew  V.  Harstoii,  L.  E,.,  3  Q.  C.  1,  Q.  B. 

B.  D.  454  ;   39  L.  T.,   N.  S.  233  ;  (/)  Foot  y.  Baker,  5  M.  &  G.  339  ; 

26  W.  U.  915.  and  see  ante,  p.  427. 

{i)  Bosley  v.  Darics,  L.  R.,  1  Q.  (w)  M' luunellY. Robinson, Zlsl.k 

B.   D.  84;  45  L.   J.,    M.   C.    27;  W.  441.     See  ante,  p.  422. 

33L.  T.,N.  S.  528;  24W.  R.  140.  [n]    Walker     v.    Langham,    Bail 

(;■)  Redgate\.Haynes,  L.  R.,  1  Q.  Court,  Feb.  9,  1865. 
B.  D.  89;  45  L.  J.,  M.  C.  65;  33 


GAMING.  443 

whether  the  plaintiff  requires  any  aid  from  the  illegal 
transaction  to  establish  his  case  (o).  As  where  illegality 
appeared  upon  the  plaintiff's  own  showing,  who  was 
unable  to  establish  his  case,  without  setting  up  an  illegal 
agreement  ( i)) . 

■  Bills  of  Exchange,  Promissory  Notes,  or  Mortgages  Securities  for 
given   for  money   lent    knowingly    for    the    purpose   of  ^"^^  ^^^^^ 
Gaming,  or  playing  at  any  Grame,  or  lent  at  the  time  and  °* 

place  of  such  play  {<}),  to  persons  who  during  any  part  of 
the  time  may  play,  are  to  be  deemed  to  have  been  given 
for  an  illegal  consideration  (r). 

Thus  where  an  action  was  brought  to  recover  the  sum  Action  on  a 
of  25/.  on  a  Promissory  Note  given  by  the  defendant  to  Promissory 
the  plaintiff,  the  defendant  pleaded  that  he  had  given  the 
Note  as  security  for  a  sum  of  money  which  the  plaintiff 
had  given  him  to  enable  him  to  carry  out  a  gambling  pur- 
pose on  their  joint  account,  namely — to  enable  him  to  make 
certain  Bets  on  a  Plorse  Race.  And  on  this  plea  being 
proved,  the  Jury  found  a  verdict  for  the  defendant  (.s). 

To  an  action  on  a  Promissory  Note,  the  defendant  Identification 
pleaded  that  it  was  given  for  a  Gambling  transaction,  but  ^'  -^  xr  f 
gave  the  plaintiff  no  Notice  to  produce  it,  and  it  was  not 
produced.  At  the  trial,  the  defendant  gave  evidence  that 
he  had  never  given  the  plaintiff  any  other  Note  than  the 
Note  in  question.  It  was  held  that  in  the  absence  of  the 
production  of  the  Note,  this  was  not  sufficient  to  identify 
the  Note  referred  to  in  the  plea  with  the  Note  sued  on  {t). 

An  I  O  U  being  a  mere  acknowledgment  of  a  debt,  An  I  0  U. 
does  not  amount  to  a  Promissory  Note.  It  is  prima  facie 
evidence  of  an  account  stated,  but  not  of  money  lent  («). 
And  it  has  been  held  that  a  Bill  in  Equity  will  lie  to  dis- 
cover whether  an  I  0  TJ  was  given  for  money  lent  for  the 
purpose  of  Gaming  (r). 

Money  lost  at  Play  when  paid  cannot  be  recovered  back  Money  lost 

at  Play. 

(o)  Simpson   v.  Bloss,    7   Taunt.  (.s)  Meynell  v.  Bone,  before  Mr. 

246;  i^ii-ar  V.  A"iV/io/;«,  2  C.  B.  501,  Baron   Alderson,    Middlesex    Sit- 

513  ;    Broom's    Maxims,    4th    ed.  tings,  E.  T.  1853. 

692,  693.  (0  Meynell  v.  Bone,  21  L.  T.  158. 

{p)  See  Mart  in  Y.  Smith,  6  Scoit,  («)  Ftsenmayer  y.  Adcoek,  10  M. 

N.  R.  272.  &  W.  449  ;    Croker  y.  JFalsh,   4  Ir. 

(fj)  If  the  money  is  lent  at  the  Jur.  293  (Ex.  Ir.)  ;  Byles  on  Bills, 

time  and  place,  the  purpose  of  the  13th  ed.  29,  and   the   cases   there 

loan  is   assumed  ;   loot  v.   Baker,  cited. 

5  M.  &  G.  339.  ((•)    Wilkinson  v.  VEaugier,  2  Y. 

(r)  5  &  6  Will.  4,  c.  41  ;  and  see  &  C.  366. 
Giving  a  Security  for  a  Bet,  p.  425. 


444  GAMING. 

again  by  the  loser  (ic).  But  if  it  has  not  heen  paid,  the 
winner  cannot  maintain  any  action  for  it,  because  the 
contract  is  null  and  void  (^). 
Securities  for  All  Securities  under  seal,  except  Mortgages,  given  for 
money  so  lost.  ]y;oney  lost  at  lawful  Play,  or  at  any  legal  Game,  would 
now  appear  to  be  good  (//) .  But  where  a  Promissory  Note, 
a  Bill  of  Exchange,  or  a  Mortgage,  has  been  given  for 
money  so  lost,  it  is  not  void  as  formerly,  but  is  to  be 
deemed  and  taken  to  have  been  given  for  an  illegal  con- 
sideration (z).  The  consequence  of  which  is,  that  they  are 
still  void  as  between  the  original  parties,  and  also  as  against 
all  persons  who  have  taken  them  with  Notice  of  the  ille- 
gality, or  after  they  have  become  overdue,  or  without 
giving  value  for  them ;  but  good  in  the  hands  of  every 
person  who  has  given  value,  and  taken  the  instrument 
bond  fide,  and  before  it  was  due  [ct) . 

Accordingly  where  a  bond  was  assigned  for  a  valuable 
consideration  without  notice  of  objection  to  its  validity, 
the  obligor  having  applied  to  the  assignee  for  a  further 
advance,  and  offering  to  give  a  mortgage  for  the  whole, 
but  stating  no  objection  to  the  validity  of  the  bond,  was 
not  allowed  afterwards  to  endeavom*  to  avoid  the  bond 
by  evidence  that  it  was  given  to  secure  money  lost  by  a 
bet  on  a  Horse  Pace  ;  for  the  Court  will  not  allow  a 
person  to  set  up  an  objection  to  the  validity  of  his  own 
obligation  upon  grounds  which  he  suppressed  at  the  time, 
but  against  which,  if  divulged,  the  obligee  could  have  pro- 
tected himself  (Z^).  It  appears,  therefore,  that  bonds  are 
within  the  equity  of  5  &  6  Will.  4,  c.  41,  which  makes 
securities  valid  in  the  hands  of  liond  fide  holders  without 
notice  that  the  consideration  was  a  gaming  debt  {c). 
General  effect  The  effect  of  the  Act,  therefore,  seems  to  be,  that  where 
w'^ii'^4^  a  sum  of  money  is  won  as  a  Stake  in  a  lawful  Grame,  or 

■  '  ■  '  under  other  circumstances  therein  mentioned,  and  a  Pro- 
missory Note,  Bill  of  Exchange  or  Mortgage  is  given  in 
payment,  or  as  a  security,  not  only  is  the  instrument  void  as 
between  the  parties  themselves,  but  the  circumstance  of  its 

(«')  iPKinnell  v.  Robinson,  3  M.  &  pendix. 
W.    441  ;    Thistleu-ood   v.    Cracroft,  (a)   Smith,  Contr.  186  ;  TadenUhe 

IM.  &S.  500;  Smith,  Contr.  188.  v.  Holroyd,    before   Chief    Justice 

[x)  8  &  9  Vict.  c.  109,  s.  18.  Wilde,     Common    Pleas   Sittings, 

(//)  Formerly  void  under  9  Ann.  Nov.  30,  1846. 
c.  14,  s.  1,  which  is  altered  and  re-  {b)  Hawker  v.  Halliicell,  3  Sm.  & 

pealed  by  5  &  6  Will.  4,  c.  41,  ss.  1,  Giff .  194.  See  also  ante,  p.  417,  Eill 

2,  and  8  &  9  Vict.  c.  109,  s.  15.  v.  Fox,  4  H.  &  N.  359. 

(z)  5   &   6  Will.   4,  c.    41,    Ap-  (f)  See  post,  p.  446. 


GAMING.  445 

having  so  been  given  avoids  the  contract  on  which  it  is 
founded.  In  such  case,  therefore,  the  Winner  not  only 
loses  the  benefit  of  his  security  in  writing,  but  is  deprived 
of  his  claim  to  the  consideration  upon  which  it  was  given. 

The  Court  of  Exchequer,  however,  appear  to  have  gone 
further  in  their  construction  of  the  Statute ;  for  Mr.  Baron 
Rolfe,  in  delivering  the  Judgment  of  the  Court  in  Apple- 
garth  V.  CoUey  (d),  and  speaking  of  5  &  6  Will.  4,  c.  41, 
says,  "  That  Act,  while  it  repeals  so  much  of  the  Statute 
of  Anne  as  makes  the  securities  void,  expressly  enacts  that 
they  shall  be  deemed  to  have  been  given  on  an  illegal  con- 
sideration, and  it  is  impossible  to  impute  to  the  Legislature 
an  intention  so  absurd  as  that  the  consideration  should  be 
good  and  capable  of  being  enforced  until  some  security  is 
given  for  the  amount,  and  then  that,  by  the  giving  of  the 
security,  the  consideration  should  become  bad." 

The  necessary  conclusion  is  then  arrived  at,  namely,  "  that 
the  Statute  of  Anne,  in  connection  with  the  5  &  6  Will.  4, 
c.  41,  must  be  taken  to  avoid  all  contracts  for  the  payment 
of  money  won  at  play;"  and  of  course  all  other  contracts 
within  the  first  section  of  9  Anne,  c.  14. 

According  to  this  view,  then,  every  possible  considera- 
tion within  5  &  6  Will.  4,  c.  41,  for  any  Note,  Bill  or 
Mortgage  is  void,  and  we  are  reduced  to  the  dilemma  of 
being  obliged  to  hold  that  the  Winner  of  a  Stake  or  the 
lender  of  money  in  any  lawful  Game,  where  his  right  to 
recover  could  never  otherwise  be  disputed,  is  precluded 
from  his  remedy  on  account  of  the  existence  of  the  possi- 
bility of  his  taking  a  Note,  Bill  or  Mortgage  within  the 
Statute  as  security  for  his  Stake  or  Loan.  And  therefore 
the  sum  agreed  to  be  paid  to  the  Winner  of  a  Horse  Race 
could  never  be  recovered,  if  we  hold  that  such  a  Race  is 
now  meant  by  the  word  Game.  However,  if  the  point 
had  come  dii'ectly  before  the  Court,  perhaps  a  different 
opinion  might  have  prevailed. 

In  Thorpe  v.  Cohnan  (e),  the  Court  of  Common  Pleas 
studiously  guarded  themselves  against  expressing  an  opi- 
nion on  the  construction  put  by  the  Court  of  Exchequer 
upon  5  &  6  Will.  4,  c.  41,  and  the  case  was  decided  on 
another  ground. 

In  a  later  case  (/),  however,  Mr.  Justice  Coltman  makes 
the  following  remarks: — "It  certainly  does  seem  to  be  a 

[d)  Appleaarth  t.  CoUey,  10  M.  &  (r)   Thorpe  v.  Cohnan,  1  C.  B.  199. 

W.  732.       '  '  {f)  Batty  Y.Marriott,  bC.B.^2B. 


446  GAMlX(i. 

singular  anomaly,  that  the  Winner  of  a  Race  sliould  be  en- 
titled to  recover  the  Stakes,  and  yet  that  by  the  combined 
operation  of  9  Anne,  c.  14,  and  5  &  6  Will.  4,  c.  41,  if  a 
Promissory  Note  or  other  Security  were  given  for  the 
amount,  he  would  be  precluded  from  availing  himself  of 
it,  by  reason  of  the  illegality  of  the  consideration." 
^  The  5  &  6  Will.  4,  c.  41,  is  "  An  Act  to  amend  the  Law 
relating  to  Securities  given  for  Considerations  arising  out 
of  Graming,  usurious  and  certain  other  illegal  Transac- 
tions." It  is  founded  on  16  Car.  2,  c.  7,  and  9  Anne,  c.  14, 
both  of  which  are  Acts  to  prevent  excessive  Graming ;  and 
the  notion  upon  which  the  sections  with  regard  to  secu- 
rities in  writing  were  probably  framed  appears  to  have 
been,  that  there  would  be  less  danger  of  excessive  and 
immoderate  Gaming,  if  people  w^ere  kept  as  much  as  pos- 
sible to  playing  for  ready  money.  The  Legislature  there- 
fore having  encouraged  cash  or  money  transactions,  it  is 
quite  conceivable  that  a  contract  should  be  good  so  long 
as  a  money  payment  was  contemplated,  but  become  void 
between  the  parties  immediately  on  secmity  being  given. 
This  construction  of  the  statute  seems  much  more  reason- 
iable,  than  that  all  contracts  within  5  &  6  Will.  4,  c.  41, 
in  connection  with  9  Anne,  c.  14,  before  any  security  is 
"given,  should  be  void  between  the  actual  parties. 
Action  To  an  action  against  the  acceptor  of  a  Bill  of  Exchange, 

cf  tor  ofBill  drawn  by  the  plaintiff,  the  defendant  pleaded  that  a  Bet 
of  Exchange,  was  lost  by  the  defendant  to  A.  B.,  and  that  the  said  Bill 
of  Exchange  was,  at  the  request  of  A.  B.,  given  and  ac- 
cepted by  the  defendant  in  consideration  of  the  said  Bet, 
and  to  secure  payment  thereof,  contrary  to  the  Statute, 
&c.,  and  that  there  never  was  any  other  consideration  for 
the  acceptance  of  the  said  Bill ;  and  that  the  plaintiif  at 
the  time  when  he  drew,  and  the  defendant  accepted,  the 
same,  had  Notice  of  the  premises.  The  evidence  was, 
that  the  defendant  had  accepted  a  prior  Bill  drawn  by  the 
plaintiff  in  consideration  of  the  Bet  lost  to  A.  B.,  and  that 
the  Bill  sued  upon  was  given  in  renewal  of  that  prior  Bill. 
The  Jury  found  that  the  Bill  declared  uj)on  was  given  in 
consideration  of  the  Bet,  and  that  the  plaintiif  had  Notice 
of  it.  And  the  Court  of  Queen's  Bench  held  that  the 
plea  was  good,  and  was  an  answer  to  the  action  under 
5  &  6  Will.  4,  c.  41  {(j). 

((/)  Hai/v.  Ayl'uig,  20  L.  J.,  Q.  B.   171;  and  see  BoxUon  v.  Ctghlan, 
\  Bhio'.  N.  C.  640. 


GAMING.  447 

Uuder  5,&  6  Will.  4,  c.  41,  s.  2,  money  paid  to  the  Action  by 
indorsee  by  the  acceptor  of  a  Bill  of  Exchange,  given  for  ^*^.^fPf%'^^ 
a  Gaming  consideration,  may  be  recovered  from  the  person  ciiaii°e. 
in  whose  favour  the  Bill  was  originally  accepted,  in  an 
action  for  Money  paid  by  the  plaintiff  to  the  use  of  the 
defendant  at  his  request  {/i). 

And  where  such  a  Bill  paid  by  the  plaintiff  bore  Inte-  Recovery  of 
rest  upon  the  face  of  it,  it  was   held   by  the  Court   of  P^'ii^cipal  ^^^ 
Queen's  Bench  that  the  plaintiff  was  entitled  to  recover 
back  the  Interest  paid,  as  well  as  the  principal  money, 
both  being  "  secured  "  by  the  Bill  (/). 

In  an  action  on  a  Bill  of  Exchange,  the  defence  was,  Evidence  of 
that  the  money  for  which  the  Bill  was  given  had  been  q^^^     ^ 
lost  in  a  Graming  transaction.     The   person  who  let  the  House. 
Room  in  which  the  Grambling  took   place,  was   asked   a 
question  tending,  if  answered,  to  render  him  liable  to  be 
proceeded  against  under  8  &  9  Yict.  c.   109,  when  the 
Judge  interfered.     On  a  motion  for  a  new  trial,  on  the 
ground  of  misdirection,  the  Court  of  Common  Pleas  held 
that  the  Judge  was  right,  and  refused  the  rule  (J). 

In  Barnett  v.  Raveniihaw  (h),  an  order  was  made  by  a  Summons  to 
Judge  at  Chambers,  on  a  summons  to  show  cause  why  a  ^arran*t  of 
certain  Warrant  of  Attorney,  alleged  to  have  been  given  Attorney. 
for  a  Grambling  debt,  should  not  be  set  aside. 

In  1833,  a  Post  Obit  security  was  given  in  considera-  -A.  Post  out 
tion  of  certain  Gaming  debts.  In  1842,  it  was  assigned  Joa!'*^^'^*^ 
to  another  pai-ty  for  valuable  consideration,  who  gave 
Notice  to  the  trustees  of  the  fund.  It  was  held  in  1853, 
by  the  Master  of  the  Rolls,  that,  after  the  lapse  of  time, 
the  Deed  must  be  considered  to  have  been  given  for  good 
consideration  (/). 

In  the  case  of  The  Attorney-General  y.  HoUingicorth  {in),  Deedsubsti- 
it  was  held,  that  where,  upon  an  advance  of  money,   a  talented  wltlf 
security  has  been  taken,  Avhich  is  tainted  with  usury  (;?)  or  illegality, 
other  illegality,  and  afterwards  another  security  is  taken 
for  the  same  advance,  not  tainted  with  the  illegality,  and 
obviating  any  necessity  for  resorting  to  the  former  one  for 
the  recovery  of  the  money,  such  substituted  security  is  valid, 
and  the  money  really  advanced  can  be  recovered  thereon. 

(70  Gilpin   V.  Cluttcrbiick,  13  L.           {I)  Raivkcr  y.  TFood,  IW.B..  316, 

T.  71.  M.  R. 

(J)  Ibid.  159.  (/«)  Att.-Gen.     v.  UolVuHjicorth, 

(/)  Fisher  V.  Ronalds,  22  L.  J.,       27  L.  J.,  Ex.  102. 

C.  JP.  62.  {n)  The  17  &  18  Vict.  c.  90,  s.  1, 

(/.•)  Barnett  v.  Ravensltaw,  21  L.       repeals  all  existing   laws   against 

T.  63.  usury. 


(     448     ) 


CHAPTER  V. 


BETTING  HOUSES  AND  GAMING  HOUSES. 


Betting  Houses. 

A  Common  Betting  House    ....  448 

Act  for  the  Suppression  of  Bet- 
tin;/  Ilotises    449 

"  Using'"  under  this  Act id. 

"  Flace"  ivithin  this  Act    ....  id. 

Moveable  Desk   450 

Cricket  Ground id. 

Figeon  Shooting id. 

Race  Course,  Umbrella  ....  451 

Moveable  Box  icithin  Ring  id. 

Betting  at  a  Club  452 

Bur  poses  for   irhich  Houses   or 

Places  are  not  to  be  used    ....  id. 

Penalty  for  using  them  for  such 

Purposes 453 

Penalty  for  receiving  Money,  ^-c. 

on  certain  Conditions     id. 

Money,    ^r.   so  received  may  be 

recovered  from  the  Holder     .  .  id. 

Act  docs  not  e.rtend  to  Stakes  in 

a  Race,  i^-c id. 

Penalty  for  advertising,  ^-c id. 

Provisions  of  Betting  Act,  1874, 

as  to  advertising     454 

Poicer  to  search  suspected  Houses,  id. 

Power  of  Commissioners  of  Police.  455 

The    Levy   and  Application    of 

Penalties     id. 

Where  Party  neglects  to  prose- 
cute    id. 

Ko  Objection  allowed  on  Matter 

of  Form id. 

No  Appeal  from  High  Court   . .  id. 

The  remaining  Provisions 456 

Extension  to  Scotland    id. 

Gaming  Houses. 

A  Common  Gaming  House    ....  456 

Indictment  for  keeping  one   ....  457 

Charge  in  the  Indictment id. 

Any  Person  may  go  on  ivith  it. .  id. 

Statutory  Provisions  for  an  In- 
dictment    id. 

Notice  by  two  Inhabitants     ....  id. 

Binding  over  the  Party  accused  .  id. 


Puty  of  Overseers  of  the  Poor  . .    458 
Penalty  where  Constable  neglects 

h  is  Duty     id. 

Setting  up  or  playing  at  Hazard, 

cjr id. 

Evidence  that  Hazard  has  been 

played id. 

Rent  of  a  Gaming  House id. 

A  Subscription  Club id. 

What    is    a    Common    Gaming 

House  under  8  i^-  9  Vict.  e.  109 .  459 
Power  of  Justices id. 

In     the    Metropolitan    Police 

District 460 

Penalties     on     Gaming    House 

Keepers  under   8^9    Vict. 

f.  109 id. 

Penalty  for  Flaying 461 

Evidence  of  Gaming id. 

Pijficulti/  of  obtaining  Evidence  .     id. 

17  cj-  IS  Vict.  c.  38   id. 

Persons  summarily  convicted  of 

obstructing  Officers     id. 

Persons  giving  false  Names   or 

Addresses    462 

Owner  or  Occupier  may  be  fined 

500/.,  or  imprisoned id. 

Persons     apprclicnded     may    he 

made  Witnesses id. 

Penalties  and  Costs    id. 

On  neglect  to  prosecute,  another 

Person  may  be  authorized  to 

do  so    463 

Remaining  Provisions    id. 

Billiards,  Bagatelle,  ^-c id. 

Regulations    regarding    Billiard 

licences id. 

Non-compliance  ivith  these  Regu- 
lations          id. 

Offences  against  the  Tenor  of  the 

licence    464 

When   Billiard  playing  is    not 

allowed    id. 

Constables    may     visit     licensed 

Houses    id. 


A  Common 

Betting' 

House. 


BETTING  HOUSES. 


It  is  quite  clear  tliat  any  practice  whicli  has  a  tendency 
to   injure   the   public  morals,  is   an   offence   at  common 


BETTING  HOUSES.  449 

law  (a) .  And  it  is  equally  clear  that  the  keeping  of  a  common 
Betting  House  has  such  a  tendency.  For  it  is  found  that 
persons  are  tempted  by  such  places,  not  only  to  spend  more 
of  their  own  money  than  they  can  properly  afford  to  lose, 
hut  also  to  embezzle  the  property  of  their  employers.  It 
would  appear  therefore  that  by  law  a  common  Betting 
House  is  a  public  nuisance. 

By  the  "  Act  for  the  Suppression  of  Betting  Houses "(^),  Act  for  the 
various  stringent  provisions  are  made,  and  it  would  appear  ^f  ^'^Tf-^^o.'^ 
that  persons  tising  any   "  House,   Office,   Koom  or  other  Houses.  " 
place,"  not  excepting  the   Eoom  at  Tattersalls  or  New- 
market, or  the  Stand  at  Epsom,  for  certain  j)urposes  men- 
tioned in  the  Act,  are  liable  to  the  Penalties  which  it 
specifies  (c). 

It  is  not  quite  clear  what  is  meant  by  the  word  "w.s?>?^,"  "  Using" 
but  as  a  "  person  using  "  a  Place  is  distinguished  from  ^nder  this 
"  persons  resorting  thereto,"  it  is  presumed  that  a  person 
using  a  Place  within  the  meaning  of  this  Act,  must  be  a 
person  who  uses  the  Place  habitually  not  as  a  private 
individual,  but  as  a  person  who  makes  a  business  of  at- 
tending there  for  the  purpose  of  holding  himself  out  as 
ready  to  bet  with  "  persons  resorting  thereto,"  or  to 
receive  money,  &c.,  as  the  consideration  for  any  assurance, 
&c.  to  pay  money,  &c.  "  on  any  event  or  contingency  of 
or  relating  to  any  Herse  Pace,  or  other  Pace,  Fight, 
Grame,  Sport  or  Exercise"  (c). 

In  the  case  of  Doggett  v.  Caf ferns  (d),  the  defendant,  "Place" 
a  Betting  agent  and  Bookmaker,  was  in  the  habit  of  within  this 
standing  under  certain  trees  in  Hyde  Park,  and  there 
making  bets  on  Horse  Paces,  and  receiving  deposits. 
The  plaintiff  having  made  a  bet  with  him,  and  paid  his 
deposit,  brought  an  action  for  the  return  of  the  deposit, 
and  it  was  held  by  the  Court  of  Common  Pleas  that  the 
defendant  had  brought  himself  within  the  meaning  of  this 
Act,  quite  as  much  as  if  he  had  carried  on  his  betting 
transactions  in  a  room  or  booth,  and  that  the  plaintiff 
was  therefore,  under  sect.  5  {e)  entitled  to  recover  back  his 
deposit  in  an  action  for  money  had  and  received.  But  this 
decision  was  reversed  by  the  Exchequer  Chamber,  and 
Pollock,  C.  B.,  was  of  opinion  that  such  a  construction  of 
the  Act  was  supplemental  legislation  ;  but  concurred  with 

{a)  See  Rex  v.  Eoqier,  1  B.  &  C.  {d)  Bogqett  v.  Cat  terns  (Ex.  Ch.), 

272;  <S.  C.  2D.  &  R.  431.  13W.  11.390;   19C.  B.,  N.  S.  767. 

[h)  16   k   17  Vict.    e.    119,    Ap-  {e)   16   &    17   Vict.    e.    119.     See 

pendix.  post,  p.  453. 

[r)  Ibid.  ss.  1,  3. 
O.  GG 


450 


BETTING  HOUSES, 


Moveable 
Desk. 


Cricket 
ground. 


Pigeon 
shooting'. 


the  Judges  in  tlie  Court  below  in  thinking-  that  a  mere 
spot,  although  not  a  "  house,"  "  office  "  or  "  room,"  would 
not  alone  prevent  it  from  being  a  place  within  the  Act. 
But  he  thought  it  must  be  a  place  capable  of  having  an 
owner  or  occupier,  which  that  was  not.  There  the  defen- 
dant resorted  to  a  spot  by  a  tree.  The  crowd  might  push 
him  away  in  moving  about.  There  was  no  fixity  of  tenure 
even  for  the  daytime.  He  had  no  more  exclusive  occupa- 
tion of  the  spot  than  anyone  else  in  the  park  (/"). 

In  Sludc  V.  Morlei/  {[/),  the  facts  were  as  follows:  On 
land  adjoining  a  Race-course,  and  just  outside  an  inclosure 
reserved  for  ticket  holders,  was  a  long  strip  of  ground  of 
six  feet  wide,  bounded  on  one  side  by  an  iron  railing, 
which  surrounded  the  inclosure,  on  the  other  side  by  a 
l^ermanent  wooden  paling  facing  the  open  ground.  Within 
this  strip  were  placed  temporary  wooden  structures,  in 
which  during  the  Races  the  business  of  betting  was 
carried  on.  They  had  desks  fronting  both  ways,  and  at 
each  desk  was  a  clerk  with  a  book,  and  a  person  standing 
in  front  of  each  desk  conducted  the  business  on  behalf  of 
the  person  who  rented  the  strip  of  land,  and  the  bets  were 
'recorded  by  the  clerk.  At  one  of  these  structures  the 
defendant  conducted  this  business,  and,  on  appeal  from  a 
conviction  under  section  3,  it  was  held  that  this  was  an 
"  office  "  and  a  "  place  "  within  the  meaning  of  the  statute, 
and  that  the  appellant  was  rightly  convicted.  And  Kelly, 
C.  B.,  expressly  said  that  it  did  not  matter  whether  there 
was  a  roof  or  none,  or  whether  the  structure  was  moveable 
or  fastened  to  the  earth. 

A  ground  used  for  Cricket,  Foot-racing,  and  other 
Games  or  Sports,  is  a  place  within  the  meaning  of  the  Act, 
and  the  Owner,  Occupier  or  Keeper,  may  be  convicted 
under  the  Act  for  knowingly  permitting  any  other  person 
to  use  any  such  place  for  the  purpose  of  betting  with 
persons  resorting  to  it,  though  the  person  so  using  it  is  in 
no  sense  the  Occupier  or  Keeper  of  the  premises  {/i). 

In  Easticood  v.  Miller  the  defendant  was  the  Occupier  of 
enclosed  grounds,  in  which  a  pigeon  shooting  match  between 
two  persons  for  10/.  a-side,  and  afterwards  afoot-race,  took 
place :  and  into  which  the  public  were  admitted  on  payment 
of  money.    The  persons  who  were  admitted  into  the  grounds 


(/)  Borigdt  v.  Cattcrns,  19  C.  B., 
N.  S.  767  ;  and  see  per  Grove,  J., 
Gallaicay  v.  Maries,  L.  R.,  8  Q.  B. 
D.  280,  281. 

((/)  L.  E.,  3  Ex.  137;  37  L.  J., 


M.  C.  105. 

{h)  Haigh  v.  Sheffield  (Corpora- 
iiou),  L.  E,.,  10  Q.'B.  102;  44  L. 
J.,  M.  C.  17;  31  L.  T.,  N.  S.  536  ; 
23  W.  R.  517. 


BETTIKG  HOUSES.  451 

made  bets  with  each  other,  both  on  the  pigeon  mateli  and 
on  the  foot-race.  It  was  held  that  the  grounds  were  a 
"  place,"  and  that  they  were  kept  and  used  by  the  defen- 
dant for  the  purpose  of  betting  within  the  meaning  of  the 
statute  (/). 

In  Boices  v.  Fenirick  (/.•),  the  appellant,  Bowes,  was  on  Race-com-se, 
a  Race-course,  standing  on  a  stool,  over  which  was  a  large  i^mttrella. 
umbrella,  similar  to  a  carriage  umbrella,  capable  of  covering 
several  persons,  the  stock  being  made  in  joints  like  that  of 
a  sweep's  brush,  so  as  to  be  taken  in  pieces,  and  it  was 
fastened  in  the  ground  with  a  spike.  The  umbrella,  when 
opened,  v/as  seven  or  eight  feet  high.  It  was  a  showery 
day  ;  but  the  umbrella  was  kept  up  rain  or  dry.  On  the 
umbrella  was  painted  in  large  letters,  "  Gr.  Bowes,  Victoria 
Club,  Leeds."  There  was  also  a  card  exhibited  on  which 
were  the  words  "  we  pay  all  Bets  first  past  the  post." 
Bowes  was  calling  out  offering  to  make  Bets ;  and  he  was 
seen  to  make  Bets,  the  money  being  deposited  with  him, 
and  for  which  he  gave  a  ticket.  On  a  case  stated  by 
Justices,  the  question  for  the  opinion  of  the  Court  was, 
whether  the  stool  and  umbrella,  used  as  aforesaid  by  the 
appellant,  did  constitute  a  "  place "  within  the  terms  of 
section  3  of  the  Act.  The  Court  held  that  they  did,  and 
the  conviction  was  therefore  affirmed ;  and  Lord  Coleridge, 
C  J.,  in  delivering  judgment,  said,  "It  is  plain  that  the 
appellant  was  (provided  the  stool  and  umbrella  constituted 
an  office,  room  or  place  within  the  meaning  of  the  Act) 
l^ublicly  using  them  for  a  purpose  prohibited  by  the  Act. 
The  only  question  raised  before  us  was,  whether  or  not 
they  did  constitute  an  office,  room  or  other  place.  Now 
the  thing  described  clearly  was  not  a  house  or  room.  Was 
it  an  office  or  other  place  ?  Possibly  it  might  be  said  to  be 
in  some  sense  an  office :  but  I  am  of  opinion  that,  at  all 
events,  it  was  a  '  place.'  It  was  an  ascertained  spot 
where  the  appellant,  for  the  time  at  least,  carried  on  the 
business  of  betting  with  all  persons  who  might  resort 
thither  for  that  purpose.  The  card  connected  with  the 
umbrella  and  inscription  upon  it  clearly  indicated  a  fixed 
and  ascertained  place  used  by  the  appellant  for  a  purpose 
prohibited  by  the  Act." 

In  GaUaicay  v.  Ilan'cs  (/),  the  respondent  and  a  com-  Moveable 

(0  EastH-oodv.Miner,^.^.,  9  Q.  M.  C.   107;   30  L.  T.,   N.  S.  524; 

B.  440  ;  43  L.  J.,  M.  C.  139  ;  SOL.  22  W.  R.  804. 

T.,  N.  S.  716;  22W.R.  799.  (/)  L.  R.,  8  Q.  E.   D.   27.);   ;;0 

(A)   L.  R.,  9  C.  P.  339  ;   43  L.  ,T.,  W.  R.  lol. 

,:    t:    O 


4o2 


BETTING  HOUSES. 


Box  •within 
Rino-. 


Betting  at 
Club. 

Purposes  for 
which 
Houses  or 
Places  are 
not  to  be 
used. 


panion,  having  paid  for  admission,  were  in  a  railed  in- 
closure  of  the  grand  stand  at  a  Race-meeting.  The 
companion  stood  on  a  small  wooden  box  not  attached  to 
the  ground,  and  he  and  the  respondent  called  out  offering 
to  make  and  making  Bets  with  other  persons.  The 
companion  received  the  money  for  Bets  made,  and  the 
respondent  booked  the  same.  They  stood  together  in  one 
place  within  the  inclosure  during  the  Races  ;  and  it  was 
held  that  the  fixed  and  ascertained  spot,  defined  in  the 
inclosure  by  the  box  at  which  the  respondent  orally  adver- 
tised his  willingness  to  bet,  was  a  "place"  used  by  him 
for  the  purj)ose  of  betting  with  persons  resorting  thereto  ; 
and  Gfrove,  J.,  in  the  course  of  his  judgment,  said,  "  There- 
fore I  think  all  the  cases  show  that  a  '  place '  to  be  within 
the  statute  must  be  a  fixed  ascertained  place,  occupied  or 
used  so  far  permanently  that  people  may  know  that  there 
is  a  person  who  stands  in  a  particular  spot  indicated  by  a 
certain  definite  mark  with  whom  they  may  bet.  I  do  not 
decide  whether  a  person  standing  on  a  carriage  step  or  in 
a  circle  where  the  turf  was  cut  away,  or  where  a  little 
heap  of  stones  was  put  down  during  the  Races,  would  be 
within  the  Act  if  he  offered  to  bet  there.  But  I  am  far 
from  saying  that  he  would  not  be  so.  Here,  however,  in 
my  opinion,  was  a  place  Avithin  the  meaning  of  the  Act." 

But  a  Club,  whose  members  habitually  bet,  is  not  within 
the  meaning  of  the  Act  (ni). 

No  House,  &c.  or  other  Place  is  to  be  opened,  kept  or 
used  for  the  purpose  of  the  Owner,  &c.  or  of  any  person 
'Ks/'iir/  the  same,  or  of  any  person  employed  or  acting  on 
behalf  of  such  Owner,  &c.  or  person  using  the  same  or 
any  person  managing  or  conducting  the  business  thereof, 
betting  with  persons  resorting  thereto,  or  for  the  purpose 
of  any  money  or  valuable  thing  being  received  by  or  on 
behalf  of  such  Owner,  &c.  or  person,  or  as  or  for  the 
consideration  for  any  assurance,  &c.  "  to  pay  or  give 
thereafter  any  money  or  valuable  thing  on  any  event  or 
contingency  of  or  relating  to  any  Horse  Race  or  other 
Race,  Fight,  Game,  Sjoort  or  Exercise,  or  as  or  for  the 
consideration  for  securing  the  paying  or  giving  by  some 
other  person  of  any  money  or  valuable  thing  on  any  such 
event,"  &c.  Every  such  House  or  Place  is  declared  to  be 
a  common  nuisance  {n),  and  is  to  be  deemed  a  common 
Gaming  House  within  8  &  9  Vict.  c.  109  (o). 


(w)    Oldliam  v.  lif/inxJeii,  41  L.  .T., 
C.  P.  309;   32  L.  T.,  N.  S.  S25. 


(«)   IG   &   17  Vict. 
Appendix. 
(o)  Ibid.  s.  2. 


119,   s.    1, 


BETTIxXG  HOUSES.  4o3 

Any  Owner  or  Occupier,  or  person   unmg  any  House,  Penalty  for 
&c.  or  other  Place,   opening,  keeping  or  using  the  same  ^^ing  them 
for  any  of  the  above-mentioned  purposes,  or  being  Owner  poseT^   ^"^" 
or  Occupier  wilfully  permitting  the   same  to  be  opened, 
kept  or  used  for  any  such  purposes,  or  any  person  managing 
or  assisting  in  conducting  the  business  of  any   Houses, 
&c.  or  Place  opened,  kept  or  used  for  any  such  jiurposes, 
is   on    summary    conviction    before   two    Justices   of   the 
Peace  {p)  liable  to  a  penalty  not   exceeding    100/.,  and 
payment  of  costs,  or  to  imprisonment  not  exceeding  six 
calendar  months  {q). 

Any  Owner  or  Occupier,  or  person  acting  on  his  behalf,  Penalty  for 
or  managing  or  assisting  in  conducting  the  business  of  any  receiving 
House,  &c.  or  Place  opened,  kept  or  used  for  any  of  the  ^^"^^^i  ^*^- 

,  '  .  Tin-  on  certain 

above-mentioned  purposes,  who  shall  receive  any  money  or  conditions, 
valuable  thing  as  a  Deposit  on  any  Bet  on  condition  of 
paying  any  money  or  valuable  thing,  on  the  happening  of 
any  event  "  relating  to  a  Horse  Race,  or  any  other  Race, 
or  any  Fight,  Game,  Sport  or  Exercise,"  or  as  or  for  the 
consideration  for  any  agreement,  &c.  to  pay  or  give  any 
money  or  valuable  thing  on  any  such  event,  and  any  jierson 
giving  any  acknowledgment,  security,  &c.  on  the  receipt  of 
any  money  or  valuable  thing  so  paid  or  given,  purporting 
or  intended  to  entitle  the  bearer  or  any  other  person  to 
receive  any  monies  or  valuable  thing  on  the  happening  of 
any  such  event,  is  on  summary  conviction  before  two 
Justices  of  the  Peace  {j))  liable  to  a  Penalty  not  exceeding 
50/.,  and  payment  of  costs,  or  to  imprisonment  not  exceed- 
ing three  calendar  months  (r). 

Any  money  or  valuable  thing  received  by  any  such  person  Money,  &c. 
as  a  Deposit  on  any  Bet,  or  as  or  for  the  consideration  for  ^°  received 
any  such  agreement,  &c.  is  to  be  deemed  to  have  been  re-  ^^ercd  from 
ceived  for  the  use  of  the  person  from  whom  it  was  received,  the  holder. 
and  may  be  recovered  with  full  costs  in  any  Court  of  com- 
petent Jurisdiction  {s). 

The  Act  is  not  to  extend  to  the  Holder  of  any  "  Stakes  Act  does  not 
or  Deposit  to  be  paid  to  the  "Winner  of  any  Race  or  lawful  ^^^^^  .*° 
Sport,  Grame  or  Exercise,"  or  to  be  paid  "  to  the  Owner  of  j^^ce  &c. 
any  Horse  engaged  in  any  Race"  (/) ;  as  where,  for  in- 
stance, the  Owner  of  the  Second  Horse  is  entitled  to  receive 
back  his  Stake. 

Any  person  exhibiting  or  publishing,  or  causing  to  be  Penalty  for 

[p)  Or  a  Police  Magistrate  within  Appendix, 

the  Metropolitan  Police   District,  {r)  Ibid.  s.  4. 

2  &  3  Vict.  0.  71,  8.  U.  (.5)  Ibid.  s.  5. 

(■/)  16  &  17  Vict.   c.  110,  s.   3,  {t)  Ibid.  s.  6. 


454 


BETTING  HOUSES. 


advertisiug, 
&c. 


Provisions  of 
Betting  Act, 
1874,  as  to 
advertisins:. 


Power  to 
search  sus- 
pected 
Houses. 


exhibited  or  publislied,  any  Placard,  Advertisement,  &c. 
making  it  to  aj^pear  that  any  House,  &e.  or  Place  is 
opened,  kept  or  used  for  the  purpose  of  making  Bets  in 
manner  above  mentioned,  or  for  the  purpose  of  exhibiting 
Lists  for  Betting,  or  with  intent  to  induce  any  person  to 
resort  to  such  House,  &c.  or  Place,  for  the  purpose  of 
making  Bets  or  AVagers  in  manner  above  mentioned,  or 
any  person  who  on  behalf  of  the  Owner  or  Occupier,  or 
person  using  any  such  House,  &c.  or  Place,  may  invite 
other  persons  to  resort  therein  for  the  purpose  of  making 
any  Bets  or  "Wagers  as  above  mentioned,  is  on  summary 
conviction  before  two  Justices  of  the  Peace  (ii)  liable  to  a 
Penalty  not  exceeding  oO/.,  and  payment  of  costs,  or  to 
imprisonment  not  exceeding  two  calendar  months  (,r) . 

And  section  3  of  the  Betting  Act,  1874  (37  Yict.  c.  15), 
further  provides  that  where  any  letter,  circular,  telegram, 
placard,  handbill,  card,  or  advertisement  is  sent,  exhibited, 
or  published — (1)  whereby  it  is  made  to  appear  that  any 
person,  either  in  the  United  Kingdom  or  elsewhere,  will, 
on  application,  give  information  or  advice  for  the  purjDOse 
of  or  with  respect  to  any  such  Bet  or  Wager,  or  any  such 
event  or  contingency  as  is  mentioned  in  the  principal  Act, 
or  will  make  on  behalf  of  any  other  person  any  such  Bet 
or  Wager  as  is  mentioned  in  the  principal  Act ;  or  (2)  with 
intent  to  induce  any  person  to  apply  to  any  house,  office, 
room  or  place,  or  to  any  person,  with  the  view  of  obtaining 
information  or  advice  for  the  purpose  of  any  such  Bet  or 
Wager  with  respect  to  any  such  event  or  contingency  as  is 
mentioned  in  the  principal  Act ;  or  (3)  inviting  any  per- 
son to  make  or  take  any  share  in  or  in  connection  with  any 
such  Bet  or  Wager — every  person  sending,  &c.,  or  causing 
the  same  to  be  sent,  &c.,  shall  be  subject  to  the  penalties 
provided  as  above  in  the  7th  section  of  the  principal  Act 
with  respect  to  offences  under  that  section. 

A  Justice  of  the  Peace,  upon  complaint  made  on  oath,  may 
authorize  the  search  of  any  suspected  House  or  Place  by 
special  warrant  to  a  constable,  who  may  obtain  necessary 
assistance,  and  also  use  force  if  required  to  make  an  entry, 
and  arrest,  search  and  bring  before  a  Justice  of  the  Peace 
all  persons  found  there,  and  seize  all  Lists,  Cards  or  other 
documents  relating  to  Pacing  or  Betting  (//).  But  the 
warrant  and  arrest  above  provided  for  do  not  dispense  with 
the  necessity  of  a  regular  information  and  summons  giving 


(«)  Or  a  Police  Magistrate  within 
the  Metropolitan  Police  District, 
2  &  3  Vict.  c.  71,  s.  14. 


(.r)   16    &    17  Vict. 
Appendix. 

(y)  Ibid.  s.  11. 


c.   119,  s.   7, 


KETTING  HOUSES.  455 

the  defendaut  notice  of  the  charges  made  against  him ; 
and  the  want  of  such  information  and  summons  will 
render  the  proceedings  on  the  hearing  invalid  (s) .  The 
information  need  not,  however,  be  laid  before  two  Justices 
— one  is  sufficient  (a). 

Within  the  Metropolitan  Police  District,  and  the  Dublin  Power  of 
Metropolitan  Police  District,  a  Commissioner   of   Police  Commission- 

Grs  01  JrOllCG 

may  authorize  any  Superintendent  of  Police,  accompanied 
by  such  Constables  as  may  be  directed  to  assist  him,  to 
enter  any  suspected  House,  &c.  or  Place,  and  to  use  force 
if  necessary,  and  take  into  custody  all  persons  found  there, 
and  to  seize  all  Lists,  Cards  or  other  documents  relating  to 
Racing  or  Betting  {h). 

Penalties  and  costs  may  be  levied  by  distress  (c) .     Half  The  levy  and 
of  ever}'  pecuniary  penalty  is  to  be  paid  to  the  Informer,  ap^cation 
and  the  remaining  half  to  be  applied  in  aid  of  the  Poor 
Rate  of  the  parish  or  extra-parochial   place  where   the 
offence  was  committed  (d). 

In  ease  a  person  who  has  laid  any  complaint  or  informa-  Where  party 
tion  do  not  appear  at  the  time  at  which  the  defendant  may  neglects  to 
have  been  summoned  to  appear,  or  on  the  adjournment  of 
the  summons,  or  neglect  to  prosecute,  any  Justices  having 
authority  to  adjudicate  may  authorize  some  other  person 
to  proceed  on  such  summons,  or  take  out  a  fresh  one,  as  if 
the  previous  summons  had  not  been  granted  (e) . 

An  Appeal  is  given  to  Quarter  Sessions  (/),  and  no  No  objection 
objection  is  to  be  allowed  to  the  Information  or  Convic-  allowed  on 
tion  on  matter  of  form  (g).     Thus,  in  a  case  in  which  the  form, 
information  charged  the  defendant  with  having  "  on  the 
5th    of   October,    and   on   divers   other   days   and   times 
between  the  said  5th  of  October,  and  the  laying  the  in- 
formation (Nov.  16),  being  then  the  occupier  of  a  certain 
House  in  the  said  city  knowingly  and  wilfully  kept  and 
used  the  same  for  the  purpose  of  his  betting  with  persons 
resorting  thereto  ;"  a  conviction  for  so  keeping  and  using 
the  house  on  the  8th  of  November  was  held  to  be  good  and 
valid  (/0._ 

A  conviction  before  justices  under  this  Act  is  a  "  criminal  No  appeal 


(z)  Blake  v.  Beech,  L.  R.,   1  Ex.  (r)  Ibid.  s.  8. 

D.'320  ;  45  L.  J.,  M.  C.   Ill ;  24  (d)  Ibid.  s.  9. 

L.  T.,  N.  S.  764.  {c)  Ibid.  s.  10. 

[a)  Zee  v.  Gold,   44  J.  P.  395—  (/)  Ibid.  s.  13. 
Q.  B.  D.  (q)  Ibid.  s.  14. 

(b)  16  &  17  Vict.  c.  119,  88.  12,  (h)   OhIoj  v.  Gee,  30  L.  J.,  M.  C. 
18,  Appendix.  222. 


456 


HETTTNG  HOUSES. 


from  High 
Court. 


The  remaiu- 
ing  Provi- 
sions. 


Extension  to 
Scotland. 


cause  or  matter "  within  sect.  47  of  tlie  Judicature  Act, 
1873,  and  the  Court  of  Appeal  has,  therefore,  no  juris- 
diction to  hear  an  Appeal  from  a  judgment  of  the  High 
Court  quashing  the  Conviction  on  a  case  stated  by  Justices(j). 

In  this  Act  the  certiorari  is  taken  away  (/.■),  and  a  dis- 
tress is  not  to  he  unlawful  for  want  of  form  (/).  In  any 
action  amends  may  be  tendered  {m),  but  one  month's 
Notice  of  Action  must  be  given,  and  it  must  be  brought 
within  three  months  of  the  doing  of  the  alleged  damages  (w) . 
This  Act,  which  came  into  operation  on  the  1st  of  Decem- 
ber, 1853  (o),  did  not  extend  to  Scotland  {p). 

But  now  by  s.  4  of  the  Act  of  1874  (37  Vict.  c.  15),  the 
Act  is  extended  to  Scotland  with  the  following  modifi- 
cations and  provisions: — (1)  The  term  "distress"  shall 
mean  poinding  and  sale.  The  term  "  misdemeanor " 
shall  mean  a  crime  and  oifence.  (2)  All  offences  or 
penalties  under  the  Acts  shall  be  prosecuted  and  recovered 
before  the  Sheriff  of  the  County,  or  his  substitute  in  the 
Sheriff  Court,  at  the  instance  of  the  Prociu'ator  Fiscal,  or  of 
anyprivatepersoUjUnderthe  provisions  of  the  Summary  Pro- 
cedure Act,  1864,  and  all  the  jurisdictions,  powers,  and  au- 
thorities necessary  for  the  purposes  of  this  section  are  hereby 
conferred  on  the  Sheriffs  and  their  substitutes.  (3)  Every 
pecuniary  penalty  which  is  adjudged  to  be  paid  under 
either  of  the  Acts  is  to  be  paid  to  the  Clerk  of  the  Court 
and  by  him  accounted  for  and  paid  to  the  Queen's  and 
Lord  Treasurer's  Pemembrancer  on  behalf  of  Her  Majesty. 
(4)  The  13th  and  14th  sections  of  the  principal  Act  are 
not  to  apply  to  Scotland,  but  any  person  who  is  convicted 
imder  either  of  the  Acts  may  appeal  against  such  con- 
viction to  the  High  Court  of  Justiciary,  in  the  manner  pre- 
scribed by  such  of  the  provisions  of  the  20  Geo.  2,  c.  43, 
and  any  Acts  amending  the  same,  as  relate  to  Appeals  in 
matters  criminal,  and  by  and  under  the  rules,  limitations, 
convictions  and  restrictions  contained  in  the  said  provisions. 


GAMING  HOUSES. 


A  common 

Gp.ming 

House. 


All  common  Gaming  Houses  are  nuisances  in  the  eye 
of  the  law,  not  only  because  they  are  great  temptations  to 


(i)  Blal-ev.  Beech,  L.  E,.,  2  Ex. 
D.  335;  36  L.  T.,  N.  S.  723. 

(/,:)  IG  &  17  Vict.  c.  119,  s.  14, 
Appendix. 

(/)  Ibid.  s.  15. 

(w)  Ibid.  s.  16. 


(h)  Ibid.  s.  17.  And  see  Blake 
V.  Beech,  L.  E.,  1  Ex.  D.  320;  45  L. 
J.,M.  C.  Ill;   34L.  T.,N.S.  764. 

(o)  IG  &  17  Vict.  c.  119,  8.  19, 
Appendix. 

(;;)  Ibid.  s.  20.  Repealed  bv 
37  Vict.  c.  15,  s.  4. 


GAMING  HOUSES.  457 

idleness,  but  because  they  are  apt  to  draw  together  great 
numbers  of  disorderly  persons  ;  they  promote  cheating  and 
other  corrupt  practices,  and  incite  to  idleness  and  avari- 
cious ways  of  gaining  property  (q). 

The  Keeper  of  a  common  Graming  House  is  indictable  indictment 
and  punishable  as  for  a  misdemeanor  with  fine  or  imprison-  ^or  keeping 
ment,  or  both  ;  and  his  wife  may  be  joined  with  him,  or  °^^' 
they  may  be  indicted  severally  (q). 

The  Indictment  would   seem   to   be  good  if  it  merely  Charge  in  the 
charges  the  defendant  with  keeping  a  common    Graming  ludictmeut. 
House  (r)  ;  as  where  the  person  is  indicted  for  the  offence 
of  keeping  a  House  where  people  assembled  to  play  Rouge 
et  Noir  («). 

And  as  it  is  an  Indictment  for  a  public  Nuisance,  and  Any  person 
not  for  any  matter  in  the  nature  of  a  private  injury,  any  ^^J  s^  on 
person  may  go  on  with  it  even  against  the  consent  of  the 
original  prosecutor,  if  he  has  discontinued  it  {f ) . 

Under  25  Geo.  2,  c.  36  {u),  provision  is  made  for  the  Statutory 
indictment  of  "  any  person  who  shall  act  or  behave  him  rrovisions  for 

lip  X  •  i  i.1  1        •  an  Indict - 

or  lierselr  as  master  or  mistress,  or  as  the  person  havmg  ment. 
the   care,  government   or  management   of   any   Gaming 
House,  &c." 

To  encourage  prosecutions  for  keeping  Gaming  Houses,  Notice  by 
&c.,  two  inhabitants  of  any  Parish  or  Place  may  give  twomhabit- 
Notice  in  writing  to  the  constable  of  any  person  there 
keeping  a  Gaming  House,  &c.,  upon  which  Notice  the 
constable  is  to  go  with  such  inhabitants  to  a  Justice  of  the 
Peace,  who  on  making  oath  that  they  believe  the  contents 
of  such  Notice  to  be  true,  are  each  to  enter  into  a  recogni- 
zance in  the  sum  of  20/.  to  give  evidence,  and  the  constable 
into  a  recognizance  in  the  sum  of  30/.  to  prosecute  at  the 
next  General  or  Quarter  Sessions  or  Assizes  (^r). 

After  the  constable  has  entered  into  such  recognizance  Binding  over 
to  prosecute,  the  Justice  is  to  make  out  his  warrant  to  ^^®  v^^^J  ^c- 
bring  the  accused  person  before  him  to  be  bound  over  to 
appear  at  the    General    or    Quarter   Sessions  or  Assizes, 
there  to  answer  such  bill  or  indictment  (//)  as  may  then  be 
found  for  the  offence.     And  the  Justice  may,  in  his  dis- 

{/])  Hawk.    c.    32,    tit.   Common  («■)  Ibid. 

Nuisances,    66;    Hex  v.  Dixon,   10  {t)  Rex  v.  TToofZ,  3  B.  &  Ad.  657. 

Mod.    330  ;  Rex   v.   Mason,  Leach,  [n)   'lb  Geo.  2,  c.  36,  ss.  6,  8. 

C.  C.  548  ;  Rex  v.  Rogier,  1  B.  &C.  (.r)  Ibid.  s.  5. 

272;   <S.  C.  2  D.  &  R.  431.  (//)  The    certiorari    in   all   cases 

(>•)  Rex  V.  Rogier,  1  B.  &  C.  272  ;  is  taken  away  by  s.  10.     See  Rey. 

S.  C,  2  D.  &  R.  431.  V.  Sanders,  9  Q.  B.  235. 


458 


GAlSfING  HOUSES. 


Duty  of 

Overseers  of 
the  poor. 


Penalty 
where  Con- 
stable neg- 
lects his 
duty. 

Setting  up 
or  playing  at 
Hazard,  &c. 


Sufficient 
evidence  that 
Hazard  has 
been  played. 


Rent  of  a 

Gaming 

House. 


A  subscrip- 
tion Club. 


cretion,  take  security  for  such  person's  good  beliaviour  in 
the  meantime  (;:). 

The  Overseers  of  the  Poor  of  the  parish  or  place  are  to 
jiay  the  constable  the  reasonable  expenses  of  prosecution, 
and  on  conviction  10/.  to  each  of  the  two  inhabitants,  on 
penalty  of  forfeiting  double  the  sum  (r/). 

Any  constable  who  may  neglect  or  refuse  upon  such 
Notice  to  go  before  any  Justice  of  the  Peace,  or  to  enter 
into  such  recognizance,  or  may  be  wilfully  negligent  in 
carrying  on  such  prosecution,  is  for  every  offence  to  forfeit 
20/.  to  each  inhabitant  giving  such  Notice  (b). 

Any  person  setting  up  the  Grames  of  the  Ace  of  Hearts, 
Pharaoh,  Basset  or  Ilazant,  is  liable  on  summary  conviction 
before  a  Justice  of  the  Peace  to  a  penalty  of  '200/.  And 
any  person  playing  or  staking  at  any  of  the  Games  is 
liable  in  the  same  manner  to  a  penalty  of  50/.  (c). 

On  an  information  before  two  Magistrates  under  this 
Statute  (d)  "  for  setting  up,  maintaining  and  keeping  a 
certain  Grame,  to  be  determined  by  the  chance  of  Dice, 
called  Plazard,"  the  proof  was  that  certain  persons  were 
found  in  the  House  playing  at  Hazard  with  Cards ;  that 
a  Dice-box  and  Dice  were  found  on  the  table  the  subse- 
quent day,  and  these  facts  were  held  sufficient  to  warrant 
the  Justices  to  conclude  that  the  Game  of  Hazard  was 
there  plaj^ed  (e) . 

If  a  person  knowingly  lets  a  House  for  the  purpose  of 
its  being  used  as  a  Gaming  House,  he  cannot  recover  the 
rent.  This  defence  w^as  set  up  in  the  case  of  Parsey  v. 
Edmonds  (./),  but  as  it  was  not  proved  the  Jury  found  a 
verdict  for  the  plaintiff. 

An  establishment  which  is  carried  on  as  an  ordinary 
Club,  the  members  being  regularly  balloted  for,  and 
chargeable  with  an  entrance  fee  of  ten  guineas,  and  the 
like  for  a  yearly  subscription,  is  held  not  to  be  a  common 
Gaming  House,  though  it  appear  that  in  part  of  the  House 
Whist  is  generally  played  at  3  o'clock  in  the  afternoon, 
and  Hazard  at  night  after  supper,  which  is  provided 
gratuitously  for  the  members  by  the  proprietor  (r/).     But 


{z)  25  Geo.  2,  c.  36,  s.  6. 

(ff)  Ibid.  s.  5. 

{b)  Ibid.  s.  7. 

\c)  12  Geo.  2,  0.  28,  ss.  2,  3, 
Appendix  ;  M'Xinnell  v.  Robinson, 
3  M.  &  W.  438. 

{fl)  12  Geo.  2,  c.  28,  s.  2,  Ap- 
pendix. 


{e)  Rex  V.  Liston,  5  T.  R.  390. 

(/)  Parsey  v.  Edmonds,  before 
Mr.  Baron  Martin,  Ex.  N.  P.  Jan. 
20,  1853. 

{g)  Crockford  v.  Lord  Maidstone, 
8  L.  T.  217;  and  see  S.  C,  Ap- 
pendix. 


GAMING  HOUSES.  459 

If  the  rules  are  a  mere  sham,  and  no  one  is  called  on  to 
pay  if  he  plays,  while  all  who  choose  to  go  there  gain 
access,  then  the  case  is  different  {//). 

Under  8  &  9  Vict.  c.  109,  a  common  Gaming  House,  V/hat  is  a 
"  contrary  to  law,"  may  be  a  place  either  where  people  q!*^^"^ 
play  an  unlawful  Game  against  a  Bank,  or  where  a  lawful  House,°uii- 
Game  is  so  arranged  that  the  chances  are  in  favour  of  the  der  8  &  9 
Table.     This  is  set  out  with  particularity  in  the  2nd  section  °'  ^^^ 

of  the  Statute  (?"),  which  after  reciting  that  "  whereas 
doubts  have  arisen  whether  certain  houses,  alleged  or 
reputed  to  be  opened  for  the  use  of  the  subscribers  only,  or 
not  open  to  all  persons  desirous  of  using  the  same,  are 
to  be  deemed  common  Gaming  Houses,"  Declares  and 
Enacts,  "  that  in  default  of  other  evidence  proving  any 
house  or  place  to  be  a  common  Gaming  House,  it  shall  be 
sufficient  in  the  support  of  the  allegation  in  any  indictment 
or  information,  that  any  house  or  place  is  a  common  Gaming 
House,  to  prove  that  such  house  or  place  is  kept  or  used  for 
playing  therein  at  any  unlawful  Game,  and  that  a  Bank  is 
kept  there  by  one  or  more  players  exclusively  of  the  others, 
or  that  the  chances  of  any  Game  plaj^ed  therein  are  not 
alike  favourable  to  the  players,  including  among  the 
players  the  Banker  or  other  person  by  whom  the  Game  is 
managed,  or  against  whom  the  other  players  stake,  play  or 
bet"(y). 

In  every  case,  except  within  the  Metropolitan  Police  Power  of 
District,  in  which  the  Justices  of  Peace  in  every  Shire,  J^^^tices. 
and  Mayors,  Sheriffs,  Bailiffs  and  other  head  officers  within 
every  City,  Town  and  Borough,  now  have  by  law  authority 
to  enter  into  any  house,  room  or  place  where  unlawful 
Games  are  suspected  to  be  held  {k) ;  any  Justice  of  the 
Peace,  upon  complaint  made  before  him  on  oath  that  there 
is  reason  to  suspect  any  house,  room  or  place  to  be  kept  and 
used  as  a  common  Gaming  House,  may  by  his  warrant,  at 
any  time  in  his  discretion,  authorize  any  Constable,  toge- 
ther with  necessary  assistance,  to  make  an  entry  in  the 
same  manner  as  might  have  been  done  by  such  Justices, 
Mayors,  &c.  in  person.  Permission  is  also  given  to  use 
force  if  necessary  in  making  such  entry,  either  by  breaking 
open  doors  or  otherwise,  and  authority  is  given  to  arrest, 

{h)  See  note  {g),  ante.  Pleading.     As  to  other  evidence  of 

(')  8  &  9  Vict.  c.  109,  s.  2,  Ap-  a  house  being  a  common  Gaming 

pendix.  House,  see  post,  pp.  461,  462. 

{j)  Ibid.      For  form  of    indict- "  (/,)   33  Hen.  8,  c.  9,  s.   14,  Ap- 

ment,     see    Archbold's     Criminal  pendix. 


460 


GAMING  HOUSES. 


In  the  Me- 
tropolitan 
District. 


Penalties  on 

Gramiug 

House 

Keepers 

under 

8  &  9  Vict. 

c.  109. 


searcli  aud  bring  before  a  Justice  of  the  Peace  both  "  the 
keepers  and  the  persons  resorting  and  playing  there"  (/), 
to  be  dealt  with  according  to  law  {in). 

Within  the  Metropolitan  District,  if  any  Superin- 
tendent belonging  to  the  Metropolitan  Police  Force  report 
in  writing  to  the  Commissioners  of  Police  of  the  Metro- 
polis that  there  are  good  grounds  for  belief,  and  that  he 
believes  that  a  house,  room  or  place  within  the  Metropolitan 
Police  District  is  kept  or  used  as  a  common  Grambling 
Plouse ;  either  of  these  Commissioners,  by  theii*  order  in 
writing,  may  authorize  the  Superintendent  to  make  an 
entry,  with  such  Constables  as  the  Commissioner  may  direct 
to  accompany  him,  and  if  necessary  to  use  force  to  effect 
such  entry,  either  by  breaking  open  the  doors  or  otherwise, 
and  to  take  into  custody  all  persons  there  found,  and  to 
seize  all  Tables  and  Instruments  of  Graming,  and  all 
Monies  and  Securities  for  money  found  in  such  house  or 
premises  (»).  He  may  also  search  all  parts  of  the  house  or 
premises  where  he  shall  suspect  that  Tables  or  Instruments 
of  Graming  are  concealed,  as  well  as  all  persons  there  found, 
and  seize  all  Tables  and  Instruments  of  Graming  he  may 
happen  to  find  (o). 

Under  8  &  9  Vict.  c.  109,  the  owner  or  keeper,  and 
every  person  having  the  care  or  management  of  such 
Graming  House,  and  also  every  banker,  croupier  and  other 
person,  in  any  manner  conducting  the  business  of  it,  on 
conviction,  either  by  his  own  confession  or  by  the  oath  of 
a  credible  witness  before  any  two  Justices  of  the  Peace, 
besides  being  liable,  under  3'i  Hen.  8,  c.  9,  to  pay  a  fine  of 
forty  shillings  for  each  day  (p),  and  to  be  imprisoned  till 
he  shall  have  found  sureties  to  abstain  from  such  practices 
for  the  future  (q),  is  liable  to  such  an  additional  penalty  of 
not  more  than  100/.  as  might  be  adjudged  by  the  Justices 
before  whom  he  may  be  convicted ;  or,  in  the  discretion  of 
such  Justices,  he  may  be  committed  for  not  more  than  six 
calendar  months  to  the  House  of  Correction,  with  or  with- 
out hard  labour.  On  non-paj^ment  of  any  penalty  so  ad- 
judged, and  of  the  reasonable  costs  and  charges  attending 
the  conviction,  one  of  the  convicting  Justices  may,  by  his 
warrant,  authorize  the  same  to  be  levied  by  distress  and 
sale  of  the  goods  and  chattels  of  the  offender  (/■). 


(0   8   &  9  Vict.  c.  109,  s.  3,  Ap- 
pendix.    See  post,  p.  4G2. 
(m)   33  Hen.  8,  c.  9,  s.  14. 
{»)   8  &  9  Vict.  c.  109,  s.  6. 


(o)  Ibid.  s.  7. 
(p)   33  Hen.  8,  c.  9,  s.  11. 
(?)   8  &  9  Vict.  c.  109,  s.  4. 
()•)  Ibid.     See  post,  p.  4C2. 


GAMING  HOUSES.  4G1 

The   penalty   under   33  Hen.  8,  c.   9,  for   using   and  Penalty  for 
haunting  and  playing  in   Graming  Houses,  was  six  shil-  playmg. 
lings  and  eightpence  for   each  time  of   so  doing  (s),  and 
such  persons  when  taken  might  be  imprisoned  till  they 
gave    security   to   abstain    from    such   practices   for   the 
future  (/). 

And  where  any  Cards,  Dice,  Balls,  Counters,  Tables  Evidence  of 
or  other  Instruments  of  Gaming  used  in  playing  any  un-  ^^^^^S- 
lawful  game  are  so  found,  it  is  evidence,  until  the  contrary 
is  made  to  appear,  that  such  house,  room  or  place  is  used 
as  a  common  Gaming  House,  and  that  the  persons  so  found 
were  there  playing  ;  although  no  play  was  actually  going 
on  in  the  presence  of  such  Superintendent  or  Constable  or 
those  accompanying  him  on  his  entry.  And  the  Police 
Magistrate  or  Justices,  before  whom  any  person  is  taken 
by  virtue  of  the  warrant  or  order,  may  direct  all  such 
Tables  and  Instruments  of  Gaming  to  be  forthwith  de- 
stroyed (u). 

But  the  difficulty  of  obtaining  such  evidence  of  Gaming  Difficulty  of 
was  so  great,  that  this  portion  of  the  Act  proved  to  be  obtaining 
practically  a  dead  letter ;  for  all  Gaming  Houses  were 
found  to  be  provided  with  the  means  of  secretly  making 
away  with  the  Instruments  of  Gaming  on  any  alarm  being 
given ;  and  the  penalties  inflicted  were  insufficient  to 
correct  the  evil. 

Accordingly  to  remedy  these  defects  in  the  operation  17  &  18  Vict, 
of  the  8  &  9  Vict.  c.  109,  and  the  other  Acts  for  the  ^-  ^^■ 
prevention  of  unlawful  Gaming,  a  supplementary  Act  was 
passed  in  the  year  1854,  intituled  "  An  Act  for  the  Sup- 
pression of  Gaming  Houses"  (x),  which  has  been  com- 
pletely successful  in  accomplishing  that  object.  It  recites 
that  "  the  keepers  of  common  Gaming  Houses  contrive, 
by  fortifying  the  entrances  to  such  houses,  or  by  other 
means,  to  keep  out  the  officers  authorized  to  enter  the 
same  until  the  Instruments  of  Gaming  have  been  re- 
moved or  destroyed,  so  that  no  sufficient  evidence  can  be 
obtained  to  convict  the  offenders,  who  are  thereby  en- 
couraged to  persist  in  the  Violation  of  the  Law ;  and " 
that  "it  is  expedient  that  the  Law  shall  be  made  more 
efficient  for  the  Suppression  of  Gaming  Houses." 

With  this  object  persons  may  be  summarily  convicted  Persons  sum- 

(a)  33  Hen.  8,   c.  9,  s.  12.     See  {t)  Ibid.  s.  14. 

post,  p.  462,  as  to  the   penalties,  {/<)  8  &  9  Vict.  c.  109,  s.  8. 

which  may  be  adjudged  under   17  (')   17  &  ISVict.  c.  38,  Appendix.' 
k  18  Vict.  0.  38. 


462 


GAMING  HOUSES. 


marily  con- 
victed of 
obstructing 
Officers. 


Persons 
giving  false 
Names  or 
Addresses. 

Owner  or 
Occupier  may 
be  fined  500/. 
or  impri- 
soned. 


Persons  ap- 
prehended 
may  be  made 
Witnesses. 


Penalties 
and  Costs. 


under  this  Act  before  two  Justices  of  the  Peace  of  thus 
obstructing  the  officers,  and,  in  the  discretion  of  the 
Justices,  may  be  fined  a  sum  of  money  not  exceeding 
100/.,  or  be  imprisoned,  with  or  without  hard  labour, 
for  any  period  not  exceeding  six  calendar  months  (y). 
And  the  mere  fact  of  obstructing  the  officers  is  to  be 
evidence  of  the  House  being  a  common  Gaming  House  (z). 

Persons  found  there,  and  giving  false  names  or  ad- 
dresses, or  refusing  to  give  their  names  and  addresses,  may, 
iipon  summary  conviction,  be  fined  50/.,  or  imprisoned  for 
one  month  {a). 

The  Owner  or  Occiipier,  or  any  person  "  having  the 
use  of  any  House,  Room,  or  Place,  who  shall  open,  keep 
or  use  the  same  for  the  purpose  of  unlawful  gaming  being 
carried  on  therein,  and  any  person,  who  being  the  Owner 
or  Occupier  of  any  House  or  Poom,  shall  knowingly  and 
wilfully  permit  the  same  to  be  opened,  kept  or  used  by 
any  other  person  for  the  purpose  aforesaid,  any  person 
having  the  care  or  management  of  or  in  any  manner 
assisting  in  conducting  the  business  of  any  House,  Room 
or  Place  opened,  kept  or  used  for  the  purpose  aforesaid, 
and  any  person  who  shall  advance  or  furnish  money  for 
the  purpose  of  gaming  with  persons  frequenting  such 
House,  Room  or  Place,"  may  be  summarily  convicted 
before  two  Justices  of  the  Peace,  and  be  adjudged  to  pay 
any  sum  not  exceeding  500/.  and  costs,  or  may  be  im- 
prisoned, with  or  without  hard  labour,  for  twelve  calendar 
months  {h). 

Under  this  Act  the  Justices  of  the  Peace,  before  whom 
persons  found  in  a  Room  or  Place  of  this  description  shall 
be  brought,  may  require  any  of  the  persons  apprehended 
to  be  sworn  and  to  give  evidence  under  a  penalty  for 
refusal  (r)  ;  but  persons  making  a  full  discovery  may  be 
freed  from  all  penalties  (r/). 

The  Penalties  and  Costs  inflicted  under  this  Act  may 
be  levied  by  distress  (c),  whicli  shall  not  be  unlawful  for 
want  of  form  (/).  And  one-half  of  each  Penalty  shall  be 
applied  in  aid  of  the  Poor  Rate  of  the  Parish  in  which 
the  offence  shall  have  been  committed,  and  the  other  half 
shall  be  paid  to  the  person  laying  the  information  ( g). 


(//)   17  &  18  Vict.  c.  38,  s.  1,  Ap-  (r)  Ibid.  s.  5. 

pendix.  (d)  Ibid.  s.  6. 

(=)  Ibid.  s.  2.  {e)  Ibid.  s.  7. 

(a)  Ibid.  s.  3.  (A)  Ibid.  s.  12. 

[b)  Ibid.  s.  4.  {(/)  Ibid.  s.  8. 


GAMING  HOUSES.  463 

On  the  neglect  of  the  person  laying  the  information  to  On  neglect 
prosecute  the  summons,  the  Justices  may  authorize  any  ^°  P^®f*^*°' 
other  person  to  proceed  thereon,  or  to  lay  a  fresh  informa-  gg^  ^^y  ^g " 

tion  [h).  authorized  to 

An   appeal  is  given    to    Quarter   Sessions  (?"),   but   no  <io  «"• 
objection  is  to  be  allowed  to  matters  of  form  at  the  hearing  Remaining 
of  that  appeal  (/.•).     And  the  judgment  of  the  Justices  thus  P^^'^^®^'^^^'^- 
given  is  not  removable  by  certiorari  (/). 

By  8  &  9  Vict.  c.  109,  s.  10,  a  Licence  is  required  for  Billiards, 
every  House  (in),  Room  or  Place  where  a  public  Billiard  Bagatelle,  &c. 
table,  or  Bagatelle  board  or  instrument  used  in  any  Game 
of  the  like  kind  is  kept,  at  which  persons  are  admitted  to 
play,  except  in  Houses  or  premises  specified  in  a  Yictualler's 
licence  (»). 

Justices  of  the  Peace  are  authorized  at  their  general  Regulations 
annual  licensing  meeting  to  grant  Billiard   Licences   to  ^.|,'!'^"'^°§' 
such   persons  as,  in   their  discretion,  they  deem  fit  and  Licences, 
proper  to  keep  such  public  Billiard  tables,  on  payment  of 
six  shillings,  and  such  licences  are  to  continue  a  year  (o). 
And  no  appeal  lies  against  a  refusal  by  Justices  to  grant 
a    Billiard    Licence  (7;).      The    words    "Licensed    for 
Billiards"  are  to  be  legibly  painted  in  some  conspicuous 
place  on  the  outside  of  the  House  and  near  the  door  (q) . 

Every  person  neglecting  to  comply  with  these  regula-  Non-compli- 
tions  may  be  proceeded  against  as  the  keeper  of  a  common  ^nce  with 
Gaming  House,  and  in  addition  to  the  penalty  to  which  ^^^^^  ^^^"  ^" 
he  is  liable  for  that  offence,  he  may  be  fined  any  sum  the 

(/t)   17  &  18  Vict.  0.  38,  s.  9,  Ap-  the   Superior    Coiu-ts   or    of    Her 

pendix.     By  the  22  &  23  Vict.  c.  17,  Majesty's     Attorney- General     or 

s.  1,  no  bill  of  indictment  for  keep-  Solicitor- General, 

ing  a  Gambling   House  (amongst  (i)   17    &    18  Vict.   c.   38,    s.    10, 

other  offences)  shall  be  presented  Appendix, 

to  or  be  found  by  any  Grand  Juiy,  (/.)  Ibid.  s.  11. 

unless  the  Prosecutor  or  other  per-  [1)    Ibid. 

son  presenting  such  indictment  has  {iii)  If  a  Billiard  Table  stands  in 

been   bound    by   recognizance    to  a  House,  and  the  House  should,  in 

prosecute  or  give  evidence  against  respect  of  such  Tablo,  let  at  a  higher 

the  person  accused  of  such  offence,  sum,  it  is  rateable,  while  the  Table 

or  unless   the  person  accused  has  continues  there  and  it  is  so  let  at  a 

been  committed  to  or  detained  in  higher  rate  ;  perWilles,  J.,  Hex  v. 

custody,  or  has  been  bound  by  re-  St.  Nicholas,  Gloucester,  cited  in  Reg. 

cognizance   to   appear    in    answer  v.  South  Western  Eailwaij  Co.,  1  Q. 

to   an  indictment  to  be  preferred  B.  581. 

against  him   for  such  offence,    or  {»)  8    &    9  Vict.    c.    109,   s.    11, 

unless   such    indictment   for   such  Appendix, 

offence,   if  charged  to   have   been  (o)  Ibid.  s.  10. 

committed  in  England,  be  preferred  {p)  Ex  parte  Chamberlaui,  8  E.  & 

by  the  direction  or  with  the  consent  B.  G44. 

in  writing  of  a  .Judge  of   one   of  {q)  8  &  9  Vict.  c.  109,  s.  11. 


461 


GAMING  HOUSES. 


Offences 
against  the 
tenor  of  the 
Licence. 


When  Bil- 
liard playing 
is  not  al- 
lowed. 


Constables 
may  visit 
licensed 
Houses. 


Justices  may  fix  upon  of  not  more  tlian  10/.  fgr  every  day 
in  which  such  Billiard  table,  &c.  has  been  used  ;  or  in  the 
Justices'  discretion  may  be  committed  to  the  House  of 
Correction,  with  or  without  hard  labour,  for  any  term  not 
exceeding  one  calendar  month.  A  power  of  distress  is 
given  for  non-payment  of  any  penalty ;  but  no  person 
summarily  convicted  can  be  indicted  for  the  same  offence  (r). 

Persons  offending  against  the  tenor  of  their  Licences 
are  liable  to  the  same  penalties  and  punishments  in  the 
case  of  a  first,  second  or  third  offence  as  keepers  of  Inns, 
Alehouses  and  Victualling  Houses,  under  9  Creo.  4,  c.  61, 
and  all  the  provisions  of  that  Act  with  respect  to  con- 
victions, penalties,  &c.  are  to  apply  to  convictions  for 
offences  against  the  tenor  of  the  Licences  under  this  Act, 
and  to  the  consequent  proceedings  (.s'). 

No  keeper  of  any  public  Billiard  table,  &c.,  whether  he 
have  a  Victualler's  Licence  or  not,  is  to  allow  any  person 
to  play  between  one  and  eight  in  the  morning  of  any  day, 
or  at  any  time  on  Sundays,  Christmas  Day,  Gfood  Friday, 
or  any  day  appointed  to  be  kept  as  a  Public  Fast  or 
Thanksgiving,  and  no  Victualler  is  to  allow  any  person  to 
play  during  the  time  his  premises  are  not  by  law  allowed 
to  be  opened  for  the  sale  of  liquors ;  and  during  the 
hours  that  play  is  prohibited,  every  licensed  house  and 
every  Billiard  room  in  every  licensed  Victualler's  must  be 
closed  {t). 

All  Constables  and  Officers  of  Police  may  enter  any 
public  Billiard  room,  &c.  when  and  so  often  as  they 
think  fit,  and  the  non-compliance  with  these  regulations 
is  to  be  deemed  an  offence  against  the  tenor  of  the  keeper's 
Licence  (»). 


{>■)  8    &  9  Vict.    c.    109,    s.    11,  {t)  Ibid.  s. 

Appendix.  («)  8    &    9 

(i)  Ibid.  s.  12.     Eut  see  35  &  3G  Appendix. 
Vict.  c.  94,  s.  75. 


13. 

Vict. 


c.  109,    s.   14, 


APPENDIX. 


PART   I. 


UNEEPOETED  CASES. 

PAGE 

Fettinffall  v.  Fettingall. — Annuity  bequeathed  to  keep  a  Favourite 

Mare  465 

Alexander  and  another  v.  La'ulley  and  others. — Rule  of  the  Road 467 

Simpson  V.  Potts. — Sidebones 467 

Jlall  V.  i2o/7e/'so«.— Laininitis 468 

Mcfjina  V.  CmIc. — Furious  Riding 471 

Matthews  v.  P«/-Z,rr.— Navicular  Disease     ,   471 

Atkinson  v.  Horridge. — Thick- wind 472 

Croekford  v.  Lord  Maidstone. — A  Common  Gaming  House 473 

Smart  v.  Allison. — Alteration  of  Structure  in  the  Feet    474 

Hjjde  V.  Davis. — Disease  of  the  Lungs    477 

Buckingham  v.  Rogers. — Disease  of  the  Lungs  479 

Elcin  V.  Chapman. — Negligent  Driving  in  the  Dark    479 

Bouden  v.  Sherman. — Negligent  Driving  at  a  Crossing   480 

Hadland  v.  Price. — A  "  Selling  Race"    481 

Pereival  v.  Dudgeon. — Horse  damaged  by  Negligent  Driving     483 

♦— 


Fettingall  v.  Fettingall. 

Before  Vice- Chancellor  Sir  J.  L.  Knight  Bruce,  February  12th, 

1847. 
This  was  a  petition  presented  by  five  reversionary  legatees  of  a  Annuity  be- 
fund  wliieli  it  was  souglit  to  have  distributed  among  them,  queathed  to 
security  being  given  to  provide  for  the  object  of  the  testator's  -^^^  avour- 
bounty,  namely,  a  favourite  black  Mare,  aged  twelve  years. 
The  testator  bequeathed  to  his  executor,  the  plaintiff  (who 
was  his  nephew),  the  sum  of  50^.  a  year,  to  be  exj)ended  for 
the  keep  of  his  favourite  black  Mare,  which  was  to  be  "pro- 
perly and  comfortably  kept  in  some  park  or  paddock,"  to 
have  her  ' '  shoes  taken  oif ,  and  never  to  be  ridden  or  har- 
nessed."    "My  executor,"  the  testator  said,  "is  to  consider 
himself  in  honour  bound  to  fulfil  my  wish,  and  to  see  that  she 
is  well  provided  for,  and  to  be  removable  at  his  will,  and  at 
the  Mare's  death  all  payments  to  cease."     The  fund  had  been 
carried  to  an  account  called  "  The  Black  Mare's  Account." 

0.  H  H 


466  APPENDIX. 

It  had  been  declared  that  the  executor  was  entitled  to  the 
annuity  of  50^.,  commencing  from  the  death  of  the  testator, 
for  the  proper  and  comfortable  support  and  maintenance  of 
the  Mare,  the  executor  undertaking  to  employ  so  much  as 
was  necessary  for  her  support.  The  Mare  had  been  placed 
in  Holland  Park,  Kensington,  and  it  was  stated  that  the  exe- 
cutor had  fully  complied,  not  only  with  the  letter  but  with 
the  spirit  of  the  testator's  will,  and  expended  30^.  or  401. 
annually  in  this  way.  Three  of  the  reversioners  vi'erefemnies 
sole,  advanced  in  life,  and  were  willing  to  give  a  sum  of  money 
to  the  executor  in  order  to  have  the  immediate  benefit  of  the 
legacies  ;  and  the  executor  expressed  his  willingness  to  accept 
the  offer,  giving  such  security  as  the  Court  might  require  for 
the  proper  fulfilment  of  the  testator's  wishes. 

The  ViCE-CiiANCELLOB  Said,  "  I  shall  require  not  only  a 
security  for  the  executor's  life  but  for  the  life  of  the  Mare. 
Here  is  a  trust  in  favour  of  the  testator's  favourite  Mare,  and 
this  Court  will  take  care  that  it  shall  be  executed.  Suppose 
the  Mare  to  be  ill-treated  or  neglected ;  suppose  the  Mare  to 
be  put  into  a  cart,  would  the  Coiu't  allow  the  executor  to  re- 
ceive the  annuity  ?  The  Court  would  find  somebody  else  to 
take  proper  care  of  the  animal." 

Mr.  IViffram,  on  the  part  of  the  petitioners,  said  that  the 
residuary  legatees  might  probably  come  and  allege  that  the 
condition  upon  which  the  executor  held  the  annuity  had  not 
been  fulfilled. 

The  YicE-CnANCELLOE  said,  "Is  it  not  the  duty  of  this 
Court  to  fulfil  the  lawful  intention  of  the  testator?  This 
animal,  if  well  treated,  may  live  for  thirty  years.  I  have  a 
Horse  myself  which  does  not  work,  and  which  is  considerably 
above  thirty  years  of  age." 

Mr.  Wigram  stated  that  the  executor  had  great  affection  for 
animals,  and  had  provided  the  Mare  in  question  with  every 
comfort  and  luxury  that  could  be  required. 

His  Honor  said  he  would  make  the  order  asked  for  by  the 
petitioners,  who  were  unmarried,  the  executor  giving  security 
for  the  care  of  the  animal.  The  securit}'  must  be  equal  to 
that  of  the  consols.  It  was  possible  that  the  price  of  corn  or 
grass  might  before  the  Mare's  death  be  so  high  that  50/.  per 
annum  might  not  be  too  large  a  sum  necessary  to  be  expended 
in  carrying  out  the  testator's  wishes.  He  ultimately  referred 
it  to  the  Master  to  approve  of  a  security,  directing  that  the 
case  should  come  again  before  the  Court  for  its  sanction  of 
such  security. 


UNREPORTED  CASES.  467 

Alexander  and  iys^oinEii  v.  Laidley  and  others. 
Before  Mr.  Baron  Alderson,  Carlisle  Spring  Assizes,  1847. 
Grainger,  Temple  and  Perronet  Thompson  for  the  plaintiffs. 
Atherton  and  Vance  for  the  defendants. 

This  was  an  action  on  the  Case  against  the  defendants  for  Rule  of  the 
running  down  the  ship  of  the  plaintiffs.  Eoad. 

Plea,  not  guilty. 

Alderson,  B.,  in  summing  up,  said  to  the  Jury,  "If  there 
be  no  peculiar  circumstances  to  the  contrary,  it  is  the  duty 
of  each  party  to  keep  his  side.  A  person  must  act  upon  a 
reasonable  and  sensible  course.  If  you  see  a  man's  carriage 
standing  on  the  wrong  side,  you  have  no  business  to  run  it 
down.  If  the  night  be  dark  and  the  circumstances  are  not 
perceptible,  the  parties  must  follow  the  rule." 


Simpson  v.  Potts. 
Before  Mr.  Barofi  Rolfe,  Carlisle  Spring  Assizes,  1847. 

Pashley  and  Unthank  for  the  plaintiff. 

Temple  for  the  defendant. 

This  was  an  action  for  Money  had  and  received  to  recover  Sidebones. 
back  the  price  of  a  Mare,  which  had  been  sold  to  the  plaintiff 
by  the  defendant  warranted  sound.  The  Warranty  was  a 
verbal  one,  and  the  plaintiff's  case  was,  that  there  was  a  con- 
dition in  it  authorizing  a  return  of  the  Mare,  if  she  should 
prove  unsound,  on  which  ground  she  had  been  sent  back  to 
the  defendant ;  or  that,  at  any  rate,  there  had  been  an  actual 
rescission  by  consent. 

Mr.  Brockbank,  a  Veterinary  Surgeon,  proved  that  the 
Mare  was  brought  to  him  by  both  parties  to  be  examined,  as 
she  was  lame  at  that  time,  and  they  wished  him  to  say  whether 
it  was  an  unsoundness.  He  said  that  the  lameness  was  pro- 
duced by  Sidehones,  which  is  in  fact  Ossif  cation  of  the  Carti- 
lages («),  and  is  an  unsoundness,  whether  it  produce  lameness 
or  not.  If  the  Mare  had  absolute  rest  for  any  length  of  time, 
the  lameness  would  leave  her,  but  quick  work  and  a  hard 
road  would  bring  it  on  again  ;  if  she  were  ploughed,  it  would 
not  so  soon  be  shown. 

It  was  contended  for  the  defendant  that  there  was  no  con- 
dition in  the  AVarranty  authorizing  a  return,  and  that  the 
defendant  had  taken  her  back  to  sell  her  on  behalf  of  the 
plaintiff. 

EoLFE,  B.,  told  the  Jury,  "that  they  must  be  satisfied, 
either  that  the  contract  was  rescinded,  or  that  there  was  a 

(«)  O.«8ifirntion  of  the  CartilagOH,  ante. 
11   H  '1 


468  APPENDIX. 

condition  in  the  Warranty  authorizing  a  return  of  the  Horse 
if  it  turned  out  unsound,  and  that  in  either  of  these  cases 
Monetj  had  and  received  "woidd  lie."  The  Jury  returned  a 
verdict  for  the  plaintiff. 


Hall  v.  Rogerson. 
Before  Mr.  Baro7i  Alderson,  Neivcastle  Sj)ring  Assizes,  1847. 

Knoivles,  Q.C.,  and  Mulcuster,  for  the  plaintiff. 

Granger  and  Otter  for  the  defendant. 
Laminitis.  This  was  an  action  of  Assumpsit  on  a  breach  of  the  War- 

ranty of  a  Horse. 

Pleas,  1st.  Non  Assumpsit. 

2nd.    Traverse  of  the  unsoundness. 

The  plaintiff  bought  a  Horse  of  the  defendant  at  the  New- 
castle August  Fair,  184G,  warranted  sound  and  quiet.  The 
Horse  was  re-sold  with  a  Warranty  to  a  Mr.  Bramley  at  the 
Newcastle  October  Fair  and  taken  to  Nottingham  ;  but  on 
turning  out  lame,  he  was  tahen  back  by  the  plaintiff"  to  New- 
castle, and  sold  by  auction  in  December.  Tlie  Horse,  before 
the  first  sale,  had  been  twice  burned  for  Sandcrack  {b),  which 
had  been  removed,  and  he  hud  Cracked  heels  some  time  after 
sale.     The  alleged  unsoundness  was  Laminitis  (c). 

To  prove  the  unsoundness  Mr.  King,  Veterinary  Surgeon 
and  Livery  Stable-keeper,  stated  that  he  had  seen  the  Horse 
in  his  forge  a  week  or  two  before  the  first  sale;  that  he  had 
directed  his  shoes  to  be  taken  off,  and  on  examining  his  feet, 
had  observed  a  slight  Convexity  of  Sole,  which  he  pointed  out 
to  the  defendant.  The  defendant  then  asked  him  if  he  would 
be  j  ustified  in  warranting  the  Horse  as  it  had  been  warranted 
to  him.  The  witness  asked  if  he  was  satisfied  the  Horse 
went  sound  ;  he  replied,  "  Perfectly  so."  The  witness  then 
said  he  was  justified.  The  witness  next  saw  the  Horse  at  his 
own  stables,  where  he  was  kept  after  he  had  been  purchased 
by  the  plaintiff.  He  observed  him  go  sJiort  and  crippled  iti 
his  action,  and  he  then  had  Cracked  heels  {d).  A  man  was  in- 
structed to  poultice  the  forelegs,  the  heels  were  very  tedious, 
and  an  ointment  was  applied.  The  Horse  never  got  better  of 
the  crijipled  action  while  he  stood  there.  He  left  October  29 
and  came  back  December  12.  He  was  examined  more  care- 
fully after  he  was  returned  by  Mr.  Bramley.  The  hoof  was 
then  very  much  contracted  at  the  coronary  ring,  just  at  the 
junction  of  the  hoof.  The  soles  continued  convex,  the  heels 
hit  the  groimd  first,  he  went  lame  at  that  j)eriod,  and  was  not 
a  sound  Horse. 

{b)  Sandcrack,  ante.  Feet,  ante. 

[c)  See  Laminitis  and   Pumiced  {d)  See  Grease,  ante. 


UNREPORTED  CASIES.  469 

The  witness's  opinion  was  that  he  had  Laminitis  (e),  or 
inflammation  of  the  Lamince  of  the  feet,  namely,  of  the  con- 
necting medium  between  the  Coffin-bone  and  the  interior  of 
the  foot,  wliich  is  admitted  to  be  the  supporter  of  the  foot, 
there  being  numerous  fleshy  plates.  That  injlammation  of  the 
foot  {/)  includes  many  other  diseases,  and  produces  an  alte- 
ration in  the  structure  of  the  hoof  and  sole.  (Aldersox,  B.  : 
No  doubt  that  is  an  unsoundness,  and  a  very  fatal  one.)  It 
is  called  Chronic  Founder  {(/),  and  must  have  lasted  some  time, 
several  months,  most  jorobably  in  August ;  it  generally  pro- 
duces lameness,  and  is  a  disease.  {Alderson,  B.  :  I  hold 
whatever  disease  a  Horse  has,  which  renders  it  less  capable 
of  working,  is  an  unsoundness.)  On  cross-examination  the 
witness  said,  ''I  pointed  out  a  slight  disease  in  the  sole,  but 
thought  he  would  have  been  justified  in  warranting  him.  If 
I  had  taken  the  precaution  to  see  him  go,  things  might  have 
been  dift'erent."  He  then  stated  that  after  an  inflammation 
of  the  Lamince,  the  feet  are  never  thoroughly  restored.  Con- 
vexity of  sole  (e)  comes  on  some  time  after  a  Horse  is  foaled; 
in  this  case  he  must  originally  have  had  a  thin  sole.  It  can 
never  resume  its  natural  appearance  after  being  once  convex, 
and  amounts  to  an  unsoundness.  Inflammation  of  the  viscera 
or  of  any  important  organ  is  known  to  settle  in  the  feet. 

Mr.  Pluyes,  a  Veterinary  Surgeon,  and  partner  of  the  last 
witness,  remembered  the  Horse  coming  to  their  Stables  in 
August,  and  frequently  saw  him  exercised  in  the  yard ;  he 
went  crippled,  and  did  not  put  out  his  fore  feet  freely  at  that 
time ;  he  thought  it  proceeded  from  Cracked  heels  (A).  In 
December  they  examined  him  and  found  a  great  alteration  of 
structure  in  his  feet,  which  might  take  place  in  a  short  time 
if  the  inflammation  wei'e  vei-y  acute. 

Mr.  Bramley,  a  Horse-dealer  and  Publican  at  Nottingham, 
bought  the  Horse  of  the  plaintiff  for  5bl.  at  the  Newcastle 
October  Fair  warranted  sound.  The  morning  after  purchase, 
he  came  out  lame  at  Ferry  Hill,  about  twenty  miles  off  ;  it  was 
supposed  to  proceed  from  Cracked  heels  (A).  (Aldekson,  B.  : 
That  would  be  an  unsoundness.)  When  the  Horse  arrived 
at  Nottingham  he  was  still  lame,  and  the  witness  had  him 
examined  by  Mr.  Taylor,  a  Veterinary  Surgeon,  and  in  a  few 
days  the  Cracked  heels  got  well. 

To  prove  the  expense  of  bringing  back  the  Horse,  a  Porter 
on  the  York  and  Newcastle  Railway  was  called,  who,  in  De- 
cember, saw  the  Horse  at  the  Railway  Station,  and  received 
the  fare  for  him  from  the  plaintiff. 

On  the  part  of  the  defendant  witnesses  were  called  to  prove 
the  antecedent  History  of  the  Horse,  and  to  show  that  he 

(e)  See  Laminitis  and  Pumiued  [g)  See  Founder,  ante. 

Feet,  ante.  (A)  See  Grease,  ante. 

(J)  See  Contraction,  ante. 


470  APPENDIX. 

never  had  inflammation  before  sale,  but  only  a  Sandcrack  {k), 
wbich  had  been  burnt  and  cured.  It  was  also  proved  that 
the  Horse,  when  in  the  plaintiff's  possession,  had  been  hard 
di-iven  by  a  servant,  and  that  the  Horse  and  gig  had  rolled 
down  a  bank  of  eighteen  feet,  after  which  the  Horse  could 
hardly  walk  home  ;  it  had  been  found  necessary  to  bleed  him, 
and  the  defendant's  case  was  that  there  had  been  a  metastasis 
of  the  inflammation  from  the  viscera  to  the  feet. 

Mr.  Taylor,  a  Veterinary  Surgeon,  examined  the  Horse  at 
Nottingham  on  the  10th  of  November ;  he  then  was  lame  in 
both  feet,  the  sole  was  flat  and  partially  convex,  and  decidedly 
unsoimd.  The  feet  had  all  the  appearance  of  Laminitis  il) 
having  existed  for  some  time,  which  had  produced  an  altera- 
tion in  the  shape  of  the  foot.  The  Coronary  Ring  was  con- 
tracted, which  is  a  symptom  of  Laminitis  {I).  It  generally 
makes  a  Horse  put  his  heels  first  to  the  ground,  and  go  short. 
The  witness  gave  a  Certificate  of  unsoundness.  On  cross- 
examination  the  witness  stated  that  a  Horse  might  so  far  re- 
cover as  to  ordinary  observation  to  appear  sound,  but  that  the 
lameness  would  return  when  he  was  put  to  the  ordinary  work. 
(Aldersox,  B.  :  It  must  be  ordinary  ivork,  because  more  than 
ordinary  would  not  be  fair. ) 

The  Horse  was  sent  for  to  be  inspected,  and  the  Judge 
allowed  the  Jury  to  go  out  and  see  him. 

In  summing  up,  Aldersox,  B.,  said  to  the  Jury — "The 
plaintiff  must  make  out  the  Horse  xmsound  on  the  29th  of 
August,  namely,  at  the  time  of  sale.  The  only  doubt  is  on 
the  second  issue  :  if  the  plaintiff'  leaves  it  in  doubt,  the  verdict 
must  be  for  the  defendant.  Where  a  person  seeks  to  show 
that  an  unsound  Horse  has  been  sold  to  him,  he  should  give 
notice  pretty  soon.  Here  it  was  not  from  August  till  No- 
vember, and  the  examination  was  made  in  December.  You 
must  be  certain  that  this  disease  had  its  origin  as  a  formed 
disease  at  the  time  of  sale.  It  is  unfair  for  a  party  if  he  has 
no  Notice  ;  therefore  a  case  should  be  very  clearly  proved. 
There  may  be  a  metastasis  or  change  of  position,  either  in  the 
human  frame  or  in  that  of  animals.  If  you  find  for  the 
jilaintiff,  you  must  give  the  difference  between  the  value  of 
the  Horse  when  sold  and  when  returned.  How  much  worse 
was  he  for  the  disease  ?  If  the  plaintiff  has  improvidently 
sold  him,  the  defendant  is  not  to  suffer.  You  must  add 
3/.  19s.,  the  cost  of  bringing  him  back  from  Nottingham." 
The  Jury  found  a  verdict  for  the  defendant. 

(A)  Sandcrack,  ante. 

[1)  See  Laminitis  and  Pumiced  Feet,  ante. 


UJJKErORTEl)  CASES.  471 

Eegixa  V.  Cook. 
Before  Mr.  Baron  Alderson,  Liverpool  Spring  Assizes,  1847. 

The   Prisoner   was   indicted   for   Manslaughter  in   having  Furious 
furiously  ridden  over  and  killed  a  person  on  the  road.  riding. 

ALDEKSoisr,  B.,  in  summing'  np,  said  to  the  Jury — "  The 
Prisoner  is  indicted  iov  Manslaughter  ;  are  you  satisfied  that 
his  act  and  his  negligence  caused  death  ?  If  a  man  runs 
against  another  with  a  Horse  at  an  improper  pace,  and  so 
causes  his  death,  it  is  Manslaughter ;  if  it  is  reckless,  it  is 
Murder.  In  the  same  way  as  it  has  been  held  where  bricks 
were  thrown  from  the  top  of  a  House  into  a  thoroughfare, 
and  killed  a  person ;  if  a  man  rides  recklessly  a  wild  Horse 
into  a  crowd  and  kills  a  person,  it  will  be  Murder.  If  he  has 
not  used  the  caution  or  care  of  a  reasonable  man  it  will  be 
Mati  sla  ugh  ter.^ ' 

"It  is  a  serious  question  whether  a  drunken  man  riding  a 
Horse  and  killing  another  is  not  guilty  of  Manslaughter.  Had 
the  Prisoner  in  this  case,  by  his  previous  acts,  incapacitated 
himself  from  taking  care  of  the  Horse,  or  by  his  own  conduct 
made  it  unmanageable?" 

"If  the  accident  arose  from  the  Horse's  bad  temper,  the 
Prisoner's  conduct  not  contributing  to  the  accident,  the  Pri- 
soner must  be  acquitted."     The  Jury  acquitted  the  Prisoner. 


Matthews  v.  Parker. 

Before  Mr.  Justice  Maule,  Gloucester  Spring  Assizes,  April  8th, 

1847. 

Godson,  Q.C.,  and  Cripps,  for  the  plaintiff. 

Whatelg,  Q.C.,  and  Cooke,  for  the  defendant. 

This  was  an  action  on  the  "Warranty  of  a  Horse.  It  Navicular 
appeared  that  in  May,  1846,  the  plaintiff  bought  at  Stow  disease. 
Pair  of  the  defendant  a  bay  Horse  warranted  sound.  On  the 
day  after  its  arrival  at  Cirencester,  where  the  plaintiff  resided, 
it  exhibited  symptoms  of  lameness,  which  increased  till  the 
23rd  of  June,  when  it  was  examined  by  an  experienced 
Veterinary  Surgeon,  who  pronounced  it  to  have  Navicular 
disease  {?n)  in  both  the  fore  feet,  of  which  fact  the  defendant 
had  Notice.  The  Horse  was  sold  by  auction  as  a  lame  Horse, 
and  bought  by  the  defendant,  who  was  in  the  habit  of  attend- 
ing Cirencester  Market. 

For  the  defendant  witnesses  were  called  to  prove  that  the 
Horse  was  sound,  and  could  therefore  never  have  had  the 
Navicular  disease  (tn),  as  it  is  incurable.     It  transpired  during 

{>n)  Navicular  Joint  Disease,  ante. 


472  APPENDIX. 

the  trial  that  the  defendant  was  a  member  of  a  Horsedealer's 
club  in  London,  the  funds  of  which  were  devoted  to  pay  the 
expenses  of  trials.    The  Jury  found  a  verdict  for  the  plaintiff. 


Atkinson  v.  Hoeridge. 

Before  Mr.  Justice  Coltman,  Chester  Sprint/  Assizes,  A^jril  9th, 

1847. 

Toivnsend  and  Egerton  for  the  plaintiff. 
Chilton,  Q.C.,  and  Welsby,  for  the  defendant. 

Thick-wind.  This  was  an  action  of  Assumpsit  on  the  Warranty  of  a 

Horse. 

Pleas,  1st.   No7i  assumpsit. 

2nd.  Traverse  of  the  unsoundness. 

It  appeared  that  the  plaintiff  was  a  gentleman  living  at 
Leeds,  and  the  defendant  a  gentleman  well  known  in  the 
Cheshire  Hunt.  At  Chester  October  Races,  the  defendant's 
Horse  Paragon  was  standing  at  the  Albion  Hotel,  at  the  price 
of  150  guineas,  and  another  Horse  at  60  guineas.  The  plain- 
tiff bought  them  for  210^.  Paragon  was  warranted,  bvit  the 
other  was  not.  The  plaintiff's  groom  fetched  the  Horses  to 
Leeds,  where  they  arrived  on  the  5th  of  October.  At  the  end 
of  a  canter  next  morning  the  groom  detected  that  the  Horse 
breathed  thick.  The  plaintiff  immediately  submitted  the 
Horse  to  Mr.  Yates,  a  Veterinary  Surgeon,  who  pronounced 
the  Horse  to  be  suffering  from  a  Chronic  affection,  arising 
from  a  Thickening  of  the  mucous  memhrane  {ii),  which  was  in- 
curable and  an  unsoundness,  although  it  would  not  prevent 
the  Horse  being  hunted.  The  plaintiff  then  wrote  to  the 
defendant  inclosing  Mr.  Yates's  Certificate,  and  stating  that 
he  would  send  the  Horse  to  Manchester  to  meet  his  groom  on 
any  day  he  might  appoint.  No  reply  was  received ;  and  the 
plaintiff  wrote  a  second  letter  again  requesting  that  the  groom 
might  be  sent  to  Manchester.  ,  The  defendant  wrote  that  he 
had  submitted  the  Certificate  to  a  comjietent  surgeon  and  a 
good  sportsman,  who  said  that  no  specific  unsoundness  had 
been  alleged.  He  oft'ered  to  refer  the  matter  to  a  sportsman 
and  a  gentleman.  The  plaintiff  submitted  the  Horse  to  other 
Veterinary  Surgeons,  who  confirmed  the  opinion  of  Mr.  Yates, 
and  certified  that  he  had  a  Chronic  disease  in  the  air  j)assages, 
constituting  Thick  breathing  (o).  This  Certificate  was  also 
forwarded  to  the  defendant.  Some  additional  correspondence 
then  took  place,  and  at  last  the  Horse  was  sold  for  56/.,  which 
sum  was  reduced  by  expenses  to  48/.,  and  it  was  for  the  dif- 

{»)  See  Thick--niud.  ante.  (o)  Ibid. 


UNREPORTED  CASES.  473 

ference  between  tliis  sum  and  the  purchase-money  that  the 
action  was  brought. 

The  defendant  called  several  Veterinary  Surgeons,  but  the 
Jury  found  for  the  plaintiff  lOll.  5s.  damages. 

On  the  first  day  of  the  Easter  Term  following,  Chilton,  Q.C., 
moved  for  a  new  trial,  on  the  ground  that  the  verdict  was 
against  evidence,  and  also  that  the  Horse,  though  Thich- 
xvindedi^p),  was  not  unsound;  as  the  celebrated  Horse  Eclipse 
was  known  to  be  Thick-toincled  { p),  though  the  Veterinary  Sur- 
geons called  by  the  plaintiff  professed  themselves  ignorant  of 
such  having  been  the  fact. 

Lord  Denm.uv,  C.J. — "  We  will  see  the  learned  Judge  on 
the  subject." 


Crockfokd  v.  Lord  Maidstoite. 

Before  the  Court  of  Exchequer  {Sittings  in  Banco),  May  1th, 

1847. 

Humfrexj  for  the  plaintiff. 

E.  James  for  the  defendant. 

This  was  an  action  brought  by  the  widow  of  the  late  Mr.  A  common 
Crockford  to  recover  the  price  of  some   dinners  supplied  to  ^ammg 
the  defendant  from  Crockford' s  Club  at  his  lodgings  in  Bolton 
Street,  for  some  suppers  in  the  Club  House,  and  for  two  years' 
subscription  to  it  at  ten  guineas  a  year. 

The  defendant  paid  into  Court  the  price  of  the  dinners 
supplied  in  Bolton  Street,  and  to  the  residue  pleaded  that  the 
plaintiff  kept  a  Common  Gaming  House,  and  let  him  have  the 
use  of  it  to  the  end  that  he  might  be  enabled  to  play  at  certain 
unlawful  games,  and  that  he  did  accordingly  play. 

The  case  was  tried  before  the  Lord  Chief  Baron  at  the  sit- 
tings after  Michaelmas  Term,  when  his  Lordship,  in  summing 
up,  said  to  the  Jury,  "  That  although  money  lost  at  play  in  a 
Common  Gaming  House  was  not  recoverable  at  law,  still  the 
common  law  of  the  land  did  not  make  it  illegal  to  play  at 
Whist,  Chess  or  any  other  Game ;  and  in  this  case  there  was 
not  a  tittle  of  evidence  to  show  that  the  Club  kept  by  the  late 
Mr.  Crockford  was  a  Common  Gaming  House.  That,  how- 
ever, was  a  question  for  them  to  decide.  H  they  decided  that 
it  was  not  a  Common  Gaming  House,  then  they  would  give  a 
verdict  for  the  plaintiff,  j)rovided  they  were  satisfied  the  money 
was  due." 

The  Jury  found  a  verdict  for  the  plaintiff. 

A  rule  nisi  for  a  new  Trial  was  subsequently  obtained,  on 
the  ground  of  misdirection,  in  consequence  of  the  Lord  Chief 
Baron  having  told  the  Jury,  that  there  was  no  evidence  that 
the  Club  was  a  Common  Gaming  House. 


House. 


{p)  See  Thick -wind,  ante. 


474  APPENDIX. 

It  was  contended  for  the  defendant,  that  as  Hazard,  which 
is  an  illegal  Game  {q),  was  played  in  the  House,  it  was  there- 
fore a  Common  Gaming  House. 

The  Court,  however,  seemed  to  be  of  opinion,  that  as  there 
v\-as  no  evidence  that  the  defendant  was  admitted  into  the 
Club  for  the  purpose  of  engaging  in  unlawful  Games,  or  that 
he  had  joined  in  them,  and  that  as  a  subscription  was  required, 
which  excluded  all  but  elected  members  of  the  Club,  it  could 
not  be  said  to  be  a  Common  Gaming  House. 

The  case,  however,  was  settled  witlKJut  any  formal  decision 
on  the  subject. 


S^JAKT  V.  Allisox. 

Before  Lord  Chief  Justice  Wilde,  Guildhall,  December  17th, 

1847. 
Cockhurn,  Q.C.,  James  and  Branuoell,  for  the  plaintiff. 
J\noioles,  Q.C.,  and  Addison,  for  the  defendant. 
Alteration  of         This  was  an  action  brought  to   recover  damages  for  the 
sj^ructure  in       alleged  breach  by  the  defendant  of  a  written  Warranty  given 
by  him  on  the  sale  to  the  plaintiff  of  a  Black  Gelding  for 
150/.,  which  Warranty  stated  that  the  Horse  was  "  warranted 
sound  and  free  from  vice,"  and  was  dated  November  23rd, 
1846. 

It  appeared  that  the  plaintiff  and  defendant  wei-e  both 
Horsedealers,  the  former  residing  at  Cricklade,  in  AViltshire, 
and  the  latter  near  Darlington.  On  the  22nd  of  September, 
1846,  the  servant  of  the  jDlaintiff  being  at  Howden  Fair,  for  the 
purpose  of  purchasing  Horses,  saw  there  the  Black  Gelding 
in  c[uestion,  and,  after  some  bargaining,  bought  him  for  150/., 
upon  the  defendant's  giving  the  above-mentioned  written  War- 
ranty. Before  the  completion  of  this  bargain  it  was  proved  by 
the  servant  himself,  that  he  observed  to  the  defendant  that  the 
fore  feet  of  the  Horse  presented  appearances  very  like  those 
consequent  on  fever,  although  when  trotted  and  cantered  on 
soft  ground  he  showed  no  symptoms  of  lameness.  From 
Howden  the  animal  was  taken  by  railway  to  the  plaintiff's 
residence,  where  he  remained  for  about  ten  days,  during  which 
time  nothing  more  was  done  with  him  than  merely  to  give 
him  a  little  phj'sic  and  moderate  exercise  in  a  neighbouring 
paddock.  At  the  end  of  that  time  he  was  sold  by  the  plaintiff' 
to  a  Mr.  Hardy,  who  resided  in  Warwickshire,  for  200/.,  with 
a  Warranty  of  soundness.  That  gentleman  had  the  Horse 
taken  safely  home,  and  kejit  for  about  a  month  on  gentle  daily 
exercise.     At  the  end  of  that  time  the  Horse,  on  being  one 


the  Feet. 


{q)  See  Hazard,  ante. 


UNllEPORTED  CASES.  475 

day  trotted  on  hard  ground,  was  for  the  first  time  found  to  go 
lame.  A  Veterinary  Surgeon's  opinion  was  then  taken,  and 
he  declared  the  Horse  to  be  unsound  from  disease  in  the  hoof, 
produced  by  previous  acute  fever,  and  thereupon  the  Horse 
was,  with  his  Certificate,  returned  to  plaintift',  who  paid  back 
to  Mr.  Hardy  the  200/.  purchase-money.  On  the  6th  of  No- 
vember, 1846,  the  defendant  was  made  aware  by  letter  of  what 
had  taken  place,  and  called  upon  to  receive  back  the  Horse, 
otherwise  he  would  be  sold  by  auction,  and  the  defendant  held 
responsible  for  any  difference  in  price.  At  first  the  defendant 
did  not  rej)ly,  but  at  length  he  wrote  to  regret  what  had  hap- 
pened, and  to  say  that  the  Horse  had  been  in  his  possession 
since  he  was  two  years  old,  and  never  had  been  lame  except 
for  a  day  from  a  thorn  picked  up  when  hunting,  and  that  he 
had  had  no  disease  at  all  whilst  in  his  possession.  The  de- 
fendant declining  to  take  back  the  Horse,  he  was  ultimately 
sold  at  Dickson's  Repository  for  50/.  I3s.  6d.  net,  and  for  the 
diiference  between  that  sum  and  his  cost  price  the  present 
action  was  brought. 

To  prove  the  alleged  unsoundness  a  number  of  Veterinary 
Surgeons  were  examined,  and  the  substance  of  their  evidence 
was,  that,  judging  Irom  the  flatness  of  the  Horse's  soles,  and 
the  sunken  and  ribbed  appearance  of  the  wall  of  the  hoof  of 
both  the  fore  feet,  they  Avere  afi^ected  by  disease,  the  off  one 
being  the  most  so  of  the  two.  That  the  disease  Chronic  Lami- 
nitis  consisted  of  a  partial  destruction  by  acute  inflammation 
of  the  lamince  of  the  foot,  being  that  internal  substance  which 
connected  the  sensitive  parts  with  the  insensitive  horny  cover- 
ing; and  there  was  a  consequent  unnatural  pressure  down- 
wards of  the  coffin  bone,  which  in  time  caused  the  sole  of  the 
hoof  to  become  flat.  This  disease  they  also  proved  rendered 
the  Horse  decidedly  unsound  and  liable  to  frequent  attacks  of 
lameness,  and  must  have  existed  for  some  considerable  time, 
eight  or  ten  months  ;  and  they  added,  that,  as  previous  acute 
inflammation  was  the  original  cause  of  the  disease,  the  Horse 
must  have  shown  lameness  before,  and  to  such  an  extent  as 
to  be  at  once  perceived.  The  further  evidence  was  that  of 
four  or  five  Horsedealers,  of  whom  the  two  fii-st  proved  that 
whilst  on  different  occasions  looking  at  the  Horse,  with  the 
object  of  purchasing  him  before  he  was  sold  to  the  plaintiff, 
each  observed  particularly  to  the  defendant  the  appearance 
of  his  fore  feet,  upon  which  the  defendant  said  to  one  of  them 
that  the  Horse  had  never  been  lame  except  once,  when  he 
had  the  fever  in  his  feet.  Two  other  witnesses  then  proved 
that  in  1845  the  same  Horse  had  been  sold  to  one  of  them 
with  a  Warranty  of  Soundness,  and  that  when  the  other  went 
to  receive  him  at  a  place  about  twenty-two  miles  distant 
from  the  plaintiff's  residence,  he  found  the  Horse  qiiite  lame, 
and  refused  to  accept  him ;  and  the  residt  was,  that  the  Horse 


476  APPEXuix. 

was  taken  back  to  the  defendant's,  and  an  end  put  to  the 
purchase. 

The  case  for  the  defendant  rested  on  the  ground  that  the 
Horse  had  been  in  his  possession  since  he  was  two  years  old, 
and  never  had  any  such  disease  as  that  stated  by  the  plain- 
tiff's witnesses ;  that  his  feet  had  always  remained  of  the 
same  appearance  from  birth,  and  that  the  Horse  had  never 
been  lame  with  him  but  once  from  the  prick  of  a  thorn.  To 
make  out  this  defence  the  person  who  bred  the  Horse  was 
called,  and  he  said  that  at  eighteen  months  old  the  Horse  got 
two  prizes  as  being  well  formed ;  that  he  had  good  strong 
feet  when  the  defendant  purchased  him  at  two  years  old,  in 
1842  ;  and  in  1844,  when  the  witness  again  saw  him,  his  feet 
had  not  been  altered  by  any  disease.  The  next  witness  was 
the  Groom  of  the  defendant  in  whose  care  the  Horse  had 
always  been,  and  he  said  the  Horse  was  rather  fiat-footed, 
and  his  hoof  was  a  little  ribbed  outside  and  sunk.  He  had, 
however,  always  been  so,  and  had  never  had  fever  in  his  feet 
or  any  other  disease,  or  shown  any  lameness  except  on  the 
occasion  when  he  was  proved  to  have  been  first  returned,  and 
then  only,  as  was  at  the  time  discovered,  from  the  effects  of  a 
thorn,  which  was  perfectly  cured  in  a  few  days.  The  Horse 
had  been  hunted  frequently  before  the  defendant  sold  him,  as 
also  after  having  lately  come  back  into  the  defendant's  ]ios- 
session,  without  exhibiting  any  lameness  whatever.  This 
witness  also  stated,  that,  although  in  the  defendant's  yard  on 
the  occasion  alluded  to  by  some  of  the  j)laintiff's  witnesses, 
he  had  never  heard  the  defendant  say  to  any  one  that  the 
Horse  had  had  fever  in  his  feet,  or  talk  particularly  about  the 
Horse's  feet.  Other  witnesses  were  called  to  prove  that  no 
alteration  from  disease  had  taken  place  in  the  Horse's  feet, 
and  that,  though  often  seen  out,  the  Horse  had  never  been 
observed  lame,  one  of  the  witnesses  who  proved  this  latter 
circumstance  being  the  son  of  the  party  who  purchased  the 
Horse  at  Dickson's. 

The  Lord  Chief  Justice  left  it  to  the  Jury  to  say  whether  or 
not  when  the  Horse  was  sold  to  the  plaintiff,  the  structure  of 
his  feet  had  been  altered  by  disease  to  such  an  extent  as  to 
cause  lameness,  and  render  him  unfit  for  ordinary  purposes. 
If  they  thought  such  had  been  the  case,  then  they  ought  to 
find  for  the  plaintiff,  but  if  otherwise  then  for  the  defendant. 
The  amount  of  damage,  if  any,  should  be  the  difference  be- 
tween the  cost  price  to  the  plaintiff  and  that  for  which  the 
Horse  was  sold. 

The  Jury  found  a  verdict  for  the  plaintiff.  Damages 
99/.  65.  ed. 


unreported  cases.  477 

Hyde  v.  Davis. 

Before  Mr.  Justice  Coleridge,  Liverpool  Spring  Assizes, 
March  24th,  1819. 
Wilkins,  Serjt.,  and  Aspinall,  for  tlie  plaintiff. 
Martin,  Q.C,  and  Atkinson,  for  the  defendant. 

This  was  an  action  on  the  Warranty  of  a  Horse.  Disease  of  the 

The  plaintiff  and  defendant  were  both  Horsedealers,  the  Lungs, 
plaintiff  carrying  on  business  in  Liverpool,  and  the  defend- 
ant at  Stratton-on-Harrow,  in  Herefordshire. 

On  the  23rd  of  August,  1848,  the  plaintiff  purchased  a 
young  Chesnut  Grelding  of  the  defendant  for  62/.,  with  the 
following  "Warranty :  "  This  is  to  certify  that  I  have  this  day 
sold  to  Mr.  James  Hyde,  Horsedealer,  a  Chesnut  Grelding ; 
the  said  Gelding  I  warrant  sound,  free  from  vice,  steady  in 
harness,  no  crib-biter,  and  no  wind-sucker."  Next  day  the 
Horse  was  sent  to  Liverpool,  and  appeared  to  have  a  little 
Cough.  On  being  put  into  the  plaintiff's  stables  the  Horse 
looked  depressed,  and  his  Cough  continued.  It  was  then 
found  that  he  had  a  sore  throat,  and  it  being  supposed  that 
he  had  taken  cold  he  was  treated  accordingly,  and  had  some 
stimulating  application  given  to  him  for  his  throat,  after 
which  he  seemed  better.  The  Horse  was  afterwards,  on  the 
22nd  of  Sei:)tember,  sold  at  Howden  Fair,  to  Mr.  Widdows, 
Veterinary  Surgeon,  who  took  him  to  Bristol,  where  he  died 
on  the  12th  of  October. 

After  death  there  was  a  post-mortem  examination  of  the 
Horse,  and  his  Lungs  were  found  to  be  extensively  diseased, 
to  be  full  of  tubercles,  and  of  the  substance  of  liver.  The 
Liver  was  also  double  its  proper  size.  The  Veterinary 
Surgeons  called  in  were  of  opinion,  and  gave  evidence  to  the 
effect,  that  the  Horse  died  from  disease  of  the  Lungs,  and 
that  the  disease  was  of  long  standing,  and  that  a  Horse  having 
such  a  disease  was  not  sound. 

For  the  defendant  it  was  contended  that  the  Horse  was 
sound  when  sold ;  that  he  had  been  bred  by  a  farmer,  who 
sold  him  to  the  defendant ;  that  the  Horse  had  never  done 
any  work,  and  was  five  years  old.  That  the  greatest  care  had 
been  taken  of  him,  as  he  had  been  bred  to  sell ;  that  the 
cause  of  his  death  was  sudden  inflammation  from  a  cold 
caught  after  he  had  been  sold,  when  travelling  to  and  from 
Fairs. 

To  prove  this  several  Veterinary  Surgeons  of  eminence  were 
called,  and  among  them  Professor  Dick,  of  the  Veterinary 
College,  Edinburgh,  founded  by  him  in  1817,  who  gave  evi- 
dence to  the  following  effect : — That  Disease  in  the  Lungs 
had  frequently  come  under  his  notice,  as  it  frequently  hap- 
pens in  Horses ;  the  ordinary  causes  being  changes  of  tem- 
perature, particularly  a  transition  from  cool  air  to  a  close 


478  APPENDIX. 

coiifiaed  stable,  and  more  especially  during  the  prevalence 
of  particular  winds.  The  disease  is  usually  ascertained  b}^  a 
Cougb,  there  being  commonly  a  slight  shivering.  It  always 
affects  the  skin  more  or  less,  the  coat  stares,  the  animal  seems 
unthrifty,  and  is  never  in  sleek  condition.  The  breathing 
and  pulse  are  always  more  or  less  affected.  The  Lungs  be- 
come liverlike,  and  have  tubercles  and  abscesses,  which  run 
into  one  another  and  are  two  different  stages.  A\Tien  the 
Lungs  are  much  diseased  or  hepatized,  there  is  an  interrup- 
tion of  blood  and  consequent  enlargement  of  the  Liver. 
Hepatization  takes  place  very  rapidly  in  the  Lungs,  in  con- 
sequence of  their  extreme  vascularity.  It  seldom  happens 
that  both  Lungs  are  equally  affected.  AVhen  inflammation 
has  taken  place  sufficiently  to  produce  hepatization,  there  is 
an  invariable  tendency  to  produce  tubercles  and  abscesses. 
Then  the  disease  commonly  runs  its  coiu-se  from  ten  days  to 
a  fortnight,  depending  in  some  measure  upon  the  treatment. 
If  he  had  found  the  Lungs  hepatized  Avith  tubercles  and 
abscesses,  and  the  Liver  double  its  weight,  containing  cheesy 
matter,  he  should  have  said  it  had  lasted  for  a  week.  He 
had  however  met  with  many  cases  of  tubercles,  abscesses,  and 
hepatization,  which  must  have  lasted  longer.  He  had 
known  a  Liver  enlarged  twice  its  natural  dimensions  in  less 
than  a  week.  This  arises  from  distension  with  blood.  He 
should  expect  the  Liver  to  be  congested.  If  it  was  very 
pale  the  complaint  must  have  been  chronic.  Purging  carried 
to  excess  increases  inflammation  of  the  Lungs.  The  func- 
tions of  the  Liver  is  to  separate  the  bile  from  the  blood.  He 
should  expect  to  find  irritation  of  the  bowels  when  the  Liver 
is  enlarged.  The  Liver  in  this  case  weighed  32  lbs.  instead 
of  15  lbs.  The  disease  is  like  a  galloping  consumption  in  a 
human  being. 

In  answer  to  a  question  put  by  the  learned  Judge  the 
witness  said, — "I  consider  the  disease  in  the  Lungs  began 
within  a  fortnight  of  his  d-eath,  but  that  there  had  been  a 
Catarrh  from  the  time  the  man  led  him  home." 

Mr.  Justice  Colekidge  told  the  Jury  that  the  question 
they  had  to  consider  was,  had  the  Horse  the  seeds  of  the  dis- 
ease on  the  23rd  of  August?  The  plaintiff'  must  make  out 
this  proposition.  The  defendant  maintained  that  the  Horse 
was  sound  at  the  time  of  delivery.  The  Horse  had  been  sold 
a  short  time  before  his  death,  and  both  the  plaintiff  and  the 
buyer  had  been  taken  in. 

The  Jury  found  a  verdict  for  the  plaintiff.     Damages  62/. 


■UNREPORTHl)  CASES.  479 

Buckingham  v.  Eogers. 
Before  Martin,  B.,  Guildhall,  Dec.  \2>th,  1864. 

Huddleston,  Q.C.,  and  Barnard,  for  the  plaintiff. 

//.  James  and  Talfourd  Salter  for  the  Defendant. 

This  was  an  action  on  the  Warranty  of  a  Horse.  Disease  of  the 

The  plaintiff,  a  Horsedealer,  on  the  2nd  of  Juno,  1864,  Lungs, 
purchased  at  Eugby  Fair  a  grey  Mare,  fit  for  cartwork,  from 
the  defendant,  who  was  farm  bailiff  under  Mr.  Nash,  the 
manager  of  Lord  Shrewsbury,  to  whom  the  Horse  belonged. 
A  written  "Warranty  was  given  with  the  Mare,  which  was  sold 
for  29/.  The  plaintiff'  brought  her  up  to  London,  and  ac- 
cording to  his  case,  she  shortly  after  appeared  ill,  whereupon 
he  called  in  a  farmer  to  doctor  her.  She  seemed  at  first  to 
recover,  but  eventually,  on  the  26th  of  July,  she  died,  when  it 
was  discovered  that  her  lungs,  liver  and  spleen  were  most 
extensively  diseased.  The  plaintiff's  witness  swore  that  the 
animal  must  have  been  greatly  diseased  at  the  period  she 
was  piirchased  by  the  plaintiff. 

The  defence  was,  that  the  animal  had  been  in  perfect 
health  up  to  the  time  the  Warranty  was  given,  and  that  the 
disease  was  the  effect  of  her  being  put  into  a  hot  stable  and 
fed  upon  stimulating  food. 

The  Jury  found  a  verdict  for  the  defendant. 


Elvin  v.  Chapman. 
Before  Lord  Camphell,  C.  J.,  Norivich  Spring  Assizes,  1853. 
G'Malley,  Q.C.,  and  Evans,  for  the  plaintiff. 
Prendergast,  Q.C.,  and  Bulwer,  for  the  defendant. 
This  was  an  action  on  the  Case  for  damage  sustained  by  the  Negligent 
plaintiff,  in  consequence  of  being  thrown  out  of  his  cart  by  driving  in 
a  collision  occasioned  by  the  negligent  driving  of  the  defend-  • 

ant's  son. 

The  plaintiff  was  a  small  tradesman  living  at  Marsham,  a 
village  between  Aylsham  and  Norwich,  to  and  from  which 
city  a  coach  runs  daily,  the  defendant  being  its  owner,  and 
his  son  the  driver.  On  the  7th  of  February  the  plaintiff'  was 
driving  home  in  his  Pony  cart  from  Aylsham  in  the  evening, 
when  as  he  approached  the  last  gas-lamp  he  was  suddenly 
appi-ised  by  a  friend,  to  whom  he  was  giving  a  lift,  of  the 
approach  of  the  coach  on  its  wrong  side  and  without  lamps. 
.  The  plaintiff  stated  that  he  called  out  and  drew  up  to  the 
wall  on  his  proper  side  to  avoid  the  coach,  but  the  coachman 
seemed  to  be  ignorant  of,  or  indifferent  to,  the  call,  and  drove 
on  till  the  splinter-bar  struck  the  cart-wheel  with  such  vio- 
lence as  to  force  the  cart  against  the  Avail  and  project  the 


480  APPENDIX. 

plaintifl'  from  his  seat  to  the  road,  wheu  he  received  such  in- 
juries as  "  imsensed  him"  and  rendered  it  necessary  that  he 
should  be  taken  to  a  neighbouring  Chymist.  From  that 
time  to  the  present  the  plaintitf  had  continued  to  suffer  much 
from  lameness,  caused  by  the  fall,  and  his  business  had 
diminished  through  his  inability  to  attend  to  it  as  heretofore. 
It  further  appeared  that  when  the  accident  occurred  the 
defendant's  son  laid  the  blame  on  the  improper  site  chosen 
for  the  gas-lamp  by  the  authorities,  and  that  the  defendant,  on 
being  applied  to  for  compensation  by  the  plaintiff,  offered  to 
repair  the  cart,  but  refused  to  pay  anything  for  the  personal 
injury  received  bj^  the  plaintiff. 

For  the  defendant  witnesses  were  called  to  prove  that  the 
coach  was  going  at  its  usual  pace  into  Aylsham,  and  that  the 
gas-lamp  was  so  improperly  placed  as  to  prevent  any  one 
from  seeing  beyond  it,  and  that  the  coach  had  just  passed  it 
when  a  shout  arose,  which  was  immediately  followed  by  a 
collision,  the  coach  being  then  somewhere  about  the  middle  of 
the  road.  That  the  driver  was  a  very  steady  man,  and  that 
in  consequence  of  this  accident  the  lamp  had  been  removed  to 
a  more  suitable  site  ;  and  that  every  attention  was  paid  by 
the  driver  to  the  plaintiff. 

The  Juiy  found  a  verdict  for  the  plaintiff.     Damages  30/. 


BOWDEN  V.  Shermais'. 
Before  Lord  Campbell,  C.  J.,  Guildhall,  July  2,  1853. 
James,  Q.O.,  and  Phinn,  for  the  plaintiff. 
Wilkins,  Serjt.,  and  Willes,  for  the  defendant. 
Negligent  This  was  an  action  on  the  Case  to  recover  compensation  for 

diiving  at  a      injuries  sustained  by  the  plaintiff  by  reason  of  the  negligent 
~  ""  driving  of  the  defendant's  Servant. 

It  appeared  that  about  two  o'clock  in  the  afternoon  of  the 
22nd  of  October  the  plaintiff,  who  was  sixty  years  of  age,  was 
in  the  Hampstead  lioad,  near  Southampton  Street.  It  was 
raining  at  the  time,  and  she  had  her  umbrella  up.  According 
to  her  statement,  she  looked  up  Southampton  Street,  and 
seeing  nothing  coming,  she  proceeded  to  cross  the  street,  but 
while  doing  so  she  was  knocked  down  by  the  shaft  of  a  Cart 
driven  by  one  of  the  defendant's  Servants.  The  defendant 
was  a  carrier,  but  he  had,  in  fact,  sold  his  carrying  business 
to  the  Great  Western  Eailway  Company.  The  driver  was  not 
by  the  side  of  his  Horse,  but  was  in  the  Cart,  driving  the 
Horse  with  reins.  The  plaintiff  was  immediately  assisted  by 
the  bystanders,  and  carried  into  the  surgery  of  a  neighbouring 
surgeon,  where  she  was  attended  to.  She  was  then  taken 
home  and  confined  to  her  bed  for  six  weeks.     During  this 


crossing. 


UNREPORTED  CASES.  481 

time  she  suffered  great  pain  from  the  laceration  of  the  muscles 
of  the  leg  and  the  injury  done  to  the  arteries. 

For  the  defendant  witnesses  Avere  called  to  prove  that  the 
driver  was  a  careful  and  experienced  man ;  that  he  was  going 
at  the  time  at  a.  rate  of  only  about  four  or  five  miles  an  hour ; 
and  that  he  called  out  to  the  plaintiff,  but  that  she,  instead  of 
paying  attention,  ran  against  the  shaft  and  was  knocked 
down.  It  also  appeared  that  there  was  a  descent  in  that  part 
of  Southampton  Street,  which,  it  was  suggested,  had  accele- 
rated the  pace  of  the  Horse  and  rendered  it  more  difficult  to 
pull  up. 

The  Jury  found  a  verdict  for  the  plaintiff'.     Damages  150/. 

Lord  Campbell  said,  now  that  the  case  was  over,  he  thought 
it  right  to  say  that  these  vehicles  ought  not  to  go  at  the  pace 
they  did,  especially  when  turning  the  corners  of  streets.  It 
was  impossible  to  go  along  the  streets  without  seeing  her  Ma- 
jesty's subjects  in  imminent  peril.  Only  a  short  time  ago 
Mr.  Commissioner  Phillips  had  met  with  a  very  similar  acci- 
dent, which  was  near  proving  fatal.  It  was  not  enough  to 
shout  oiit,  which  might  have  the  effect  of  depriving  a  person 
of  presence  of  mind  ;  but  these  vehicles  ought  to  go  at  a 
reasonable  pace,  particularly  when  turning  corners. 


Hadland  v.  Price. 

Before  Lord  Campbell,  C.  J.,  Queen^s  Bench  Sittings, 
November  29,  1853. 

E.  James,  Q.C,  and  Petersdorff,  for  the  plaintiff. 
G' Mallei),  Q.C,  and  Power,  for  the  defendant. 

This  action  was  brought  to  recover  the  value  of  a  Racehorse  A  "Selling 
named  Economy,  and  also  money  lent  by  the  plaintiff'  to  the  Kace." 
defendant.     The  defendant  pleaded  the  general  issue  to  both 
counts,  and,  as  to  the  count  upon  the  Horse,  he  also  pleaded 
that  it  was  not  the  plaintiff's  Horse. 

It  appeared  that  the  plaintiff  and  defendant  attended 
Pochester  and  Chatham  Paces,  where  a  Pace  was  run  called 
a  "Selling"  Pace.  This  was  explained  to  mean  a  Race  for 
which  Horses  were  entered  upon  the  terms  that  the  Horse 
which  won  the  Race  was  to  be  sold  by  auction  to  the  highest 
bidder,  but  the  owner  was  to  receive  only  the  price  which  he 
had  put  upon  the  Horse  when  it  was  entered,  the  balance 
going  to  the  Race-fund.  Horses  thus  entered  were  weighted 
according  to  the  amount  put  upon  them,  those  of  the  highest 
price  carrying  the  greatest  weight.  At  the  last  Chatham 
Races  the  Horse  Economy  won  the  Speculation  Plate,  and  was 
afterwards  sold  by  auction  at  the  winning-post  for  65  guineas. 

O.  II 


482  APPENDIX. 

The  question  now  was  wliether  the  plaintiff  or  the  defendant 
■was  the  purchaser. 

Accordinp:  to  the  evidence  given  by  the  plaintiff  and  Man- 
ning, the  Clerk  of  the  Newmarket  Jockey  Club,  who  was 
standing  by  the  Auctioneer,  the  Horse  was  knocked  down  to 
the  plaintiff.  The  plaintiff  then  discovered  that  he  had  only 
451.  in  his  pocket,  and,  not  wishing  it  to  be  known  that  he 
was  the  purchaser,  he  borrowed  20/.  5s.  of  the  defendant,  and 
giving  him  the  45/.,  got  him  to  pay  for  the  Horse,  and  to  take 
a  receipt  for  the  price  in  his  name.  According  to  the  j)lain- 
tift^'s  evidence,  the  defendant,  when  he  had  thus  got  the 
Horse,  refused  to  give  it  up  to  the  plaintiff,  unless  he  would 
pay  him  51.  for  his  trouble ;  but  the  plaintiff  refused  to  give 
him  more  than  a  half-sovereign.  The  defendant  then  kept 
the  Horse.  The  next  day  the  plaintil¥  again  went  down  to 
Chatham,  and  tlien  found  that  the  Horse  Economy  had  been 
entered  for  the  West  Kent  Stakes  in  the  name  of  a  person 
named  Hitchin.  The  plaintiff  protested  against  this,  and 
claimed  his  Horse,  but  it  was  allowed  to  run,  and  won  the 
stakes,  value  at  50/.,  and  was  again  sold  the  same  day  for  an 
increased  price.  Evidence  was  also  given  to  show  that  the 
defendant,  on  the  day  of  the  first  sale,  admitted  the  plaintiff 
had  bought  the  Horse,  but  stated  that  he  (the  defendant)  had 
got  an  oft'er  of  15/.  for  the  bargain,  and  that  if  the  plaintiff 
would  not  give  him  51.  he  would  stick  to  the  Horse.  The 
defendant  sold  the  Horse  the  same  day. 

For  the  defence,  the  defendant  himself  came  into  the  wit- 
ness box  and  said  that  he  had  several  times  bid  for  the  Horse, 
and  that  it  was  at  last  knocked  down  to  him.  He  stated  that, 
though  he  had  a  chec[ue  for  a  considerable  amount  in  his 
j)ocket  at  the  time,  he  had  only  23/.  5s.  in  cash,  and  that  he 
borrowed  the  sum  of  45/.  from  the  plaintiff  to  make  up  the 
amount  required.  He  offered  to  return  the  borrowed  money 
the  same  evening,  but  the  plaintiff  refused  to  accept  it, 
alleging  that  he  was  the  purchaser.  The  Auctioneer  who 
sold  the  Horse  was  called,  and  he  deposed  that  the  defendant 
was  the  purchaser ;  but  it  appeared  there  was  a  large  con- 
course of  people,  and  considerable  confusion  at  the  time  of 
the  sale. 

The  Jury  found  a  verdict  for  the  plaintiff.  Damages  100 
Guineas,  reduced  by  the  set-off  to  82/. 


UNREPORTED  CASES.  483 


Peecival  v.  Dudgeon. 

Before  Lord  Chief  Baron  Pollock,  Exchequer,  N.  P., 
'December  1th,  1853. 

Maccmley,  Q.C.,  and  Willes,  appeared  for  the  j^laintiff. 

Keating,  Q.O.,  and  Iloncyman,  for  the  defendant. 

The  phiintiff  in  this  ease  was  a  Horsedealer  and  Riding-  Horse  da- 
Muster  carrj'ing  on  business  in  London  and  Brighton,  and  maged  by 
this  was  an  action  to  recover  the  value  of  a  Horse  described  "eg-hgent 
as  "a  very  quiet,  beautiful,  park-like,  Arab-bred  Gelding-,"  ^  °" 
which  had  been  injured  through  the  alleged  negligent  driving 
of  the  defendant's  coachman  in  June.  It  appeared  that  this 
animal  had  been  j)urchased  in  the  previous  Ajiril  by  the 
plaintiff  for  25^.,  and  that  just  before  June  the  Horse  had 
improved  so  much  that  the  plaintiff  asked  70  guineas,  and 
refused  50  guineas  for  him.  On  the  day  in  question  the 
plaintiff's  foreman  was  riding  the  Horse  to  Lincoln's  Inn 
Fields,  and  was  standing  still  in  the  gutter  at  the  corner  of 
Cranbourn  Street  and  St.  Martin's  Lane,  waiting  an  oppor- 
tunity to  pass  through  the  throng  of  carriages  at  the  entrance 
of  Long  Acre,  when  the  carriage  of  the  defendant  dashed 
out  of  the  rank  to  pass  the  carriages  before  him,  and,  in 
passing  the  Horse,  struck  him  violently  on  the  off  hock. 
The  effect  of  this  blow  was  to  throw  the  animal  on  the  foot 
pavement,  where  he  struggled  violently  to  keep  his  feet,  and 
in  so  doing  strained  his  back  to  such  an  extent  that  after  a 
month's  fruitless  doctoring,  at  an  expense  of  16/.  lOs.,  it  was 
deemed  advisable  to  send  him  to  the  hammer  at  Aldridge's, 
where  he  fetched  14|-  guineas.  This  account  of  the  collision 
was  supported  by  the  evidence  of  the  rider  and  three  specta- 
tors, but  was  entirely  contradicted  by  the  coachman  of  the 
defendant  and  other  spectators,  the  effect  of  whoso  evidence 
went  to  show  that  the  Horse  was  jumping  about,  and  never 
was  struck  by  the  carriage  at  all,  but  got  on  the  pavement 
entirely  in  consequence  of  the  rider  having  spurred  him  as 
the  carriage  was  passing. 

The  Jury  found  a  verdict  for  the  plaintiff.  Damages 
48/.  8s.  9f/.,  exclusive  of  the  sum  realized  on  the  sale  of  the 
Horse. 


it2 


PART   II. 


The  penalty 
foi"  maiute- 
nance  of  a 
house  for  iin- 
hiwful  srames. 


The  penalty 
for  resorting 
to  a  house 
of  unlawful 
games. 

Magistrates 
may  repress 
imlawful 
games  and 
punish  of- 
fenders. 


STATUTES. 

33  Hexry  YIII.  Cap.  9. 

The  Bill  for  the  Maintai)iing  Artillery,  and  the  Debarring  of 
Unlauful  Games. 

Sect.  11.  Be  it  enacted,  That  no  manner  of  person  or  per- 
sons, of  what  degree,  equality  or  condition  soever  he  or  they 
be,  from  the  Feast  of  the  Nativity  of  St.  John  Baptist  now 
next  coming,  by  himself,  factor,  deputy,  servant  or  other 
person,  shall  for  his  or  their  gain,  lucre  or  living,  keep,  have, 
hold,  occupy,  exercise  or  maintain,  any  common  house,  alley 
or  place  (a)  of  dicing,  table,  or  carding,  or  any  other  manner 
of  game  prohibited  by  any  estatute  heretofore  made,  or  any 
unlawful  new  game  now  invented  or  made,  or  any  other  new 
unlawful  game  hereafter  to  be  invented,  found,  had  or  made, 
upon  pain  to  forfeit  and  pay  for  every  day  keeping,  having 
or  maintaining,  or  suffering  any  such  game  to  be  had,  kept, 
executed,  played  or  maintained  Avithin  any  such  house,  garden, 
alley  or  other  place,  contrary  to  the  form  and  effect  of  this 
estatute,  forty  shillings. 

12.  And  also  every  person  using  and  haunting  any  of  the 
said  houses  and  plays,  and  there  playing,  to  forfeit  for  every 
time  so  doing,  six  shillings  and  eight-pence. 

14.  Be  it  further  enacted.  That  it  shall  be  lawful  to  all  and 
every  the  justices  of  peace  in  every  shire,  mayors,  sheriffs, 
bailiffs  and  other  head  officers  within  every  city,  town  and 
borough  within  this  realm,  from  time  to  time,  as  well  within 
liberties  as  without,  as  need  and  case  shall  require,  to  come, 
enter  and  resort  into,  all  and  every  houses,  places  and  alleys 
where  such  games  shall  be  susj^ected  to  be  holden,  exercised, 
used  or  occupied,  contrary  to  the  form  of  this  estatute  ;  and 
as  well  the  keepers  of  the  same,  as  also  the  persons  there 
haunting,  resorting  and  playing,  to  take,  arrest  and  imprison, 
and  them  so  taken  and  arrested  to  keep  in  prison  unto  such 
time  as  the  keepers  and  maintainers  of  the  said  plays  and 
games  have  found  sureties  to  the  king's  use,  to  be  bound  by 
recognizance  or  otherwise,  no  longer  to  use,  keep  or  occupy 
any  such  house,  play,  game,  alley  or  place  {h) ;  and  also  that 


(«)  Keeping  a  Cock-pit  is  within 
this  statute;  Dalton,  c.  40. 


{b)   For  further   provisions,    see 
2  Geo.  2,  c.  28,  s.  9,  Appendix. 


STATUTES.  485 

the  persons  there  so  found  be  in  like  case  hound  by  them-  Further  pro- 
selves,  or  else  with  sureties,  by  the  discretions  of  the  justices,  visions  re- 
mayors,   sheriffs,  baihtfs   or  other  head  officers,  no  more  to  lati;°o  hereto, 
play,  haunt  or  exercise  from  thenceforth  in,  at  or  to  any  of  ^  28°'s  9 
the  said  places,  or  at  any  of  the  said  games. 

16.  Be  it  also  enacted  by  the  authority  aforesaid,  That  no  Persons  pro- 
manner  of  artificer  or  craftsman  of  an}'-  handicraft  or  occupa-  hibited  to  play 
tion,  husbandman,  apprentice,  labourer,  servant  at  husbandry,  ^*  unlawful 
journeyman    or    servant    of    artificer,    mariners,    fishermen,   chxi'^tmas (°) 
watermen  or  any  serving-man,  shall  from  the  said  Feast  of 

the  Nativity  of  St.  John  Baptist,  play  at  the  tables,  dice, 
cards,  or  any  other  unlawful  game,  out  of  Christmas,  under 
the  pain  of  twenty  shillings,  to  be  forfeit  for  every  time  ;  and 
that  all  justices  of  peace,  mayors,  bailiffs,  sheriffs  and  all 
other  head  officers,  and  every  of  them,  finding  or  kno^^"ing 
any  manner  of  person  or  persons  using  or  exercising  any 
unlawful  games,  contrary  to  this  present  statute,  shall  have 
full  power  and  authority  to  commit  every  such  offender  to 
ward,  there  to  remain  without  bail  or  mainprise  until  such 
time  that  they  so  offending  be  bounden  by  obligation  to  the 
king's  use  in  such  sums  of  money  as  by  the  discretions  of 
the  said  justices,  mayors,  bailiffs  or  other  head  officers  shall 
be  thought  reasonable,  that  they  or  any  of  them  shall  not 
from  henceforth  use  such  unlawful  games. 

17.  Be  it  further  enacted  by  the  authority  aforesaid.  That  All  other  sta- 
all  other  statutes  made  for  the  restraint  of  unlawful  games,  or  tutes  made 
for  the  maintenance  of  artillery,  as  touching  the  penalties  or  ^oamst  im- 
forfeitures  of  the  same,  shall  be  from  hencefoi'th  utterly  void;  an^  for  the    ' 
and  that  all  informations,  plaints,  actions  or  suits  that  shall  maintenance 
be  taken  or  siied  upon  any  part  of  this  statute,  shall  be  com-  of  artillery 
menced  within  the  year  after  the  offence  committed  and  done,  repealed. 

or  otherwise  no  advantage  or  suit  thereof  to  be  taken. 

18.  And  where  any    such   forfeitures    shall  happen  to  be  Within  what 
found  within  the  precinct  of  any  franchise,  leet  or  lawday,  *™^  ^^  ^"^* 
then  the  lord  of  the  same  franchise,  leet  or  lawday  to  have  geCTited^iipon 
the  one  moiety  thereof,  and  the  other  moiety  thereof  to  any  of  this  statute 
the  king's  subjects  that  will  sue  for  the  same  in  any  of  the  and  who  shall 
king's  courts,   by  action,  information,    bill  or  otherwise,   in  ^^^^'^  ^^^  ^°^' 
which  action  or  suit  the  defendant  shall  not  be  admitted  to  ^^^tures. 
wage  his  law,  nor  any  protection  nor  essoin  shall  be  allowed  ; 

and  where  such  forfeiture  shall  be  found  out  of  the  precinct  of 
any  franchise,  leet  or  lawday,  that  the  moiety  of  all  such 
forfeitures  shall  be  to  the  king,  our  sovereign  lord,  and  the 
other  moiety  thereof  to  any  the  king's  subjects  that  will  sue 
for  the  same  by  bill,  plaint,  action,  information  or  otherwise, 
in  any  of  the  king's  courts,  in  which  suit  or  action  the  defen- 
dant shall  not  be  admitted  to  wage  his  law,  nor  any  protection 
or  essoin  shall  be  allowed. 

((■)  1  Lutw.  1. 


486 


APFExNDlX. 


Proclamation  19.  Aud  to  tlie  intent  that  every  person  may  liave  know- 
of  this  statute,  ledgo  of  tliis  act,  and  avoid  the  danger  and  penalties  of  the 
same,  be  it  enacted  by  the  authority  aforesaid,  That  all  mayors, 
bailiffs,  sheriffs  and  all  other  head  officers  shall  four  times  in 
the  year,  that  is  to  say,  every  quarter  once,  make  open  pro- 
clamation of  this  present  act  in  every  market  to  be  holden 
within  their  several  jiuisdictions  and  authorities. 

20.  And  also  that  the  justices  of  gaol  delivery,  assizes  and 
justices  of  peace,  do  cause  the  same  to  be  proclaimed  in  their 
several  circuits  and  sessions  before  them  holden,  and  that  this 
statute  shall  begin  to  take  his  effect  concerning  the  penalties 
of  the  same  from  the  said  Feast  of  St.  John  Baptist  now  next 
coming,  and  to  continue  and  endure  for  ever. 


11  Hen.  7, 
c.  13. 

Further  pro- 
visions re- 
latiui?  hereto. 
31  Eiiz.  c.  12. 


In  what  man- 
ner horses 
shall  be  sold 
in  fairs  or 
markets. 

The  former 
misuse  in  sale 
of  stolen 
horses. 
A  place  shall 
be  appointed 
for  a  horse 
fair  and  also 
a  toll  taker. 

"When,  where, 
and  of  whom 
toll  for  horses 
shall  be  taken. 


2  &  3  Philip  and  Mary,  Cap.  7. 
An  Act  ac/ainst  the  Buyincj  of  Stolen  Horses. 

"Forasmuch  as  stolen  horses,  mares  and  geldings  by 
thieves  and  their  confederates,  be  for  the  most  parts  sold, 
exchanged,  given  or  put  away  in  houses,  stables,  back-sides 
and  other  secret  and  privy  places  of  markets  and  fairs,  and 
the  toll  also  privily  paid  for  the  same,  whereby  the  true 
owners  thereof  being  not  able  to  try  the  falsehood  and  covin 
betwixt  the  buyer  and  seller  of  such  horse,  mare  or  gelding, 
is  by  the  common  law  of  this  realm  without  remedy  :" 

2.  Be  it  therefore  enacted  by  the  authority  of  this  present 
parliament,  That  the  owner,  governor,  ruler,  fermor,  steward, 
bailiff'  or  chief  keeper  of  every  fair  and  market  overt  within 
this  realm,  and  other  the  queen's  dominions,  shall  before  the 
feast  of  Easter  next,  and  so  yearl}^,  appoint  and  limit  out  a 
certain  and  special  open  place  within  the  town,  place,  field  or 
circuit  where  horses,  mares,  geldings  and  colts  have  been  and 
shall  be  used  to  be  sold  in  any  fair  or  market  overt ;  in  which 
said  certain  and  open  place  as  is  aforesaid  there  shall  be  by 
the  said  ruler  or  keeper  of  the  said  fair  or  market,  put  in  and 
appointed  one  sufficient  person  or  more  to  take  toll  and  keep 
the  same  place  from  ten  of  the  clock  before  noon  until  sunset 
of  every  day  of  the  foresaid  fair  and  market,  upon  pain  to 
lose  and  forfeit  for  every  default  forty  shillings :  And  that 
every  toll-gatherer,  his  deputy  or  deputies,  shall,  during  the 
time  of  every  the  said  fairs  and  markets,  take  their  due  and 
lawful  tolls  for  every  such  horse,  mare,  gelding  or  colt  at  the 
said  open  place  to  be  appointed  as  is  aforesaid,  and  betwixt 
the  hours  of  ten  of  the  clock  in  the  morning  and  sunset  of  the 
same  day,  if  it  be  tendered,  and  not  at  any  other  time  or 
place ;  and  shall  have  presently  before  him  or  them,  at  the 
taking  of  the  same  toll,  the  parties  to  the  bargain,  exchange, 


>sTATUT?:s.  487 

gift,  contract  or  puttiug  away  of  every  sucli  horse,  mare, 
gelding  or  colt ;  and  also  the  same  horse,  mare,  gelding  and 
colt  so  sold,  exchanged  or  put  away ;  and  shall  then  write  or 
cause  to  be  written  in  a  book  to  be  kept  for  that  purpose,  the 
names,  surnames  and  dwelling-j)laces  of  all  the  said  parties, 
and  the  colour,  with  one  special  mark  at  the  least  of  every 
such  horse,  mare,  gelding  and  colt,  on  pain  to  forfeit  at  and 
for  every  default  contrary  to  the  tenor  thereof,  forty  shillings. 

3.  And  the  said  toll-gatherer  or  keeper  of  the  said  book  A  note  of  all 
shall  within  one  day  next  after  every  such  fair  or  market  horses  sold 
bring  and  deliver  his  said  book  to  the  owner,  governor,  ruler,  ^^   v^f ^'  °^ 
steward,  bailiff  or  chief  keeper  of  the  said  fair  or  market,  ™^^  ^  * 
who  shall  then  cause  a  note  to  be  made  of  the  true  number  of 

all  horses,  mares,  geldings  and  colts  sold  at  the  said  market 
or  fair,  and  shall  there  subscribe  his  name,  or  set  his  mark 
thereunto  ;  upon  pain  to  him  that  shall  make  default  therein, 
to  lose  and  forfeit  for  every  default  forty  shillings,  and  also 
answer  the  party  grieved  by  reason  of  the  same  his  negligence 
in  every  behalf. 

4.  And  be  it  further  enacted  by  the  authority  aforesaid,  The  using  of 
That  the  sale,  gift,  exchange  or  putting  away  after  the  last  '?■  stolen  horse 
day  of   February  now  next  coming,   in  any  fair  or  market  ^^     "j' 
overt,  of  any  horse,  mare,  gelding  or  colt  that  is  or  shall  be  owner's  pro- 
thievishly  stolen  or  feloniously  taken  away  from  a.ny  person  perty  shall 
or  persons,  shall  not  alter,  take  away  nor  exchange  the  pro-  he  taken 
perty  of  any  person  or  persons  to  or  from  any  such  horse,  ^'^^'^J- 
mare,  gelding  or  colt,  unless  the  same  horse,  mare,  gelding 

or  colt  shall  be  in  the  time  of  the  said  fair  or  market  wherein 
the  same  shall  be  so  sold,  given,  exchanged  or  put  away, 
openly  ridden,  led,  walked,  driven  or  kept  standing  by  the 
space  of  one  hour  together  at  the  least,  betwixt  ten  of  the 
clock  in  the  morning  and  the  sun-setting,  in  the  open  place 
of  the  fair  or  market  wherein  horses  are  commonly  used  to  be 
sold,  and  not  within  any  house,  yard,  back-side  or  other  privy 
or  secret  place,  and  unless  all  the  parties  to  the  bargain,  con- 
tract, gift  or  exchange,  present  in  the  said  fair  or  market,  shall 
also  come  together  and  bring  the  horse,  mare,  gelding  or  colt 
so  sold,  exchanged,  given  or  put  away  to  the  open  place  ap- 
pointed for  the  toll  taker,  or  for  the  book  keeper,  where  no 
toll  is  due,  and  there  enter  or  cause  to  be  entered  their  names 
and  dwelling-places,  in  manner  as  is  aforesaid,  with  the  colour 
or  colours,  and  one  special  mark  at  the  least  of  every  the 
same  horses,  mares,  geldings  or  colts,  in  the  toll  taker's  book, 
or  in  the  keeper's  book  for  that  purpose  where  no  toll  is  due, 
as  is  aforesaid,  and  also  pay  him  their  toll,  if  they  ought  to 
pay  any ;  and  if  not,  then  the  buyer  to  give  one  penny  for 
the  entry  of  their  names,  and  executing  the  other  circum- 
stances afore  rehearsed,  to  him  that  shall  write  the  same  in 
the  said  book. 


488 


APPENDIX. 


The  justices 
of  peace  shall 
hear  and  de- 
termine the 
offences 
aforesaid. 

The  allow- 
ance of  the 
keeper  of  the 
book  where 
no  toll  is  due. 


5.  And  if  any  horse,  mare,  gelding  or  colt  that  is  or  sliall 
be  thievislily  stolen  or  taken  away,  sliall  after  the  said  last 
day  of  February  next  coming  be  sold,  given,  exchanged  or 
j)ut  a^va}^,  in  any  fair  or  market,  and  not  used  in  all  points 
according  to  the  tenor  and  intent  of  this  estatute,  that  then 
the  owner  of  every  such  horse,  mare,  gelding  or  colt,  shall 
and  may  by  force  of  this  estatute  seize  or  take  again  the  said 
horse,  mare,  gelding  or  colt,  or  have  an  action  of  Detinue  or 
Replevin  for  the  same ;  any  sale,  gift,  exchange  or  putting 
away  of  any  such  horse,  mare,  gelding  or  colt,  other  than 
according  to  this  estatute,  in  anywise  notwithstanding. 

6.  The  one-half  of  all  which  forfeitures  to  be  to  the  king 
and  queen's  majesties,  her  heirs  and  successors,  and  the  other 
to  him  or  them  that  will  sue  for  the  same  before  the  justices 
of  peace,  or  in  any  of  the  king's  and  queen's  majesties  ordi- 
nary courts  of  record,  by  bill,  plaint,  action  of  Debt  or  infor- 
mation, in  which  suits  no  protection,  essoin  or  wager  of  law 
shall  be  allowed. 

7.  And  be  it  enacted  by  the  authority  aforesaid,  That  the 
justices  of  peace  of  every  place  and  county,  as  well  within 
liberties  as  without,  shall  have  authority  in  their  sessions, 
within  the  limits  of  their  authority  and  commission,  to  inquire, 
hear  and  determine  all  offences  against  this  estatute,  as  they 
may  do  aay  other  matter  triable  before  them. 

8.  Provided  alway,  that  in  every  such  fair  or  market  where 
any  toll  is  nor  shall  be  due  ne  leviable  by  reason  of  the  free- 
dom, liberty  or  privilege  of  the  said  fair  or  market,  the  keejier 
or  keepers  of  the  book,  touching  the  execution  of  this  present 
act,  shall  take  nor  exact  but  one  penny  upon  and  for  every 
contract  for  his  labour  in  writing  the  entry  concerning  the 
premises,  in  manner  and  form  as  is  before  declared. 


31  Eliz.,  Cap.  12. 

An  Act  to  avoid  Horse  Stealing. 

"  AVhereas  through  most  coimties  of  this  realm  horse  steal- 
ing is  grown  so  common,  as  neither  in  pastures  or  closes,  nor 
hardly  in  stables,  the  same  are  to  be  in  safety  from  stealing, 
which  ensueth  by  the  ready  buying  of  the  same  by  horse- 
coursers  and  others,  in  some  open  fairs  or  markets  far  distant 
from  the  owner,  and  with  such  speed  as  the  owner  cannot  by 
pursuit  j)Ossibly  help  the  same ;  and  sundry  good  ordinances 
have  heretofore  been  made  touching  the  manner  of  selling  and 
tolling  of  horses,  mares,  geldings  and  colts  in  fairs  and  markets, 
which  have  not  wrought  so  good  efi^ect  for  the  repressing  or 
avoiding  of  horse  stealing  as  was  expected:" 


STATUTES,  489 

2.  Now  for  a  further  remedy  in  lliat  Lelialf,  be  it  enacted  li  Hen.  7, 
by  the  authority  of  this  present  parliament,  That  no  person  c.  13. 
after  twenty  days  next  after  the  end  of  this  session  of  parlia-  fellers  of 
ment  shall  in  any  fair  or  market  sell,  give,  exchange  or  put  fXs^or  mar- 
away  any  horse,  mare,  gelding,  colt  or  filly,  unless  the  toll  kets  must  be 
taker   there,    or  (where  no   toll  is  paid)   the   book   keeper,  known  to  the 
bailiff  or  the  chief  officer  of  the  same  fair  or  market,  shall  toll  taker,  or 
and  will  take  upon  him  perfect  knowledge  of  the  person  that  ^'^^^  °!'jj®'-' 
so  shall  sell  or  oifer  to  sell,  give  or  exchange  any  horse,  mare,  avouch  the 
gelding,  colt  or  filly,  and  of  his  true  christian  name,  surname  sale,  which 
and  place  of  dwelling  or  resiancy,  and  shall  enter  all  the  same  shall  be  en- 
his  knowledge  into  a  book  there  kept  for  sale  of  horses ;  or  ^''[f *?  "i  the 
else  that  he  so  selling  or  ofl'ering  to  sell,  give,  exchange  or  2°&  3°Ph'l  & 
put  away  any  horse,  mare,  gelding,  colt  or  filly,  shall  bring  m.  c.  7. 
unto  the  toll  taker  or  other  officer  aforesaid,  of  the  same  fair  ^  sufficient 
or  market,  one  sufficient  and  credible  person  that  can,  shall  and  credible 
or  Avill  testify  and  declare  unto  and  before  such  toll  taker,  person  shall 
book  keeper  or  other  officer,  that  he  knoweth  the  party  that  ■'''Vouch  the 
so    selleth,   giveth,   exchangeth  or  putteth  away  such  horse,  ^°^'^^  seller. 
mare,   gelding,   colt    or  fill}^    and   his  true  name,    surname.  The  price  of 
mystery  and  dwelling  place,  and  there  enter  or  cause  to  be    >,^ii  v,^^^ 
entered  in  the  book  of  the  said  toll  taker  or  officer,  as  well  tered  in  the 
the  true  christian  name,  surname,  m3'stery  and  place  of  dwell-  toller's  book. 
ing  or  resiancy  of  him  that  so  selleth,  giveth,  exchangeth  or 
putteth  away  such  horse,  mare,  gelding,  colt  or  filly,  as  of  him 
that  so  shall  testify  or  avouch  his  knowledge  of  the  same  per- 
son; and  shall  also  cause  to  be  entered  the  very  true  price  or 
value  that  he  shall  have  for  the  same  horse,  mare,  gelding, 
colt  or  filly,  so  sold;  And  that  no  person  shall  take  upon  him 
to  avouch,  testify  or  declare  that  he  knoweth  the  party  that 
so  shall  ofiter  to  sell,  give,  exchange  or  put  away  any  such 
horse,  mare,  gelding,  colt  or  filly,  unless  he  do  indeed  truly 
know  the  same  party,  and  shall  truly  declare  to  the  toll  taker 
or  other  officer  aforesaid,  as  well  the  christian  name,  surname, 
mystery  and  place  of  dwelling  and  resiancy  of  himself,  as  of 
him  of  and  for  whom  he  maketh  such  testimony  and  avouch- 
ment :  And  that  no  toll  taker  or  other  person  keeping  any 
book  of  entry  of  sales  of  horses  in  fairs  or  markets,  shall  take 
or  receive  any  toll,  or  make  entry  of  any  sale,  gift,  exchange 
or  putting  away  of  any  horse,  mare,  gelding,   colt  or  filly, 
unless   he   knoweth   the    party  that   so    selleth,    giveth,   ex- 
changeth or  putteth  away  any  such  horse,  mare,  gelding,  colt 
or  filly,  and  his  true  christian  name,  surname,  mystery  and 
place  of  his  dwelling  or  resiancy,  or  the  party  that  shall  and 
will  testify  and  avouch  his  knowledge  of  the  same  person  so 
selling,  giving,  exchanging  or  putting  away  such  horse,  mare, 
gelding,  colt  or  filly,  and  his  true  christian  name,  surname, 
mystery  and  place  of  dwelling  or  resiancy,  and  shall  make  a 
perfect  entry  into  the  said  book  of  such  his  knowledge  of  the 


490 


APPENDIX. 


A  note  in 
writing'  shall 
be  given  to 
the  buyer. 


The  penalty 
of  the  person 
offending  in 
any  of  the 
cases  afore- 
said. 

Every  sale 
otherwise 
made  shall 
be  void. 


The  justices 
of  peace  may 
hear  and  de- 
termine the 
offences 
aforesaid. 


person,  and  of  tlie  name,  surname,  mystery  and  place  of  tlio 
dwelling  or  resiancy  of  the  same  person,  and  also  the  true 
price  or  value  that  shall  be  bond  fide  taken  or  had  for  any 
such  horse,  mare,  gelding,  colt  or  filly  so  sold,  given,  ex- 
changed or  put  away,  so  far  as  he  can  understand  the  same, " 
and  then  give  to  the  party  so  buying  or  taking  by  gift,  ex- 
change or  otherwise,  such  horse,  mare,  gelding,  colt  or  filly, 
requiring  and  paying  twopence  for  the  same,  a  true  and  per- 
fect note  in  writing  of  all  the  full  contents  of  the  same,  sub- 
scribed with  his  hand ;  on  pain  that  every  person  that  so  shall 
sell,  give,  exchange  or  put  away  any  horse,  mare,  gelding, 
colt  or  filly  without  being  known  to  the  toll  taker  or  other 
officer  aforesaid,  or  without  bringing  such  a  voucher  or  wit- 
ness, causing  the  same  to  be  entered  as  aforesaid,  and  every 
person  making  any  untrue  testimony  or  avouchment  in  the 
behalf  aforesaid,  and  every  toll  taker,  book  keeper  or  other 
officer  of  fair  or  market  aforesaid,  offending  in  the  premises 
contrary  to  the  true  meaning  aforesaid,  shall  forfeit  for  every 
such  default  the  sum  of  Five  jmumh  ;  but  also  that  every  sale, 
gift,  exchange,  or  other  putting  away  of  any  horse,  mare, 
gelding,  colt,  filly,  in  fair  or  market,  not  used  in  all  points 
according  to  the  true  meaning  aforesaid,  shall  be  void ;  the 
one-half  of  all  which  forfeitures  to  be  to  the  c^ueen's  majesty, 
her  heirs  and  successors,  and  the  other  half  to  him  or  them 
that  will  sue  for  the  same  before  the  justices  of  peace,  or  in 
any  of  her  majesty's  ordinary  courts  of  record,  by  bill,  plaint, 
action  of  debt  or  information,  in  which  no  essoin  or  protection 
shall  be  allowed. 

3.  And  be  it  further  enacted,  That  the  justices  of  peace  of 
every  place  and  county,  as  well  within  liberties  as  without, 
shall  have  authority  in  their  sessions,  within  the  limits  of 
their  authority  and  commission,  to  inquire,  hear  and  deter- 
mine all  offences  against  this  statute,  as  they  may  do  any 
other  matter  triable  before  them. 

4.  And  be  it  further  enacted.  That  if  any  horse,  mare, 
gelding,  colt  or  filly,  after  twenty  days  next  ensuing  the  end 
of  this  session  of  parliament,  shall  be  stolen,  and  after  shall 
be  sold  in  open  fair  or  market,  and  the  same  shall  be  used 
in  all  points  and  circumstances  as  aforesaid,  that  yet  never- 
theless the  sale  of  any  such  horse,  mare,  gelding,  colt  or  filly, 
"within  six  months  next  after  the  felony  done,  shall  not  take 
away  the  property  of  the  owner  from  whom  the  same  was 
stolen,  so  as  claim  be  made  within  six  months  by  the  jiarty 
from  whom  the  same  was  stolen,  or  by  his  executors  or  admi- 
nistrators, or  by  any  other  by  any  of  their  appointment,  at  or 
in  the  town  or  parish  where  the  same  horse,  mare,  gelding, 
colt  or  filly  shall  be  found,  before  the  mayor  or  other  head 
officer  of  the  same  town  or  parish,  if  the  same  horse,  mare, 
gelding,  colt  or  filly,  shall  happen  to  be  found  in  any  town 


STATUTES.  491 

corporate  or  raarket  toAvn,  or  else  before  any  justice  of  peace 
of  that  county  near  to  the  place  where  such  horse,  mare,  geld- 
ing-, colt  or  fill}'- shall  he  found,  if  it  he  out  of  a  town  corporate 
or  market  town ;  and  so  as  proof  be  made  within  forty  days 
.then  next  ensuing  by  two  sufficient  witnesses,  to  be  produced 
and  deposed  before  such  head  officer  or  justice  (who  by  virtue 
of  this   act  shall  have   authority  to  minister  an  oath  in  that 
behalf),  that  the  property  of  the  same  horse,  mare,  gelding, 
colt  or  filly  so  claimed  was  in  the  party  by  or  from  whom  such 
claim  is  made,  and  was  stolen  from  him  within  six  months 
next  before  such  claim  of  any  such  horse,  gelding,  mare,  colt 
or  filly ;  but  that  the  party  from  whom  the  said  horse,  mare, 
gelding,  colt  or  filly  was  stolen,  his  executors  or  administrators 
shall  and  may  at  all  times  after,  notwithstanding  any  such 
sale  or  sales  in  any  fair  or  open  market  thereof  made,  have  The  owner 
property  and  power  to  have,  take  again  and  enjoy  the  said  may  redeem  a 
horse,  mare,  gelding,  colt  or  filly  upon  payment  or  readiness,  horse  stolen 
or  ofi:er  to  pay,  to  the  p)arty  that  shall  have  the  possession  and  -^[^{^^  ^x 
interest  of  the  same  horse,  mare,  gelding,  colt  or  filly,  if  he  months  after 
will  receive  and  accept  it,  so  much  money  as  the  same  party  paying  the 
shall  depose  and  swear  before   such  head  officer  or  justice  of  price, 
peace   (who   by  virtue  of   this   act   shall   have    authority  to 
minister  and  give  an  oath  in  that  behalf)  that  he  paid  for  the 
same  bond  fide,  without  fraud  or  collusion ;  any  law,  statute 
or  other  thing  to  the  contrary  thereof  in  anywise  notwith- 
standing. 


2  Geo.  II.  Cap.  28. 

An  Act  (among  other  things)  for  more  effectual  dcharriug 
of  unlaivful  Games. 

9,   "And  whereas  a  good  and  profitable  statute  was  made  Act  33  Hen. 

in  the  three-and-twentieth  year  of  the  reign  of  King  Henry  8,  c.  9, 

the  Eiffhth,  (among:  other  things)  for  the  debarring  of  unlaw-  f  o'^'^.^^t  ^^^i- 

PT  All  ixi,-iiv.j.  •        •  lawful  srames 

f  ul  games ;  And  whereas  by  the  said  statute  no  power  is  given  ^.^^^^^  ^^^.^ 

unto  the  justices  of  the  peace  to  demand  and  take  from  per-  effeetual. 
sons  found  playing  contrary  to  law  any  other  security  than 
their  own  recognizances  that  they  or  any  of  them  shall  not 
from  thenceforth  iise  such  unlawful  games,  unless  such  per- 
sons are  found  playing  contrary  to  law  upon  the  view  of  one 
or  more  justice  or  justices  of  the  peace ;"  for  remedy  thereof, 
be  it  further  enacted,  that  where  it  shall  be  proved  upon  the 
oath  of  two  or  more  credible  witnesses,  before  any  justice  or 
justices  of  the  peace,  as  well  as  where  such  justice  or  justices 
shall  find  upon  his  or  their  own  view  that  any  person  or  per- 
sons have  or  hath  used  or  exorcised  any  unlawful  game  con- 
trary to  the  said  statute,  the  said  justice  or  justices  shall  have 


492  APPENDIX. 

full  power  and  authority  to  commit  all  and  every  such  offender 
and  offenders  to  prison,  without  bail  or  mainprize,  unless  and 
until  such  offender  and  offenders  shall  enter  into  one  or  more 
recog'nizance  or  recognizances,  with  sureties  or  without,  at 
the  discretion  of  the  said  justice  or  justices  of  the  peace,  that 
he  or  they  respectively  shall  not  thenceforth  play  at  or  use 
such  unlawful  game. 


12  Geo.  II.  Cap.  28. 

An  Act  for  the  more  effectual  preventing  of  excessive  and 
deceitful  Ga m incj . 

"And  whereas  it  is  found  by  experience  that  the  said  good 
and  wholesome  laws  have  not  effectually  answered  the  good 
ends,  intents  and  purposes  in  and  by  the  said  acts(f/)  de- 
signed ;  but  that,  contrary  to  the  true  intent  and  meaning  of 
the  said  recited  acts,  several  deceitful  games  and  subscriptions 
are  daily  carried  on  under  the  denomination  of  sales  of  houses, 
lands,  plate,  jewels,  goods  and  other  things;  and  that  several 
printers  have  printed,  published,  or  caused  to  be  printed  and 
published,  proposals  or  schemes  for  the  sale  of  such  houses, 
lands,  plate,  jewels,  goods  and  other  things,  to  be  determined 
by  Raffles,  by  mathematical  machines  or  engines,  and  by  other 
indirect  ways  and  means,  tending  to  evade  the  said  good  and 
wholesome  laws  before  mentioned ;  and  whereas  several  per- 
sons have  for  many  j^ears  past  carried  on  and  set  up  certain 
fraudulent  games  and  lotteries,  to  be  determined  by  the 
chance  of  cards  and  dice,  under  the  denomination  of  the  games 
of  the  ace  of  hearts,  pharaoh,  basset  and  hazard,  and  thereby 
defrauded  several  of  his  majesty's  subjects  ignorant  of  the 
great  disadvantage  adventures  in  the  said  games  and  lotteries 
so  denominated  the  games  of  the  ace  of  hearts,  pharaoh,  hasset 
or  hazard  {e),  are  under,  subject  and  liable  to;  and  whereas 
several  doubts  have  arisen  whether  the  said  games  of  the  ace 
of  hearts,  pharaoh,  hasset  and  hazard  {e)  are  within  the  de- 
scriptions of  the  lotteries  prohibited  by  the  said  recited  acts  of 
parliament  (c/)  ;  and  whereas  great  difficulties  have  arisen 
ujion  the  methods  of  conviction  of  the  offenders  against  the 
said  acts  of  parliament ;  for  remedy  whereof,  and  for  explain- 
ing and  making  more  effectual  the  said  acts  of  parliament, 
may  it  please  your  most  excellent  majesty  that  it  may  be 
enacted,  and  be  it  enacted  by  the  king's  most  excellent  ma- 
jesty, by  and  with  the  advice  and  consent  of  the  lords  spi- 

(rf)   10   &   11   Will.   3,   c.   17;    9  (r)  Fax  v.  Liston,   5  T.  E.  340; 

Anue,  c.   6,   s.   56;   8  Geo.   1,  c.   2,        M'Jumicll  v.  Robinson,  3  M.  &  "W. 
s.  36,  prohibiting  Lotteries.  434. 


STATUTES.  493 

ritual  and  temporal,  and  commons,  in  the  j)resent  parliament 
assembled,  and  by  the  authority  of  the  same,  That  if  any  per-  200;.  penalty 
son  or  persons  shall,  after  the  twenty-fourth  day  of  June,  one  °^  ^^Y  o^: 
thousand  seven  hundred  and  thirty -nine,  erect,  set  up,  con-  !f°^^  against 
tinue  or  keep  any  office  or  place  under  the  denomination  of  a 
sale   or   sales  of   houses,   land,   advowsons,   presentations  to 
livings,  plate,  jewels,  shij^s,  goods  or  other  things  by  way  of 
lottery,  or  by  lots,  tickets,  numbers  or  figures,  cards  or  dice  ; 
or  shall  make,  print,  advertize  or  publish,  or  cause  to  be  made, 
printed,  advertized  or  published,    proposals  or    schemes   for 
advancing  small  sums  of  money  by  several  persons,  amounting 
in  the  whole  to  large  sums,  to  be  divided  among  them  by 
chances  of  the  prices  in  some  public  lottery  or  lotteries  esta- 
blished or  allowed  by  act  of  parliament,  or  shall  deliver  out, 
or  cause  or  procure  to  be  delivered  out,  tickets  to  the  persons 
advancing  such  sums,  to  entitle  them  to  a  share  of  the  money 
so  advanced,  according  to  such  proposals  or  schemes ;  or  shall 
expose  to  sale  any  houses,  lands,  advowsons,  presentations  to 
livings,   plate,  jewels,   ships  or   other   goods   by  any  game, 
method  or  device  Avhatsoever,  depending  upon  or  to  be  deter- 
mined by  any  lot  or  drawing,  whether  it  be  out  of  a  box  or 
wheel,  or  by  cards  or  dice,  or  by  any  machine,  engine  or  de- 
vice of  chance  of  any  kind  whatsoever ;  such  person  or  per- 
sons, and  every  or  either  of  them,  shall,  upon  being  convicted 
thereof  before  any  one  justice  of  the  peace  for  any  county, 
riding  or  division,  or  before  the  mayor  or    other  justice    or 
justices  of  the  peace  for  any  city  or  town  corporate,  upon  the 
oath  or  oaths  of  one  or   more  credible  witness  or  witnesses 
(which  said  oaths  the  said  justices  of  the  peace  and  mayor 
are   hereby   authorized,   empowered   and   required  to  admi- 
nister), or  upon  the  view  of  such  justice  or  justices,  or  the 
mayor,  justice  or  justices  for  any  city  or  town  corporate,  or 
on  the  confession  of  the  party  or  parties  accused,  shall  forfeit 
and  lose  the  sum  of  Two  hundred  pounds,  to  be  levied  by  dis- 
tress and  sale  of  the  offender's  goods,  by  warrant  under  the 
hands  and  seals  of  one  or  more  justice  or  justices  of  the  peace 
of  such  county,  riding,  division,  city  or  town  where  the  otfence 
shall  be  committed ;  which  said  forfeitures,  when  recovered,  The  same  how 
after  deducting  the  reasonable  charges  of  such  prosecution,  to  be  levied 
shall  go   and  be  aj^plied,  one-third  thereof  to  the  informer  ^^^  applied, 
and  the  remaining  two-thirds  to  the  use  of  the  poor  of  the 
parish  where  such  offence  shall  be  committed,  excej^ting  the 
said  two-thirds  of  such  forfeitures  which  shall  be  incurred  by 
and  recovered  upon  any  person  or  persons  within  the  city  of 
Bath,  which  said  two-thirds  shall  go  and  be  applied  to  and  for 
the  use  and  benefit  of  the  poor  residing  within  the  hospital  or 
infirmary  lately  erected  for  the  use  and  benefit  of  poor  persons 
resorting  to  the  said  city  for  the  benefit  of  the  mineral  waters, 
after  deducting  the  charges  of  conviction  as  aforesaid. 


491 


APPENDIX. 


Games  within 
intent  of  the 
act. 


60/.  [leualty 
on  the  adven- 
turers. 


Sales  by  lot- 
teries void  ; 


and  lands, 
«S:c.  forfeited. 


Aj^peal. 


2.  And  it  is  hereby  enacted  and  declared,  That  the  said 
games  of  the  ace  of  hearts,  pharanh,  basset  and  hazard  {/),  are 
and  are  hereby  declared  to  be  games  or  lotteries  by  cards  or 
dice  within  the  intent  and  meaning  of  the  said  in  part  recited 
acts ;  and  that  all  and  every  person  or  persons  who  shall  set 
up,  maintain  or  keep  the  said  games  of  the  ace  of  hearts, 
pharaoh,  basset  and  hazard  shall  be  subject  and  liable  to  all 
and  every  the  penalties  and  forfeitures  in  and  by  this  act 
inflicted  upon  any  person  or  persons  who  shall  erect,  set  up, 
continue  or  keep  any  of  the  said  games  or  lotteries  in  this 
present  act  mentioned  ;  and  shall  be  prosecuted  and  convicted, 
and  the  penalties  and  forfeitures  shall  be  sued  for  and  re- 
covered, in  like  manner  as  the  said  penalties  and  forfeitures 
are  by  this  act  directed  to  be  sued  for  and  recovered. 

3.  And  be  it  further  enacted  by  the  authority  aforesaid, 
That  all  and  every  person  and  persons  who  shall  be  adven- 
turers in  any  of  the  said  games,  lottery  or  lotteries,  sale  or 
sales  ;  or  shall  play,  set  at,  stake  or  punt  at  either  of  the  said 
games  of  the  ace  of  hearts,  j^haraoh,  lasset  and  hazard  (/),  and 
shall  be  thereof  convicted  in  such  manner  and  form  as  in  and 
by  this  act  is  prescribed,  every  such  person  or  persons  shall 
forfeit  and  lose  the  sum  of  Ft/ti/  pounds,  to  be  sued  for  and 
recovered  as  aforesaid. 

4.  And  it  is  hereby  further  enacted  by  the  authority  afore- 
said. That  all  and  every  such  sale  or  sales  of  houses,  lands, 
advowsons,  presentations  to  livings,  plate,  jewels,  ships,  goods 
or  other  things  by  any  game,  lottery  or  lotteries,  machine, 
engine  or  other  device  whatsoever,  depending  ixpon  or  to  be 
determined  by  chance  or  lot,  shall  and  are  hereby  declared  to 
be  void  to  all  intents  and  purposes  whatsoever ;  and  all  such 
houses,  lands,  advowsons,  presentations  to  livings,  plate, 
jewels,  ships,  goods  or  other  things  set  up  and  exposed  to 
sale  in  manner  and  form  aforesaid  shall  be  forfeited  to  such 
person  or  persons  who  shall  sue  for  the  same,  by  action,  bill, 
plaint  or  information,  in  any  of  his  majesty's  courts  of  record, 
or  at  the  assizes  for  any  county  where  the  offence  shall  be 
committed  ;  in  which  action,  bill,  plaint  or  information  no 
essoin,  protection,  wager  of  law,  or  more  than  one  imparlance 
shall  be  allowed. 

5.  Provided  always,  and  it  is  hereby  declared  and  enacted, 
That  if  any  person  or  persons  shall  think  him,  her  or  them- 
selves aggrieved  by  the  judgment  or  determination  of  any 
justice  or  justices  of  the  peace  or  mayor  as  aforesaid,  upon 
any  conviction  of  or  for  an}'  of  the  offences  in  this  act,  such 
person  or  persons  may  appeal  from  the  said  judgment  of  the 
said  justice  or  justices  or  mayor  to  the  next  general  qtiarter 
sessions  of  the  peace  for  the  said  county,  riding,  division,  city 

(/)  Rex  V.  Lldun,  .5  T.  R.  340  ;  M'Klnitell  v.  Robinsox,  3  M.  &  W.  43-i. 


STATUTES.  495 

or  place  where  such,  person  or  persons  was  or  were  convicted  ; 
but  the  person  and  persons  so  appealing  shall,  and  he,  she 
and  they  are  hereby  directed  to  give  reasonable  notice  to  the 
prosecutor  or  prosecutors  of  such  person  or  persons  as  shall 
so  appeal,  of  such  his,  her  or  their  intention  of  bringing  and 
prosecuting  such  ajjpeal,  and  shall  enter  into  a  recognizance 
before  some  justice  of  the  peace  for  the  county,  riding,  divi- 
sion, city  or  place  wherein  the  conviction  or  judgment  was 
made  or  given,  with  two  sufficient  sureties,  on  condition  to 
try  such  aj)peal  at  the  next  quarter  sessions  which  shall  be 
held  in  and  for  the  county,  riding,  division,  city  or  place 
wherein  such  conviction  or  judgment  was  made  or  given, 
next  and  immediately  after  the  bringing  such  appeal ;  and 
every  such  appeal  and  appeals  shall,  by  the  court  at  the  said 
next  general  quarter  sessions,  to  which  such  appeal  and  ap- 
peals is  or  are  made,  be  then  examined,  and  the  matter  then 
finally  heard  and  determined,  and  not  afterwards;  and  in 
case  such  judgment,  determination  or  conviction  as  aforesaid 
shall  be  then  and  there  affirmed,  the  party  a2:)pealiug  shall 
pay  unto  the  prosecutor  or  prosecutors  his,  her  or  tlioir  treble 
costs ;  and  such  prosecutor  and  prosecutors  shall  have  such 
remedy  for  the  same  as  any  defendant  or  defendants  hath  or 
have  for  costs  of  suit  in  any  other  cases  by  law. 

6.  Provided  always,  ancl  be  it  further  enacted  by  the  au-  Convictions, 
thority  aforesaid.  That  no  such  conviction  made,  or  judgment 

given  as  aforesaid,  by  this  act,  shall  be  set  aside  by  the  said 
court  of  quarter  sessions  for  want  of  form,  in  case  the  facts 
alleged  in  the  said  conviction  shall  be  proved  to  the  satisfac- 
tion of  the  said  court ;  nor  shall  such  conviction  or  judgment 
be  removed  or  removable  by  certiorari,  or  any  other  writ  or 
process  whatsoever,  into  any  of  his  majesty's  courts  of  record 
at  Westminster,  until  such  order  or  other  proceedings  shall 
have  been  first  removed  to,  and  judgment  and  determination 
given  and  made  thereupon,  by  such  court  of  quarter  sessions 
as  aforesaid. 

7.  Provided  also,  and  be  it  further  enacted  by  the  authority  Record  re- 
aforesaid,    That  no  writ  of  certiorari  or  other  process  shall  movable 
issue  or  be  issuable  to  remove  the  record  of  any  such  convic-  '"poii.ioo^- 
tion  from  the  said  court  of  quarter  sessions,  or  to  remove  any  ^^°""  ^^ 
order  or  other  proceedings  taken  or  made  by  the  said  court  of 
cjuarter  sessions  upon,  touching  or  concerning  such  conviction, 

into  any  of  his  majesty's  courts  of  record  at  "Westminster, 
until  the  party  or  parties  against  whom  such  conviction  shall 
be  made,  before  the  allowance  of  such  writ  of  certiorari  or 
other  process,  shall  find  two  sufficient  sureties  to  become 
bound  to  the  prosecutor'  in  the  sum  of  One  hundred  pounds, 
with  condition  to  prosecute  the  same  with  effect  within  six 
calendar  months,  and  to  pay  unto  the  prosecutor  or  prosecu- 
tors his,  her  or  their  irehle  costs  and  charges,  in  case  such 
order  or  couvictioii  shall  be  affirmed. 


49G 


APPENDIX. 


Offenders  not 
able  to  11  ay 
the  penalties 
to  be  im- 
prisoned. 


Penalty  on 
neglect  of 
justices  or 
mayors. 


This  act  not 
to  hinder  any 
games  in 
palaces  where 
the  king  re- 
sides ; 


nor  to  affect 
the  right  to 
any  lands,  &c 
held  by  lot. 


8.  Aud  it  is  hereby  further  enacted  and  declared,  That  if 
any  person  or  persons  who  shall  he  convicted  of  erecting, 
setting  up,  maintaining  or  keeping  any  of  the  said  lotteries,  or 
the  said  games  of  the  ace  of  Jiearts,  j-iJiaruoh,  basset  or  hazard, 
or  tlierein  or  in  either  of  tliem  shall  adventure,  and  shall  not 
have  sufficient  goods  and  chattels  whereon  to  levy  the  penal- 
ties inflicted  by  this  act,  or  shall  not  immediately  pay  the  said 
penalties,  or  give  security  for  the  same,  it  shall  and  may  be 
lawful  for  the  said  justice  or  justices,  before  whom  such  per- 
son shall  be  convicted  as  aforesaid,  to  commit  such  person  or 
persons  to  the  common  gaol  of  the  county,  riding,  division, 
city  or  place  where  such  offence  shall  be  committed,  there  to 
continue  and  remain  for  any  time  not  exceeding  six  months. 

9.  And  be  it  also  enacted,  That  if  any  justice  of  the  peace, 
or  any  other  justice  hereinbefore  described,  or  mayor  of  any 
corporation,  shall  neglect  or  refuse  to  do  what  is  required  of 
him  and  them  by  this  act,  such  justices  and  mayors  so  neg- 
lecting or  refusing  shall  respectively  forfeit  and  pay  the  sum 
of  'Ten  pounds  for  each  offence  ;  one  moiety  whereof  to  be  paid 
to  any  person  or  persons  who  shall  sue  for  the  same,  and  the 
other  moiety  thereof  to  the  poor  of  the  parish  or  place  where 
such  offence  shall  be  committed  (y),  and  shall  be  recovered 
with  full  costs  of  suit,  by  action,  bill,  plaint  or  information  in 
any  of  his  majesty's  courts  of  record,  or  at  the  assize  for  any 
county ;  in  which  action,  bill,  plaint  or  information  no  essoign, 
protection  or  wager  of  law,  nor  more  than  one  imparlance 
shall  be  allowed ;  such  prosecution  being  commenced  within 
six  months  next  after  such  refusal  of  such  justices  or  mayor. 

10.  Provided  always,  and  it  is  hereby  enacted  and  de- 
clared. That  nothing  in  this  act  or  in  any  former  acts  against 
gaming  contained  shall  extend  to  prevent  or  hinder  any 
person  or  persons  from  gaming  or  playing  at  any  of  the  games 
in  this  or  in  any  of  the  said  former  acts  mentioned  within  any 
of  his  majesty's  royal  palaces,  where  his  majesty,  his  heirs 
and  successors  shall  then  reside. 

11.  Provided  always,  and  it  is  hereby  further  enacted  and 
declared.  That  nothing  herein  contained  shall  extend,  or  be 
any  ways  construed,  deemed  or  taken  to  extend,  or  in  any 
sort  to  affect  or  prejudice  any  estate  or  interest  in,  out  of,  or 
to  any  manors,  honours,  royalties,  lands,  tenements,  advow- 
sons,  presentations,  rents,  services  and  hereditaments  what- 
soever, which  shall  or  may  at  any  time  or  times  hereafter  be 
according  to  the  laws  now  in  being  legally  allotted  to,  or  held 
by,  or  by  means  of  any  allotment  or  partition  by  lots  (A) ;  but 
that  all  persons  who  now  are,  or  that  shall  hereafter  become 
really  and  truly  seised  as  part  owners,  joint  tenants,  and 
tenants  in  common  of  any  manors,  honours,  royalties,  lands, 
tenements,    advowsons,    presentations,    rents,    services,    and 

{g)  But  see  46  Geo.  3,  c.  148,  s.  59. 

(/()  See  Ballot  in  Land  Societies,  ante.  Part  3,  Chap.  4. 


STATUTES.  497 

hereditaments  shall,  and  he,  she  and  they  and  his,  her  and 
their  heirs  and  assigns  is  and  are  hereby  made  and  continued 
capable  to  accept  and  take  such  estates  and  interest,  and  parts 
therein,  in  such  and  the  like  manner,  and  to  such  and  the 
like  uses,  as  he,  she  or  they  might,  would  or  could  have  done 
by  or  by  virtue  or  in  consequence  of  any  lot,  scroll,  chance  or 
allotment  whatsoever  had  this  present  act  never  been  made, 
any  thing  herein  contained  to  the  contrary  thereof  notwith- 
standing. 

12.  And  be  it  further  enacted  by  the  authority  aforesaid.  Limitations 
That  if  any  suit  or  action  shall  be  commenced  or  prosecuted  ^^  actions, 
against  any  person  or  persons  for  anything  done  in  j)ursu- 
ance  of  this  act,  every  such  suit  or  action  shall  be  commenced 
within  three  calendar  months  next  after  the  fact  was  com- 
mitted, and  not  afterwards ;  and  shall  be  laid  or  brought  in 
the  county,  city  or  place  where  the  cause  of  action  shall  arise, 
and  not  elsewhere  ;  and  the  defendant  and  defendants  therein  General  issue, 
shall  and  may  plead  the  general  issue,  and  give  this  act  and 
the  special  matter  in  evidence  at  the  trial  to  be  had  there- 
upon, and  that  the  same  was  done  in  pursuance  of  or  by  the 
authority  of  this  act ;  [and  if  the  plaintiff  or  j)laintiffs  shall  Treble  costs, 
become  nonsuited  or  discontinue  his,  her  or  their  action  or 
actions,  suit  or  suits,  or  if  upon  demurrer  judgment  shall  be 
given  against  the  plaintiff  or  plaintiffs,  the  defendant  or  de- 
fendants shall  and  may  recover  treble  costs,   and  have  like 
remedy  for  the  same  as  any  defendant  or  defendants  hath  or 
have  for  costs  in  any  other  cases  by  law]  (a). 


13  Geo.  II.  Cap.  19. 
An  Act  to  restrain  and  prevent  the  excessive  Increase  of  Horse 
Eaces,  and  for  amending  an  Act  made  in  the  last  Sessio?i  of' 
Parliament,    intituled   "  An  Act  for  the  more  effectual  pre- 
venting of  excessive  and  deceitful  Gaming ^ 

9.  "  And  whereas  a  good  and  wholesome  law  was  made  in  12  Geo.  2, 
the  twelfth  year  of  the  reign  of  his  present  Majesty  King  c.  28. 
George  the  Second,  intituled  '  An  Act  for  the  more  effectual 
preventing  of  excessive  and  deceitful  Gaming ;'  but  contrary 
to  the  true  intent  and  meaning  thereof,   some  fraudulent  and 
deceitful  games  have  been  invented,  and  a  certain  game  called 
j)assage  is  now  daily  practised  and  carried  on,  to  the  ruin  and  Game  of 
impoverishment  of  many   of  his   Majesty's   subjects  ;"  it    is  passage,  and 
therefore  hereby  enacted  and  declared,  that  the  said  game  of  °  •th'^r^"^^^ 
passage,  and  all  and  every  other  game  and  games  invented  or  prohibited, 
to  be  invented,  loith  one  or  more  die  or  dice,  or  with  any  other 
instrument,  engine  or  device,  in  the  nature  of  dice,  having 
one  or  more  figures  or  numbers  tliereon  {hackga^nmon  and  the 

{(()  Repealed,  5  &  6  Vict.  c.  97,  s.  2. 
O.  K  K 


498 


ArPENDIX. 


Under  penal- 
ties of  12 
Geo.  2,  c.  28. 


Double  costs. 


other  games  now  played  within  tlie  backgammon  tables  only 
excepted)  are  and  shall  be  deemed  to  be  games  or  lotteries  by 
dice,  within  the  intent  and  meaning  of  the  said  in  part  recited 
act ;  and  all  and  every  person  and  persons  who  shall  set  up, 
maintain  or  keep  any  office,  table  or  place  (save  and  except 
as  in  the  said  in  part  recited  act  is  provided  and  declared), 
for  the  said  game  of  passage,  or  for  any  other  such  game  or 
games  as  aforesaid  (backgammon  and  the  other  games  now 
plaj'ed  with  the  backgammon  tables  only  excepted),  shall 
severally  forfeit,  be  subject  and  liable  to,  all  and  every  the 
penalties  and  forfeitures  in  and  by  the  said  in  part  recited  act 
inflicted  upon  any  person  or  persons  who  shall  erect,  set  up, 
continue  or  keep  any  of  the  games  or  lotteries  in  the  said  in 
part  recited  act  mentioned  ;  and  all  and  every  person  or  persons 
who  shall  play,  set  at  stake  or  adventure  at  the  said  game  of 
passage,  or  at  any  such  other  game  as  aforesaid  (backgam- 
mon and  the  other  games  now  played  with  the  backgammon 
tables  only  excepted),  save  and  except  as  in  the  said  in  part 
recited  act  is  provided  and  declared,  he  and  they  respectively 
shall  severally  forfeit,  be  subject  and  liable  to  all  and  every 
the  penalties  and  forfeitures  in  and  by  the  said  in  part  recited 
act  inflicted  upon  any  person  or  persons  who  shall  pla}',  set 
at  stake  or  adventure  at  any  of  the  said  games  in  the  said  in 
part  recited  act  mentioned  ;  and  all  and  every  such  offenders 
respectively  shall  be  prosecuted  and  convicted,  and  the 
several  penalties  and  forfeitures  shall  be  sued  for  and  re- 
covered and  disposed  of  in  like  manner,  and  to  such  uses,  as 
the  several  penalties  and  forfeitures  in  either  of  such  cases 
are  by  the  said  in  part  recited  act  directed  to  be  sued  for  and 
recovered,  and  disposed  of. 

10.  And  be  it  further  enacted,  by  the  authority  aforesaid, 
That  in  any  action,  bill,  plaint  or  information,  to  be  brought 
or  commenced  by  virtue  of  this  act,  no  essoin,  j)rotection, 
wager  of  law,  or  more  than  one  imparlance  shall  be  allowed  ; 
[and  that  over  and  above  the  penalties  and  forfeitures  to  be 
recovered  by  virtue  of  this  act,  the  plaintiff'  or  informer  shall 
recover  his  or  her  double  costs]  («). 


18  Geo.  II.  Cap.  34. 
An  Act  to  explain,  amend,  and  maJ^e  more  effectual  the  Laws  in 
being,  to  prevent  excessive  and  deceitful  Gayning  ;  and  to  re- 
strain and  prevent  the  excessive  Increase  of  Horse  Races. 
"Whereas  notwithstanding  the  many  good  and  wholesome 
laws  now  in   being   for   j^reventing    excessive  and  deceitful 
gaming,  many  persons  of  ill  fame  and  rejmtation,  who  have 
no  visible  means  of  subsistence,  do  keep  houses,  rooms,  and 


{f()  Repealed,  5  ,S:  G  Vict.  o.  97.  s.  2. 


STATUTES.  499 

otlier  places  for  playing,  and  do  permit  persons  therein  to  play 
at  cards,  dice  and  otlier  devices,  for  large  sums  of  money,  by 
means  whereof  divers  young  and  unwary  persons  and  others 
are  drawn  in  to  lose  the  greatest  part,  and  sometimes  all  their 
substance ;  and  it  frequently  happens  they  are  thereby  re- 
duced to   the  utmost   necessities,  and  betake  themselves  to 
the  most  wicked  courses,  which  end  in  their  utter  ruin :  And 
whereas  a  certain  pernicious  game  called  roulet,  or  roly-poly, 
is  daily  practised,  and  the  laws  now  in  being  have  by  expe- 
rience been  found  ineffectual  to  put  a  stop  to  such  pernicious 
practices:"  For  remedy  whereof  may  it  please  your  majesty 
that  it  may  be  enacted,  and  be  it  enacted  by  the  king's  most 
excellent  majesty,  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal,  and    commons,  in  this  present 
parliament  assembled,  and  by  the  authority  of  the  same.  That  No  person 
from  and  after  the  twenty-fourth  day  of  June,  one  thousand  shall  keep  a 
seven  hundred  and  forty-five,  no  person  or  persons,  of  what  Pj^^°*r  ^°'-' 
condition   soever,   shall  keep  any  house,  room  or  place  for  poiy^^f  oth^r 
playing,  or  permit  or  suffer  any  person  or  persons  whatsoever,   o-ame  with, 
within  any  such  house,  room  or  place,  to  play  at  the  said  game  cards  or  dice, 
of  roulet,  otherwise  roly-poty,  or  at  any  other  game,  with  cards  ^mder  penal- 
or  dice,  already  prohibited  by  the  laws  of  this  realm  ;  and  in  ^^^  "^  ^ 
case  any  person  or  persons  whatsoever  shall  keep  any  such        •    ,    •  -  . 
house,   room  or  place  for  playing,  or  permit  or  suft'er  any 
person  or  persons  as  aforesaid  to  x>lay  at  the  said  game  of 
roulet,  otherwise  roly-poly,  or  at  any  other  game,  with  cards 
or  dice  already  prohibited  by  law,  such  person  or  persons  so 
offending  shall  incur  the  pains  and  penalties,  and  be  liable  to 
such  prosecution  as  is  directed  in  and  by  an  act  made  in  the 
twelfth  year  of  the  reign  of  his  present  majesty,  intituled 
"  An  Act  for  the  more  effectual  preventing  excessive  and  de- 
ceitful Gaming." 

2.  And  be  it  further  enacted,  by  the  authority  aforesaid.  Persons  play- 
That  if  any  person  or  persons  whatsoever  shall  after  the  said  jng  shall 
twenty-fourth  day  of  June,  one-  thousand  seven  hundred  and  ^^°'^.^'  *^^  P^" 
forty-five,  play  at  the  said  game  of  roulet,  otherwise  roly-poly,  q.^^  2  c  28 
or  at  any  game  or  games  with  cards  or  dice,  already  pro- 
hibited by  law,  every  such  person  or  persons  so  offending 
shall  also  incur  the  pains  and  penalties,  and  be  liable  to  such 
prosecution,  as  is  directed  in  and   by  an   act   made  in   the 
twelfth  year  of  the  reign  of  his  present  majesty,  intituled 
"  An  Act  for  the  more  effectual  preventing  excessive  and  de- 
ceitful Gaming." 

4.  And  for  the  more  easy  conviction  of  persons  off'ending  On  informa- 
against  this  or  any  other  former  act,  for  preventing  excessive  tion  for  any 
and  deceitful  gaming,  be  it  enacted  by  the  authority  aforesaid,  °^^^^^    ,  . 
That  it  shall  and  may  be  lawful  to  and  for  such  person  or  ^^^^^^,  ^2^^ 
persons  who  have  jm-isdiction  to  hear  and  determine  infor-  q^o.  2,  c.  28^ 
mations  upon  the   statutes   against   excessive   and   deceitful  or  13  Geo.  2, 

p   10 

K  K  2 


500 


APPENDIX. 


persons  may 
be  summoned 
to  give  evi- 
dence. 


No  person 
incapable  of 
being  a  wit- 
ness, &c. 


Proviso  for 
royal  palaces, 
&c. 


No  privilege 
of  parliament, 
&c. 


gaming,  upon  any  information  exhibited  before  them,  for  any 
offence  committed  against  this  act,  or  against  the  statute  made 
in  the  twelfth  year  of  his  present  majesty,  intituled  "  An  Act 
for  the  more  effectual  preventing  of  excessive  and  deceitful 
Gaming ;"  or  against  one  other  act  made  in  the  thirteenth 
year  of  the  reign  of  his  present  majesty,  intituled  "An  Act  to 
restrain  and  prevent  the  excessive  Increase  of  Horse  I-iaces, 
and  for  amending  an  Act  made  in  the  last  Session  of  Parlia- 
ment, intituled  '  An  Act  for  the  more  effectual  preventing 
excessive  and  deceitful  Graming  ;'  "  to  summon  any  person  or 
persons,  other  than  the  party  accused,  to  appear  before  them 
at  a  certain  day,  time  and  place,  to  be  inserted  in  such  sum- 
mons, and  to  give  evidence  for  the  discovery  of  the  truth  of 
the  matter  in  the  said  information  contained  ;  and  in  case  of 
neglect  or  refusal  to  appear,  or  if  upon  appearance  such  p»erson 
or  persons  shall  refuse  to  give  evidence,  or  shall  give  any  false 
evidence,  every  such  person  or  persons  so  offending  shall 
forfeit  and  lose  the  sum  of  Fifty  pounds,  to  be  levied  by  dis- 
tress and  sale  of  the  offender's  goods  and  chattels,  by  warrant 
under  the  hands  and  seals  of  such  persons  issuing  such  sum- 
mons as  aforesaid  ;  and  in  case  such  person  or  persons  not 
appearing,  or  neglecting,  or  refusing  to  give  such  evidence,  or 
giving  any  false  evidence,  shall  not  have  sufficient  goods  and 
chattels  whereon  to  levy  the  said  sum  of  Fifty  pounds,  every 
such  person  or  persons  shall  be  by  such  person  or  persons 
having  jurisdiction  as  aforesaid  committed  to  the  common, 
gaol  for  the  county,  city  or  jDlace  where  such  offence  shall  be 
committed,  there  to  remain  for  the  space  of  six  months  with- 
out bail  or  mainprize. 

5.  And  be  it  further  enacted  by  the  authority  aforesaid, 
That  from  and  after  the  twenty-fourth  day  of  June,  one 
thousand  seven  hundred  and  forty-five,  no  person  or  persons 
other  than  the  parties  plaintiff  and  defendant  in  the  cause 
shall  be  incapacitated  from  being  a  "witness,  touching  any 
offence  committed  against  the  laws  for  preventing  excessive 
and  deceitful  gaming,  by  reason  of  having  played,  betted  or 
staked  at  any  game  prohibited  by  this  or  any  of  the  said 
statutes. 

6.  Provided  also,  and  it  is  hereby  enacted  and  declared, 
That  nothing  in  this  act  contained  shall  extend  to  prevent  or 
hinder  any  person  or  persons  from  playing  at  any  game  what- 
soever within  any  of  his  majesty's  royal  palaces  wherein  his 
majesty,  his  heirs  and  successors,  shall  then  actually  reside. 

7.  And  be  it  further  enacted  by  the  authority  aforesaid. 
That  no  privilege  of  parliament  shall  be  allowed  to  any  person 
or  persons  whatsoever  against  whom  any  prosecution  or  pro- 
ceedings shall  be  commenced  or  had  for  keeping  of  any 
public  or  common  gaming-house,  or  any  house,  room  or 
place  for  playing  at  any  game  or  games  prohibited  by  this 


STATUTES.  501 

or  any  other  act  now  in  being  against  excessive  or  deceitful 
gaming,  any  law,  usage  or  custom  to  the  contrary  in  anywise 
notwithstanding. 


5  Geo.  IV.  Cap.  83. 

An  Act  for  the  Punishment  of  idle  and  disorderly  Persons,  and 
Rogues  and  J'agabonds,  iii  that  part  of  Great  Britain 
called  England. 

Sect.  4.  And  be  it  further  enacted,  That  every  person  com-  Persons  com- 
mitting any  of   the    offences   hereinbefore   mentioned,    after  mitting  cer- 

havine:  been  convicted  as  an  idle  and  disorderly  person  ;  every  tarn  ottences 

°  .       -,.  p-xiiiiii  •  herein  men- 

person  pretending  or  proiessing  to  tell  fortunes,  or  using  any  ^j^^g^j  ^^  -^^ 

subtle  craft,  means  or  device,  by  palmistry  or  otherwise,  to  deemed 

deceive   and  impose  on  any  of  his  majesty's  subjects;  every  rogues  and 

person  wandering  abroad  and  lodging  in  any  barn  or  out-  vagabonds. 

house,  or  in  any  deserted  or  unoccupied  building,  or  in  the 

open  air,  or  under  a  tent,  or  in  any  cart  or  waggon,  not  having 

any  visible   means    of   subsistence,    and  not   giving   a  good 

account  of  himself  or  herself ;  every  person  wilfully  exposing 

to  view  in  any  street,   road,   highway  or  public  place   any 

obscene   print,   picture   or  other  indecent   exhibition ;    every 

person  wilfully,  openly,   lewdly  and  obscenely  exposing  his 

person  in  any  street,  road  or  jDublic  highway,  or  in  the  view 

thereof,  or  in  any  place  of  public  resort,  with  intent  to  insult 

any  female ;  every  person  wandering  abroad  and  endeavouring 

by  the  exposure  of  wounds  or  deformities  to  obtain  or  gather 

alms ;  every  person  going  about  as  a  gatherer  or  collector  of 

alms,  or  endeavouring  to  procure  charitable  contributions  of 

any  nature  or  kind,  under  any  false  or  fraudulent  pretence ; 

every  person  running  away  and  leaving  his  wife,  or  his  or  her 

child  or  children,  chargeable,  or  whereby  she  or  they  or  any 

of  them  shall  become  chargeable,  to  any  parish,  township  or 

place ;    every  person  j^laying   or  betting   in  any   street,   road, 

highicay  or  other  open  and  public  j^lace,  at  or  loith  any  table  or 

instrument  of  gaming,  at  any  game  or  pretended  game  of  chance; 

every  person  having  in  his  or  her  custody  or  possession  any 

picklock  key,  crow,  jack,  bit  or  other  implement,  with  intent 

feloniously   to    break    into    any   dwellinghouse,    warehouse, 

coachhouse,  stable  or  outbuilding,  or  being  armed  with  any 

gun,    pistol,    hanger,    cutlass,    bludgeon    or  other   offensive 

weapon,  or  having  upon  him  or  her  any  instrument,   with 

intent  to  commit  any  felonious  act ;  every  person  being  found 

in  or  upon  any  dwellinghouse,  warehouse,  coachhouse,  stable 

or  outhouse,  or  in  any  enclosed  yard,  garden  or  area,  for  any 

unlawful  purpose ;  every  suspected  person  or  reputed  thief, 

frequenting  any  river,   canal  or  navigable   stream,  dock  or 

basin,  or  any  quay,  wharf  or  warehouse  near  or  adjoining 


502 


APPENDIX. 


thereto,  or  any  street,  highway  or  avenue  leading  thereto,  or 
any  place  of  public  resort,  or  any  avenue  leading  thereto,  or 
any  street,  highway  or  place  adjacent,  with  intent  to  commit 
felony ;  and  every  person  aj^prehended  as  an  idle  and  dis- 
orderly person,  and  violently  resisting  any  constable  or  other 
peace  officer  so  apprehending  him  or  her,  and  being  subse- 
quently convicted  of  the  offence  for  which  he  or  she  shall 
have  been  so  apprehended,  shall  he  deemed  a  rogue  and  vaga- 
bond, within  the  true  intent  and  meaning  of  this  act;  and  it 
shall  be  lawful  for  any  justice  of  the  peace  to  commit  such 
offender  (being  thereof  convicted  before  him  by  the  confession 
of  such  offender,  or  by  the  evidence  on  oath  of  one  or  more 
credible  witness  or  witnesses)  to  the  house  of  correction,  there 
to  be  hej)t  to  hard  labour  for  any  time  not  exceeding  three 
calendar  months ;  and  every  such  picklock  key,  crow,  jack,  bit 
and  other  implement,  and  every  such  gun,  pistol,  hanger, 
cutlass,  bludgeon  or  other  offensive  weapon,  and  every  such 
instrument  as  aforesaid,  shall,  by  the  conviction  of  the  offender, 
become  forfeited  to  the  king's  majesty. 


Allowing 
amendments 
to  be  made 
on  the  record 
in  certain 
cases. 


3  &  4  Will.  IV.  Cap.  42. 

An  Act  for  the  further  Ame7idment  of  the  Laiv,  and  the  better 
Advancement  of  Justice. 

Sect.  23.  And  whereas  great  expense  is  often  incurred,  and 
delay  or  failure  of  justice  takes  place  at  trials,  by  reason  of 
variances  as  to  some  particular  or  particulars  between  the 
proof  and  the  record  or  setting  forth,  on  the  record  or  docu- 
ment on  which  the  trial  is  had,  of  contracts,  customs,  pre- 
scriptions, names  and  other  matters  or  circumstances  not 
material  to  the  merits  of  the  case,  and  by  the  misstatement  of 
which  the  opposite  party  cannot  have  been  prejudiced,  and 
the  same  cannot  in  any  case  be  amended  at  the  trial,  except 
where  the  variance  is  between  any  matter  in  writing  or  in 
print  produced  in  evidence  and  the  record :  And  whereas  it 
is  expedient  to  allow  such  amendments  as  hereinafter  men- 
tioned to  be  made  on  the  trial  of  the  cause  ;  be  it  therefore 
enacted,  That  it  shall  be  lawful  for  any  court  of  record,  hold- 
ing plea  in  civil  actions,  and  any  judge  sitting  at  nisi  prius, 
if  such  court  or  judge  shall  see  fit  so  to  do,  to  cause  the 
record,  writ  or  document  on  which  any  trial  may  be  pending 
before  any  such  court  or  judge,  in  any  civil  action,  or  in  any 
information  in  the  nature  of  a  Cjuo  warranto,  or  proceedings 
on  a  mandainus,  when  any  variance  shall  appear  between  the 
j)roof  and  the  recital  or  setting  forth,  on  the  record,  writ  or 
document  on  which  the  trial  is  proceeding,  of  any  contract, 
custom,  prescription,  name  or  other  matter,  in  any  particular 


STATUTES.  503 

or  particulars  in  the  judgment  of  sucli  court  or  judge  not 
material  to  the  merits  of  the  case,  and  by  which  the  opposite 
party  cannot  have  been  prejudiced  in  the  conduct  of  his 
action,  prosecution  or  defence,  to  be  forthwith  amended  by 
some  officer  of  the  court  or  otherwise,  both  in  the  part  of  the 
pleadings  where  such  variance  occurs,  and  in  every  other  part 
of  the  pleadings  which  it  may  become  necessary  to  amend,  on 
such  terms  as  to  payment  of  costs  to  the  other  party,  or  post- 
poning the  trial  to  be  had  before  the  same  or  another  jury,  or 
both  payment  of  costs  and  postponement,  as  such  court  or  judge 
shall  think  reasonable  ;  and  in  case  such  variance  shall  be  in 
some  particular  or  particulars  in  the  judgment  of  such  court 
or  judge  not  material  to  the  merits  of  the  case,  but  such  as 
that  the  opposite  i^arty  may  have  been  prejudiced  thereby  in 
the  conduct  of  his  action,  prosecution  or  defence,  then  such 
court  or  judge  shall  have  power  to  cause  the  same  to  be 
amended  upon  payment  of  costs  to  the  other  party,  and  Avith- 
drawing  the  record  or  j)ostponing  the  trial  as  aforesaid,  as 
such  court  or  judge  shall  think  reasonable  ;  and  after  any  such 
amendment  the  trial  shall  proceed,  in  case  the  same  shall  be 
proceeded  with,  in  the  same  manner  in  all  respects,  both 
with  respect  to  the  liability  of  witnesses  to  be  indicted  for 
perjury,  and  otherwise,  as  if  no  such  variance  had  appeared ; 
and  in  case  such  trial  shall  be  had  at  nisi  prius  or  by  virtue 
of  such  writ  as  aforesaid,  the  order  for  the  amendment  shall 
be  indorsed  on  the  postea  or  the  writ,  as  the  case  may  be, 
and  returned  together  Avith  the  record  or  writ,  and  thereupon 
such  papers,  rolls,  and  other  records  of  the  court  from  which 
such  record  or  writ  issued,  as  it  may  be  necessary  to  amend, 
shall  be  amended  accordingly ;  and  in  case  the  trial  shall  be 
had  in  any  court  of  record,  then  the  order  for  amendment 
shall  be  entered  on  the  roll  or  other  document  upon  which 
the  trial  shall  be  had ;  provided  that  it  shall  be  lawful  for 
any  party  who  is  dissatislied  with  the  decision  of  such  judge 
at  nisi  prius,  sheriff,  or  other  officer,  respecting  his  allowance 
of  any  such  amendment,  to  apply  to  the  court  from  which 
such  record  or  writ  issued  for  a  new  trial  upon  that  ground, 
and  in  case  any  such  court  shall  think  such  amendment  im- 
proper, a  new  trial  shall  be  granted  accordingly,  on  such 
terms  as  the  court  shall  think  fit,  or  the  court  shall  make 
such  other  order  as  to  them  may  seem  meet. 

24.  And  be  it  further  enacted,  That  the  said  court  or  judge  Power  for 
shall  and  may,  if  they  or  he  think  fit,  in  all  such  cases  of  t^e  court  or 
variance,  instead  of  causing  the  record  or  document  to  be  ■*    (ffT,*°f    ts 
amended  as  aforesaid,  direct  the  jury  to  find  the  fact  or  facts  ^.q  ^^g  found  " 
according  to  the  evidence,  and  thereupon  such  finding  shall  specially, 
be  stated  on  such  record  or  document,  and,  notwithstanding 
the  finding  on  the  issue  joined,  tlie  said  court  or  the  court 
from  which  the  record  has  issued  shall,  if  they  shall  think  the 


504  APPENDIX. 

said  variance  immaterial  to  the  merits  of  the  case,  and  the 
misstatement  such  as  could  not  have  prejudiced  the  opposite 
party  in  the  conduct  of  the  action  or  defence,  give  judgment 
according  to  the  very  right  and  justice  of  the  case. 
Power  to  state       25.  And  be  it  further  enacted,  That  it  shall  he  lawful  for 
a  special  case    q^q  parties  in  any  action  or  information,  after  issue  joined,  by 
ceedino-  to°"     consent  and  by  order  of  any  of  the  judges  of  the  said  superior 
trial.  °  courts,  to  state  the  facts  of  the  case,  in  the  form  of  a  special 

case,  for  the  02:)inion  of  the  court,  and  to  agree  that  a  judg- 
ment shall  be  entered  for  the  plaintiff  or  defendant,  by  con- 
fession or  of  nolle  prosequi,  immediately  after  the  decision  of 
the  case,  or  otherwise  as  the  court  may  think  fit;  and  judg- 
ment shall  be  entered  accordingly. 


5  &  6  AYiLL.  IV.  Cap.  41. 

An  Act  to  amend  the  Laiv  relating  to  Securities  given  for  Con- 
siderations arising  out  of  gaming,  usurious  and  certain  other 
illegal  Transactions. 

16  Car.  2,  c.  7.  Whereas  by  an  act  passed  in  the  sixteenth  year  of  the  reign 
of  his  late  majesty  King  Charles  the  Second,  and  by  an  act 
2:)assed  in  the  parliament   of  Ireland  in  the  tenth  year  of  the 

10  Will.  3,  (I.)  reign  of  his  late  majesty  King  William  the   Third,  each  of 

such  acts  being  intituled  "  An  Act  against  deceitful,  disorderly 
and  excessive  Gaming,"  it  was  enacted,  that  all  and  singular 
judgments,  statiites,  recognizances,  mortgages,  conveyances, 
assurances,  bonds,  bills,  specialties,  promises,  covenants, 
agreements,  and  other  acts,  deeds,  and  securities  whatsoever, 
which  should  be  obtained,  made,  given,  acknowledged,  or 
entered  into  for  security  or  satisfaction  of  or  for  any  money 
or  other  thing  lost  at  play  or  otherwise  as  in  the  said  acts 
respectively  is  mentioned,  or  for  any  part  thereof,  should  be 
9  Ann.  c.  14.  utterly  void  and  of  none  effect :  and  whereas  by  an  act  j)assed 
in  the  ninth  year  of  the  reign  of  her  late  majesty  Queen 
Anne,  and  also  by  an  act  passed  in  the  parliament  of  Ireland 

11  Ann.  (I.)      in  the  eleventh  year  of  the  reign  of  her  said  late  majesty,  each 

of  such  acts  being  intituled  "  An  Act  for  the  better  preventing 
of  excessive  and  deceitful  Gaming,"  it  was  enacted,  that  from 
and  after  the  several  daj^s  therein  respectively  mentioned  all 
notes,  bills,  bonds,  judgments,  mortgages,  or  other  securities 
or  conveyances  whatsoever,  given,  granted,  drawn,  or  entered 
into  or  executed  by  any  person  or  persons  whatsoever,  where 
the  whole  or  any  jiart  of  the  consideration  of  such  convey- 
ances or  securities  should  be  for  any  money  or  other  valuable 
thing  whatsoever  won  by  gaming  or  playing  at  cards,  dice, 
tables,  tennis,  boicls,  or  other  game  or  games  xohatsoever,  or  hy 
betting  on  the  sides  or  hands  of  such  as  did  game  at  any  of  the 


STATUTES.  505 

games  aforesaid,  or  for  the  reimbursing  or  repaying  any  money 
knowingly  lent  or  advanced  for  such  gaming  or  betting  as  afore- 
said, or  lent  or  advanced  at  the  time  and  place  of  such  p)lay  to 
any  person  or  persons  so  gaming  or  betting  as  aforesaid,  or  that 
should,  during  such  play,  so  play  or  bet,  should  be  utterly  void, 
frustrate,  and  of  none  effect,  to  all  intents  and  purposes  what- 
soever ;  and  that  where  such  mortgages,  securities,  or  other 
conveyances  should  be  of  lands,  tenements,  or  hereditaments, 
or  should  be  such  as  should  encumber  or  affect  the  same,  such 
mortgages,  securities,  or  other  conveyances  should  enure  and 
be  to  and  for  the  sole  use  and  benefit  of  and  should  devolve 
upon  such  person  or  persons  as  should  or  might  have  or  be 
entitled  to  such  lands  or  hereditaments  in  case  the  said 
grantor  or  grantors  thereof,  or  the  person  or  persons  so  incum- 
bering the  same,  had  been  natiu-ally  dead,  and  as  if  such 
mortgages,  securities,  or  other  conveyances  had  been  made  to 
such  person  or  persons  so  to  be  entitled  after  the  decease  of 
the  person  or  persons  so  encumbering  the  same ;  and  that  all 
grants  or  conveyances  to  be  made  for  the  preventing  of  such 
lands,  tenements,  or  hereditaments  from  coming  to  or  de- 
volving upon  such  person  or  persons  thereby  intended  to 
enjoy  the  same  as  aforesaid  should  be  deemed  fraudulent  and 
void  and  of  none  effect,  to  all  intents  and  purposes  what- 
soever :  and  whereas  by  an  act  passed  in  the  twelfth  year  of  12  Ann.  st.  2, 
the  reign  of  her  said  late  majesty  Queen  Anne,  intituled  "An  °-  1^- 
Act  to  reduce  the  E,ate  of  Interest  without  any  prejudice  to 
Parliamentary  Securities,"  it  was  enacted,  that  all  bonds,  con- 
tracts, and  assurances  whatsoever  made  after  the  twenty-ninth 
day  of  September,  one  thousand  seven  hundred  and  fourteen, 
for  payment  of  any  principal  or  money  to  be  lent  or  cove- 
nanted to  be  performed  upon  or  for  any  usury,  whereupon  or 
whereby  there  should  be  reserved  or  taken  above  the  rate  of 
five  pounds  in  the  hundred,  as  therein  mentioned,  should  be 
utterly  void :  and  whereas  by  an  act  passed  in  the  parliament  5  Geo.  2,  (I.) 
of  Ireland  in  the  fifth  year  of  the  reign  of  his  late  majesty 
King  George  the  Second,  intituled  "An  Act  for  reducing  the 
Interest  of  Money  to  Six  per  Cent.,"  it  was  enacted,  that  all 
bonds,  contracts  and  assurances  whatsoever  made  after  the 
first  day  of  May,  one  thousand  seven  hundred  and  thirty-two, 
for  payment  of  any  principal  or  money  to  be  lent  or  covenant 
to  be  perforaied  upon  or  for  any  loan,  whereupon  or  whereby 
there  should  be  taken  or  reserved  above  the  rate  of  six  pounds 
in  the  hundred,  shoidd  be  utterly  void :  and  whereas  by  an  58  Geo.  3 
act  passed  in  the  fifty-eighth  year  of  the  reign  of  his  late  c.  93. 
majesty  King  Greorge  the  Third,  intituled  "An  Act  to  afford 
Eelief  to  the  bond  fide  Holders  of  negotiable  Securities  with- 
out Notice  that  they  were  given  for  a  usurious  Consideration," 
it  was  enacted,  that  no  bill  of  exchange  or  promissory  note 
that  should  be  drawn  or  made  after  the  passing  of  that  act 


506  APPENDIX. 

slioulcl,  thougli  it  might  liave  been  given  for  a  usurious  con- 
sideration or  upon  a  usurious  contract,  be  void  in  the  hands 
of  an  indorsee  for  vahiable  consideration,  unless  such  indorsee 
had  at  the  time  of  discounting  or  paying  such  consideration 
for  the  same  actual  notice  that  such  bill  of  exchange  or  pro- 
missory note  had  been  originally  given  for  a  usurious  consi- 
11  &  12  Geo.  deration  or  iipon  a  usurious  contract :  and  whereas  by  an  act 
3»  (!•)  passed  in  the  parliament  of  Ireland  in  the  eleventh  and  twelfth 

years  of  the  reign  of  his  said  late  majesty  King  George  the 
Third,  intituled  "  An  Act  to  prevent  Frauds  committed  by 
Bankrupts,"  it  was  enacted,  that  every  bond,  bill,  note,  con- 
tract, agreement  or  other  security  whatsoever  to  be  made  or 
given  by  any  bankrupt  or  by  any  other  person  unto  or  to  the 
use  of  or  in  trust  for  any  creditor  or  creditors,  or  for  the  secu- 
rity of  the  payment  of  any  debt  or  sum  of  monej^  due  from 
such  bankrupt  at  the  time  of  his  becoming  bankrupt,  or  any 
part  thereof,  between  the  time  of  his  becoming  bankrupt  and 
such  bankrupt's  discharge,  as  a  consideration  or  to  the  intent 
to  persuade  him,  her  or  them  to  consent  to  or  sign  any  such 
allowance  or  certificate,  should  be  wholly  void  and  of  no  effect, 
and  the  monies  there  secured  or  agreed  to  be  paid  should  not 
4.5  Geo.  3,  be  recovered  or  recoverable  :  and  whereas  b}^  an  act  passed  in 
<:'■•  72.  the  forty-fifth  year  of  the  reign  of  his  said  late  majesty  Kang 

George  the  Third,  intituled  "  An  Act  for  the  Encouragement 
of  Seamen,  and  for  the  better  and  more  effectually  manning  his 
Majesty's  Navy  during  the  present  War,"  it  was  enacted,  that 
all  contracts  and  agreements  which  should  be  entered  into, 
and  all  bills,  notes  and  other  securities  which  should  be  given 
by  any  person  or  persons  for  ransom  of  any  ship  or  vessel,  or 
of  any  merchandize  or  goods  on  board  the  same,  contrary  to 
that  act,  should  be  absolutely  null  and  void  in  law,  and  of  no 
6  Geo.  4,  c.  16.  effect  whatsoever  :  and  whereas  by  an  act  passed  in  the  sixth 
year  of  the  reign  of  his  late  majesty  King  George  the  Fourth, 
intituled  "  An  Act  to  amend  the  Laws  relating  to  Bankrupts," 
it  was  enacted,  that  any  contract  or  security  made  or  given  by 
any  bankrupt  or  other  person  unto  or  in  trust  for  any  creditor, 
or  for  securing  the  payment  of  any  money  due  by  such  bank- 
rupt at  his  bankruptcy  as  a  consideration  or  with  intent  to 
persuade  such  creditor  to  consent  to  or  sign  the  certificate  of 
any  such  bankrupt,  should  be  void,  and  the  money  thereb}^ 
secured  or  agreed  to  be  paid  should  not  be  recoverable,  and 
the  party  sued  on  such  contract  or  security  might  plead  the 
general  issue,  and  give  that  act  and  the  special  matter  in  evi- 
dence :  and  whereas  securities  and  instruments  made  void  by 
virtue  of  the  several  hereinbefore  recited  acts  of  the  sixteenth 
year  of  the  reign  of  his  said  late  majesty  King  Charles  the 
Second,  the  tenth  j^ear  of  the  reign  of  his  said  late  majesty 
King  William  the  Third,  the  ninth  and  eleventh  j'ears  of  the 
reign  of  her  said  late  majesty  Queen  Anne,  the  eleventh  and 


STATUTES.  507 

twelfth  years  of  tlie  reign  of  his  said  late  majesty  King  Greorge 
the  Third,  the  forty-fifth  year  of  the  reign  of  his  said  late 
majesty  King  George  the  Third,  and  the  sixth  year  of  the 
reign  of  his  said  late  majesty  King  George  the  Fourth,  and 
securities  and  instruments  made  void  by  virtue  of  the  said  act 
of  the  twelfth  year  of  the  reign  of  her  said  late  majesty  Queen 
Anne  and  the  fifth  year  of  the  reign  of  his  said  late  majesty 
King  George  the  Second,  other  than  bills  of  exchange  or  pro- 
missory notes  made  valid  by  the  said  act  of  the  fifty-eighth 
year  of  the  reign  of  his  said  late  majesty  King  George  the 
Third,  are  sometimes  indorsed,  transferred,  assigned  or  con- 
veyed to  purchasers  or  other  persons  for  a  valuable  considera- 
tion, without  notice  of  the  original  consideration  for  which 
such  securities  or  instruments  were  given  ;  and  the  avoidance 
of  such  securities  or  instruments  in  the  hands  of  such  pur- 
chasers or  other  persons  is  often  attended  with  great  hardship 
and  injustice  :  For  remedy  thereof  be  it  enacted  by  the  king's 
most  excellent  majesty,  by  and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal,  and  commons,  in  this  present 
parliament  assembled,  and  by  the  authority  of  the  same.  That  Securities 
so  much  of  the  hereinbefore  recited  acts  of  the  sixteenth  year  giyen  for  con- 
of  the  reign  of  his  said  late  majesty  King  Charles  the  Second,  arish:^<^Tit  of 
the  tenth  year  of  the  reign  of  his  said  late  majesty  King  iUeo-af trans- 
William  the  Third,  the  ninth,  eleventh  and  twelfth  years  of  actions  not 
the  reign  of  her  said  late  majesty  Queen  Anne,  the  fifth  year  to  be  void, 
of  the  reign  of  his  said  late  majesty  King  George  the  Second,  ^"*  *°j^+' 
the  eleventh  and  twelfth  and  the  forty-fifth  years  of  the  reign  havTbeen 
of  his  said  late  majesty  King  George  the  Third,  and  the  sixth  given  for  an. 
year  of  the  reign  of  his  said  late  majesty  King  George  the  illegal  consi- 
Fourth,   as  enacts  that  any  note,   bill  or  mortgage  shall  be  <leration. 
absolutely  void,  shall  be   and  the  same  is  hereby  repealed  ; 
but  nevertheless  every  note,  hill  or  mortgage,  which  if  this  act 
had  not  been   passed  would,  by  virtue  of  the  said  several 
lastly  hereinbefore  mentioned  acts  or  any  of  them,  have  been 
absolutely  void,  shall  be  deemed  and  taken  to  have  been  made, 
drawn,  accepted,  given  or  executed  for  an  illegal  consideration, 
and  the  said  several  acts  shall  have  the  same  force  and  effect 
which  they  would  respectively  have  had  if  instead  of  enacting 
that  any  such  note,  bill  or  mortgage  should  be  absolutely  void, 
such  acts  had  respectively  provided  that  every  such  note,  bill 
or  mortgage  should  be  deemed  and  taken  to  have  been  made, 
drawn,  accepted,  given  or  executed  for  an  illegal  considera- 
tion :   Provided  always,  that  nothing  herein  contained  shall 
prejudice  or  affect  any  note,  bill  or  mortgage  which  would 
have  been  good  and  valid  if  this  act  had  not  been  passed. 

2.  And  be  it  further  enacted.  That  in  case  any  person  shall,  Money  paid 
after  the  passing  of  this  act,  make,  draw,  give  or  execute  any  *°  the  holder 
note,  bill  or  mortgage  for  any  consideration  on  account  of  '^•,?^^°  j,^^?^" 
which  the  same  is  by  the  hereinbefore  recited  acts  of  the  six-  deemed  to  be 


508 


APPENDIX. 


paid  on  ac- 
count of  the 
person  to 
•whom  the 
same  was 
oricriaally 
o-iveu . 


Repealing 
so  much  of 
recited  acts  of 
9  &  1 1  Ann. 
as  enacts  that 
securities  shall 
enure  for  the 
benefit  of 
parties  in  re- 
mainder. 


teentli  year  of  the  reign  of  his  said  late  majesty  King  Charles 
the  Second,  the  tenth  year  of  the  reign  of  his  said  late  majesty 
King  William  the  Third,  and  the  ninth  and  eleventh  years  of 
the  reign  of  her  said  late  majesty  Queen  Anne,  or  by  any  one 
or  more  of  such  acts,  declared  to  be  void,  and  such  person  shall 
actually  pay  to  any  indorsee,  holder  or  assignee  of  such  note, 
bill  or  mortgage  the  amount  of  the  money  thereby  secured,  or 
any  part  thereof,  such  money  so  paid  shall  be  deemed  and  taken 
to  have  been  paid  for  and  on  account  of  the  person  to  whom 
such  note,  bill  or  mortgage  was  originally  given  upon  such 
illegal  consideration  as  aforesaid,  and  shall  be  deemed  and 
taken  to  be  a  debt  due  and  owing  from  such  last-named  per- 
son to  the  person  who  shall  have  so  paid  such  money,  and  shall 
accordingly  be  recoverable  {i)  by  action  at  law  in  any  of  his 
majesty's  courts  of  record. 

3.  And  be  it  further  enacted,  That  so  much  of  the  said  acts 
of  the  ninth  and  eleventh  years  of  the  reign  of  her  said  late 
majest}^  Queen  Anne  as  enacts  that  where  such  mortgages, 
securities  or  other  conveyances  as  therein  mentioned  should 
be  of  lands,  tenements  or  hereditaments,  or  should  be  such  as 
should  incumber  or  affect  the  same,  such  mortgages,  securities 
or  other  conveyances  should  enure  and  be  to  and  for  the  sole 
use  and  benefit  of  and  should  devolve  upon  such  person  or 
persons  as  should  or  might  have  or  be  entitled  to  such  lands 
or  hereditaments  in  case  the  grantor  or  grantors  thereof,  or 
the  person  or  persons  incumbering  the  same,  had  been  natu- 
rally dead,  and  as  if  such  mortgages,  securities,  or  other  con- 
veyances had  been  made  to  such  person  or  persons  so  to  be 
entitled  after  the  decease  of  the  person  or  persons  so  incum- 
bering the  same,  and  that  all  grants  or  conveyances  to  be 
made  for  the  preventing  of  such  lauds,  tenements  or  here- 
ditaments from  coming  to  or  devolving  upon  such  person  or 
persons  thereby  intended  to  enjoy  the  same  as  aforesaid, 
should  be  deemed  fraudulent  and  void  and  of  none  effect,  to 
all  intents  and  purposes  whatsoever,  shall  be  and  the  same  is 
hereby  reiDoaled ;  saving  to  all  persons  all  rights  acquired  by 
virtue  thereof  previously  to  the  passing  of  this  act. 


8  &  9  YicT.  Cap.  109. 

An  Act  to  amend  the  Law  concerning  Games  and  Wagers. 

Whereas  the  laws  heretofore  made  in  restraint  of  unlawful 
gaming  have  been  found  of  no  avail  to  prevent  the  mischiefs 
which  may  happen  therefrom,  and  also  apply  to  sundry  games 


(()  Both  principal  and  interest  are  recoverable  ;   Giljpin  v.  Chtttcrbuck, 
Q.  B.,  May  8,  1849. 


STATUTES. 


509 


of  skill  from  wliicli  tlie  like  mischiefs  cannot  arise ;  be  it 
enacted  by  the  queen's  most  excellent  majesty,  by  and  with 
the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by 
the  authority  of  the  same.  That  so  much  of  an  act  passed  in  Repeal  of 
the  thirty-third  year  of  the  reign  of  King  Henry  the  Eighth,  Pj^i't  of  33 
intituled  "  The  Bill  for  maintaining  Artillery,  and  the  de-  ^^"^^  ^'  ^-  ^• 
barring  of  unlawful  Games,"  whereby  any  game  of  mere 
skill,  such  as  bowling,  coyting,  cloyshcayls,  half  bowl,  tennis, 
or  the  like,  is  declared  an  unlawful  game,  or  which  enacts 
any  penalty  for  playing  at  any  such  game  of  skill  as  afore- 
said, or  which  enacts  any  penalty  for  lacking  bows  or  arrows, 
or  for  not  making  and  continuing  butts,  or  which  regulates 
the  making,  selling  or  using  of  bows  and  arrows,  and  also 
so  much  of  the  said  act  as  requires  the  mayors,  sheriffs, 
bailiffs,  constables,  and  other  head  officers  within  every  city, 
borough  and  town  within  this  realm,  to  make  search  weekly, 
or  at  the  farthest  once  a  month,  in  all  places  where  houses, 
alleys,  plays,  or  places  of  dicing,  carding  or  gaming  shall 
be  suspected  to  be  had,  kept  and  maintained,  shall  be  re- 
pealed, and  also  so  much  of  the  said  act  as  makes  it  lawful 
for  every  master  to  license  his  or  their  servants,  and  for  every 
nobleman  and  other  having  manors,  lands,  tenements,  or 
other  yearly  profits  for  term  of  life,  in  his  own  right  or  in 
his  wife's  right,  to  the  j^early  value  of  a  hundred  pounds 
or  above,  to  command,  aj^point  or  license,  by  his  or  their 
discretion,  his  or  their  servants  or  family  of  his  or  their  house 
or  houses  to  play  at  cards,  dice  or  tables,  or  any  unlawful 
game,  as  therein  more  fu.lly  set  forth,  shall  be  rej)ealed  ; 
and  that  no  such  commandment,  appointment  or  licence 
shall  avail  any  person  to  exempt  him  from  the  danger  or 
penalty  of  playing  at  any  unlawful  game  or  in  any  common 
gaming  house. 

2.  And  whereas  doubts  have  arisen  whether  certain  houses,  What  shall 
alleged  or  reputed  to  be  opened  for  the  use  of  the  subscribers  he  sufficient 
only,  or  not  open  to  all  persons  desirous  of  using  the  same,  Tl^^l%^  T 

j1  T  1  •  1  /TNT'IT  1  J-lOU.Sc   IS    at 

are  to  be  deemed  common  gaming  houses  (A:)  ;   be  it  declared  common 
and  enacted.  That,  in  default  of  other  evidence  proving  any  gaming 
house  or  jolace  to  be  a  common  gaming  house,  it  shall  be  suffi-  house, 
cient,  in  support  of  the  allegation  in  any  indictment  or  infor- 
mation that  any  house  or  place  is  a  common  gaming  house,  to 
prove  that  such  house  or  place  is   kept  or  used  for  playing 
therein  at  any  unlawful  game,  and  that  a  bank  is  kept  there 
by  one  or  more  of  the  players  exclusively  of  the  others,  or  that 
the  chances  of  any  game  played  therein  are  not  alike  favour- 
able to  all  the  players,  including  among  the  players  the  banker 
or  other  person  by  whom  the  game  is  managed,  or  against 


{k)  See  Crockford  v.  Lord  3Iaidstone,  Appendix. 


510 


APPENDIX. 


Power  of  jus- 
tices may  be 
exercised 
luider  Avar- 
rant. 


Penalties  on 
gaming 
house  keep- 
ers, &c. 


whom  the  other  players  stake,  play  or  bet ;  and  every  such 
house  or  place  shall  be  deemed  a  common  gaming"  house,  such 
as  is  contrary  to  law  and  forbidden  to  be  kept  by  the  said  act 
of  King  Henry  the  Eighth,  and  by  all  other  acts  containing 
any  provision  against  unlawful  games  or  gaming  houses. 

3.  And  be  it  enacted,  That  in  every  case  (except  within 
the  metropolitan  police  district)  in  which  the  justices  of  peace 
in  every  shire,  and  mayors,  sheriffs,  bailiffs  and  other  head 
officers  within  every  city,  town  and  borough  within  this  realm, 
now  have  by  law  authority  to  enter  into  any  house,  room  or 
place,  where  unlawfid  games  shall  be  suspected  to  be  holden, 
it  shall  be  lawful  for  any  justice  of  the  peace,  upon  complaint 
made  before  him  on  oath  that  there  is  reason  to  suspect 
any  house,  room  or  place  to  be  kept  or  used  as  a  common 
gaming  house,  to  give  authority,  by  special  warrant  under  his 
hand,  when  in  his  discretion  he  shall  think  fit,  to  any  con- 
stable, to  enter,  with  such  assistance  as  may  be  found  neces- 
sary, into  such  house,  room  or  place,  in  like  manner  as  might 
have  been  done  by  such  justices,  mayors,  sheriffs,  bailiffs  or 
other  head  officers,  and,  if  necessary,  to  use  force  for  making 
such  entry,  whether  by  breaking  open  doors  or  otherwise,  and 
to  arrest,  search  and  bring  before  a  justice  of  peace  all  such 
persons  found  therein  as  might  have  been  arrested  therein  by 
such  justice  of  -peace  had  he  been  personally  present ;  and  all 
such  persons  shall  be  dealt  with  according  to  law,  as  if  they 
had  been  arrested  in  such  house,  room  or  place  by  the  justice 
before  whom  they  shall  be  so  brought ;  and  any  such  warrant 
may  be  in  the  form  given  in  the  first  schedule  annexed  to  this 
act. 

4.  And  be  it  enacted.  That  the  owner  or  keeper  of  any 
common  gaming  house,  and  every  person  having  the  care  or 
management  thereof,  and  also  every  banker,  croupier  and 
other  person  who  shall  act  in  any  manner  in  conducting  the 
business  of  any  common  gaming  house,  shall,  on  conviction 
thereof,  by  his  own  confession,  or  by  the  oath  of  o?ie  or  more 
credible  witnesses,  before  any  two  justices  of  the  jjeace,  beside 
any  penalty  or  punishment  to  which  he  may  be  liable  under 
the  provisions  of  the  said  act  of  King  Henry  the  Eighth,  be 
liable  to  forfeit  and  pay  such  penalty,  7iot  more  than  one  hun- 
dred pounds,  as  shall  be  adjudged  by  the  justices  before  whom 
he  shall  be  convicted,  or,  in  the  discretion  of  the  justices  be- 
fore whom  he  shall  be  convicted,  may  be  committed  to  the 
house  of  correction,  with  or  without  hard  labour,  for  any  time 
not  more  than  six  calendar  months;  and  on  nonpayment  of 
any  penalty  so  adjudged,  and  of  the  reasonable  costs  and 
charges  attending  the  conviction,  the  same  shall  be  levied  by 
distress  and  sale  of  the  goods  and  chattels  of  the  offender,^  by 
warrant  under  the  hand  and  seal  of  one  of  the  convicting  jus- 
tices :  Provided  always,  tluit  notliing  herein  contained  shall 


STATUTES.  511 

prevent  any  proceeding  Ly  indictment  against  the  owner  or 
keeper  or  other  person  having  the  care  or  management  of  a 
common  gaming  house ;  hut  no  person  who  shall  have  been 
summarily  convicted  of  any  such  offence  shall  be  liable  to  be 
proceeded  against  by  indictment  for  the  same  offence. 

5.  And  be  it  enacted,  That  it  shall  not  be  necessary,  in  Proof  of 
support  of  any  information  for  gaming  in,  or  sufl'ering  any  gaming  for 
games  or  gaming  in,  or  for  keeping  or  using,  or  being  con-  ^i^oney,  &c. 
cerned  in  the  management  or  conduct  of  a  conniion  gaming  P^*  ^^ecessary 
house,  to_  prove  that  any  person  found  playing  at  any  game  informations 
was  playing  for  any  money,  wager  or  stake.  for  gamin o-. 

6.  And  be  it  enacted.  That  if  any  superintendent  belonging  Commission- 
to  the  metropolitan  police  force  shall  report  in  writing  to  the  ers  of  police 
commissioners  of  police  of  the  metropolis  that  there  are  good  ^^Y  autlio- 
grounds  for  believing,  and  that  he  does  believe,  that  any  ^?^^  super- 
house,  room  or  place  within  the  meirojjoliian  police  district  {I),  consi*^bl     t 
is  kept  or  used  as  a  common  gaming  house,  it  shall  be  lawful  enter  o-amino- 
for  either  of  the  said  commissioners,  by  order  in  writing,  to  houses' and  ° 
authorize  the  superintendent  to  enter  any  such  house,  room  ^^^^'^  ^11  ^^- 
or  place,  with  such  constables  as  shall  be  directed  by  the  ^*™™ents  of 
commissioner   to   accompany  him,   and,  if   necessary,  to  use  f^keTiSo^^ 
force  for  the  purpose  of  efl'ecting  such  entry,  whether  by  break-  custody  all 
ing  oj)en  doors  or  otherwise,  and  to  take  into  custody  all  i)er-  persons  found 
sons  who  shall  be  found  therein,  and  to  seize  all  tables  and  therein, 
instruments  of  gaming  found  in  such  house  or  premises,  and 

also  to  seize  all  monies  and  securities  for  money  found 
therein. 

7.  And  be  it  enacted,  That  it  shall  be  lawful  for  the  police  Police  super- 
superintendent  making  such  entry  as  aforesaid  in  obedience  intendent  may 
to  any  such  order  of  one  of  the  commissioners  of  police  of  the  ^^^^'^^^  for  in- 
metropolis,  with  the  assistance  of  any  constable  or  constables  ^*^^'"™^^^*^  o* 
accompanying  him,  to  search  all  parts  of  the  house,  room  or  °         "' 
place  which  he  shall  have  so  entered,  where  he  shall  suspect 

that  tables  or  instrimients  of  gaming  are  concealed,  and  all 
persons  whom  he  shall  find  therein,  and  to  seize  all  tables  and 
instruments  of  gaming  Avhich  he  shall  so  find. 

8.  And  be  it  enacted.  That  where  any  cards,  dice,  balls,  -WTiat  shall 
counters,  tables  or  other  instruments  of  gaming  used  in  play-  be  deemed 
ing  any  unlawful  game  shall  be  found  in  any  house,  room  or  evidence  of 
place,  suspected  to  be  used  as  a  common  gaming  house,  and  S^^'^^S- 
entered  under  a  warrant  or  order  issued  under  the  provisions 

of  this  act,  or  about  the  person  of  any  of  those  who  shall  be 
found  therein,  it  shall  be  evidence,  until  the  contrary  be  made 
to  appear,  that  such  house,  room  or  place,  is  used  as  a  com- 
mon gaming  house,  and  that  the  persons  found  in  the  room  or 
place  where  such  tables  or  instruments  of  gaming  shall  have 
been   found   were   playing   therein,    although   no   play   was 

ij)  See  2  &  3  Vict.  c.  A,  s.  48. 


512 


APPENDIX. 


Indemnity  of 
■witnesses. 


Justices  may- 
grant  billiard 
licences  at 
licensine: 


actually  going  on  in  tlie  presence  of  the  superintendent  or 
constable  entering  the  same,  under  a  warrant  or  order  issued 
under  the  pi^ovisions  of  this  act,  or  in  the  presence  of  those 
persons  by  whom  he  shall  be  accompanied  as  aforesaid ;  and 
it  shall  be  lawful  for  the  police  magistrate  or  justices  before 
whom  any  person  shall  be  taken  by  virtue  of  the  warrant  or 
order  to  direct  all  such  tables  and  instruments  of  gaming  to 
be  forthwith  destroyed. 

9.  And  for  the  more  effectual  j)rosecution  of  the  keepers  of 
common  gaming  houses,  be  it  enacted,  That  every  person  who 
shall  have  been  concerned  in  any  unlawful  gaming,  and  who 
shall  be  examined  as  a  witness  by  or  before  any  police  magis- 
trate or  justice  of  the  peace,  or  on  the  trial  of  any  indictment 
or  information  against  the  owner  or  keej^er  or  other  person 
having  the  care  or  management  of  any  common  gaminghouse, 
touching  such  unlawful  gaming,  and  who  upon  such  exami- 
nation shall  make  true  and  faithful  discovery  to  the  best  of 
his  or  her  knowledge  of  all  things  as  to  which  he  or  she  shall 
be  so  examined,  and  shall  thereupon  receive  from  the  magis- 
trate or  justice  of  the  peace  or  judge  of  the  court  by  or  before 
whom  he  or  she  shall  be  so  examined  a  certificate  in  writing 
to  that  effect,  shall  be  freed  from  all  criminal  prosecutions, 
and  from  all  forfeitures,  punishments  and  disabilities,  to  which 
he  or  she  may  have  become  liable  for  any  thing  done  before 
that  time  in  respect  of  such  unlawful  gaming. 

10.  And  be  it  enacted,  That  the  justices  in  every  division, 
district  and  place  in  England,  for  which  a  special  session  of 
the  justices  of  the  peace  (called  the  general  annual  licensing 
meeting)  is  holden  annually  for  granting  licences  to  persons 
keeping  or  being  about  to  keep  inns,  alehouses  and  victualling 
houses,  to  sell  exciseable  licpiors  by  retail,  to  be  drunk  or  con- 
sumed on  the  premises  therein  specified,  shall  have  authority 
at  such  general  annual  licensing  meeting,  or  at  any  adjourn- 
ment thereof,  to  grant  billiard  licences  to  such  persons  as  the 
said  justices  shall  in  their  discretion  deem  fit  and  proper  to 
keep  public  billiard  tables  and  bagatelle  boards,  or  instru- 
ments used  in  any  game  of  the  like  kind,  and  at  the  special 
sessions  holden  for  transferring  licences  to  keep  inns  shall 
have  authority  to  transfer  such  billiard  licences  to  such  other 
persons  as  they  in  their  discretion  shall  deem  fit  and  proper 
to  continue  to  hold  the  same,  and  who  in  each  case  shall  be 
required  to  give  the  like  notice  of  their  intention  to  aj)ply  for 
such  billiard  licence,  and  entitled  to  receive  the  like  notice  of 
the  licensing  daj's,  as  is  required  in  the  case  of  persons  intend- 
ing to  apply  for  a  licence  or  the  transfer  of  a  licence  to  sell 
exciseable  liquors  by  retail  to  be  drunk  or  consumed  on  the 
premises,  or  as  near  thereto  as  the  case  will  allow ;  and  every 
such  billiard  licence  shall  be  in  the  form  given  in  the  third 
schedule  annexed  to  this  act,  and  shall  continue  in  force  in 


STATUTES.  513 

the  counties  of  Middlesex  and  Surrey  from  tlie  fifth  day  of 
April,  and  elsewhere  from  the  tenth  day  of  October,  after  the 
granting  thereof,  for  one  whole  year  thence  respectively  next 
ensuing,  and  no  longer ;  and  the  clerk  of  the  justices  shall  be 
entitled  to  demand  and  receive  from  every  person  licensed 
under  this  act,  for  the  petty  constable  or  other  peace  officer 
for  serving  notices  and  other  services  rec^uired  of  him,  the  sum. 
of  One  shilling,  and  for  the  clerk  of  the  justices,  for  the 
licence,  the  sum  of  Five  shillings  ;  and  every  clerk  who  shall 
demand  or  receive  from  any  person  for  such  fees  more  than 
the  said  sums,  being  together  Six  shillings,  shall  for  every 
such  offence,  on  conviction  before  one  justice,  forfeit  and  pay 
the  sum  of  Five  pounds. 

11.  And  be  it  enacted,  That  after  the  fifth  day  of  Ajoril,  in  Places  kept 
the  year  one  thousand  eight  hundred  and  forty-six,  in  the  for  public 
counties  of  Middlesex  and  Surrey,  and  elsewhere   after  the  J*^^|^'^'',*^  tables 
tenth  day  of  October  next  after  the  passing  of  this  act,  every    °    ®    cense  . 
house  (m),  room,  or  place  kept  for  public  billiard  pla;^dng,  or 
where  a  public  billiard  table  or  bagatelle  board,  or  instrument 
used  in  any  game  of  the  like  kind  is  kept,  at  which  persons 
are  admitted  to  play,  except  in  houses  or  premises  specified 
in  any  licence  granted  under  an  act  passed  in  the  ninth  year 
of  the  reign  of  King  George  the  Fourth,  intituled  "An  Act  to  9  Geo. 4,  c.  61. 
regulate  the  granting  of  Licences  to  Kee^^ers  of  Inns,  Ale- 
houses,   and  Victualling   Houses   in    England,"  hereinafter 
called  a  Victualler's  Licence,  shall   be   licensed   under   this 
act ;  and  after  the  said  fifth  day  of  April  in  Middlesex  and  Notice  that 
Surrey,  and  elsewhere  after  the  said  tenth  day  of  October,  such  places 
every  person  keeping  any  such  public  billiard  table  or  baga-  ^^^  bilUard 
telle  board,  or  instrument  used  in  any  game  of  the  like  kind  to  be  put  up. 
for  public  use,  without  being  duly  licensed  so  to  do,  and  not 
holding  a  victualler's  licence  for  the  house  or  premises  where 
such  billiard  table,  bagatelle  board,  or  other  instrument  as 
aforesaid  is  kept   or  used,  and   also   every  person  licensed 
under  this  act  who  shall  not  during  the  continuance  of  such 
billiard  licence  put  and   keep   up  the  words  "Licensed  for 
Billiards,"  legibly  painted  in  some  conspicuous   place   near 
the  door  and  on  the   outside  of  the   house   specified  in  the 
licence,  shall  be  liable  to  be  proceeded  against  as  the  keeper 
of  a  common   gaming  house,    and,    beside   any   penalty    or 
punishment  to  which  he  may  be  liable  if  convicted  of  keeping 
a  common  gaming  house,  shall,  on  conviction  of  keeping  such 
unlicensed  billiard  table,  bagatelle  board,  or  other  instrument 
as  aforesaid,  by  his  own  confession,  or  by  the  oath  of  one  or 
more  credible  witnesses  before  any  police  magistrate  or  any 
two  justices  of  the  peace,  be  liable  to  pay  such  penalty,  not 

()h)  As  to  rating  a  House  containing  a  Billiard  Table,  see  Part  3, 
Chap.  5. 

O.  X-  L 


614 


APPENDIX, 


Penalties  for 
offences 
against  tenor 
of  licences. 


9Geo.4,  c.  61. 


When  billiard 
playing  shall 
not  be  al- 
lowed. 


more  than  Ten  pounds  for  every  day  on  wliich  such  billiard 
table,  bagatelle  board,  or  instrument  as  aforesaid  shall  be  used, 
as  shall  be  adjudged  by  the  magistrate  or  justices  before 
whom  he  shall  be  convicted,  or,  in  the  discretion  of  the  ma- 
gistrate or  justices,  may  be  committed  to  the  house  of  correc- 
tion, with  or  without  hard  labour,  for  any  time  not  more  than 
one  calendar  month  ;  and  on  nonpayment  of  any  penalty  so 
adjudged,  and  of  the  reasonable  costs  and  charges  of  the  con- 
viction, the  same  shall  be  levied  by  distress  and  sale  of  the 
goods  and  chattels  of  the  oif  ender,  by  warrant  under  the  hand 
and  seal  of  the  magistrate  or  one  of  the  convicting  justices; 
but  no  person  who  shall  have  been  summarily  convicted  of 
any  such  offence  shall  be  liable  to  be  further  proceeded 
against  by  indictment  for  the  same  offence. 

12.  And  be  it  enacted,  That  every  person  licensed  under 
this  act,  who  shall  be  convicted  before  a  police  magistrate  or 
two  justices  acting  in  and  for  the  division  or  place  in  which 
shall  be  situated  the  house  kept  or  theretofore  kept  by  such 
person  of  any  offence  against  the  tenor  of  the  licence  to  him 
granted,  shall  be  liable  to  the  same  penalties  and  punish- 
ments in  the  case  of  a  first,  second  or  third  offence  respec- 
tively to  which  persons  licensed  tmder  an  act  passed  in  the 
ninth  year  of  the  reign  of  King  George  the  Fourth,  intituled 
"An  Act  to  regulate  the  granting  of  Licences  to  Keepers  of 
Inns,  Alehouses,  and  Yictualling  Houses  in  England,"  are 
respectively  liable  on  conviction  of  a  first,  second  or  third 
offence,  against  the  tenor  of  the  licence  granted  to  them 
imder  the  last-recital  act,  or  as  near  thereunto  as  the  nature 
of  the  case  wiU  allow;  and  all  the  provisions  of  the  last- 
recited  act  with  respect  to  convictions  and  penalties  for 
offences  against  the  last-recited  act,  and  the  proceedings  for 
enforcing  the  same,  and  to  the  expenses  of  prosecution  and 
penalties  on  witnesses  for  not  attending  and  the  recovery 
and  application  of  penalties,  and  the  proceedings  on  appeals 
against  convictions,  and  the  award  of  costs  on  appeals,  and 
in  actions  against  justices,  constables  or  other  persons,  for 
any  thing  done  in  the  execution  of  the  last-recited  act,  shall 
be  deemed  to  apply,  so  far  as  they  are  applicable,  to  convic- 
tions for  offences  against  the  tenor  of  the  licences  granted 
imder  this  act,  and  to  the  proceedings  consequent  thereupon 
or  connected  therewith,  as  if  they  were  herein  re-enacted. 

13.  And  be  it  enacted.  That  every  person  keeping  any 
public  billiard  table  or  bagetelle  board,  or  instrument  used 
in  any  game  of  the  like  kind,  whether  he  be  the  holder  of  a 
victualler's  licence  or  licensed  under  this  act,  who  shall  allow 
any  .person  to  play  at  such  table,  board  or  instrument,  after 
one  and  before  eight  of  the  clock  in  the  morning  of  any  day, 
or  at  any  time  on  Sundays,  Christmas  Day,  or  Good  Friday, 
or  any  day  appointed  to  be  kept  as  a  public  fast  or  thanks- 


STATUTES.  515 

giving;  and  every  person  liolding-  a  victualler's  licence  who 
shall  allow  any  person  to  play  at  such  table,  board  or  instru- 
ment, kept  on  the  premises  specified  in  such  victualler's 
licence  at  any  time  when  such  premises  are  not  by  law  allowed 
to  be  open  for  the  sale  of  wine,  spirits  or  beer,  or  other  fer- 
mented or  distilled  liquors,  shall  be  liable  to  the  penalties 
herein  provided  in  the  case  of  persons  keeping  such  public 
billiard  table,  bagatelle  board  or  instrument  as  aforesaid  for 
public  use  without  licence ;  and  during  those  times  when  play 
at  such  table,  board  or  instrument,  is  not  allowed  by  this  act, 
every  house  licensed  under  this  act,  and  every  billiard  room 
in  every  house  specified  in  any  victualler's  licence,  shall  be 
closed,  and  the  keeping  of  the  same  open,  or  allowing  any 
person  to  play  therein  or  thereat,  at  any  of  the  times  or  on 
any  of  the  days  during  which  such  play  is  not  allowed  by  this 
act,  shall  be  deemed  in  each  case  an  offence  against  the  tenor 
of  the  licence  of  the  person  so  offending. 

14.  And  be  it  enacted.  That  it  shall  be  lawful  for  all  con-  Empowering- 
stables  and  officers  of  police  to  enter  into  any  house,  room  or  constables  to 
place  where  any  public  table  or  board  is  kept  for  playing  at  7^      icense 
billiards,  bagatelle  or  any  game  of  the  like  kind,  when  and 

so  often  as  such  constables  and  ofiicers  shall  think  proper ; 
and  every  person  licensed  under  the  said  act  of  the  ninth  year 
of  the  reign  of  King  Gleorge  the  Fourth,  or  imder  this  act, 
who  shall  refuse  to  admit  or  who  shall  not  admit  any  such 
constable  or  officer  of  police  into  such  house,  room  or  place 
shall,  on  conviction  thereof  before  a  police  magistrate  or  any 
two  justices  of  the  peace,  be  deemed  guilty  of  an  offence 
against  the  tenor  of  his  licence,  whether  the  same  be  a  bil- 
liard licence  or  a  victualler's  licence,  and  in  the  case  of  a 
first,  second,  third  or  subsequent  offence  shall  be  punished 
accordingly. 

15.  And  be  it  enacted,  That  an  act  passed  in  the  sixteenth  Repeal  of  16 
year  of  the  reign  of  King  Charles  the  Second,  and  an  act  ^''^^-  ->  ^-  "'■ 
passed  by  the  parliament  of  Ireland  in  the  tenth  year  of  the  10 Will.  3,  (I.) 
reign  of  King  William  the  Third,  each  of  such  acts  being 
cntituled  "An  Act  against  deceitful,  disorderly  and  excessive 
Gaming,"  and  so  much  of  an  act  passed  in  the  ninth  year  of  9  Anne,  c.  H. 
the  reign  of  Queen  Anne,  and  of  an  act  passed  by  the  parlia- 
ment of  Ireland  in  the  eleventh  year  of  the  same  reign,  each  11  Anne,  (I.) 
of  such  acts  being  intituled  '''  An  Act  for  the  better  preventing 

of  excessive  and  deceitful  Gaming,"  as  was  not  altered  by  an 

act  passed  in  the  sixth  year  of  the  reign  of  his  late  majesty,  5  &  6  Will.  4, 

intituled  "An  Act  to  amend  the  Law  relating  to  Securities  °- ^^> 

given  for  Considerations  arising  out  of  gaming,  usurious  and 

certain  other  illegal  Transactions,"  and  so  much  of   an  act 

passed  in  the  eighteenth  year  of  the  reign  of  King  George 

the  Second,  intituled  ' '  An  Act  to  explain,  amend  and  make  and  part  of 

more  effectual  the  Laws  in  being  to  prevent  excespive  and  ^^  ^^°-  -» 

„  c.  34. 

ll2 


)16 


APPENDIX, 


Cheating  at 
play  to  be 
punished  as 
obtaining 
money  by 
false  pre- 
tences. 


Wagers  not 
recoverable 

at  law. 


Proceedings 
under  feigned 
issues  abo- 
lished. 


deceitful  Graming,  and  to  restrain  and  prevent  the  excessive 
Increase  of  Horse  Eaces,"  as  relates  to  the  first-recited  act 
of  Queen  Anne,  or  as  renders  any  person  liable  to  he  indicted 
and  j)unished  for  winning  or  losing,  at  play  or  by  betting,  at 
any  one  time,  the  sum  or  value  of  ten  pounds,  or  within  the 
space  of  twenty -four  hours  the  sum  or  value  of  twenty  pounds, 
shall  be  repealed,  except  as  to  any  penalties  incurred  on  or 
before  the  fifth  day  of  March,  in  the  year  one  thousand  eight 
hundred  and  forty-four,  for  recovering  Avhich  any  suit  shall 
have  been  commenced  before  the  said  fifth  day  of  March,  and 
the  proceedings  for  recovery  and  application  of  the  same. 

17.  And  be  it  enacted.  That  every  person  who  shall,  by 
any  fraud  or  xmlaivful  device  or  ill  practice  («),  in  playing  at 
or  with  cards,  dice,  tables  or  other  game,  or  in  bearing  a  part 
in  the  stakes,  wagers  or  adventures,  or  in  betting  on  the  sides 
or  hands  of  them  that  do  play,  or  in  wagering  on  the  event 
of  any  game,  sjDort,  pastime  or  exercise,  win  from  any  other 
person  to  himself,  or  any  other  or  others,  any  sum  of  money 
or  valuable  thing,  shall  be  deemed  guilty  of  obtaining  such 
money  or  valuable  thing  from  such  other  person  hy  a  false 
pretence  (o),  with  intent  to  cheat  or  defraud  such  person  of  the 
same,  and,  being  convicted  thereof,  shall  be  punished  ac- 
cordingly. 

18.  And  be  it  enacted,  That  all  contracts  or  agreements, 
whether  by  parol  or  in  writing,  by  way  of  gaming  or  wager- 
ing, shall  be  null  and  void  {pi)  '■>  ^^^  ^"^^^  ^^  suit  {q)  shall  be 
hrought  or  maintained  in  any  court  of  law  or  equity  for  reco- 
vering any  sum  of  money  or  valuable  thing  alleged  to  be  won 
upon  any  wager,  or  which  shall  have  been  deposited  in  the 
hands  of  any  person  to  abide  the  event  on  which  any  wager 
shall  have  been  made(r):  provided  always,  that  this  enact- 
ment shall  not  be  deemed  to  apply  to  any  subscription  or 
contribution,  or  agreement  to  subscribe  or  contribute,  for  or 
toward  any  plate,  prize  or  sum  of  money  to  be  awarded  to  the 
winner  or  winners  of  any  lawful  game,  sport,  pastime  or 
exercise  (s). 

19.  And  whereas  many  important  questions  are  now  tried 
in  the  form  of  feigned  issues,  by  stating  that  a  wager  was  laid 
between  two  parties  interested  in  respectively  maintaining  the 


(«)  This  must  be  in  the  Game  ; 
Heg.  V.  Baileij,  4  Cox,  C.  C.  390. 

(o)  Prosecutor  entitled  to  costs 
under  7  Geo.  4,  c.  64,  s.  23 ;  Reg. 
V.  Gardner,  Worcester  Spr.  Ass. 
1851 ;  S.  C.  17  L.  T.  7. 

{]))  Wagers  declared  void  in 
India  by  the  act  of  the  Governor  in 
Council,  Oct.  10,  1848.  See  Eam- 
boll  V.  SooJumnuU,  6  Moore's  P.  C. 
314.     See  ante,  Part  3,  Chap.  3. 


[i])  See  Varney  v.  Hickman,  ante, 
Part  3,  Chap.  3. 

{r)  This  should  be  specially 
pleaded  ;    Varney  v.  Hickman,  5  C. 

B.  282.     Plea  to  this  effect  bad  for 
Generality,   Grizewood  v.  Blane,    11 

C.  B.  538.     See  ante,  p.  423. 

(«)  This  proviso  has  no  relation 
to  Derby  lotteries.  See  Gatty  v. 
Field,  15  L.  J.,  Q.  B.  408. 


STATUTES.  517 

affii'mative  and  tlie  negative  of  certain  propositions ;  but  sucli 
questions  may  he  as  satisfactorily  tried  without  such  form  (t) ; 
be  it  therefore  enacted,  That  in  every  case  where  any  court  of 
law  or  equity  may  desire  to  have  any  question  of  fact  decided 
by  a  juiy,  it  shall  be  lawful  for  such  court  to  direct  a  writ  of 
summons  to  be  sued  out,  by  such  person  or  persons  as  such 
court  shall  think  ought  to  be  plaintiff  or  plaintiffs,  against 
such  person  or  persons  as  such  court  shall  think  ought  to  be 
defendant  or  defendants  therein,  in  the  form  set  forth  in  the 
second  schedule  to  this  act  annexed,  with  such  alterations  or 
additions  as  such  court  may  think  proper ;  and  thereupon  all 
the  proceedings  shall  go  on  and  be  brought  to  a  close  in  the 
same  manner  as  is  now  practised  in  proceedings  under  a 
feigned  issue. 

20.  And  be  it  enacted,  That  any  person  who  shall  be  sum-  Appeal  to 
marily  convicted  under  this  act  may  appeal  to  the  next  gene-  Qy^'i'ter  ses- 
ral  or  quarter  session  of  the  peace  to  be  holden  for  the  county  ^^'^^^• 

or  place  wherein  the  cause  of  complaint  shall  have  arisen, 
provided  that  such  person  at  the  time  of  the  conviction,  or 
within  forty-eight  hours  thereafter,  shall  enter  into  a  recogni- 
zance, with  two  sufficient  sureties,  conditioned  personally  to 
appear  at  the  said  session  to  try  such  apj^eal,  and  to  abide  the 
further  judgment  of  the  court  at  such  session,  and  to  pay  such 
costs  as  shall  be  by  the  last-mentioned  court  awarded  ;  and  it 
shall  be  lawful  for  the  magistrate  or  justices  by  whom  such 
conviction  shall  have  been  made  to  bind  over  the  witnesses 
who  shall  have  been  examined  in  sufficient  recognizances  to 
attend  and  be  examined  at  the  hearing  of  such  appeal ;  and 
that  every  such  witness,  on  producing  a  certificate  of  being  so 
bound,  under  the  hand  of  the  said  magistrate  or  justices,  shall 
be  allowed  compensation  for  his  or  her  time,  trouble  and  ex- 
penses in  attending  the  appeal,  which  compensation  shall  be 
paid  in  the  first  instance  by  the  treasurer  of  the  county  or 
place,  in  like  manner  as  in  cases  of  misdemeanor,  under  the 
provisions  of  an  act  passed  in  the  seventh  year  of  the  reign  of 
King  George  the  Fourth,  intituled  "An  Act  for  improving  7Geo.4,  c.  64. 
the  Administration  of  Criminal  Justice  in  England,"  and  in 
case  the  appeal  shall  be  dismissed,  and  the  order  or  conviction 
affirmed,  the  reasonable  expenses  of  all  svich  witnesses  attend- 
ing as  aforesaid,  to  be  ascertained  by  the  court,  shall  be  rej^aid 
to  the  said  treasurer  by  the  appellant. 

21.  And  be  it  enacted,  That  when  any  distress  shall  be  Distress  not 
made  for  any  money  to  be  levied  by  virtue  of  the  warrant  of  unlawful  for 
any  justice  under  this  act,  the  distress  shall  not  be  deemed  ^^'^'^  ^^  form, 
unlawful,  nor  shall  any  joarty  making  the  same  be  deemed  a 
trespasser,  on  account  of  any  defect  or  want  of  form  in  the 
information,  summons,  warrant  of  apprehension,  conviction, 

{f)  This  form  may  still  be  used  ;  see  Luardy.  Butcher,  15  L.  J.,  C.  P. 
187. 


518 


APPENDIX. 


PlaintifF  not 
to  recover 
after  tender 
of  amends. 


Limitation  of 
actions. 


Construction 
of  tei-ms. 


Conviction, 
&c.  not  to  be 
qnashed  for 
infonnality, 
&c. 


warrant  of  distress,  or  other  proceeding  relating  thereto,  nor 
shall  such  party  he  deemed  a  trespasser  from  the  beginning 
on  account  of  any  irregularity  which  shall  he  afterwards 
committed  by  him  ;  but  all  persons  aggrieved  by  such  defect 
or  irregularity  may  recover  full  satisfaction  for  the  special 
damage  by  an  action  on  the  Case  in  any  of  her  majesty's 
courts  of  record. 

22.  And  be  it  enacted,  That  no  plaintiff  shall  recover  in 
any  action  for  any  irregularity,  trespass  or  other  wrongful 
proceeding  made  or  committed  in  the  execution  of  this  act,  or 
in,  under  or  by  virtue  of  any  authority  hereby  given,  if  tender 
of  sufficient  amends  shall  have  been  made,  by  or  on  behalf  of 
the  party  who  shall  have  committed  such  irregxdarity,  trespass 
or  other  wrongfid  proceeding,  before  such  action  brought ; 
and  in  case  no  tender  shall  have  been  made,  it  shall  be  lawful 
for  the  defendant  in  any  such  action,  by  leave  of  the  court 
where  such  action  shall  depend,  at  any  time  before  issue 
joined,  to  pay  into  court  such  sum  of  money  as  he  shall  think 
fit ;  whereupon  such  proceeding,  order  and  adjudication  shall 
be  had  and  made  in  and  by  such  court  as  in  other  actions 
where  defendants  are  allowed  to  pay  money  into  court. 

23.  And  be  it  enacted.  That  no  action,  suit  or  information, 
or  any  other  proceeding,  of  what  nature  soever,  shall  be 
brought  against  any  person  for  anything  done  or  omitted  to 
be  done  in  pursuance  of  this  act,  or  in  the  execution  of  the 
authorities  under  this  act,  imless  notice  in  writing  shall  be 
given  by  the  party  intending  to  prosecute  such  suit,  informa- 
tion or  other  proceeding,  to  the  intended  defendant,  one 
calendar  month  at  least  before  prosecuting  the  same,  nor 
unless  such  action,  suit,  information  or  other  proceeding  shall 
be  brought  or  commenced  within  three  calendar  months  next 
after  the  act  or  omission  complained  of,  or  in  case  there  shall 
be  a  continuation  of  damage,  then  within  three  calendar 
months  next  after  the  doing  such  damage  shall  have  ceased. 

24.  And  be  it  enacted.  That  in  Ireland  the  term  "metro- 
politan police  force,"  and  the  terms  "  commissioners  of  the 
police  of  the  metropolis,"  and  the  terms  "metropolitan  police 
district,"  shall  mean  and  include  respectively  the  Dublin  me- 
tropolitan police  force,  the  commissioners  of  police  of  Dublin 
metropolis,  and  the  police  district  of  Dublin  metropolis. 

25.  And  be  it  enacted,  That  no  information,  conviction  or 
other  proceeding  before  or  by  any  justice  or  justices  under 
this  act  shall  be  quashed  or  set  aside,  or  adjudged  void  or  in- 
sufficient, for  want  of  form,  or  be  removed  by  certiorari  into 
her  majesty's  court  of  Queen's  Bench. 


STATUTES.  519 

The  FiKST  Schedule  to  -wliieh  the  foregoing  Act  refers. 

Form  of  Warrant. 
Comity  of    \      To  the  constable 

Whereas  it  appears  to  me,  /.  P.,  one  of  the  justices  of  our  lady  the 
queen,  assigned  to  keep  the  peace  in  the  said  county,  by  the  information 

on  oath  of  A.  B.  of. ,  in  the  county  of  ,  yeoman,  that  the  house 

["room"  or  "place"]  known  as  SJicrc  insert  a  description  of  the  house,  room 
or  place  by  tchich  it  may  be  readily  known  andfound\  is  kept  and  used  as  a 

common  gaming  house  within  the  meaning  of  an  act  passed  in  the 

year  of  the  reign  of  her  majesty  Queen  Victoria,  intituled  \here  insert  the 
title  of  this  act~\  : 

This  is,  therefore,  in  the  name  of  our  lady  the  queen,  to  require  you, 
with  such  assistants  as  you  may  find  necessary,  to  enter  into  the  said 
house  ["room"  or  "place"],  and,  if  necessary,  to  use  force  for  making 
such  entry,  whether  by  breaking  open  doors  or  otherwise,  and  there 
diligently  to  search  for  all  instruments  of  unlawful  gaming  which  may 
be  therein,  and  to  arrest,  search  and  bring  before  me,  or  some  other  of 
the  justices  of  our  lady  the  queen  assigned  to  keep  the  peace  within  the 

county  of ,  as  well  the  keepers  of  the  same  as  also  the  persons  there 

haunting,  resorting  and  playing,  to  be  dealt  with  according  to  law  ;  and 
for  so  doing  this  shall  be  your  wan-ant. 

/.  P.  (l.s.) 

Given  under  my  hand  and  seal  at ,  in  the  county  of  ,  this 

day  of ,  in  the year  of  the  reign  of . 


The  Second  Schedule  to  which  the  foregoing  Act  refers. 

In  the  Court  of  Queen's  Bench  ["  Common  Pleas,"  or  "Exchequer," 
or  in  any  inferior  court,  as  the  case  may  be'}. 
Middlesex  to  wit,  [<»•  such  other  county  as  may  he  directed.'] 
Whereas^.  B.  affirms  and  C.  D.  denies  [liere  state  fully  the  fact  or  facts 
in  issue],  and  the  lord  chancellor  \or  such  other  court,  ^-c]  is  desirous  of 
ascertaining  the  truth  by  the  verdict  of  a  jiuy,  and  both  parties  pray  that 
the  same  may  be  inqiiired  of  by  the  country  :  Now  let  the  juiy,  &c. 


The  Third  Schedule  to  which  the  foregoing  Act  refers. 

Form  of  Licence. 

At  the  generallicensing  annual  meeting  [or  "  an  adjournment  of  the 
general  annual  licensing  meeting,"  or  "  at  a  special  petty  session"]  of 
her  majesty's  justices  of  the  peace  acting  for  the  division  [or  "liberty," 

&c.,  as  the  case  may  be],  of ,  in  the  county  of ,  holden  at on 

the  day  of  ,  in  the  year  ,  for  the  purpose  of  granting 

bilhard  licences,  we  being  of  her  majesty's  justices  of  the  peace 

acting  for  the  said  county  [or  "liberty,"  &c.  as  the  case  may  be],  and 
being  the  majority  of  those  assembled  at  the  said  sessions,  do  hereby 

authorize  and  empower  A.  L.,  now  dwelling  at  ,  in  the  parish  of 

,  to  keep  a  house  for  public  billiard  playing  at  \_hcre  specify  the  house], 

provided  that  he  [or  "she  "]  put  and  keep  uji  the  words  "licensed  for 
billiards' '  legibly  painted  in  some  conspicuous  place  near  the  door  and  on 
the  outside  of  the  said  house,  and  do  not  wilfully  or  knowingly  permit 
drunkenness  or  other  disorderly  conduct  in  the  said  house,  and  do  not 


520 


APPENDIX. 

knoTvingly  allow  the  consumption  of  exciseable  liquors  therein  by  the 
persons  resorting  thereto,  and  do  not  knowingly  suffer  any  unlawful 
games  therein,  and  do  not  knowingly  suffer  persons  of  notoriously  bad 
character  to  assemble  and  meet  together  therein,  and  do  not  open  the  said 
house  for  play  or  allow  any  f>lay  therein  after  one  and  before  eight  of  the 
clock  in  the  morning,  or  keep  it  open  or  allow  any  play  therein  on  Sun- 
days, Christmas  Day,  or  Good  Friday,  or  on  any  day  appointed  for  a 
public  fast  or  thanksgiving,  but  do  maintain  good  order  and  rule  therein ; 

and  this  licence  shall  continue  in  force  from  the  — ^-  day  of next 

until  the day  of then  next  following,  and  no  longer. 

Given  under  our  hands  and  seals  on  the  day  and  at  the  place  first 
written. 


9  &  10  Vict.  Cap.  48. 

A7i  Act  for  legalizing  Art  Unions. 

AVliereas  certain  voluntary  associations  have  been  and  may 
hereafter  he  formed  in  various  parts  of  the  United  Kingdom, 
under  the  name  of  Art  Unions,  for  the  i^urchase  of  paintings, 
drawings,  or  other  works  of  art,  to  be  afterwards  allotted  and 
distributed,  by  chance  or  otherwise,  among  the  several  mem- 
bers, subscribers  or  contributors  forming  part  of  such  associa- 
tions, or  for  raising  sums  of  money  by  subscription  or  contri- 
bution, to  be  allotted  and  distributed,  by  chance  or  otherwise, 
as  prizes,  amongst  the  members,  subscribers,  or  contributors 
forming  part  of  such  associations,  on  the  condition,  never- 
theless that  such  sums  of  money  so  allotted  and  distributed 
be  expended  solely  and  entirely  in  the  purchase  of  paint- 
ings, drawings  or  other  works  of  art,  and  whereas  such  allot- 
ment and  distribution  of  paintings,  drawings,  or  other  works 
of  art,  or  of  sums  of  money  for  their  piu'chase,  and  the 
proceedings  taken  to  carry  the  same  into  effect,  may  be  deemed 
and  taken  to  come  within  the  provisions  of  the  several  acts 
of  parliament  passed  for  the  prevention  of  lotteries,  littlegoes, 
and  unlawful  games,  whereby  the  members,  subscribers,  or 
contributors  of  such  associations  as  aforesaid,  or  persons  acting 
under  their  authority  or  on  their  behalf,  may  be  liable  or  sub- 
jected to  certain  pains  and  penalties  imposed  by  law  on  persons 
concerned  in  lotteries,  littlegoes,  and  unlawful  games  :  and 
whereas  it  is  expedient  that  all  members  of  and  subscribers 
and  contributors  to  such  voluntary  associations  as  aforesaid, 
and  all  persons  acting  under  their  authority  or  on  their  behalf, 
so  long  only  as  their  proceedings  are  carried  on  in  good  faith 
for  the  encouragement  of  the  fine  arts,  shall  be  discharged  and 
protected  from  any  pains  and  penalties  to  which  they  may 
have  rendered  themselves  liable,  or  may  hereafter  render 
themselves  liable,  by  reason  of  any  such  their  proceedings  as 
aforesaid  :  be  it  enacted  by  the  queen's  most  excellent  ma- 
jesty, by  and  with  the  advice  and  consent  of  the  lords  spiritual 


STATUTES.  521 

and  temporal,  and  commons,  in  tliis  present  parliament  as- 
sembled, and  by  the   authority  of  the  same,  That  all  such  Voluntary 
voluntary  associations  as  aforesaid,  now  constituted,  or  which  associations 
may  hereafter  be   constituted   according  to    the   provisions  ^onstituted  _ 
hereinafter  contained,  shall  be  deemed  to  be  lawful  associa-  bution  of 
tions ;  and  the  members  of  and  subscribers  and  contributors  to  works  of  art 
all  such  lawful  associations,  and  all  person  acting  under  their  ^J  lot  deemed 
authority  or  on  their  behalf  for  the  purposes  aforesaid,  shall  ^^M^h  ^^'°' 
be  freed  and  discharged  from  all  pains  and  penalties,  suits,  charter  shaU 
prosecutions  and  liabilities,  to  which  by  law  they  would  be  have  been 
liable  but  for  the  passing  of  this  act,  as  being  concerned  in  first  obtained, 
illegal  lotteries,  littlegoes,  or  unlawful  games,  by  reason  of  ^^■ 
any  thing  done  or  which  may  be  done  by  them  or  any  of 
them  in  furtherance  of  the  allotment  or  distribution,  by  scheme 
or  otherwise,  of  paintings,  drawings,  or  other  works  of  art,  or 
of  the  allotment  or  distribution  of  sums  of  money  as  prizes  to 
be  expended  for  their  purchase  :  provided  always,  that  a  royal 
charter  or  charters  shall  have  been  first  obtained  for  the  in- 
corporation of  any  such  association,  or  provided  that  the  deed 
of  partnership,  or  other  instrument  or  instruments  constitut- 
ing such  association,  and  the  rules  and  regulations  relating 
to  the  proceedings  of  such  association  for  such  purposes  as 
aforesaid,  shall  have  first  been  submitted  to  the  consideration 
and  be  approved  of  by  a  committee  of  her  majesty's  most 
honourable  privy  council,  and  a  copy  thereof  deposited  with  ' 
such  committee  ;  and  that  it  shall  be  exjn'essed  in  every  such 
charter,  deed  or  instrument,  that  it  shall  be  lawful  for  any 
committee  of  her  majesty's  privy  council  to  whom  the  con- 
sideration of  art  unions  shall  be  referred  by  her  majesty, 
,  whenever  it  shall  appear  to  them  that  any  such  association  is 
perverted  from  the  purposes  of  this  act,  to  certify  the  fact  to 
her  majesty,  and  thereupon  it  shall  be  lawful  for  her  majesty 
to  revoke   or  annul  the  charter,   deed  or  instrument  under 
which  the  association  so  offending  shall  have  been  consti- 
tuted ;  and  nothing  in  this  act  contained  shall  be  deemed  to 
apply  to  any  association  whose  charter,  deed  of  partnershij), 
or  other  instrument  constituting  the  same,  shall  have  been  so 
revoked  or  annidled. 


16  &  17  Vict.  Cap.  33. 

An  Act  for  the  better  Regulation  of  Metropolitan  Stage  and 
Hackney  Carriages,  and  for  prohihiting  the  Use  of  advertising 
Vehicles. 

AVhereas  it  is  desirable  to  improve  the  condition  of  the 
metropolitan  stage  and  hackney  carriages,  and  to  alter  and 
amend  the  system  of  licensing  such  carriages  :  be  it  therefore 
enacted  by  the  Queen's  most  excellent  majesty,  by  and  with 


522 


APPENDIX. 


Persons  desi- 
rous of  ob- 
taining a 
licence  to 
keep  a  hack- 
ney carriage, 
&c.  to  make 
application 
to  commis- 
sioners of 
police,  wIlo, 
if  carriage  is 
found  fit, 
shall  grant  a 
certificate. 


No  licence  to 
be  granted  by 
board  of  in- 
land revenue 
•without  siich 
certificate. 

Commission- 
ers of  police 
may  cause 
carriages, 
&c.  to  be  in- 
spected, and 
if  not  in  fit 
condition 
may  suspend 
licences  and 
recall  stamp 
office  plate. 


Notice  to  be 
given  to  in- 
land revenue. 


Penalty  for 
using  carriage 
not  in  fit  con- 
dition. 


tlie  advice  and  consent  of  tlie  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by 
tlie  authority  of  the  same,  that — 

1.  From  and  after  the  first  day  of  October  next  every  per- 
son desirous  of  obtaining  a  licence  to  keep,  use,  and  let  to 
hii'e  any  metropolitan  stage  or  hackney  carriage  (o)  within 
the  limits  of  this  act  (Z')  must  apply  in  writing  to  the  com- 
missioners of  police  of  the  metropolis,  in  order  that  they  may 
cause  an  inspection  to  be  made  of  every  carriage  to  be  kept, 
used,  or  let  to  hire  by  virtue  of  such  licence,  and  upon  such 
application  the  said  commissioners  shall  cause  an  inspection 
to  be  made  of  every  such  carriage,  and  if  such  carriage  or 
carriages  shall  be  found  by  the  said  commissioners  to  be  in  a 
fit  and  proper  condition  for  public  use,  they  shall  grant  a  cer- 
tificate to  that  effect,  and  shall  specify  in  such  certificate  the 
number  of  persons  to  be  carried  in  and  by  such  carriage,  in 
the  form  given  in  schedule  (B.)  to  this  act  annexed,  and 
upon  production  of  such  certificate  at  the  office  of  the  board 
of  inland  revenue,  a  licence  shall  be  granted  ;  but  it  shall  not 
be  lawful  for  the  said  board  of  inland  revenue  to  grant  or 
issue  any  licence  for  any  metropolitan  stage  or  hackney  car- 
riage, within  the  limits  of  this  act,  unless  the  person  applying 
for  the  same  shall  produce  such  certifi.cate  as  aforesaid. 

2.  It  shall  be  lawful  for  the  said  commissioners  of  police  to 
cause  an  inspection  to  be  made,  as  often  as  they  deem  it 
necessarj^,  of  all  metropolitan  stage  and  hackney  carriages, 
and  of  the  horse  or  horses  used  in  drawing  the  same,  within 
the  limits  of  this  act ;  and  if  any  such  carriage,  or  the  horse 
or  horses  used  in  drawing  the  same,  shall  at  any  time  be  in  a 
condition  unfit  for  public  use,  the  said  commissioners  shall 
give  notice  in  writing  accordingly  to  the  proprietor  thereof, 
which  notice  shall  be  personally  served  on  such  proprietor,  or 
delivered  at  his  usual  place  of  residence  ;  and  if,  after  notice 
as  aforesaid,  any  proprietor  shall  use  or  let  to  hire  such  car- 
riage as  a  metropolitan  stage  or  hackney  carriage,  or  use  or 
let  to  hire  such  horse  or  horses  whilst  in  a  condition  unfit  for 
public  use,  the  said  commissioners  shall  have  power  to  suspend, 
for  such  time  as  they  may  deem  proper,  the  licence  of  the 
proprietor  of  such  carriage,  and  to  recall  and  take  away  the 
stamp  office  plate  belonging  to  the  same,  and  to  retain  the 
same  during  the  suspension  of  such  licence  ;  and  a  notice 
shall  be  given  to  the  board  of  inland  revenue,  according  to 
the  form  in  the  schedule  (C.)  to  this  act  annexed,  in  every 
case  by  the  said  commissioners  of  the  suspension  of  any  such 
licence,  and  of  the  time  for  which  it  is  suspended. 

3.  Every  proprietor  or  driver  of  a  metropolitan  stage  or 
hackney  carriage  who  shall  use  or  let  to  hire  within  the  limits 


(a)  See  6  &  7  Vict.  c.  86,  s.  2. 
{h)  See  post,  s.  20  ;  16  &  17  Vict. 


c.  127,  s.  13,  Appendix. 


STATUTES.  o23 

of  this  act  any  carriage  as  a  metropolitan  stage  or  hackney- 
carriage  which  has  not  been  certified  by  the  said  commis- 
sioners of  police  to  be  in  a  fit  and  proper  condition  for  public 
use,  or  -who  shall  use  or  let  to  hire  within  the  limits  of  this 
act  any  carriage  as  a  metropolitan  stage  or  hackney  carriage 
for  which  such  a  certificate  had  been  granted,  after  notice 
given  to  him  as  hereinbefore  required  by  the  said  commis- 
sioners that  such  carriage  was  no  longer  in  a  fit  and  proper 
condition  for  pubKc  use,  shall  be  liable  to  a  penalty  not  ex- 
ceeding Three  pounds  for  each  day  that  he  shall  so  use  or  let 
to  hire  such  carriage,  or  in  default  of  payment  may  be  impri- 
soned for  any  time  not  exceeding  one  month. 

4.  The  proprietor  or  driver  of  any  hackney  carriage  within  As  to  rates 
the  limits  of  this  act  shall  be  entitled  to  demand  and  take  for  and  fares  to 
the  hire  of  such  carriage  the  fares  set  forth  in  the  schedule  (A.)  ^^  taken  for 
to  this  act  annexed  :    provided  always,  that  when  the  j)ro-  ria"-eT^  ^^^' 
prietor  or  driver  of  any  hackney  carriage  to  be  paid  a  fare       ° 
calculated  according  to  the  distance  shall  be  required  by  the 

hirer  thereof  to  stop  such  carriage  for  fifteen  minutes,  or  for 

any  longer  time,  it  shall  be  lawful  for  the  proprietor  or  driver 

to  demand  and  receive  from  the  hirer  so  requiring  him  to  stop 

a  further  sum  (above  th,e  fare  to  which  he  shall  be  entitled 

calculated   according  to  the  distance)  of  sixpence  for  every 

fifteen    minutes    completed    that    he    shall    have    been    so 

stopped  (c)  ;  and  no  proj^rietor  or  driver  shall  demand  or  re-  No  back  fare 

ceive  over  and  above  the  said  fare  any  sum,  for  or  by  way  of  *o  ^°  taken 

back  fare,  for  the  return  of  such  carriage  from  the  place  at  *^^'  "^™anded. 

which  such  carriage  shall  be  discharged  (f/). 

5.  The  proprietor  of   every   hackney   carriage   within   the  Table  of  fares 
limits  of  this  act  shall  put  up,  and  at  all  times  keep,  distinctly  *<?  be  put  up 
painted  or  marked,  in  such  a  manner  and  in  such  a  position  distinctly 

as  shall  be  directed  by  the  said  commissioners  of  police,  both  ou^tsjc^jf  qj 
on  the   inside   and  outside   of   such  hackney   carriage,    the  hackney- 
amount  of  fare  according  to  distance  and  time  which  may  carriages, 
legally  be  demanded  and  taken  from  the  hirer  of  such  car- 
riage ;  and  the  driver  of  every  hackney  carriage  within  the  Driver  to  pro- 
limits  of  this  act  shall  have  with  him  at  all  times  when  plying  <iiice  book  of 
for  hire  a  book  or  table  in  such  form  as  shall  be  directed  by  '^^'^^\  when 
the  said  commissioners  of  police  of  the  fares  for  the  hire  of  ^^1^^°  • 
such  carriage,  which  book  or  table  the  driver  shall  produce 
when  required  for  the  information  of  any  person  hiring  or  in- 
tending to  hire  such  carriage. 

6.  In   case   of  disputes   as   to   the   fare   to   be   calculated  As  to  settle- 
according  to  the  distance,  any  table  or  book  signed  by  the  ment  of  dis- 
said  commissioners  of  police  shall,  on  proof  of  such  signature,  Pyt®^  as  to 
be  deemed  and  taken  to  be  conclusive  evidence  of  all  the  dis-     i^*^^^^^- 
tances  therein  stated  to  have  been  measured  by  the  authority 

(c)  See  post,  s.  7. 

\d)  See  16  &  17  Vict.  c.  127,  s.  13,  Appendix. 


524 


APPENDIX. 


As  to  distance 
drivers  of 
hackney  car- 
riages shall  be 
required  to 
drive. 


Driver  to  de- 
liver a  ticket 
to  hirer  of 
carriao-e. 


Number  of 
persons  to  be 
carried  to  be 
painted  or 
marked  on 
hackney 
carriaa:e. 


As  to  quantity 
of  luggapfe  to 
be  carried 
"without  extra 
charge. 


of  tlie  said  commissioners  of  police ;  and  it  shall  be  lawful  for 
the  said  commissioners  to  cause  to  be  placed  or  erected  at  the 
several  standings  for  hackney  carriages  or  elsewhere  within 
the  metropolitan  district,  as  they  may  deem  convenient,  tables 
of  distances  and  fares,  and  such  other  information  as  may  be 
useful  to  persons  hiring  such  carriage. 

7.  The  driver  of  every  hackney  carriage  which  shall  ply  for 
hire  (e)  at  any  place  within  the  limits  of  this  act  shall  (unless 
such  di'iver  have  a  reasonable  excuse,  to  be  allowed  by  the 
justice  before  whom  the  matter  shall  be  brought  in  question), 
drive  such  hackney  carriage  to  any  place  to  which  he  shall  be 
required  by  the  hirer  thereof  to  drive  the  same,  not  exceeding 
six  miles  from  the  place  where  the  same  shall  have  been 
hired  ( /'),  or  for  any  time  not  exceeding  one  hour  from  the 
time  when  hired :  provided  always,  that  when  any  hackney 
carriage  shall  have  been  hired  by  time,  the  driver  thereof  may 
be  required  to  drive  at  any  rate  not  exceeding  four  miles 
■within  one  hour,  and  if  the  driver  of  such  carriage  shall  be 
required  to  drive  more  than  four  miles  within  one  hour,  then 
in  every  such  case  the  di'iver  thereof  shall  be  entitled  to  de- 
mand, in  addition  to  the  fare  regulated  by  time  in  schedule 
(A.)  to  this  act  annexed,  for  every  mile  or  any  part  thereof 
exceeding  four  miles,  the  fare  regulated  by  distance  as  set 
forth  in  the  same  schedule. 

8.  Every  driver  of  a  hackney  carriage  within  the  limits  of 
this  act  shall,  on  each  occasion  when  such  carriage  shall  be 
hired,  deliver  to  the  hirer  thereof  a  card,  on  which  shall  be 
printed,  in  legible  letters  and  figures,  the  words  "  hackney 
carriage,"  and  the  number  of  the  stamp  office  plate  affixed  on 
such  hackney  carriage,  or  such  other  words  or  figures  as  the 
said  commissioners  of  police  may  direct  (y). 

9.  The  proprietor  of  every  hackney  carriage  within  the 
limits  of  this  act  shall  put  up  and  at  all  times  keep  distinctly 
painted  or  marked  on  such  carriage,  in  such  a  manner  and  in 
such  a  position  as  shall  be  directed  by  the  said  commissioners 
of  police,  the  number  of  persons  to  be  carried  thereby  as  spe- 
cified in  the  certificate  granted  by  the  said  commissioners  for 
such  hackney  carriage,  and  the  driver  of  any  such  hackney 
carriage  shall,  if  required  by  the  hirer  thereof,  carry  in  and 
by  such  carriage  the  number  of  persons  painted  or  marked 
thereon,  or  any  less  number  of  persons. 

10.  The  driver  of  every  hackney  carriage  within  the  limits 
of  this  act  shall  carry  in  or  upon  such  carriage  a  reasonable 
quantity  of  luggage  for  every  person  hiring  such  carriage 
without  any  additional  charge,  except  as  provided  in  sche- 
dule (A.)  to  this  act  annexed. 


(e)  See  1  &  2  Will.  4, 
(/)  See  16  &  17  Vict.  ( 
Iff)  See  post,  s.  17. 


.  22,  s.  35. 
127,  s.  13,  Appendix. 


STATUTES.  525 

11.  The  driver  of  every  hackney  carriage  within  the  limits  Property  left 
of  this  act  wherein  any  jDroperty  shall  be  left  by  any  person  in  hackney 
shall  within  twenty-four  hours  carry  such  projjerty,   if  not  carriages  to 
sooner  claimed  by  the  owner  thereof,  in  the  state  in  which  he  ^^  ^eposited 
shall  find  the  same,  to  the  nearest  police  station,  and  shall  office^  ^°  ^^ 
there  deposit  and  leave  the  same  with  the  inspector  or  other 
ofiicer  on  duty,  uj)on  pain  that  every  such  driver  making  any  Penalty  on 
default  herein  shall  be  liable  to  a  penalty  not  more  than  Ten  driver  for 
2}ou)uls,  or  at  the  discretion  of  the  magistrate  may  be  impri-  <iefault. 
soned  for  any  time  not  exceeding  one  month ;  and  the  said 
officer  with  whom  any  such  property  shall  be  deposited  shall 
forthwith  enter  in  a  book  to  be  kej)t  for  that  purj)ose  the 
descrij)tion  of  such  property,  and  the  name  and  address  of  the 
driver  who  shall  bring  the  same,  and  the  day  on  which  it 
shall  be  brought ;  and  the  property  so  entered  shall  be  re- 
turned to  the  person  who  shall  prove,  to  the  satisfaction  of  the 
commissioners  of  police,  that  the  same  belonged  to  him,  such 
person  previously  pajang  all  expenses  incurred,  together  with 
such  reasonable  sum  to  the  di-iver  who  brought  the  same  as 
the  said  commissioners  shall  award :  provided  always,  that  if  Property  not 
such  property  shall  not  be  claimed  by  and  proved  to  belong  claimed  to  be 
to  some  person  within  one  year  after  the  same  shall  have  been  disposed  of. 
dej)osited,  the  said  commissioners  shall  cause  such  property  to 
be  sold  or  otherwise  disposed  of,  and  the  proceeds  thereof  to 
be  paid  over  to  the  receiver-general  of  inland  revenue,  to  be 
carried  to  the  public  account,  all  expenses  incurred  about  such 
proj)erty,  together  with  such  reasonable  sum  to  the  driver  who 
brought  the  same  as  the  said  commissioners  shall  award,  being 
first  paid  thereout ;  and  all  property  left  by  any  passenger  in  Penalty  on 
any  metropolitan  stage  carriage  shall  be  given  up  to  the  con-  refusing  or 
ductor  of  such  carriage,  or,  if  there  be  no  conductor,  to  the  neglecting  to 

driver,  upon  pain  of  a  penalty  of  Ten  pounds,  to  be  paid  bv  ^^^?  "?  P^°' 
\e     •  1     i-        J.         •  1  perty  left  in 

any  person  refusmg  or  neglectmg  to  give  up  any  such  pro-  g^ao-e  car- 

perty  belonging  to  another  person ;  and  the  conductor  or  riages. 
driver  of  every  such  carriage  to  whom  any  such  property  shall 
be  given  up,  or  who  shall  himself  find  it  in  the  carriage,  shall 
within  twenty-four  hours  carry  the  property,  if  not  sooner 
claimed  by  the  owner  thereof,  in  the  state  in  which  he  shall 
find  the  same,  to  the  nearest  police  station,  and  shall  there 
deposit  and  leave  the  same  with  the  inspector  or  other  ofiicer 
on  duty,  upon  pain  that  every  such  driver  or  conductor  making 
default  herein  shall  be  liable  to  a  penalty  not  more  than  Te)i 
potmds,  or  at  the  discretion  of  the  magistrate  may  be  im- 
prisoned for  any  time  not  exceeding  One  month  ;  and  the  pro- 
perty so  deposited  by  any  conductor  or  driver  shall  be  dealt 
with  in  the  same  manner  as  property  left  in  hackney  carriages 
and  deposited  by  the  drivers  of  such  carriages. 

12.  It  shall  be  lawful  for  the  said  commissioners  of  police,  ^        .   . 
from  time  to  time  to  appoint  a  sufficient  number  of  fit  men  to  g^g  of^^olice' 


526 


APPENDIX. 


to  appoint 
persons  to 
enforce  good 
order  at 
liackney 
carriage 
stands,  &c. 


Power  to 
commission- 
ers, with 
consent  of 
treasury,  to 
pay  wages 
to  such  per- 
sons, and  also 
to  direct  water 
rates  to  be 
paid. 


Lamps  to  be 
placed  inside 
metropolitan 
stasre  car- 


Printed  bills, 
&c.  not  to 
be  put  on 
metropolitan 
stage  or  hack- 
ney carriages, 
so  as  to  ob- 
struct light, 
&c. 


Advertising 
vehicles,  &c. 
prohibited. 


enforce  good  order  at  the  standings  for  liackney  carriages  (A) 
and  at  the  places  at  which  metropolitan  stage  carriages  or 
hackney  carriages  shall  call  or  ply  for  passengers,  and  at  such 
places  of  public  resort  within  the  metropolitan  police  district, 
as  they  may  deem  necessary  ;  and  the  said  commissioners  may 
from  time  to  time  make  such  orders  and  regulations  as  they 
shall  deem  expedient,  subject  to  the  approval  of  one  of  her 
majesty's  principal  secretaries  of  state  given  in  writing  re- 
lative to  the  duties  to  be  performed  by  such  persons  and  the 
places  at  which  each  shall  act ;  provided  that  the  said  com- 
missioners shall  not  have  authority  to  aj)point  any  such  person 
to  act  within  or  upon  the  premises  belonging  to  any  railway 
company,  unless  with  the  consent  of  the  directors  of  the  com- 
pany. 

13.  The  said  commission.ers  of  police,  subject  to  the  appro- 
bation of  the  commissioners  of  her  majesty's  treasiuy,  shall 
appoint  wages  to  be  paid  to  the  said  jDorsons  appointed  by 
them  to  keep  good  order  at  the  standings  for  hackney  carriages 
and  at  the  places  at  which  metropolitan  stage  carriages  or 
hackney  carriages  shall  call  or  ply  for  passengers,  and  at  such 
places  of  public  resort  as  they  may  deem  necessary ;  and  the 
said  commissioners  shall  also,  in  such  cases  as  they  think 
fit,  direct  the  water-rates  and  the  expenses  of  the  necessary 
apparatus  for  laying  on  the  water  at  the  standings  for  hackney 
carriages  and  at  places  where  metropoKtan  stage  carriages 
usually  call  or  ply  for  hire,  to  be  paid. 

14.  The  proprietor  of  every  metropolitan  stage  carriage 
shall  cause  to  be  placed  inside  such  carriage,  a  lamp,  in  such 
a  position  and  manner  as  shall  be  directed  by  the  said  com- 
missioners of  police  ;  and  the  conductor,  or,  if  there  be  no 
conductor,  the  driver  of  such  carriage  shall  keep  the  said 
lamp  properly  lighted  whenever  such  carriage  shall  be  used 
to  ply  for  hire  or  carry  passengers  at  any  time  after  sunset 
and  before  sunrise. 

15.  It  shall  not  be  lawful  for  the  proprietor  of  any  metro- 
politan stage  or  hackney  carriage  to  suffer  any  notice,  adver- 
tisement, or  printed  bill,  or  any  names,  letters  or  numbers,  to 
appear  upon  the  outside  of  any  such  carriage,  in  such  a 
manner  as  to  obstruct  the  light  or  ventilation  of  such  carriage, 
or  on  the  inside  of  any  such  carriage,  in  such  a  position  that 
any  such  notice,  advertisement  or  printed  bill  shall  obstruct 
the  light  or  ventilation  of  such  carriage  or  cause  annoyance 
to  any  passenger  therein. 

16.  It  shall  not  be  lawful  for  any  person  to  carry  about  on 
any  carriage  or  on  horseback  or  on  foot  in  any  thoroughfare 
or  pubHc  place  within  the  limits  of  this  act,  to  the  obstruction 
or  annoyance  of  the  inhabitants  or  passengers,  any  picture, 


(/*)  See  13  Vict.  c.  7,  s.  4. 


STATUTES.  527 

placard,  notice  or  advertisement,  wlietlier  written,  printed  or 
painted  uj)on  or  posted  or  attached  to  any  part  of  such  carriage 
or  on  any  board  or  otherwise. 

17.  The  driver  or  conductor  of  any  metropolitan  stage  car-  Drivers  and 
riage  or  the  driver  of  any  hackney  carriage,  who  shall  respec-  conductors 
tively  commit  any  of  the  f ollowina:  offences  within  the  limits  ?..  ™6*™P0" 
of  this  act,  shall  be  liable  to  a  penalty  not  exceeding  Forty  carriao-es" 
shillings  for  each  oiience,  or,  in  default  of  payment,  to  im-  and  drivers 
prisonment  for  any  time  not  exceeding  one  calendar  month  (j) :    of  hackney 

1 .  Every  driver  of  a  hackney  carriage  who  shall  demand  carnages, 

or  take  more  than  the  proper  fare  as  set  forth  in  sche-  penalties  for 
dule  (A.)  to  this  act  annexed,  or  who  shall  refuse  to  offences  herein 
admit  and  carry  in  his  carriage  the  number  of  persons  named, 
painted  or  marked  on  such  carriage  or  specified  in  the 
certificate  granted  by  the  said  commissioners  of  police 
in  respect  of  such  carriage,  or  who  shall  refuse  to  carry 
by  his  carriage  a  reasonable  quantity  of  luggage  for 
any  person  hiring  or  intending  to  hire  such  carriage  ; 

2.  Every  driver  of  a  hackney  carriage  who  shall  refuse  to 

diive  such  carriage  to  any  place  within  the  limits  of 
this  act  (/:),  not  exceeding  six  miles,  to  which  he  shall 
be  required  to  drive  any  person  hiring  or  intending  to 
hire  such  carriage,  or  who  shall  refuse  to  drive  any 
such  carriage  for  any  time  not  exceeding  one  hour,  if  so 
required  by  any  person  hiring  or  intending  to  hire  such 
carriage,  or  who  shall  not  drive  the  same  at  a  reason- 
able and  proper  speed,  not  less  than  six  miles  an  hour, 
except  in  cases  of  unavoidable  delay,  or  when  required 
by  the  hirer  thereof  to  drive  at  any  slower  pace  ; 

3.  Every  driver  of  a  hackney  carriage  who  shall  ply  for  hire 

with  any  carriage  or  horse  which  shall  be  at  the  time 
imfit  for  public  use,  or  who  shall  refuse  or  neglect  to 
deliver  to  the  hirer  of  his  carriage  a  ticket  with  the 
number  of  the  stamp  ofiice  plate  on  such  carriage 
printed  thereon. 

18.  It  shall  be  lawful  for  any  one  of  the  police  magis-  Power  to 
trates  at  any  of  the  metropolitan  police  courts,  to  hear  and  police  magis- 
determine  all  offences  against  the  provisions  of  this  act,  and  ti'^tes  or 
also  all  disputes  or  causes  of  complaint  that  may  arise  out  of  •'"^  '°^/  "^     ® 
the  same ;   or  if  the  offence,  dispute  or  cause  of  complaint  ^ud  deter- 
shall  be  committed  or  occur  in  any  place  not  comprised  within  mine  offences, 
the  limits  of  a  police  court  district,  the  same  may  be  heard 

and  determined  by  two  justices  of  the  peace  for  the  county ; 
or  if  the  offence,  dispute  or  cause  of  complaint  shall  be  com- 
mitted or  occiu"  within  the  city  of  London,  the  same  shall  be 
heard  and  determined  by  one  justice  of  the  peace  for  the  said 

(0  See  1  &  2  Will.  4,  c.  22,  s.  42. 
[k)  See  16  &  17  Vict.  c.  127,  s.  17. 


528 


APPENDIX. 


In  case  of 
disputes  the 
hirer  may 
reqixire  the 
driver  to 
drive  to  a 
police  court, 
&c.,  or  to  a 
police  station. 


Penalty  for 
offences 
against  this 
act  for  which 
no  i^enalty  is 
appointed. 


Meaning  of 
certain  VFords 
used  in  this 
act. 


This  act  to 
be  construed 
■with  6  &  7 
Vict.  c.  86, 
and  13  &  14 
Vict.  c.  7. 


Commence- 
ment of  act. 


city,  or  by  a  metropolitan  police  magistrate  sitting  at  the 
police  court  in  Bow  Street ;  and  in  case  of  any  dispute  between 
the  hirer  and  driver  of  any  hackney  carriage,  the  hirer  may 
require  the  driver  forthwith  to  drive  to  the  nearest  metropo- 
litan police  court  or  justice  room,  where  complaint  may  be 
made  to  the  magistrate  then  sitting,  who  shall  hear  and  de- 
termine the  same,  without  requiring  any  summons  to  be 
issued  for  that  purpose  ;  and  if  such  dispute  should  arise  at  a 
time  when  the  police  court  or  justice  room  shall  not  be  open, 
the  hirer  may  require  the  driver  to  drive  to  the  nearest  police 
station  or  justice  room,  where  the  complaint  shall  be  entered, 
and  notice  given  to  both  parties  that  the  matter  in  dispute 
shall  be  heard  by  the  magistrate  at  his  next  sitting. 

19.  For  every  offence  against  the  jirovisions  of  this  act,  for 
which  no  special  penalty  is  hereinbefore  appointed,  the 
offender  shall  be  liable  to  a  penalty  not  exceeding  Forty 
shillings,  or  in  default  of  payment  be  imprisoned  for  any 
time  not  exceeding  One  month  in  any  gaol  or  house  of  correc- 
tion within  the  jurisdiction  of  the  magistrate  before  whom  the 
conviction  shall  take  place. 

20.  All  things  herein  authorized  to  be  done  by  the  said 
commissioners  of  police  of  the  metropolis  shall  be  done  by 
such  one  of  the  said  commissioners  as  one  of  her  majesty's 
principal  secretaries  of  state  shall  from  time  to  time  be  pleased 
to  appoint;  and  the  words  "the  limits  of  this  act"  shall  in- 
clude every  part  of  the  metropolitan  police  district  (/)  and 
city  of  London. 

21.  This  act  shall  be  construed  as  one  act  with  the  act 
passed  in  the  seventh  year  of  the  reign  of  her  majesty  queen 
Victoria,  chapter  eighty-six,  and  the  act  passed  in  the  thir- 
teenth year  of  the  reign  of  her  majesty,  chapter  seven  ;  and 
all  the  provisions  of  the  said  acts,  except  so  far  as  is  herein 
otherwise  provided,  shall  extend  to  this  act,  and  to  all  things 
done  in  execution  of  this  act. 

22.  This  act  shall  commence  and  take  effect  from  and  after 
the  tenth  day  of  July,  one  thousand  eight  hundred  and  fifty- 
three,  except  as  herein  otherwise  specially  provided. 


(0  See   10  Geo.  4,  c.  44,  s.  4  ;  2  &   3  Vict.  c.  47, 
c.  127,  s.  17,  Appendix. 


s.  2;  16  &  17  Vict. 


STATUTES. 

SCHEDULES  referred  to  in  the  foregoing  Act. 


529 


Rates  and  Faees  to  be  paid  for  any  Hackney  Caeeiage  hired  at  any 
Place  within  the  Limits  of  this  Act  {a) . 

SCHEDULE  (A). 


Description 

OF 

Carriage. 

Fare  by  Distance. 

Fare  by  Time. 

For  any 
Distance  within 

and  not 

exceeding  one 

MUe. 

For  any  Dis- 
tance exceeding 
One  Mile. 

For  any  Time 
within  and  not 

exceeding 
One  Hour  (6). 

"With  Four  or 
Two  Wheels, 
drawn  by  One 
Horse. 

6c?. 

After  the  Eate 
of     Sixpence 
for        every 
Mile,  and  for 
any  part  of 
a  Mile  over 
and      above 
any      Num- 
ber of  Miles 
completed. 

2i. 

And    for    every 
Hackney    Car- 
nage drawn  by 
Two      Horses, 
One     Third 
above  the  Kates 
and  Fares  here- 
inbefore   men- 
tioned. 

The  above  fares  to  be  paid  according  to  distance  or  time,  at  the  option  of 
the  hirer,  to  be  expre.ssed  at  the  commencement  of  the  hiring  ;  if  not 
otherwise  expressed,  the  fare  to  be  paid  according  to  distance. 

Provided,  that  no  driver  shall  be  compellable  to  hire  his  carriage 
for  a  fare  to  be  paid  according  to  time  at  any  time  after  eight 
o'clock  in  the  evening  and  before  six  o'clock  in  the  morning. 
When  more  than  two  persons  shall  be  carried  inside  any  hackney  car- 
riage, one  sum  of  Qd.  is  to  be  paid  for  the  whole  hiring  in  addition  to 
the  above  fares  [c) .      Two  children  under  ten  years  of  age  to   be 
counted  as  one  adult  person. 
When  more  than  two  persons  .shall  be  carried  inside  any  hackney  car- 
riage with  more  luggage  than  can  be  carried  inside  the  carriage,  a 
further  sum  of  twopence  for  every  package  can-ied  outside  the  said 
carriage  is  to  be  paid  by  the  hirer  in  addition  to  the  above  fares. 


I, 


SCHEDULE  (B). 

CEETIFICATE. 

do  hereby  certify,  that  on  the  application  of  _  ,  now  living 
at  ,  I  have  caused  the  carriage  known  by  the  following  marks  or 
description  [here  state  marks  or  description  by  which  the  carriage  may  be 
identified'],  to  be  inspected,  which  the  said  desires  to  use  and  let  to 
hire  as  a  [metropolitan  stage  carriage,  or  as  a  hackney  carriage]  ;  and  I 
certify  that  the  said  carriage  is  in  a  At  and  proper  condition  for  public 
use,  and  that  persons  are  to  be  carried  thereby  [if  the  carriage  be  a 
metropolitan  stage  carriage,  the  number  of  passengers  to  be  carried  inside  and 
outside  thereof  respective/y  is  to  be  specified,  exclusive  of  the  driver  and  con- 
ductor.']                                                 (Signed)         

Commissioner  of  the  police  of 
the  metropolis. 


(rt)  The  fares  in  this  schedule,  as 
amended  by  16  &  17  Vict.  c.  127, 
post,  are  minimum  fares.    A  secre- 
tary of   state  may  raise  them  by 
O. 


order  under  32   &  33  Vict.  c.  115, 
s.  9. 
"  (6)  16  &  17  Vict.  c.  127,  s.  15. 
((•)  Ibid.  s.  14. 

M   M 


530 


APPENDIX. 


SCHEDULE  (C). 


CERTIFICATE. 


I,  do  hereby  certify,  that  I  have  caused  the  carriage  now  used 

and  let  to  hire  as  a  \_state  whether  a  metropolitan  stage  or  hackney  carriagcl, 
and  known  by  the  following-  marks  or  description  \here  state  marks  or 
description  bij  which  the  carriage  may  be  identified'\,  to  be  inspected,  and  find 
the  said  carriage  not  to  be  in  a  fit  and  proper  condition  for  public  use ; 
and  I  do  hereby  suspend  the  licence  granted  to  to  keep  and  use  the 

said  carriage  as  a  [_state  whether  a  metropolitan  stage  or  hackney  carriage~\i.ox 
the  period  of  from  this  date. 

(Signed)        , 

Commissioner  of  the  police  of 
the  metropolis. 


Is.  a  mile  to 
be  paid  for 
every  mile 
beyond  the 
circumference 
of  a  circle 
four  miles 
from  Charing 
Cross  if  car- 
riage be  dis- 
charged 
beyond  such 
circumfer- 
ence. 

Addition  to 
the  fare  to  be 
paid  for  each 
person  above 
two. 

When  car- 
riage hii-ed 
by  time,  &d. 
to  be  paid  for 
every  fifteen 
minutes, 
or  portion 
thereof,  over 
the  hour. 

Proprietors 
of  hackney 


16  &  17  Vict.  Cap.  127. 

An  Act  to  reduce  the  Duties  payable  in  respect  of  Hackney 
Carriages  used  in  the  Metropolis,  and  to  amend  the  Laios 
relatiny  to  the  granting  of  Licences  and  Payment  of  Duties 
in  respect  of  Metropolitan  Stage  and  Hackney  Carriages, 
and  to  make  Provision  as  to  the  Charge  for  the  Hire  of 
Hackney  Carriages  in  certain  Cases. 

13.  It  shall  be  lawful  for  the  driver  of  any  hackney  car- 
riage within  the  limits  of  this  act  to  charge  One  shilling  per 
mile  for  every  mile  (or  part  of  a  mile)  which  he  shall  be 
required  to  drive  beyond  the  circumference  of  a  circle  the 
radius  of  which  shall  be  four  miles  from  Charing  Cross,  pro- 
vided such  carriage  shall  be  discharged  beyond  such  circum- 
ference, anything  contained  in  the  thirty -third  chapter  of  an 
act  of  the  sixteenth  and  seventeenth  year  of  the  reign  of  her 
jDresent  majesty,  or  in  the  schedule  thereto,  notwithstanding. 

14.  Whenever  more  than  two  persons  shall  be  conveyed  by 
any  hackney  carriage  drawn  by  one  horse  only,  a  sum  of  Six- 
pence  for  each  person  above  the  number  of  two  shall  be  paid 
for  the  whole  hiring  in  addition  to  the  fare  now  directed  to 
be  paid  for  two  persons  under  the  said  act  of  the  sixteenth 
and  seventeenth  years  of  the  reign  of  her  present  majesty, 
chapter  thirty-three ;  and  two  children  under  ten  years  old 
shall  be  considered  as  one  adult  person  for  the  purposes  of 
this  clause. 

15.  When  any  hackney  carriage  within  the  limits  of  this 
act  hired  for  a  fare  to  be  paid  according  to  time  shall  be  hired 
or  used  by  the  hirer  thereof  for  any  longer  time  than  one 
hour,  Sixpence  shall  be  paid  for  every  fifteen  minutes,  or  any 
portion  of  fifteen  minutes  not  completed,  above  one  hour. 

16.  The  proprietor  of  every  hackney  carriage  or  metropo- 
litan stage  carriage  licensed  to  ply  for  hire  within  the  limits 
of  this  act  who  shall  withdraw  his  carriage  from  hire  for  two 


STATUTES.  531 

consecutive  days,  or  for  any  two  days  in  one  week,,  without  withdrawing 
just  cause,  of  which,  the  magistrate  before  whom  the  complaint  carriages  from 
is  heard  shall  be  the  judge,  shall  be  liable  to  a  penalty  of  a  ^^^^  beyond  a 
sum  not  exceeding  Twenty  shillings  in  resj)ect  of  every  car-  ^^abLe'to^™^ 
riage  for  each  day  he  shall  so  withdraw  the  same,  and  the  penalty, 
licence  of  such  propri'etor  shall  be  suspended  or  recalled  and 
taken  away  at  the  discretion  of  the  said  commissioners  of 
police :  Provided  always,  that  it  shall  be  lawful  for  such  pro- 
prietor, upon  giving  ten  days'  notice  to  the  commissioners  of 
police,  to  withdraw  his  carriage  from  hire. 

17.  The  limits  of  this  act  shall  be  deemed  to  be  and  to  in-  "The  limits 
elude  every  part  of  the  metropolitan  police  district  and  the  of  this  act'' 
city  of  London ;  and  all  provisions  of  any  former  act  in  force  <i6*"i®"- 
referring  to  hackney  carriages  licensed  under  the  said  act  of 
the  first  and  second  years  of  his  late  majesty,  or  to  hackney 
carriages  kept,  used,  employed,  or  let  to  hire  within  the  dis- 
tance of  five  miles  from  the  General  Post  Ofiice  in  the  city  of 
London,  or  to  any  act,  matter,  or  thing  committed  or  done  in 
relation  to  such  hackney  carriages  within  the  said  distance, 
shall  from  and  after  the  passing  of  this  act  be  deemed  to  refer 
and  apply  to  hackney  carriages  licensed  under  this  act,  or  to 
hackney  carriages  kept,  used,  employed,  or  let  to  hire  within 
the  limits  of  this  act,  and  to  any  act,  matter,  or  thing  com- 
mitted or  done  in  relation  to  hackney  carriages  within  the 
said  limits. 


16  &  17  Vict.  Cap.  119. 
An  Act  for  the  Sup2)ressio7i  of  Betting  Houses. 

"Whereas  a  kind  of  gaming  has  of  late  sprung  up,  tending 
to  the  injury  and  demoralization  of  improvident  persons,  by 
the  opening  of  places  called  betting  houses  or  offices,  and  the 
receiving  of  money  in  advance  by  the  owners  or  occupiers  of 
such  houses  or  offices,  or  by  other  persons  acting  on  their  be- 
half, on  their  promises  to  pay  money  on  events  of  horse  races 
and  the  like  contingencies  :  for  the  suppression  thereof,  be  it 
enacted,  by  the  Queen's  most  excellent  majesty,  by  and  with 
the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by 
the  authority  of  the  same  as  follows : — 

1.  No  house,  office,  room,  or  other  place  shall  be  opened,  No  house,  «S:c. 
kept  or  used  for  the  purpose  of  the  owner,  occupier,  or  keeper  to  be  kejit  f or 
thereof,  or  any  person  using  the  same,  or  any  person  procured  P^^'Pose  ot 
or  employed  by  or  acting  for  or  on  behalf  of   such  owner,  occupier  bet- 
occupier,   or  keeper,   or  person  using  the   same,    or  of  any  ting  with 
person  having  the  care  or  management  or  in  any  manner  con-  other  persons, 
ducting  the  Ijusiness  thprenf,  betting  with  persons  resorting 

M  M  2 


632 


APPENDIX. 


Betting 
houses  to  be 
gaming 
houses  within 
8  &  9  Vict. 
c.  109. 


Penalty  on 
owner  or 
occupier  of 
betting  house. 


Penalty  on 
persons  re- 
ceiving money 
on  condition 
of  paying 
money  on 
event  of  any 
bet. 


tliereto ;  or  for  tlie  purpose  of  any  money  or  valuable  thing 
being  received  by  or  on  behalf  of  such  owner,  occupier,  keeper, 
or  person  as  aforesaid  as  or  for  the  consideration  for  any 
assurance,  undertaking,  promise  or  agreement,  exjiress  or 
implied,  to  pay  or  give  thereafter  any  money  or  valuable  thing, 
on  any  event  or  contingency  of  or  relating  to  any  horse  race, 
or  other  race,  fight,  game,  sport  or  exercise,  or  as  or  for  the 
consideration  for  securing  the  paying  or  giving  by  some  other 
person  of  any  money  or  valuable  thing,  on  any  such  event  or 
contingency  as  aforesaid ;  and  every  house,  office,  room,  or 
other  place  opened,  kept,  or  used  for  the  purposes  aforesaid, 
or  any  of  them,  is  hereby  declared  to  be  a  common  nuisance 
and  contrary  to  law. 

2.  Every  house,  room,  office  or  place  opened,  kept  or  used 
for  the  purposes  aforesaid,  or  any  of  them,  shall  be  taken  and 
deemed  to  be  a  common  gaming  house  within  the  meaning  of 
an  act  of  the  session  holden  in  the  eighth  and  ninth  years  of 
her  majesty,  chapter  one  hundred  and  nine,  "  to  amend  the 
"  law  concerning  games  and  wagers." 

3.  Any  person  who,  being  the  owner  or  occupier  of  any 
house,  office,  room,  or  other  place,  or  a  person  using  the  same, 
shall  open,  keep,  or  use  the  same  for  the  purposes  hereinbe- 
fore mentioned,  or  either  of  them;  and  any  person  who,  being 
the  owner  or  occupier  of  any  house,  room,  office,  or  other 
place,  shall  knowingly  and  wilfully  permit  the  same  to  be 
opened,  kept  or  used  by  any  other  person  for  the  purposes 
aforesaid,  or  either  of  them ;  and  any  person  having  the  care 
or  management  of  or  in  any  manner  assisting  in  conducting 
the  business  of  any  house,  office,  room  or  place  opened,  kept 
or  used  for  the  purposes  aforesaid,  or  either  of  them,  shall, 
on  summary  conviction  thereof  before  any  two  justices  of  the 
peace,  be  liable  to  forfeit  and  pay  such  penalty,  not  exceeding 
One  hundred  j^oiinds,  as  shall  be  adjudged  by  such  justices,  and 
may  be  further  adjudged  by  such  justices  to  pay  such  costs 
attending  such  conviction  as  to  the  said  justices  shall  seem 
reasonable ;  and  on  the  nonpayment  of  such  penalty  and 
costs,  or  in  the  first  instance,  if  to  the  said  justices  it  shall 
seem  fit,  may  be  committed  to  the  common  gaol  or  house  of 
correction,  with  or  without  hard  labour,  for  any  time  not  ex- 
ceeding Six  calendar  months. 

4.  Any  person,,  being  the  owner  or  occupier  of  any  house, 
office,  room  or  place  opened,  kejit  or  used  for  the  purposes 
aforesaid,  or  either  of  them,  or  any  person  acting  for  or  on 
behalf  of  any  such  owner  or  occupier,  or  any  person  having 
the  care  or  management  or  in  any  manner  assisting  in  con- 
ducting the  business  thereof,  who  shall  receive,  directly  or 
indirectly,  any  money  or  valuable  thing  as  a  dejiosit  on  any 
bet,  on  condition  of  paying  any  sum  of  money  or  other  valuable 
thing  on  the  happening  of  any  event  or  contingency  of  or  re- 


STATUTES.  633 

latin  g  to  a  horse  race  or  any  other  race,  or  any  figlit,  game, 
sport  or  exercise,  or  as  or  for  the  consideration  for  any  assur- 
ance, undertaking,  promise  or  agreement,  express  or  implied, 
to  pay  or  give  thereafter  any  money  or  valuable  thing  on  any 
such  event  or  contingency,  and  any  person  giving  any  ac- 
knowledgment, note,  security  or  draft  on  the  receipt  of  any 
money  or  valuable  thing  so  paid  or  given  as  aforesaid,  pur- 
porting or  intended  to  entitle  the  bearer  or  any  other  person 
to  receive  any  money  or  valuable  thing  on  the  happening  of 
any  such  event  or  contingency  as  aforesaid,  shall,  upon  sum- 
mary conviction  thereof  before  two  justices  of  the  peace, 
forfeit  and  pay  such  penalty,  not  exceeding  Fifty  pounds,  as 
shall  be  adjudged  by  such  justices,  and  may  befurther  adjudged 
by  such  justices  to  pay  such  costs  attending  such  conviction 
as  to  the  said  justices  shall  seem  reasonable  ;  and  on  the  non- 
payment of  such  penalty  and  costs,  or  in  the  first  instance,  if 
to  such  justices  it  shall  seem  fit,  may  be  committed  to  the 
common  gaol  or  house  of  correction,  with  or  without  hard 
labour,  for  any  time  not  exceeding  Three  calendar  months. 

5.  Any  money  or  valuable  thing  received  by  any  such  person  Money  so  re- 
aforesaid,  as  a  deposit  on  any  bet,  or  as  or  for  the  considera-  ceived  may 
tion  for  any  such  assurance,  undertaking,  promise  or  agree-  ^f  recovered 
ment  as  aforesaid,  shall  be  deemed  to  have  been  received  to  or  ^^^ y.c.r.cF-.Ar^r,- 
for  the  use  of  the  person  from  whom  the  same  was  received,  the  same. 
and  such  money  or  valuable  thing,  or  the  value  thereof,  may 

be  recovered  accordingly,  with  full  costs  of  suit,  in  any  court 
of  competent  jurisdiction. 

6.  Provided  alwaj's,  that  nothing  in  this  act  contained  shall  This  act  not 
extend   to   any  person  receiving  or   holding  any  money  or  to  extend  to 
valuable  thing,  by  way  of  stakes  or  deposit  to  be  paid  to  the  stakes  due  to 
winner  of  any  race  or  lawful  sport,  game  or  exercise,  or  to  the  hor^rwin- 
owner  of  any  horse  engaged  in  any  race.  ning  a  race. 

7.  Any  person  exhibiting  or  publishing  or  causing  to  be  Penalty  on 
exhibited  or  published  any  placard,  handbill,  card,  writing,  persons  ex- 
sign  or  advertisement,  whereby  it  shall  be  made  to  appear  hibiting  pla- 
that  any  house,  office,  room  or  place  is  opened,  kept  or  used  cards  or  ad- 
for  the  purpose  of  making  bets  or  wagers  in  manner  afore-  I-^Vhoues  " 
said,  or  for  the  purpose  of  exhibiting  lists  for  betting,  or  with       ° 
intent  to  induce  any  person  to  resort  to  such  house,  office, 

room  or  place  for  the  purpose  of  making  bets  or  wagers  in 
manner  aforesaid,  or  any  person  who,  on  behalf  of  the  owner 
or  occupier  of  any  such  house,  office,  room  or  place,  or  person 
using  the  same,  shall  invite  other  persons  to  resort  thereto  for 
the  purpose  of  making  bets  or  wagers,  in  manner  aforesaid, 
shall,  upon  summary  conviction  thereof  before  two  justices  of 
the  peace,  forfeit  and  pay  a  sum  not  exceeding  Thirty  pounds, 
and  may  be  further  adjudged  by  such  justices  to  pay  such 
costs  attending  such  conviction  as  to  the  said  justices  shall 
seem  reasonable ;  and  on  the  nonpayment  of  such  penalty  and 


534 


APPENDIX. 


Penalties  and 
costs  may  be 
levied  by 
distress. 


Application  of 
penalties. 


On  neglect  to 
prosecute 
any  sum- 
mons, jiis- 
tices  may 
authorize 
some  other 
person  to 
proceed. 


Justices  may 
authorize 
search  of 
suspected 
houses. 


costs,  or  in  the  first  instance  if  to  siicli  justices  it  shall  seem, 
fit,  may  he  committed  to  the  common  gaol  or  house  of  correc- 
tion, with  or  without  hard  labour,  for  any  time  not  exceeding 
Two  calendar  months. 

8.  If  any  person  convicted  under  this  act  on  information 
before  justices  shall  be  adjudged  to  pay  any  penalty,  or  any 
costs  and  charges  attending  the  conviction,  and  shall  fail  to 
pay  such  penalty  or  costs,  the  same  may  be  levied  by  distress 
and  sale  of  the  goods  and  chattels  of  the  offender  by  warrant 
under  the  hand  and  seal  of  one  of  the  convicting  justices : 
Provided  always,  that  if  any  person  shall  be  committed  to 
prison  for  default  of  payment  of  any  penalty  and  costs,  then 
the  costs  alone  may  be  levied  by  distress  as  aforesaid. 

9.  One  half  of  every  pecuniary  penalty  which  shall  be  ad- 
judged to  be  paid  under  this  act  shall  be  paid  to  the  informer, 
and  the  remaining  half  shall  be  applied  in  aid  of  the  poor  rate 
of  the  parish  in  which  the  offence  shall  have  been  committed, 
and  shall  be  paid  for  that  purpose  to  the  overseer  or  other 
person  authorized  to  receive  poor  rates  in  such  parish,  or  if 
the  place  wherein  the  offence  shall  have  been  committed  shall 
be  extra-parochial,  then  the  justices  by  whom  such  penalty 
shall  be  adjudged  to  be  paid  shall  direct  such  remaining  half 
thereof  to  be  applied  in  aid  of  the  poor  rate  of  such  extra- 
parochial  place,  or  if  there  shall  not  be  any  poor  rate  therein, 
in  aid  of  the  poor  rate  of  any  adjoining  parish  or  district. 

10.  In  case  any  person  who  shall  have  laid  any  complaint 
or  information  in  respect  of  any  oifenee  against  this  act  shall 
not  appear  at  the  time  at  which  the  defendant  may  have  been 
summoned  to  appear,  or  at  any  time  to  which  the  hearing  of 
the  summons  may  have  been  adjourned,  or,  in  the  opinion  of 
any  justices  having  authority  to  adjudicate  with  resj)ect  to  the 
ofience  charged  in  such  information  or  complaint  as  aforesaid, 
shall  otherwise  have  neglected  to  proceed  upon  or  prosecute 
such  information  or  complaint  with  due  diligence,  it  shall  be 
lawful  for  such  justices  to  authorize  any  other  person  to  pro- 
ceed on  such  summons  instead  of  the  person  to  whom  the 
same  may  have  been  granted,  or  if  such  justices  think  fit  to 
dismiss  the  summons  already  granted,  and  authorize  any  per- 
son to  take  out  a  fresh  summons  in  respect  of  the  offence 
charged  in  such  information  or  complaint,  in  like  manner  as 
if  the  previous  summons  had  not  been  granted. 

11.  It  shall  be  lawful  for  any  justice  of  the  peace,  upon 
complaint  made  before  him  on  oath  that  there  is  reason  to 
suspect  any  house,  office,  room,  or  place  to  be  kept  or  used 
as  a  betting  house  or  office,  contrary  to  this  act,  to  give  au- 
thority by  special  warrant  under  his  hand,  when  in  his  discre- 
tion he  shall  think  fit,  to  any  constable  or  police  officer,  to 
enter,  with  such  assistance  as  may  be  found  necessary,  into 
such  house,  office,  room,  or  place,  and,  if  necessary,  to  use 


STATUTES.  535 

force  for  making  such,  entry,  whether  by  breaking  open  doors, 
or  othervrise,  and  to  arrest,  search,  and  bring  before  a  justice 
of  the  peace  all  such  persons  found  therein,  and  to  seize  all 
lists,  cards,  or  other  documents  relating  to  racing  or  betting 
found  in  such  house  or  premises  ;  and  any  such  warrant  may 
be  according  to  the  form  given  in  the  first  schedule  annexed 
to  the  before-mentioned  act  "to  amend  the  law  concerning 
games  and  wagers." 

12.  If  any  superintendent  belonging  to  the  metropolitan  Commissioner 
police  force  shall  report  in  writing  to  the  commissioners  of  of  police  may- 
police  of  the  metropolis  that  there  are  good  grounds  for  be-  authorize 
lievino:  and  that  he  does  believe  that  any  house,  office,  room,  superintend- 

o^  ,•,  Gilt  01  "DOilCG 

or  place  within  the  metropolitan  police  district  is  kept  or  used  to  enter  and 

as  a  betting  house  or  office,  contrary  to  this  act,  it  shall  be  search  sus- 

lawful  for  either  of  the  said  commissioners  by  order  in  writing  pected  houses. 

to  authorize  the  superintendent  to  enter  any  such  house,  office, 

room,  or  place,  with  such  constables  as  shall  be  directed  by 

the  commissioners  to   accompany  him,  and,  if  necessary,  to 

use  force  for  the  purpose  of  effecting  such  entry,  whether  by 

breaking  open  doors  or  otherwise,  and  to  take  into  custody  all 

persons  who  shall  be  found  therein,  and  to  seize  all  lists,  cards, 

or  other  documents  relating  to  racing  or  betting  found  in 

such  house  or  premises. 

13.  Any  person  who  shall  be   summarily  convicted  under  Appeal  to 
this  act  may  appeal  to  the  next  general  or  quarter  session  of  quarter  ses- 
the  peace  to  be  holden  for  the  county  or  place  wherein  the  ^^^^^' 
cause  of  complaint  shall  have  arisen,  provided  that  such  per- 
son at  the  time  of  the  conviction  give  notice  of  his  intention 

to  appeal,  and  shall  at  the  time  of  such  conviction,  or  within 
forty-eight  hours  thereafter,  enter  into  a  recognizance  with 
two  sufficient  sureties  conditioned  jpersonally  to  appear  at 
the  said  session  to  try  such  appeal,  and  to  abide  the  further 
judgment  of  the  court  at  such  session,  and  to  pay  such  costs 
as  shall  be  by  the  last-mentioned  court  awarded ;  and  it  shall 
be  lawful  for  the  magistrate  or  justices  by  whom  such  convic- 
tion shall  have  been  made  to  bind  over  any  party  who  shall 
have  made  information  against  the  party  convicted,  and  any 
witnesses  who  shall  have  been  examined,  in  sufficient  recog- 
nizances to  attend  and  be  examined  at  the  hearing  of  such 
appeal ;  and  every  such  witness,  on  producing  a  certificate  of 
being  so  bound  under  the  hand  of  the  said  magistrate  or 
justices,  shall  be  allowed  compensation  for  his  or  her  time, 
trouble,  and  expenses  in  attending  the  appeal,  which  com- 
pensation shall  be  paid  in  the  first  instance  by  the  treasurer 
of  the  county  or  place  in  like  manner  as  in  eases  of  misde- 
meanor under  the  provisions  of  an  act  passed  in  the  seventh 
year  of  the  reign  of  King  George  the  Fourth,  intituled  "An  7  &  8  Geo.  4, 
Act  for  improving  the  Administration  of  Criminal  Justice  in  c.  28. 
England;"  and  in  case  any  such  appeal  shall  be  dismissed  and 


536 


APPENDIX. 


No  objection 
in  matter  of 
form  and 
certiorari 
taken  away. 


Distress  not 
unlawful  for 
want  of  form. 


Tender  of 
amends,  &c. 


Limitation 
of  actions. 


the  order  or  conviction  affirmed,  the  reasonable  expenses  of  all 
such  witnesses  attending  as  aforesaid,  to  be  ascertained  by  the 
court,  shall  be  repaid  to  the  said  treasurer  by  the  appellant. 

14.  On  any  such  appeal  no  objection  shall  be  allowed  to 
the  information  whereon  the  conviction  has  taken  place,  or  to 
such  conviction,  on  any  matter  of  form  or  on  any  insufficiency 
of  statement,  provided  it  shall  appear  to  the  justices  in  quarter 
sessions  that  the  defendant  has  been  sufficiently  informed  of 
the  charge  intended  to  be  made  against  him,  and  that  such 
conviction  was  proper  on  the  merits  of  the  case  ;  and  no  in- 
formation, conviction,  or  judgment  of  the  justices  in  general 
or  quarter  sessions  shall  be  removed  by  certiorari  into  the 
Court  of  Queen's  Bench. 

15.  When  any  distress  shall  be  made  for  any  money  to  be 
levied  by  virtue  of  the  warrant  of  any  justice  under  this  act, 
the  distress  shall  not  be  deemed  unlawful,  nor  shall  any  party 
making  the  same  be  deemed  a  trespasser,  on  account  of  any 
defect  or  want  of  form  in  the  information,  summons,  warrant 
of  apprehension,  conviction,  warrant  of  distress,  or  other  pro- 
ceeding relating  thereto,  nor  shall  such  party  be  deemed  a 
trespasser  from  the  beginning  on  account  of  any  irregularity 
which  shall  be  afterwards  committed  by  him,  but  all  persons 
aggrieved  by  such  defect  or  irregularity  may  recover  fuU 
satisfaction  for  the  sj)ecial  damage  by  an  action  on  the  case  in 
any  of  her  majesty's  courts  of  record. 

16.  No  plaintiff  shall  recover  in  any  action  for  any  irregu- 
larity, trespass,  or  other  wrongful  proceeding  made  or  com- 
mitted in  the  execution  of  this  act,  or  in,  under,  or  by  virtue 
of  any  authority  hereby  given,  if  tender  of  sufficient  amends 
shall  have  been  made  by  or  on  behalf  of  the  party  who  shall 
have  committed  such  irregularity,  trespass,  or  other  wrongful 
proceeding  before  such  action  brought ;  and  in  case  no  tender 
shall  have  been  made  it  shall  be  lawful  for  the  defendant  in 
any  such  action,  by  leave  of  the  court  where  such  action  shall 
depend,  at  any  time  before  issue  joined  to  pay  into  court  such 
sum  of  money  as  he  shall  think  fit,  whereupon  such  proceed- 
ing, order,  and  adjudication  shall  be  had  and  made  in  and  by 
such  court  as  in  other  actions  where  defendants  are  allowed  to 
pay  money  into  court. 

17.  No  action,  suit,  or  information,  or  any  other  proceeding, 
of  what  nature  soever,  shall  be  brought  against  any  person 
for  anything  done  or  omitted  to  be  done  in  pursuance  of  this 
act,  or  in  the  execution  of  the  authorities  under  this  act, 
imless  notice  in  writing  shall  be  given  by  the  party  intending 
to  prosecute  such  suit,  information  or  other  proceeding  to  the 
intended  defendant  one  calendar  month  at  least  before  prose- 
cuting the  same,  nor  unless  such  action,  suit,  information  or 
other  proceeding  shall  be  brought  or  commenced  within  three 
calendar  months  next  after  the  act  or  omission  compla:ned  of, 


STATUTES.  537 

or  in  case  there  sliall  be  a  continuation  of  damage  then 
within  three  calendar  months  next  after  the  doing  such 
damage  shall  have  ceased. 

18.  In  Ireland  the  term  "  metropolitan  police  force,"  and  Interpreta- 
the  terms  "commissioners  of  the  police  of  the  metropolis,"  tion  of  terms, 
and  the  terms  "metropolitan  police  district,"  shall  mean  and 

include  respectively  the  Dublin  metropolitan  police  force,  the 
commissioners  of  police  of  Dublin  metropolis,  and  the  jiolice 
district  of  Dublin  metropolis. 

19.  This  act  shall  commence  and  come  into  operation  on  Commence- 
the  first  day  of  December,  one  thousand  eight  hundred  and  ™ent  of  act. 
fifty-three. 


37  Vict.  Cap.  15. 

An  Act  to  amend  the  Act  of  sixteenth  and  seventeenth  Victoria, 
chapter  one  hundred  and  nineteen,  intituled  "  An  Act  for  the 
Suppression  of  Betting  Houses." 

"WTiereas  it  is  expedient  to  amend  the  act  of  the  session  of 
the  sixteenth  and  seventeenth  years  of  the  reign  of  her  present 
majesty,  chapter  one  hundred  and  nineteen,  intituled  "  An  Act 
for  the  Suppression  of  Betting  Houses,"  and  to  extend  the 
provisions  of  such  act  to  Scotland: 

Be  it  enacted  by  the  Queen's  most  excellent  majesty,  by  and 
with  the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  j)arliament  assembled,  and  by 
the  authority  of  the  same,  as  follows: 

1.  This  act  shall  be  construed  as  one  with  the  act  of  the  Act  to  be 
session  of  the  sixteenth  and  seventeenth  years  of  the  reign  of  construed 
her  present  majesty,  chapter  one  hundred  and  nineteen,  in-  ^^}^  ^^  ^  ^^ 
tituled  "An  Act  for  the  Suppression  of  Betting  Houses"  (in  ^^^^'  ^'  ^^^* 
this  act  referred  to  as  the  principal  act),  and  the  principal  act 

and  this  act  may  be  cited  together  as  the  Betting  Acts,  1853  and  Short  title. 
1874,  and  each  of  them  may  be  cited  sei^arately  as  the  betting 
act  of  the  year  in  which  it  was  passed. 

2.  This  act  shall  not  come  into  operation  until  the  thirty-  Commence- 
first  day  of  Jidy,  one  thousand  eight  hundred  and  seventy-four.  °ient  of  act. 

3.  Where  any  letter,  circidar,  telegram,  placard,  handbill,  Penalty  on 
card,  or  advertisement  is  sent,  exhibited,  or  published, —  persons  ad- 

(l.)  Whereby  it  is  made  to  appear  that  any  person,  either  vertising  as 
in  the  United  Kingdom  or  elsewhere,  will  on  appli-  ^^  letting', 
cation  give  information  or  advice  for  the  purpose  of 
or  with  respect  to  any  such  bet  or  wager,  or  any  such 
event  or  contingency  as  is  mentioned  in  the  princiftal 
act,  or  will  make  on  behalf  of  any  other  person  any 
such  bet  or  wager  as  is  mentioned  in  the  principal 
act ;  or, 


538  APPENDIX. 

(2.)  Witli  intent  to  induce  any  person  to  apply  to  any  house, 
office,  room,  or  place,  or  to  any  person,  with,  the  view 
of  obtaining  information  or  advice  for  the  pui'pose  of 
any  such  bet  or  wager  or  with  respect  to  any  such 
event  or  contingency  as  is  mentioned  in  the  principal 
act ;  or, 
(3.)  Inviting  any  person  to  make  or  take  any  share  in  or  in 
connection  with  any  such  bet  or  wager ; 
every  person  sending,   exhibiting,  or  publishing,  or  causing 
the  same  to  be  sent,  exhibited,  or  published,  shall  be  subject 
to  the  penalties  provided  in  the  seventh  section  of  the  prin- 
cipal act  with  respect  to  offences  under  that  section. 
Extension  to         4.  The  twentieth  section  of  the  principal  act  is  hereby  re- 
Scotland,  pealed,  and  the  principal  act,  as  amended  by  this  act,  shall 
extend  to  Scotland,  with  the  following  modifications  and  pro- 
visions : 

(1.)  The  term  "  distress"  shall  mean  poinding  and  sale  : 
The  term  "  misdemeanour"  shall  mean  a  crime  and 
offence : 
(2.)  All  offences  or  penalties  under  this  act  and  the  prin- 
cipal act  shall  be  prosecuted  and  recovered  before  the 
sheriff  of  the  county  or  his  substitute  in  the  sheriff 
court,  at  the  instance  of  the  procurator  fiscal,  or  of 
any  private  person,  under  the  provisions  of  the  Sum- 
mary Procedure  Act,  1864,  and  all  the  jurisdictions, 
powers,  and  authorities  necessary  for  the  purposes  of 
this  section  are  hereby  conferred  on  the  sheriffs  and 
their  substitutes : 
(3.)  Every  pecuniary  penalty  which  is  adjudged  to  bo  paid 
under  this  or  the  principal  act,  shall  be  paid  to  the 
clerk  of  the  court,  and  shall  be  by  him  accounted  for 
and  paid  to  the  Queen's  and  lord  treasurer's  remem- 
brancer on  behalf  of  her  majesty  : 
(4.)  The  thirteenth  and  fourteenth  sections  of  the  principal 
act  shall  not  apply  to  Scotland,  but  it  shall  be  com- 
petent to  any  person  who  is  convicted  under  this  act 
or  the  principal  act  to  appeal  against  such  conviction 
to  the  high  court  of  justiciary,  in  the  manner  pre- 
scribed by  such  of  the  provisions  of  the  act  of  the 
twentieth  year  of  the  reign  of  King  George  the 
Second,  chapter  forty-three,  and  any  acts  amending 
the  same,  as  relate  to  appeals  in  matters  criminal, 
and  by  and  under  the  rules,  limitations,  convictions, 
and  restrictions  contained  in  the  said  provisions. 


STATUTES.  Of39 

17  &  18  Vict.  Cap.  38. 
An  Act  for  the  Suppression  of  Gaming  Houses. 

Whereas  divers  statutes  have  been  made  from  time  to  time 
for  the  prevention  of  unlawful  gaming ;  and  particularly  by 
the  act  of  the  session  holden  in  the  eighth  and  ninth  years  of  8  «fe  9  Vict. 
her  majesty,  chapter  one  hundred  and  nine,  powers  are  given  ^'  l*^^- 
to  justices  of  the  peace  in  places  beyond  the  metropolitan 
police  district  to  authorize  constables,  and  to  either  of  the 
commissioners  of  police  within  such  district  to  authorize 
superintendents  belonging  to  the  metropolitan  police  force, 
to  enter  houses  suspected  to  be  kept  as  common  gaming 
houses,  and  to  arrest  all  persons  found  therein :  and  it  is 
thereby  enacted,  that  where  any  cards,  dice,  balls,  counters, 
tables  or  other  instruments  of  gaming  used  in  playing  any 
unlawful  game  shall  be  found  in  any  house,  room  or  place 
suspected  to  be  used  as  a  common  gaming  house,  and  entered 
under  a  warrant  or  order  issued  under  the  provisions  of  that 
act,  or  about  the  person  of  any  of  those  who  shall  be  found 
therein,  it  shall  be  evidence,  until  the  contrary  be  made  to 
appear,  that  such  house,  room  or  place  is  used  as  a  common 
gaming  house,  and  that  the  persons  found  in  the  room  or 
place  where  such  tables  or  instruments  of  gaming  shall  have 
been  found  were  playing  therein :  and  whereas  the  keepers 
of  common  gaming  houses  contrive,  by  fortifying  the  entrances 
to  such  houses,  or  by  other  means,  to  keep  out  the  officers 
authorized  to  enter  the  same  until  the  instruments  of  gaming 
have  been  removed  or  destroyed,  so  that  no  sufficient  evidence 
can  be  obtained  to  convict  the  offenders,  who  are  thereby 
encouraged  to  persist  in  the  violation  of  the  law ;  and  whereas 
it  is  expedient  that  the  law  shall  be  made  more  efficient  for 
the  suppression  of  gaming  houses ;  be  it  therefore  enacted  by 
the  Queen's  most  excellent  majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  temporal,  and  commons, 
in  this  present  parliament  assembled,  and  by  the  authority  of 
the  same  as  follows  : 

1.  Any  person  who  shall  wilfully  prevent  any  constable  or  Penalty  on 
officer  authorized  under  the  provisions  of  the  said  act  of  the  persons  ob- 
eighth  and  ninth  years  of  her  majesty  to  enter  any  house,  structmg  the 
room  or  place,  from  entering  the  same  or  any  part  thereof,  constables 
or  who  shall  obstruct  or  delay  any  such  constable  or  officer  authorized 
in  so  entering,  and  any  person  who,  by  any  bolt,  bar,  chain  to  enter  any 
or  other  contrivance   shall  secure   any  external  or  internal  house  sus- 
door  of  or  means  of  access  to  any  house,  room  or  place  so  P^^*^*^  *o  ^® 
authorized  to  be  entered,  or  shall  use  any  means  or  contriv-  gamine- 
ance  whatsoever  for  the  purpose  of  preventing,  obstructing  house.° 
or  delaying  the  entry  of  any  constable  or  officer  authorized 
as  aforesaid  into  any  such  house,  room  or  place,  or  any  part 


640 


APPENDIX. 


Obstructing 
entry  of 
constables 
to  be  evi- 
dence of 
bouse  being 
a  common 
gaming 
house. 


Penalty  on 
persons  ap- 
prehended 
for  giving 
false  names 
or  addresses. 


Penalties  on 

persons 

keeping 

gaming 

houses. 


thereof,  may  for  every  such  offence,  on  a  summary  conviction 
of  the  same  before  two  justices  of  the  peace,  be  adjudged  by 
such  justices  to  forfeit  and  pay  any  penalty  not  exceeding 
one  hundred  pounds,  together  with  such  costs  attending  the 
said  conviction  as  to  the  said  justices  shall  appear  reasonable  ; 
and  on  the  nonpayment  of  such  penalty  and  costs,  or  in  the 
first  instance,  if  to  the  said  justices  it  shall  seem  fit.  may  be 
committed  to  the  common  gaol  or  house  of  correction,  with 
or  without  hard  labour,  for  any  period  not  exceeding  six 
calendar  months. 

2.  Where  any  constable  or  officer  authorized  as  aforesaid 
to  enter  any  house,  room  or  place  is  wilfully  prevented  from 
or  obstructed  or  delayed  in  entering  the  same  or  any  part 
thereof,  or  where  any  external  or  internal  door  of  or  means 
of  access  to  any  such  house,  room  or  place  so  authorized  to  be 
entered  shall  be  found  to  be  fitted  or  provided  with  any  bolt, 
bar,  chain  or  any  means  or  contrivance  for  the  purpose  of 
preventing,  delaying  or  obstructing  the  entry  into  the  same 
or  any  part  thereof  of  any  constable  or  officer  authorized  as 
aforesaid,  or  for  giving  an  alarm  in  case  of  such  entry,  or  if 
any  such  house,  room  or  place  is  found  fitted  or  provided 
with  any  means  or  contrivance  for  unlawful  gaming,  or  with 
any  means  or  contrivance  for  concealing,  removing  or  destroy- 
ing any  instruments  of  gaming,  it  shall  be  evidence,  until  the 
contrary  be  made  to  appear,  that  such  house,  room  or  place  is 
used  as  a  common  gaming  house  within  the  meaning  of  this 
act  and  of  the  former  acts  relating  to  gaming,  and  that  the 
persons  found  therein  were  unlawfully'  playing  therein. 

3.  If  any  person  found  in  any  house,  room  or  place  entered 
by  any  constable  or  officer  authorized  as  aforesaid  to  enter  the 
same,  upon  being  arrested  by  any  such  constable  or  officer,  or 
upon  being  brought  before  any  justices,  on  being  required  by 
such  constable  or  officer  or  by  such  justices  to  give  his  name 
and  address,  shall  refuse  or  neglect  to  give  the  same,  or  shall 
give  any  false  name  or  address,  he  may,  upon  summary  con- 
viction thereof  before  the  same  or  any  other  justices,  be 
adjudged  to  pay  any  penalty  not  exceeding  fifty  pounds, 
together  with  such  costs  as  to  such  justices  shall  appear 
reasonable,  and  on  the  nonpayment  of  such  penalty  and  costs, 
or  in  the  first  instance,  if  to  such  justices  it  shall  seem  fit, 
may  be  imprisoned  in  the  common  gaol  or  house  of  correction 
for  any  period  not  exceeding  one  month. 

4.  Any  person,  being  the  owner  or  occupier,  or  having  the 
use  of  any  house,  room  or  place,  Avho  shall  open,  keep  or  use 
the  same  for  the  purpose  of  unlawful  gaming  being  carried 
on  therein,  and  any  person  who,  being  the  owner  or  occupier 
of  any  house  or  room,  shall  knowingly  and  wilfully  permit 
the  same  to  be  opened,  kept  or  used  b}'  any  other  person  for 
the  purpose  aforesaid,  and  any  person  having  the  care  or 


STATUTES.  541 

management  of  or  in  any  manner  assisting  in  condncting  the 
business  of  any  house,  room  or  place  ojieued,  kept  or  used  for 
the  purpose  aforesaid,  and  any  person  who  shall  advance  or 
furnish  money  for  the  purpose  of  gaming  with  persons  fre- 
quenting such  house  room  or  place,  may,  on  summary  convic- 
tion thereof  before  any  two  justices  of  the  peace,  be  adjudged 
by  such  justices  to  forfeit  and  pay  such  penalty  not  exceeding 
five  hundred  pounds  as  to  such  justices  shall  seem  fit,  and 
may  be  further  adjudged  by  such  justices  to  pay  such  costs 
attending  such  conviction  as  to  them  shall  seem  reasonable ; 
and  on  the  nonpayment  of  such  penalty  and  costs,  or  in  the 
first  instance,  if  to  the  said  justices  it  shall  seem  fit,  may  be 
committed  to  the  common  gaol  or  house  of  correction,  with 
or  without  hard  labour,  for  any  time  not  exceeding  twelve 
calendar  months. 

5.  It  shall  be  lawful  for  the  justices  before  whom  any  73er-  Justices  may 
sons  shall  be  brought  who  have  been  fovmd  in  any  house,  require  any 
room  or  place  entered  in  pursuance  of  any  authority  granted  ^^^' 
under  the  provisions  of  the  said  act  of  the  eighth  and  ninth  handed  to  * 
years  of  her  majesty,  to  require  of  any  such  j^ersons  to  be  be  sworn 
examined  on  oath  and  give  evidence  touching  any  unlawful  an<i  give 
gaming  in   such  house,  room  or  place,  or  touching  any  act  evidence, 
done  for  the  purpose  of  preventing,  obstructing  or  delaying 

the  entry  into  such  house,  room  or  place  or  any  part  thereof 
of  any  constable  or  ofiicer  authorized  as  aforesaid ;  and  no 
person  so  required  to  be  examined  as  a  witness  shall  be  ex- 
cused from  being  so  examined  when  brought  before  such  jus- 
tices as  aforesaid,  or  from  being  so  examined  at  any  subse'quent 
time,  by  or  before  the  same  or  any  other  justices,  or  by  or  before 
any  court,  on  any  proceeding,  or  the  trial  of  any  indictment, 
information,  action  or  suit  in  anywise  relating  to  such  unlaw- 
ful gaming  or  any  such  acts  as  aforesaid,  or  from  answering 
any  question  put  to  him  touching  the  matters  aforesaid,  on 
the  ground  that  his  evidence  will  tend  to  criminate  himself ; 
and  any  such  person  so  required  to  be  examined  as  a  witness  Penalty  on 
who  refuses  to  make  oath  accordingly,  or  to  answer  any  such  refusing  to 
question  as  aforesaid,  shall  be  subject  to  be  dealt  with  in  all  ^®  sworn, 
respects  as  any  person  appearing  as  a  witness  before  any 
justices  or  court  in  obedience  to  a  summons  or  subpoena,  and 
refusing,  without  lawful  cause  or  excuse,  to  be  sworn  or  to 
give  evidence,  may  by  law  be  dealt  with. 

6.  Every  person   so  required  to  be  examined  as  a  witness  Persons  re- 
as  aforesaid,   who  upon    such   examination   shall  make  true  ^^^ed  to 
and  faithful  discovery  to  the  best  of  his  knowledge  of  all  aswiSSsses 
things  as  to  which  he  is  so  examined,  shall  receive  from  the  and  making' 
justices  or  judge  of  the  court  by  whom  he  is  examined  a  cer-  a  full  dis- 
tificate  in  writing  to  that  efi'ect,  and  shall  be  freed  from  all  covery,  to  be 
criminal  prosecutions  and  penal  actions,  and  from  all  penal-  ^^^^^  ivom 
ties,    forfeitux'es    and   punishments   to    which   he   may   have  &(.  ^^^' 


542 


APPENDIX. 


Penalties 
and  costs 
may  be 
levied  by 
distress. 


Applications 
of  penalties. 


On  neglect 
to  prosecute 
any  sum- 
mons, jus- 
tices may 
authorize 
some  other 
person  to 
proceed. 


become  liable  for  anything  done  before  that  time  in  respect  of 
the  matters  touching  which  he  has  been  so  examined ;  but 
such  witness  shall  not  be  indemnified  under  this  act  unless 
he  receive  from  such  justices  or  judge  a  certificate  in  writing 
under  their  hands,  stating  that  such  witness  has  on  his  ex- 
amination made  a  true  disclosure  touching  all  things  as  to 
which  he  has  been  examined  ;  and  if  any  action,  information 
or  indictment  be  at  any  time  pending  in  any  court  against 
any  person  so  examined  in  respect  of  any  act  of  gaming 
touching  which  he  was  so  examined,  and  if  any  action,  in- 
formation or  indictment  be  at  any  time  pending  in  any  court 
against  any  person  so  examined  as  a  witness  in  manner  be- 
fore mentioned,  for  any  such  matter  or  thing,  such  court  shall, 
on  the  production  and  proof  of  such  certificate,  stay  the  pro- 
ceedings in  any  such  action,  information  or  indictment,  and 
may,  in  its  discretion,  award  to  such  person  such  costs  as  he  may 
have  been  put  to  by  such  action,  information  or  indictment. 

7.  If  any  person  convicted  under  this  act  on  information 
before  justices  shall  be  adjudged  to  pay  any  penalty  or  any 
costs  and  charges  attending  the  conviction,  and  shall  fail  to 
pay  such  penalty  or  costs,  the  same  may  be  levied  by  dis- 
tress and  sale  of  the  goods  and  chattels  of  the  offender,  by 
warrant  under  the  hand  and  seal  of  one  of  the  convicting 
justices  :  provided  always,  that  if  any  person  shall  be  com- 
mitted to  prison  for  default  of  payment  of  any  penalty  and 
costs,  then  the  costs  alone  may  be  levied  by  distress  as 
aforesaid. 

8.  One  half  of  any  pecuniary  penalty  which  shall  be 
adjudged  to  be  paid  under  this  act  shall  be  paid  to  the^person 
laying  the  information  upon  which  the  conviction  takes  place, 
and  the  remaining  half  shall  be  applied  in  aid  of  the  poor 
rate  of  the  parish  in  which  the  offence  shall  have  been  com- 
mitted, and  shall  be  paid  for  that  purpose  to  the  overseer  or 
other  person  authorized  to  receive  poor  rates  in  such  parish, 
or  if  the  place  wherein  the  offence  shall  have  been  committed 
shall  be  extra-parochial,  then  the  justices  by  whom  such 
penalty  shall  be  adjudged  to  be  paid  shall  direct  such  re- 
maining half  thereof  to  be  applied  in  aid  of  the  poor  rate 
of  such  extra-parochial  place,  or  if  there  shall  not  be  any 
poor  rate  therein,  in  aid  of  the  poor  rate  of  any  adjoining 
poor  rate  or  district. 

9.  In  case  any  person  who  shall  have  laid  any  information 
in  respect  of  any  offence  against  this  act  shall  not  appear  at 
the  time  at  which  the  defendant  shall  have  been  summoned 
to  appear,  or  at  any  time  to  which  the  hearing  of  the  sum- 
mons may  have  been  adjourned,  or  if  such  person,  in  the 
opinion  of  any  justices  having  authority  to  adjudicate  with 
respect  to  the  offence  charged  in  such  information  as  afore- 
said, shall  otherwise  have  neglected  to  proceed  upon  or  prose- 


STATUTES.  543 

cute  such  informatiou  with  due  diligence,  it  shall  be  lawful 
for  such  justices  to  authorize  any  other  person  to  proceed  on 
such  information  and  summons  instead  of  the  person  to  whom 
the  same  may  have  been  granted,  or  such  justices  may  dis- 
miss the  first  information  and  summons,  and  authorize  any 
person  to  lay  a  fresh  information  in  respect  to  the  offence 
charged  in  such  first  information,  in  like  manner  as  if  the 
previous  summons  had  not  been  granted. 

10.  Any  person  who  shall  be  summarily  convicted  under  Appeal  to 
this  act  may  appeal  to  the  next  general  or  quarter  session  of  quarter 
the  peace  to  be  holden  for  the  county  or  place  wherein  the  sessions, 
cause  of  complaint  shall  have  arisen,  provided  that  such  per- 
son, at  the  time  of  such  conviction,    or  within   forty-eight 

hours  thereafter,  enter  into  a  recognizance,  with  two  suffi- 
cient securities,  conditioned  personally  to  appear  at  the  said 
session  to  try  such  apj)eal,  and  to  abide  the  further  judgment 
of  the  court  at  such  session,  and  to  pay  such  costs  as  shall  be 
by  the  last-mentioned  court  awarded ;  and  it  shall  be  lawful 
for  the  magistrate  or  justices  by  whom  such  conviction  shall 
have  been  made  to  bind  over  any  party  who  shall  have  made 
information  against  the  party  convicted,  and  any  witnesses 
who  shall  have  been  examined,  in  sufficient  recognizances, 
to  attend  and  be  examined  at  the  hearing  of  such  appeal ; 
and  every  such  witness,  on  producing  a  certificate  of  being 
so  bound,  under  the  hand  of  the  said  magistrate  or  justices, 
shall  be  allowed  compensation  for  his  or  her  time,  trouble 
and  expenses  in  attending  the  appeal,  which  comj)ensation 
shall  be  paid  in  the  first  instance  by  the  treasurer  of  the 
county  ^r  place,  in  like  manner  as  in  cases  of  misdemeanor, 
under  the  provisions  of  an  act  passed  in  the  seventh  year  of 
the  reign  of  King  George  the  JFourth,  intituled  "  An  Act  for  7  &  8  Geo.  4, 
improving  the  administration  of  Ci'iminal  Justice  in  Eng-  °'  ■^^• 
land,"  and  in  case  any  such  appeal  shall  be  dismissed,  and 
the  order  or  conviction  affirmed,  the  reasonable  expenses  of 
all  such  witnesses  attending  as  aforesaid,  to  be  ascertained 
by  the  court,  shall  be  repaid  to  the  said  treasurer  by  the 
appellant. 

11.  On  any  such  appeal  no  objection  shall  be  allowed  to  the  No  objection 
information  whereon  the  conviction  has  taken  place,    or  to  allowed  to 
such  conviction,  on  any  matter  of  form  or  on  any  insufficiency  information 
of  statement,  provided  it  shall  appear  to  the  justices  in  quarter  ric^on*has^" 
sessions  that  the    defendant   has   been    sufficiently  informed  taken  place, 
of  the  charge  intended  to  be  made  against  him,  and  that  such  &c.  in  matter 
conviction  was  proper  on  the  merits  of  the  case  ;  and  no  in-  of  form, 
formation,  conviction  or  judgment  of  the  justices  in  general  Judgment  not 
or  quarter  sessions  shall  be  removed  by  certiorari  into  the  certiorari     ^ 
Court  of  Queen's  Bench. 

12.  When  any  distress  shall  be  made  for  any  money  to  be  Distress  not 

levied  by  virtue  of  tlie  warrant  of  an}'  justice  under  this  act,  unlawful  for 

want  of  form. 


544 


APPENDIX. 


Tender  of 
amends. 


Limitation 
of  actions. 


Commence- 
ment of  act. 


tlie  distress  shall  not  be  deemed  unlawful,  nor  shall  any  party- 
making  the  same  be  deemed  a  trespasser,  on  account  of  any 
defect  or  want  of  form  in  the  information,  summons,  warrant 
of  apprehension,  conviction,  warrant  of  distress  or  other  pro- 
ceeding relating  thereto,  nor  shall  such  party  be  deemed  a 
trespasser  from  the  beginning  on  account  of  any  irregularity 
which  shall  be  afterwards  committed  by  him,  but  all  persons 
aggrieved  by  such  defect  or  irregularity  may  recover  full 
satisfaction  for  the  sjiecial  damage  by  an  action  on  the  case 
in  any  of  her  majesty's  courts  of  record. 

13.  No  plaintitf  shall  recover  in  any  action  for  any  irregu- 
larit}',  trespass  or  other  wrongful  proceeding  made  or  com- 
mitted in  the  execution  of  this  act,  or  in,  under  or  by  virtue 
of  any  authority  hereby  given,  if  tender  of  sufficient  amends 
shall  have  been  made  by  or  on  behalf  of  the  party  who  shall 
have  committed  such  irregularity,  trespass  or  other  wrongful 
proceeding  before  such  action  brought ;  and  in  case  no  tender 
shall  have  been  made  it  shall  be  lawful  for  the  defendant  in 
any  such  action,  by  leave  of  the  court  where  such  action  shall 
depend,  at  any  time  before  issue  joined  to  pay  into  court  such 
sum  of  money  as  he  shall  think  fit,  whereupon  such  proceed- 
ing, oi'der  and  adjudication  shall  be  had  and  made  in  and  by 
such  court  as  in  other  actions  where  defendants  are  allowed 
to  pay  money  into  court. 

14.  No  action,  suit  or  information,  or  any  other  proceeding 
of  what  nature  soever,  shall  be  brought  against  any  person 
for  anything  done  or  omitted  to  be  done  in  pursuance  of  this 
act,  or  in  the  execution  of  the  authorities  under  this  act, 
unless  notice  in  writing  shall  be  given  by  the  party  intend- 
ing to  prosecute  sucii  suit,  information  or  other  proceeding  to 
the  intended  defendant,  one  calendar  month  at  least  before 
prosecuting  the  same,  nor  unless  such  action,  suit,  informa- 
tion or  other  proceeding  shall  be  brought  or  commenced 
within  three  calendar  months  next  after  the  act  or  omission 
complained  of,  or  in  case  there  shall  be  a  continuation  of 
damage,  then  within  three  calendar  months  next  after  the 
doing  such  damage  shall  have  ceased. 

15.  This  act  shall  commence  and  come  into  operation  on 
the  first  day  of  August,  one  thousand  eight  hundred  and  fifty- 
four. 


26  &  27  Vict.  Cap.  41. 

An  Act  to  amend  the  Law  respecting  the  Liability  of  Lnnkeepers, 
and  to  p7'eve7it  certain  Frauds  upon  them. 

Whereas  it  is  expedient  to  amend  the  law  concerning  the 
liability  of  innkeepers  in  respect  of  the  goods  of  their  guests 


STATUTES.  546 

in  manner  hereinafter  mentioned  :  be  it  therefore  enacted  by 
the  Queen's  most  excellent  majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  temporal,  and  commons, 
in  this  present  parliament  assembled,  and  by  the  authority  of 
the  same,  as  follows ;  (that  is  to  say,) 

1.  No  innkeeper  shall,  after  the   passing  of   this  act,  be  Innkeeper 
liable  to  make  good  to  any  guest  of  such  innkeeper  any  loss  ^ot  to  be 
of  or  injury  to  goods  or  property  brought  to  his  inn,  not  being  jia-b^e  lor 
a  horse  or  other  live  animal,  or  any  gear  appertaining  thereto,  beyond  'so^ 
or  any  carriage,  to  a  greater  amount  than  the  sum  of  thirty  except  in 
pounds,  except  in  the  following  cases  ;  (that  is  to  say, )  certain  cases. 

(1.)  Where  such  goods  or  property  shall  have  been  stolen, 
lost,  or  injured  through  the  wilful  act,  default,  or 
neglect  of  such  innkeeper  or  any  servant  in  his  em- 
ploy : 
(2.)  Where  such  goods  or  property  shall  have  been  de- 
posited expressly   for  safe  custody  with  such  inn- 
keeper : 
Provided  always,  that  in  the  case  of  such  deposit  it  shall  be 
lawful  for  such  innkeeper,  if  he  think  fit,  to  require,  as  a  con- 
dition of  his  liability,  that  such  goods  or  property  shall  be 
deposited  in  a  box  or  other  receptacle,  fastened  and  sealed 
by  the  person  depositing  the  same. 

2.  If  any  innkeeper  shall  refuse  to  receive  for  safe  custody.  Obligation 
as  before  mentioned,  any  goods  or  property  of  his  guest,  or  if  to  receive 
any  such  guest  shall,  through  any  default  of  such  innkeeper,  property  of 
be  unable  to  deposit  such  goods  or  property  as  aforesaid,  such  safe" custody 
innkeeper  shall  not  be  entitled  to  the  benefit  of  this  act  in 

respect  of  such  goods  or  property. 

3.  Every  innkeeper  shall  cause  at  least  one  copy  of   the  Notice  of 
first  section  of  this  act,  printed  in  plain  type,  to  be  exhibited  law,  &c. 
in  a  conspicuous  part  of  the  hall  or  entrance  to  his  inn,  and  ^°.^*^  ^'^^' 
he  shall  be  entitled  to  the  benefit  of  this  act  in  respect  of  such  exhibited^ 
goods  or  property  only  as  shall  be  brought  to  his  inn  while 

such  copy  shall  be  so  exhibited. 

4.  The  words  and  expressions  hereinafter  contained,  which  Interpretation 
in  their  ordinary  signification  have  a  more  confined  or  a  dif-  of  terms, 
ferent  meaning,  shall  in  this  act,  except  where  the  nature  of 

the  provision  or  the  context  of  the  act  shall  exclude  such 
construction,  be  interpreted  as  follows ;  that  is  to  say,  the 
word  "inn"  shall  mean  any  hotel,  iim,  tavern,  public  house, 
or  other  place  of  refreshment,  the  keeper  of  which  is  now  by 
law  responsible  for  the  goods  and  property  of  his  guests ; 
and  the  word  "innkeeper"  shall  mean  the  keeper  of  any 
such  place. 


N  N     - 


546 


APPENDIX. 


Definitions. 


Horse-races 
unlawful 
within  ten 
miles  of 
London  unless 
licensed. 


Power  to  jus- 
tices to  license 
at  Michaelmas 
quarter  ses- 
sions. 


Mode  of 
making  appli- 
cation for 
licence. 


Penalty  on 
persons  taking 
part  in  un- 
licensed 
horse-races. 


42  &  43  Vict.  Cap.  18. 
An  Act  fo7'  the  Licensing  of  Metropolitan  Suhiirhan  Racecourses. 

"Whereas  the  frequency  of  horse-races  in  the  immediate 
vicinity  of  the  metropolis  is  productive  of  much  mischief  and 
inconvenience,  and  tlie  holding  of  such  races  in  thickly  popu- 
lated places  near  the  metropolis  is  calculated  to  cause,  and 
does  in  fact  cause,  annoyance  and  injury  to  persons  resident 
near  to  the  places  where  such  races  are  held  : 

Be  it  therefore  enacted  by  the  Queen's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  lords 
spiritual  and  temporal,  and  commons,  in  this  present  parlia- 
ment assembled,  and  by  the  authority  of  the  same,  as  follows ; 
(that  is  to  say,) 

1.  A  horse-race  within  the  meaning  of  this  act  shall  mean 
any  race  in  which  any  horse,  mare  or  gelding  shall  run  or  be 
made  to  run  in  competition  with  any  other  horse,  mare  or 
gelding,  or  against  time,  for  any  prize  of  what  nature  or  kind 
soever,  or  for  any  bet  or  wager  made  or  to  be  made  in  respect 
of  any  such  horse,  mare  or  gelding,  or  the  riders  thereof,  and 
at  which  more  than  twenty  persons  shall  be  j)resent. 

2.  From  and  after  the  twenty-fifth  day  of  March,  one  thou- 
sand eight  hundred  and  eighty,  it  shall  not  be  lawful  that 
any  horse-race  be  held  or  take  place  on  any  pretext  whatso- 
ever within  a  radius  of  ten  miles  from  Charing  Cross,  in  the 
City  of  Westminster,  unless  in  a  place  for  which  a  licence  for 
horse-raciug  has  been  obtained  pursuant  to  the  provisions 
hereinafter  contained. 

3.  Any  person  desirous  of  obtaining  a  licence  for  horse- 
racing  for  any  open  or  enclosed  land  or  place,  being  the 
owner,  lessee  or  occupier  of  such  land  or  place,  may  apply  to 
the  justices  assembled  at  any  Michaelmas  quarter  sessions  of 
the  peace  to  be  holden  for  the  county,  city,  riding,  liberty  or 
division  in  which  such  land  or  place  is  situate,  which  justices 
are  hereby  empowered  to  grant  or  withhold  a  licence  at  their 
discretion,  such  licence  to  be  of  force  and  valid  for  twelve 
months  dating  from  the  twenty-fifth  day  of  March  next  fol- 
lowing the  date  of  such  application. 

4.  Every  such  application  shall  be  made  to  the  justices  in 
the  same  manner  as  applications  for  licences  for  places  to  be 
kept  for  pubhc  dancing,  music,  or  other  entertainment  under 
the  provisions  of  an  act  passed  in  the  twenty-fifth  year  of  his 
late  Majesty  King  George  the  Second. 

5.  Any  person  who  after  the  said  twenty-fifth  day  of  March, 
one  thousand  eight  hundred  and  eighty,  shall  take  part  in 
any  horse-race  in  any  open  or  enclosed  land  or  place  for 
which  a  licence  is  required  under  this  act,  and  for  which  a 
licence  has  not  been  obtained,  shall  upon  summary  conviction 


STATUTES.  547 

he  liatle  to  a  penalty  of  ten  pounds,  or  an  imprisonment  not 
exceeding  two  months. 

6.  Any  person  wlio  sliall  bo  tlie  owner  or  lessee  or  in  pos-  Penalty  on 
session  or  occupation  of  any  open  or  enclosed  land  or  place  owners  and 
for  which,  a  licence  for  horse-racino:  is  required  under  this  act,  occupiers  ot 
and  upon  which  any  horse-race  shall  he  held  after  the  said  fmlicensed 
twenty-fifth  day  of  March,  one  thousand  eight  hundred  and  horse-races 
eighty,  without  such  licence  having  been  obtained,  shall  be  take  place, 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be 
punishable  for  every  such  offence  Avith  fine  or  imprisonment 

at  the  discretion  of  the  court,  such  fine  not  to  be  less  than  five 
pounds  nor  more  than  twenty-five  pounds,  and  such  imprison- 
ment not  to  be  less  than  one  month  nor  more  than  three 
months. 

7.  Every  horse-race  held  or  taking  place  in  contravention  Unlicensed 
of  the  provisions  of  this  act  shall  be  deemed  to  be  a  nuisance,  liorso-racrs  to 
and  any  person  injured  or  inconvenienced  thereby  shall  have     ^,^^^^(^    ^ 
all  such  rights  and  remedies  against  all  persons  taking  part  in  li^Me  accord- 
the  same,  and  against  owners,  lessees,  and  occupiers  of  the  ingly. 

land  or  place,  as  he  would  have  in  case  of  a  nuisance  at 
common  law. 

8.  This  act  may  be  cited  as  the  Racecourses  Licensing  Act,  Short  title. 
1879. 


N   N  2 


PART  III. 


MISCELLANEOUS. 


Qncoi^s  Plate  Articles 548 

'Ilio  Elites  of  Racing 551 

Rules  of  the  Jockcij  Club 572 

Tost  Horses    578 


Slauf/hterliig  Horses 579 

Conditions  of  Sale  at  Ahlridge''s  .   579 
Conditions  of  Sale  at  TattcrsalV s  581 


QUEEN'S  PLATE  AETICLES  («). 
[It  is  Iler  Majesty's  Command,  that  tliese  following  Rules 
be  observed  by  the  Owners  and.  Riders  of  all  such  Horses  and 
Mares  as  shall  run  for  Her  Majesty's  Plates  at  Newmarket 
and  elsewhere.] 

1.  Every  horse,  or  mare,  that  runneth  for  any  of  the  said 
Plates,  shall  carry  the  weig-ht  appointed  in  the  Schedule  here- 
unto annexed. 

2.  Every  person  that  putteth  in  a  horse,  or  mare,  for  any 
of  the  said  Plates,  shall  enter  the  same  Avith  the  name  of  the 
owner,  and  the  age,  name,  pedigree,  or  sufficient  description 
of  the  horse,  according  to  the  Pule  of  the  Jockey  Club  re- 
garding nominations,  at  the  time  and  place  appointed  by  the 
Steward  or  Stewards  of  the  Paces  at  which  such  Plate  is  to 
be  run  for.  The  charge  for  such  entry  shall  not  exceed  five 
shillings,  and  no  further  charge  shall  be  made  on  the  winner 
of  the  Plate. 

3.  Horses  that  run  for  any  of  Her  Majesty's  Plates  shall 
start  at  the  time  appointed  by  the  Steward  or  Stewards  of  the 
Paces  at  which  such  Plate  is  run  for. 

4.  Each  horse's  or  mare's  place,  as  he  or  she  come  by  the 
ending-post,  shall  be  determined  by  the  Judge  a.j)pointed  by 
the  Steward  or  Stewards  of  the  Paces  at  the  place  where  the 
said  Plate  is  run  for. 

5.  Every  rider  shall,  immediately  after  the  race  be  run,  be 
obliged  to  come  to  the  usual  j^lace  of  weighing,  with  his  horse 
or  mare,  then  and  there  to  alight,  and  not  before,  and  there 
to  weigh  to  the  satisfaction  of  the  person  appointed  for  that 
purpose. 

6.  And  in  case  of  neglect  or  refusal  thereof,  such  owners  and 
riders  shall  immediately  be  declared  incapable  of  running  or 
riding  anymore  forthisor  any  of  Her  Majesty's  Plates  hereafter. 

7.  No  horse  or  mare  that  runneth  on  the  wrong  side  of  the 
post  or  flags  shall  have  any  claim  to  the  said  Plates. 

8.  None  of  Her  Majesty's  Plates  to  bo  run  for  in  heats. 

9.  When  the  age  or  cpialification  of  a  horse  entered  for  any 
of  Her  Majesty's  Plates  shall  be  objected  to,  either  before  or 
after  running,  the  Stewards  of  the  Paces  at  which  such  Plate 

{a)   From  the  Racinsr  Calet^dar,  1881. 


MISCELLANEOUS.  549 

is  run  for  sliall  have  the  power  to  order  an  examination  of  the 
horse's  mouth  by  competent  persons,  and  to  call  for  all  such 
evidence  as  they  may  require,  and  their  decision  to  be  final 
unless  they  shall  think  fit  to  refer  the  matter  to  the  Stewards 
of  the  Jockey  Club  for  the  time  being,  in  which  case  the 
decision  of  the  said  Stewards  of  the  Jockey  Club  shall  be 
final.  A  Certificate  shall  not  be  granted  to  any  horse  objected 
to  until  the  question  of  his  qualification  shall  be  decided  in 
the  manner  herein  prescribed. 

10.  Her  Majesty's  Plates  to  be  run  for  between  the  25th  of 
March  and  the  week  which  includes  the  22nd  of  November, 
both  inckisive,  in  each  year. 

11.  The  distance  shall  not  be  less  than  two  miles,  and  the 
weights,  regulated  according  to  the  months  in  which  the  races 
are  run,  are  to  be  according  to  the  subjoined  Schedule. 

12.  And  in  case  any  difference  shall  arise  in  running,  or 
respecting  any  matters  not  hereinbefore  provided  for,  or  as 
to  the  interpretation  of  these  Her  Majesty's  orders,  the  same 
shall  be  determined  by  the  Master  of  the  Horse,  or  by  such 
person  or  persons  as  he  shall  aj^point. 

The  following  regulations  were  published  by  order  in 
November,  1875: — 

The  Master  of  the  Horse  gives  notice  that  after  1875,  with 
a  view  to  encourage  a  greater  number  and  a  higher  class  of 
horses  running  for  Her  Majesty's  Plates,  the  number  of  plates 
will  be  reduced  and  their  value  doubled. 

No  plate  to  be  given  at  a  meeting  not  held  annually  and 
otherwise  supported  by  public  money. 

No  geldings  to  be  allowed  to  run,  and  no  plate  to  be  con- 
fined to  mares. 

(Signed)     Bradfoed,  Master  of  the  Horse. 

Until  further  notice  they  wiU  be  given  as  follows : — 

Newmarket  (every  year)     300  GS. 

York  ,,  200 

Stockbridge  ,,  200 

In  alternate  years : 

Newcastle  and  Carlisle 200 

Manchester  ,,  Liverpool 200 

Chester  ,,  Shrewsbury 200 

LicMeld  ,,  Warwick   200 

Nottingham  ,,  Leicester    200 

Lewes  , ,  Ipswich 200 

Weymouth  ,,  Plymouth 200 

Winchester  , ,  Salisbury   200 

Hampton  ,,  Egham  200 

Goodwood  ,,  Epsom    200 

Lincoln  ,,  Doncaster 200 

Northampton        ,,  Huntingdon 200 

Richmond,  200  every  other  year. 

The  places  mentioned  in  the  first  column  will  have  the 
Plates  in  1882.     Eichmond  commenced  in  1877. 

(Signed)     West2>iii\^stee,  Master  of  the  Horse. 


550 


APPENDIX. 


The  Plates  for  ScotlaucI,  viz.,  for  Ediubiirgli  and  Eoyal 
Caledonian  Hunt  come  from  a  different  fund  from  the  above, 
are  granted  annually,  and  are  only  of  the  value  of  lOOgs. 


Queen's  Plate  Weights. 

Prom  this  date,  the  weights  for  Her  Majesty's  Plates  will  he  in  accord- 
ance with  the  new  Scale  of  Weight-for-age  and  Distance  approved  by  the 
Stewards  of  the  Jockey  Club. 

London,  March  2nd,  1880.  (Signed)         Bradeoiid. 


Age. 


March. 

and 
April. 


May. 


June. 


July. 


August. 


Sep- 
tember. 


October 
&  Nov. 


Three  yrs 

Foui-  yrs 

rive,  six,  and  ayed, 

Three  yrs 

Four  yrs , 

Five  jTs , 

Six  and  apfed    . . . .  , 


TWO  MILES  AND  TmDEE  THREE  : 

St.     lb. 

St.    lb. 

St.   lb. 

St.    lb. 

St.   lb. 

St.     lb. 

7     4 

7     7 

7     8 

7   10 

7   13 

8     0 

9     0 

9     0 

9     0 

9     0 

9     0 

9     0 

9     6 

9     5 

9     4 

9     3 

9     2 

9     1 

THREE  MILES  AND  UPWARDS  : 


7    1 

7    -1 

7    o 

7     7 

7     9 

7  11 

9     0 

9     0 

9     0 

9     0 

9     0 

9     0 

9     8 

9     7 

9     6 

9     5 

9     0 

9     4 

9  10 

9     8 

9     7 

9     6 

9     5 

9     4 

St.  lb. 

8  1 

9  0 
9  0 


7  13 
9  0 
9  3 
9     3 


Form  of  Certificate  of  having  won  a  Queen'' s  Plate. 
These  are  to  certify,  that  Her  Majesty's  Plate  of  Two  Hundred  Guineas 


was  won  at  the 

called 

A.  B.  Steward. 
CD.  Clerk  of  the  Course. 
E. 


day  of 


188     ,by 


horse 


Lord  Lieutenant  of 
the  County. 


The  Duke  of  Westminster, 

Master  of  the  Horse  to  Her  Majesty. 

N.B.  The  certificate,  when  properly  signed,  is  payable  at  three  days' 
sight  to  the  winner  of  the  Plate  (or  to  any  other  jjerson,  if  endorsed  by 
the  -winner)  at  the  Office  of  the  Clerk  of  Her  Majesty's  Stables,  in  the 
Royal  Mews,  Pimlico. 

The  Plates  at  Chester,  HamiDton,  Goodwood,  Huntingdon,  Shrew.sbury, 
Leicester,  Livci'pool,  Northampton,  Egham  and  Plymouth,  and  the 
lOOgs.  added  to  the  Whip  at  the  Curragh,  are  given  from  a  different 
fund,  and  the  Certificates  are  to  be  addressed  to  the  Keeper  of  the  Privy 
Purse. 

I^°  The  Clerk  of  the  Stables  requires  the  person  presenting  a  certifi- 
cate for  payment  to  pay  for  a  receipt  stamp. 


*  If  the  Lord  Lieutenant  be  officially  out  of  the  kingdom,  the  signature 
of  the  Vice-Lieutenant  is  admissible. 


MISCELLANEOUS.  551 

EULES  OF  EACING  («). 

At  a  Special  Meeting  of  the  Jockey  Club,  held  in  London 
on  Monday,  the  18th  of  December,  1876,  to  take  into  con- 
sideration the  new  Eules  of  Eacing  as  submitted  by  the  Com- 
mittee appointed  for  that  purpose,  and  discussed  during  tho 
preceding  Houghton  Meeting,  it  was  resolved  that  the  following 
Eules  should  come  into  operation  on  the  1st  of  January,  1877, 
and  that  all  former  rules  be  repealed  on  and  from  that  day. 

"\*  The  alterations  made  in  the  Eules  during  the  year  1881 
are  printed  in  italics. 

PAET  Contents. 

I.  Interpretation  and  Application  of  these  Rules. 
II.  Management  of  Race  Sleetings  and  Powers  of  Stewards. 

III.  General  Conditions  and  Restrictions. 

IV.  Entiy  and  Subscription  for  Races. 
V.  Stakes  and  Forfeits. 

VI.  The  Race. 
VII.  Objections  and  Complaints. 
VIII.  Special  Conditions  (Claiming  and  Selling  Races ;  Produce  Races ; 
Post  Races ;  Handicaj)s  ;  Sale  with  Engagements). 
IX.  Miscellaneous. 

Eules  of  Eacixg  made  by  the  Jockey  Club  at  Newmarket. 
Part  I. — Interpretation  and  Application  of  these  Rules. 

1.  "Eace"  includes  plate,  match  or  sweepstakes,  bvit  does  General 
not  include  or  refer  to  a  steeplechase  or  hurdle  race,  or  a  definitions, 
hunters'  race  on  the  flat. 

"  Horse"  includes  mare  or  gelding. 

"Plate"  means  a  race  to  be  run  for  money  or  other  prize 
given  without  any  stake  being  made  by  the  owners  of  the 
horses  engaged  to  go  to  the  winner. 

"Sweepstakes"  means  a  race  in  which  stakes,  are  to  be 
made  by  the  owners  of  three  or  more  horses  to  go  to  the 
winner ;  and  any  such  race  is  still  a  sweepstakes,  even  although 
the  number  is  reduced  by  death  to  two  subs.,  or  although 
money  or  any  other  prize  be  added,  and  although  tho  word 
"  plate"  be  used  in  the  official  or  ordinary  name  or  description 
of  such  race. 

"Eecognised  meeting"  or  "recognised  race,"  used  with 
reference  to  a  foreign  meeting  or  race,  means  a  meeting  or 
race  included  in  the  list  of  foreign  meetings  and  races  to  be 
made  as  directed  in  these  rules. 

A  "  maiden"  means  a  horse  which  has  never  won  a  plate  or 
sweepstakes  at  any  meeting  in  Great  Britain,  or  at  any  recog- 
nised meeting  in  any  other  country. 

A  match  at  "  catch  weights"  means  a  match  in  which  the 
riders  need  not  weigh  before  or  after  the  race.  Catch  weights 
are  permissible  only  for  matches. 

"  Eegistry  office"  means  such  office  as  is  for  the  time  being 
appointed  as  the  registry  office  by  the  Jockey  Club ;  and  ox- 
(n)  From  the  Racing  Calendar,  1881. 


552 


APPENDIX. 


Application  of 
these  Kules. 


Commence- 
ment of  these 
Rules. 


pi'GSsions  in  these  Eules  or  in  tlie  programme  or  conditions  of 
any  meeting  or  race  referring  to  Messrs.  Weatherby's  mean 
the  registry  office  as  herein  defined. 

The  "Eacing  Calendar"  and  the  "  Stud  Book"  mean  the 
works  published  under  those  names  respectively  for  the  time 
being  authorized  by  the  Jockey  Club. 

The  "Sheet  Calendar,"  the  "Monthly  Calendar,"  and  the 
"  Book  Calendars"  of  "Eaces  Past"  and  of  "  Eaces  to  Come" 
mean  the  parts  or  editions  of  the  "Eacing  Calendar"  as  pub- 
lished under  or  usually  known  liy  those  names  respectively. 

The  Channel  Islands  and  the  Isle  of  Man  are  not  included 
in  the  expression  "  Great  Britain,"  but  they  are  included  (with 
Ireland)  in  the  expression  "the  United  Kingdom." 

"  Month"  means  a  calendar  month. 

2.  (i.)  These  Eules  apply  to  aU  meetings  held  under  the 
control  of  the  Jockey  Club,  or  advertised  in  the  "Eacing 
Calendar"  to  be  held  subject  to  these  Eules. 

(ii.)  If  a  horse  run  in  a  race  at  any  meeting  in  Great 
Britain  which  is  not  so  advertised,  he  is  perpetually  disquali- 
fied for  all  races  to  which  these  Eules  apply. 

(iii.)  The  Stewards  of  the  Jockey  Club  may  at  their  dis- 
cretion prohibit  the  advertisement  of  any  meeting  in  the 
"  Official  Eacing  Calendar." 

3.  These  rules  shall  come  into  operation  on  the  first  day  of 
January,  1877,  and  any  other  Eules  of  Eacing  shall  be 
annulled  as  from  that  day,  without  prejudice  to  then  existing 
riffhts  or  liabilities. 


Paut  II. — Mcmagement  of  Meetings  mid  Potcers  of  Stewards. 

Meetings.  4.  (i.)  Every  meeting  must  be  advertised  in  the  "Eacing 

Calendar." 

(ii.)  The  advertisement  must  state  that  the  meeting  is  to  be 
subject  to  the  Eules  of  Eacing,  and  must  state  as  soon  as 
practicable  the  days  on  which  the  meeting  is  to  begin  and 
end,  the  dates  for  closing  the  stakes  (which  shall  always  be 
on  a  Tuesday,  except  for  races  closing  within  six  days  of,  or 
during,  a  meeting),  and,  in  every  advertisement,  all  fees  pay- 
able at  the  meeting,  and  tlie  names  of  two  or  more  persons  as 
Stewards,  and  of  the  Judge,  Starter,  Clerk  of  the  Course, 
Handicapjier,  Stakeholder,  and  Clerk  of  the  Scales,  and  the 
Clerk  of  the  Course,  or  corresjyonding  official,  shall  he  the  sole 
person  responsible  to  the  Stewards  for  the  general  arrangeinents 
of  the  meeting. 

(iii.)  No  meeting  shall  be  advertised  in  the  "Eacing 
Calendar"  imless  the  money  added  be  not  less  than  300  sov. 
per  day,  150  of  which  at  least  shall  be  added  to  races  of  a 
mile  and  upwards,  and  the  minimum  so  required  to  be  added 
shall  be  given  notwithstanding  any  condition  to  the  contrary, 
if  there  be  five  entries,  and  three  horses  the  ^iroj^erty  of  dif- 
ferent owners  start. 


MISCELLANEOUS.  553 

(iv.)  No  race  shall  be  run  earlier  than  in  the  week  which 
includes  the  25th  of  March,  or  later  than  in  the  week  which 
includes  the  22nd  of  November.  Exception. — If  the  week 
including  the  25th  of  March  be  the  week  next  before  Easter 
Sunday,  races  may  be  run  in  the  week  next  but  one  before 
Easter  Sunday. 

(v.)  A  meeting'  shall  be  deemed  to  commence  at  ten  in  the 
morning  of  the  day  for  which  the  first  race  is  advertised,  and 
to  conclude  at  ten  in  the  evening  of  the  last  day  of  the  races. 

(vi.)  The  Stewards  in  case  of  urgent  necessity  may  from 
time  to  time  put  off  any  races  from  day  to  day  until  a  Sunday 
intervenes. 

Powers  of  Steivards. 

5.  (i.)  The  Stewards  of  a  meeting  shall  have  full  power  to  General 
make  all  such  arrangements  for  the  conduct  of  the  meeting  as  powers  of 
they  think  fit ;  and  to  regulate  and  control  the  conduct  of  all  stewards, 
ofiicials,  and  of  all  jockeys,  grooms  and  persons  attendant  on 
horses ;    and  to  determine  all  questions  or  disputes  arising 
between  any  persons  at  or  in  relation  to  anything  done  or 
omitted  in  reference  to  racing,  except  only  disputes  or  claims 
relating  to  bets. 

(ii.)  They  shall  have  power  to  punish  at  their  discretion 
any  official  or  jockey  or  other  person  subject  to  their  control 
with  fine  or  with  suspension  from  acting  or  riding  at  the  same 
meeting,  and  to  report  to  the  Stewards  of  the  Jockey  Club 
any  further  punishment  which  they  consider  necessary. 

Provided  that  they  shall  not  fine  any  person  more  than 
50/.  (unless  they  are  Stewards  of  the  Jockey  Club,  in  which 
case  they  may  impose  any  fine  not  exceeding  100/.) 

(iii.)  They  shall  exclude  from  the  stands,  enclosures,  sad- 
dling paddocks,  weighing  rooms,  and  other  places  under  their 
control,  every  person  who  has  been  warned  off  Newmarket 
Heath,  and  every  person  ivhose  name  is  in  the  Unpaid  Forfeit 
List,  and  which  has  been  twice  so  published  in  the  Racing  Calen- 
dar, also  every  jockey  who  has  been  suspended  for  corrujit 
practices  on  the  turf,  so  long  as  the  sentence  against  such 
person  or  jockey  remains  in  force.  They  shall  in  like  manner 
exclude  any  person  who  has  been  declared  by  the  Turf  Club 
in  Ireland,  or  by  the  stewards  of  any  recognised  meeting  in 
any  country,  to  have  been  guilty  of  any  corrupt  or  fraudiilent 
practice  on  the  turf.  They  shall  farther  have  power  to  exclude 
at  their  discretion  any  person  from  all  or  any  places  under  their 
control. 

(iv.)  If  any  case  occur  which  is  not,  or  which  is  alleged 
not  to  be,  provided  for  by  these  Eules,  it  shall  be  determined 
by  the  Stewards  in  such  manner  as  they  think  just,  and  they 
shall  report  the  case  with  their  decision  (and  with  their  con- 
sent to  an  appeal,  if  they  give  such  consent)  to  the  Stewards 
of  the  Jockey  Club  for  confirmation. 


554 


APPENDIX. 


Stewards  and 
deputies. 
Powers  of 
Stewards  after 
conclusion  of 
meeting. 

Judges, 
stai'ters,  &c. 


General  Rules 
with  res^Dect 
to  asre. 


Weights  and 
allowances. 


(v.)  The  decision  of  the  Stewards,  or  of  the  Stewards  of  the 
Jockey  Chib  in  case  of  appeal,  shall  be  final,  and  shall  not  be 
questioned  in  any  court  except  by  leave  of  the  Stewards  by 
whom  it  was  made. 

6.  A  Steward  may  appoint  a  deputy  at  any  time. 

7.  The  powers  of  the  Stewards  continue  after  the  meeting 
for  all  purposes  relating  to  disputes,  objections,  penalties  and 
disqualifications. 

Judges,  Starters,  and  other  Officials. 

8.  The  Stewards  shall  appoint  an  adequate  staff  of  officials  for 
every  meeting. 

The  following  officials  shall  require  a  licence  to  he  granted  hy 
the  Stewards  of  the  Jochey  Cluh  anmuilly  before  they  can  act, 
viz.,  Judge,  Starter,  Clerh  of  the  Course,  and  Clerk  of  the  Scales, 
and  one  of  each  shall  he  named  for  each  meeting  advertised  in  the 
Calendar  ;  but,  in  case  of  emergency,  the  Stewards  may,  during 
a  meeting,  appoint  an  unlicensed  deputy  to  fill  any  of  such  offices, 
in  lohich  case  they  shall  make  a  special  report  to  the  Stewards  of 
the  Jochey  Cluh, 

A  race  cannot  be  decided  unless  the  judge  or  his  authorized 
deputy  or  substitute,  or  a  steward,  occupy  the  judge's  box  at 
the  time  when  the  horses  pass  the  winning-post. 

The  judge  shall  send  a  report  of  the  result  of  the  race, 
signed  by  him,  to  the  registry  office. 

P^VET  III. — General  Conditions  a7id  Restrictions. 
Age  of  Horses. 

9.  (i.)  The  age  of  a  horse  shall  be  reckoned  as  beginning 
on  the  1st  of  January  in  the  year  in  which  he  is  foaled. 

(ii.)  Yearlings  shall  not  run  for  any  race.  Two-year-olds 
shall  not  run  for  any  handicap  before  the  1st  of  September, 
nor  after  that  date  with  any  but  two-year-olds. 

(iii.)  Two-year-olds  shall  not  run  more  than  six  furlongs 
before  the  Is't  of  July,  nor  less  than  five  furlongs  at  any  time. 

(iv.  Thi-ee-ycar-olds  and  upwards  shall  not  run  less  than 
five  furlongs  for  a  plate  or  sweepstakes. 

Weights  and  Alloivances. 

10.  (i.)  No  horse  shall  carry  less  than  5st.  7  lb.  in  any  plate 
or  sweepstakes. 

(ii.)  The  top  weight  in  a  handicap  shall  not  be  less  than 
8st.  12 lb.,  and  if  the  highest  weight  accepting  be  less  than 
this  it  shall  be  raised  to  8st.  121b.,  and  the  other  weights  shall 
be  raised  in  proportion. 

(iii.)  No  horse  shall  receive  allowance  of  weight,  or  be 
relieved  from  extra  weight,  for  having  been  beaten  in  one  or 
more  races  ;  provided  that  this  rule  shall  not  prohibit  maiden 
allowances. 


MISCELLANEOUS.  555 

(iv.)  No  horse  sliall  carry  extra  weiglit  for  having  run 
second,  or  in  any  lower  place  in  any  race  or  races ;  provided 
that  this  rule  shall  not  exempt  a  horse  which  has  received 
100^.  or  upwards  for  having  been  placed,  from  being  debarred 
from  maiden  allowance  by  the  conditions  of  any  particular 
race. 

(v.)  Allowances  and  extra  weights  shall  not  be  allowed  or 
incurred  in  respect  of  matches  or  private  sweepstakes,  and 
penalties  are  not  cumulative  unless  so  declared  by  the  condi- 
tions of  the  race. 

(vi.)  "Where  winners  of  selling  races  are  exempted  from 
penalties,  only  such  horses  as  have  run  to  be  sold  shall  be 
entitled  to  the  allowance. 

Miscellaneous. 

11.  Subject  to  the  express  provisions  of  the  conditions  of  a  Miscellaneous 
race,  the  following  rules  shall  apply  to  all  conditions  of  races  :  Eules  with 

(i.)  Winnings  during  the  year  shall  include  all  prizes  from  respect  to 
the  commencement  of  the  racing  season  to  the  time  apj)ointed  ^^^^^^^^^^^^  of 
for  the  start,  and  shall  apply  to  all  recognized  races  in  any 
country,  and  winning  shall  include  walking  over  or  receiving 
forfeit. 

(ii.)  The  value  of  prizes  not  in  money  must  be  advertised. 

(iii.)  In  estimating  the  value  of  a  race,  there  shall  be  de- 
ducted the  amount  of  the  winner's  own  stake  and  entrance, 
and  any  money  payable  to  other  horses,  or  out  of  the  stakes 
by  the  conditions  of  the  race,  or  by  the  general  conditions  of 
the  meeting,  except  discount,  Clerk's  fees,  stakeholding  and 
weighing  fees. 

(iv.)  Conditions  referring  to  maidens  shall  mean  maidens 
at  the  time  of  the  start. 

12.  No  plate  or  sweepstakes  shall  be  run  for  unless  the  Minimum 
clear  value  to  the  winner  (calculated  under  Rule  II.),  in  case  value  of  plate 
the  race  be  run  by  two  or  more  horses,  will  amount  to  100^.  or  stakes. 
But  if  the  value  would  amount  to  100/.,  if  the  race  were  so 

run,  a  horse  may  walk  over,  although  he  thereby  receives  less 
than  100/. 

13.  (i.)  No  entrance  fee  to  any  fund  but  that  devoted  to  the  Fees, 
winner  of  the  race  shall  exceed  3  per  cent,  on  the  added 
money. 

(ii.)  The  Stakeholder  shall  be  allowed  to  retain,  out  of  the 
stakes  in  his  hands,  the  following  fees  for  expenses,  viz. : — 
For  every  match,  1/. 
For  every  plate,  1/. 

For  every  subscription  or  sweepstakes  where  the  lowest 
forfeit  amounts  to  20  sov.  ^  per  cent,  on  the  whole  stake, 
and  on  all  other  races  1  per  cent, 
(iii.)  2.S.  6r/.  shall  be  the  maximum  charge  for  Clerk's  fee 
for  entry,  and  the  same  for  weighing. 


556 


APPENDIX. 


(iv.)  Provided  that  in  the  ease  of  any  meeting  at  which  it 
shall  be  proved  to  the  satisfaction  of  the  Stewards  of  the 
Jockey  Club,  that  no  more  than  a  reasonable  interest  upon 
capital  invested  is  applied  to  any  purpose  other  than  the 
support  of  the  races,  and  that  the  scale  vipon  which  the 
officials  are  remunerated  is  not  excessive,  they  may  sanction 
such  modification  of  this  Rule  as  they  may  consider  expe- 
dient. 


Iloi'ses  must 
bo  duly 
entered  for 
plate  or 

sweepstakes. 

Time  and 
place  of  entry. 


Entry,  how 
made. 


Part  IV. — Entry  and  Si(bscriptio}i  for  Races. 

14.  A  horse  shall  not  be  qualified  to  run  for  any  plate  or 
sweepstakes  unless  he  has  been  and  continues  duly  entered 
for  the  same. 

15.  A  time  and  place  or  places  for  the  entry  of  horses  for 
every  plate  or  sweepstakes  must  be  advertised  in  the  "  Sheet 
liacing'  Calendar:"  Provided  that  if  the  time  so  advertised 
fall  during  a  Newmarket  race  week,  any  entry  to  be  made  at 
Messrs.  Weatherby's  may  be  made  at  Newmarket,  whether  so 
advertised  or  not. 

The  list  of  entries  shall  be  closed  at  the  advertised  time, 
and  no  entry  shall  be  permitted  in  any  case  or  on  any  terms 
to  be  made  after  that  time. 

If  no  hour  be  fixed  for  closing,  the  list  shall  not  be  closed 
till  midnight  on  the  advertised  day. 

No  declaration  of  forfeit,  except  for  races  of  the  current  tveeh, 
shall  he  fixed  to  he  made  at  noon  or  any  hour  earlier  than  the  end 
of  the  day. 

All  entries  made  elsewhere  than  at  Messrs.  Weatherby's 
office  (except  entries  made  during  the  week  of  the  meeting  or 
on  the  Saturday  preceding  the  meeting)  shall  be  lodged  at 
that  office  on  or  before  the  seventh  day  after  the  day  of  closing, 
or  the  receiver  of  nominations  shall  be  fined  10  sov.  and  the 
nomination  shall  be  void  unless  the  nominator  can  prove  to 
the  satisfaction  of  the  Stewards  of  the  Jockey  Club  that  the 
entry  was  made  in  due  time. 

16.  Entry  shall  bo  made  by  writing,  signed  by  the  owner 
of  the  horse  or  by  some  person  deputed  by  him,  or  by  tele- 
graph, which  shall  be  equally  binding.  Entries  by  telegram 
must,  however,  be  confirmed  in  writing  at  the  earliest  possible 
opportunity,  and  in  all  cases  before  the  time  of  weighing,  or 
the  horse  shall  not  be  allowed  to  start. 

It  shall  state  the  name  of  the  owner  and  the  name  or 
description  of  the  horse,  and  (if  the  race  be  for  horses  of 
different  ages)  the  age  which  the  horse  will  be  at  the  time  of 
the  race. 

Entrance  money  must  (if  so  required)  be  paid  at  the  time 
of  entry. 

Allowances  must  be  claimed  at  the  time  of  entry,  except 
when  otherwise  specified,  or  they  shall  not  be  allowed. 


MISCELLANEOUS.  657 

17.  In  entering  a  horse  for  the  first  time  he  shall  be  de-  Description 
scribed  by  stating  his  colour  (when  possible),  and  whether  he  of  horse  in 
is  a  horse,  mare  or  gelding,  and  the  Calendar  or  Stud-book  ^^'^^  entry, 
names  of  his  sire  and  dam.     If  the  dam  was  covered  by  more 

than  one  stallion  the  names  of  all  must  be  stated,  and  by 
which  stallion  the  mare  was  last  covered.  If  the  sire  or  dam 
has  no  name  in  the  Calendar  or  Stud-boob,  such  further  pedi- 
gree and  description  must  be  added  as  will  clearly  distinguish 
the  horse  entered  from  all  other  horses,  and  if  the  j)edigree  of 
the  sire  or  dam  be  vmknown,  such  further  particulars  as  to 
where  they  were  purchased  or  obtained  must  be  given  as  will 
identify  them. 

18.  The  description  as  in  the  last  rule  mentioned  must  be  Name  or  de- 
repeated  in  every  entry  of  the  horse  until  an  entry  of  him  by  scription  in 
description,  with  a  proposed  name,  has  been  published  in  the  ^uos.en.uent 
"  Racing  Calendar."     In  any  entry  after  such  publication  it 

will  be  sufficient  to  enter  him  by  such  name  without  de- 
scription. 

If  a  horse  be  entered  with  a  pro^josed  name  for  the  first 
time  in  several  races  closing  on  the  same  day,  the  description 
need  not  be  added  in  more  than  the  first  of  such  entries. 

19.  AVhenever   the    name    of    a   horse   which   has   run   is  Change  of 
changed,  his  old  name  as  Avell  as  his  new  name  must  be  given  name. 

in  every  entry  until  the  change  has  been  published  in  two 
Monthly  Calendars  or  the  Book  Calendar. 

20.  A  name  may  bo  claimed  for  a  horse,  either  by  entry  Similar 
and  publication  as  mentioned  in  the  foregoing  rules,  or  at  any  names, 
time  by  sending  the  pedigree  to  the  Registry  Office.     When  a 
name  has  been  claimed  for  a  horse  in  either  of  the  above  ways, 

any  other  horse  for  which  the  same  name  is  afterwards  claimed 
must  be  distinguished  by  the  addition  of  the  numerals  II.  or 
III.  &c.,  and  on  tlie  first  time  of  entry  with  numerals,  by  the 
names  of  the  sire  and  dam.  If  the  same  name  is  proposed 
or  claimed  for  two  or  more  horses  at  the  same  time,  the  order 
of  priority  shall  be  determined  by  lot  by  Messrs.  Weatherby. 
Any  person  entering  a  horse  in  contravention  of  this  rule 
shall  be  liable  to  a  fine  not  exceeding  50/. 

21.  No  assumed  name  of  an  owner  shall  be  used  in  any  Assumed 
subscrij)tion  or  entry  unless  such  assumed  name  is  duly  names  of 
registered,  as  follows  : —  owners. 

(i.)  The  person  intending  to  use  an  assumed  name  must 
register  it  annually  at  the  Registry  Office.  A  registration 
continues  effectual  during  the  current  year. 

(ii.)  A  person  cannot  have  more  than  one  assumed  name 
registered  at  the  same  time,  nor  can  he  use  his  real  name  in 
any  subscription  or  entry  so  long  as  he  has  a  registered 
assumed  name. 

(iii.)  An  assumed  name  may  be  changed  at  any  time  by 
registering  a  new  assumed  name. 


558 


APPENDIX. 


Subscriptions 
are  trans- 
ferable. 

Subscriptions 
and  entries 
cannot  bo 
struck  out. 


Death  of  per- 
son who  has 
made  a  sub- 
scrijjtion  or 
entry. 

No  alteration 
of  entry  after 
closine:. 


Partnership 
in  horses. 


Liability  for 
stakes  and 
forfeits. 


(iv.)  A  person  cannot  register  as  lils  assumed  name  a  name 
Tvliicli  lias  been  already  registered  by  any  other  person,  or  the 
real  name  of  any  other  person  who  runs  horses  in  races  in 
such  other  person's  real  name. 

(v.)  On  every  registration  or  change  of  an  assumed  name 
there  must  be  paid  at  the  Kegistry  Office,  to  the  credit  of  the 
Jockey  Club,  a  fee  of  twenty-five  guineas. 

(vi.)  Out  of  the  fees  received  under  this  Rule,  a  percentage, 
to  be  fixed  from  time  to  time  by  the  Jockey  Club,  shall  be 
paid  to  the  Bentinck  Benevolent  Fund,  and  the  remainder 
shall  be  carried  to  the  liacing  Fund  of  the  Jockey  Club. 

22.  A  person  who  subscribes  to  a  sweepstakes  has  the  right 
of  transferring  the  right  of  entry  under  any  one  or  more  of 
his  subscriptions  to  any  other  person  or  persons. 

23.  A  subscription  cannot  be  withdrawn,  but  an  entry  of  a 
horse  under  a  subscription  may,  before  the  time  of  closing,  be 
altered  by  substituting  another  horse. 

24.  Subscriptions  and  all  entries  or  rights  of  entry  under 
them  become  void  on  the  death  of  the  subscriber. 

Entries  (except  entries  made  under  another  person's  sub- 
scription) become  void  on  the  death  of  the  persons  in  whose 
names  they  are  made. 

If  either  party  to  a  match  die  the  match  is  off. 

25.  No  alteration  or  addition  shall  be  made  in  any  entry 
after  the  time  fixed  for  closing  except  that  when  a  horse  has 
been  duly  described  a  name  or  number  may  be  added. 

In  the  event  of  a  horse  being  entered  for  a  race  with  the 
wrong  age,  or  an  incorrect  or  imperfect  description  according 
to  Eule  17,  it  may  be  corrected  on  the  papnent  of  a  fine  of 
51.  for  each  entry,  provided  it  be  proved  to  the  satisfaction  of 
the  Stewards  that  it  was  accidental,  and  provided  also  that  the 
correction  is  made,  and  the  fine  paid,  before  the  Calendar 
following  that  in  which  the  wrong  entry  appears. 

This  liule  will  allow  of  an  entry  being  omitted,  on  the  payment 
of  a  fine,  from  a  race  for  which  it  was  not  qualified  at  the 
time  of  entry,  e.g.  a  colt  for  a  filly  stakes,  but  will  not  admit 
of  any  correction  amounting  to  the  substitution  of  another 
animal,  which  would  be  of  the  nature  of  a  post  entry. 

The  fines  under  this  Rule  to  go  to  the  winner,  unless  the 
winner  be  the  person  fined,  when  it  shall  go  to  the  second 
horse. 

26.  A  horse  cannot  bo  entered  in  the  real  or  assumed  name 
of  any  person  as  his  owner  unless  that  person's  interest  or 
property  in  the  horse  is  at  least  ecj[ual  to  that  of  any  other  one 
person. 

Part  V. — Sialics  and  For/cits. 

27.  A  person  entering  a  horse  for  a  race  thereby  becomes 
liable  for  the  entrance  monev  and  stake  or  forfeit. 


MISCELLANEOUS.  559 

A  subscriber  to  a  sweepstakes  is  liable  for  the  stake  or* 
forfeit ;  but  if  be  transfer  the  right  of  entry  to  any  other  per- 
son he  is  liable  only  in  case  of  default  by  the  transferee,  and 
in  that  case  he  may  recover  it  from  the  transferee. 

A  person  taking  an  entry  under  another  person's  subscrip- 
tion, where  forfeit  must  be  declared  by  a  particular  time,  if  he 
do  not  declare  forfeit  by  that  time,  shall  be  considered  to  have 
taken  the  engagement  upon  himself,  and  the  original  sub- 
scriber shall  cease  to  be  liable.   • 

28.  Entrance  money,  stakes  and  forfeits  must  be  paid  in  Payment  and 
cash  (if  required)  to  the   clerk  of  the   course  or  authorized  application 
stakeholder.     If  any  clerk  of  the  course  allow  a  horse  to  start  ?*  _^*'?'|^*^^  ^^'^ 
in  a  race  without  his  stake  for  that  race  having  been  paid, 

such  clerk  shall  be  liable  for  it  himself. 

Stakes  and  forfeits  in  a  race  belong  to  the  winner,  except  as 
otherwise  declared  in  the  conditions,  and  the  stakeholder  shall 
render  an  account  to  him,  or  his  agent,  and  pay  over  all  stakes 
and  added  money  within  fifteen  days  of  the  conclusion  of  the 
meeting.  If  the  race  be  never  run  or  be  void,  they  shall  be 
returned. 

Entrance  money  shall  be  paid  into  the  race-fund  of  the 
meeting,  except  in  the  case  of  a  sweepstakes  where  no  money 
or  less  than  501.  is  given  from  the  race-fund  or  other  public 
source,  in  which  case  the  entrance  money  shall  go  to  the 
winner,  or  to  some  other  horse  or  horses  in  the  race. 

29.  Ahorse  shall  not  start  for  a  race  unless  there  have  been  Stake,  arrears, 
duly  paid  before  weighing  (1)  any  stake,  entrance  money  or  fee  ^'^^  jockey's 
payable  in  respect  of  that  race  ;  (2)  all  arrears  due  from  any       .  T^"®.^  ^^° 
person  for  such  horse,  or  due  for  the  same  or  any  other  horse  startinf^"^*^ 
from  any  person  by  whom  such  horse  is  wholly  or  partly 

owned,  or  in  whose  name  or  under  whose  subscription  he  is 
entered,  and  (3)  the  jockey's  fee  under  Eule  53. 

In  this  rule  "  arrears"  includes  any  sums  payable  for  fines, 
fees,  entrance  money,  stakes,  or  forfeits  in  respect  of  any  race 
at  the  same  or  any  other  meeting  in  the  United  Kingdom,  and 
any  sum  in  respect  of  which  a  person  has  been  declared  a  de- 
faulter :  Provided  that  arrears  of  forfeits  in  respect  of  a  meet- 
ing at  any  other  place  than  the  place  at  which  the  race  is  run 
shall  not  be  included,  unless  notice  of  such  forfeits  being  over- 
due has  been  published  in  the  Unpaid  Forfeit  List  or  Steeple 
Chase  Forfeit  List,  or  delivered  in  writing,  signed  by  the  party 
claiming  the  arrears,  to  the  clerk  of  the  course  or  stakeholder 
or  to  the  person  indebted,  before  ten  in  the  evening  preceding 
the  race. 

This  rule  shall  apply  to  arrears  at  the  Curragh  and  other 
recognized  meetings  in  Ireland,  or  at  any  steej^lechase  meeting 
in  the  United  Kingdom  held  under  the  Grand  National 
Steeplechase  Eules,  or  Irish  National  Hunt  Steeple  Chase 
Eules. 


560  APPENDIX. 

The  Unpaid  Forfeit  List. 

Unpaid  for-  30.   (i.)  An  Unpaid  Forfeit  List  shall  be  kept  at  the  registry 

feit  list.  office,  and  shall  be  published  in  the  Sheet  Calendar  after  the 

Newmarket  July  Meeting  and  again  at  the  conclusion  of  the 
Eacing  season  in  every  year.  It  shall  include  all  due  and 
unpaid  entrances,  stakes,  fines,  and  forfeits  which  have  been 
notified  as  hereinafter  mentioned,  and  shall  state  the  real  name 
or  names,  and  also  the  assumed  name  or  names  (if  any),  of  the 
persons  from  whom,  and  the  horses  (if  any)  in  respect  of  which 
the  same  are  due.  Entrances,  stakes,  fines  and  forfeits  which 
have  been  so  published  must  be  paid  directly  into  the  registry 
office,  and  until  so  paid  they  shall  not  be  removed  from  the 
list. 

(ii.)  Any  person  to  whom  any  entrance,  stake,  fine,  fee,  or 
forfeit  is  payable  (whether  as  an  official  or  otherwise)  may  (or 
shall,  if  he  be  an  official,  within  a  month  of  the  publication 
of  the  next  Forfeit  List)  notify  the  same  in  writing,  signed  by 
him,  to  the  registry  office,  or  to  the  clerk  of  the  course,  and 
every  such  statement  received  by  the  clerk  of  the  course  shall 
be  forthwith  transmitted  by  him  to  the  registry  office. 

(iii.)  80  long  as  the  name  of  a  person  is  in  the  Unpaid  For- 
feit List  he  cannot  subscribe  to  any  sweepstakes,  and  no  horse 
can  be  entered  by  him  or  under  his  subscription  for  any  race, 
whether  acting  as  an  agent  or  otherwise,  and  no  horse  which 
has  been- entered  by  him,  or  in  his  name,  or  under  his  subscrip- 
tion, or  of  which  he  is  wholly  or  partly  the  owner,  or  which, 
after  his  default  has  been  twice  published  in  the  Eacing 
Calendar,  shall  be  proved  to  the  satisfaction  of  the  Stewards 
to  be  under  his  care,  training,  management,  or  superintend- 
ence, shall  be  qualified  to  run  for  any  race  ;  and  so  long  as  any 
horse  is  in  the  Unpaid  Forfeit  List,  such  horse  shall  not  be 
entered  or  run  for  any  race. 

(iv.)  A  corrected  alphabetical  Index  of  the  horses  and 
owners  in  the  last  Forfeit  List  and  Irish  Forfeit  List  shall  be 
published  in  the  first  Calendar  of  every  month  during  the 
racing  season.  Such  monthly  list  shall  commence  not  less 
than  three  years  before  the  time  at  which  it  is  published,  and 
shall  be  carried  down  to  and  include  the  latest  Forfeit  List 
which  has  been  published  in  the  Sheet  Calendar  as  above 
mentioned. 

The  Clerk  of  the  Course  at  every  meeting  shall  put  uj)  in 
his  office  during  such  meeting  two  copies  of  the  last  Monthly 
List  for  the  time  being. 

(v.)  If  any  horse  which,  or  the  owner  of  which,  is  in  any 
Forfeit  List  be  allowed  to  start  the  Clerk  of  the  Course  shall 
be  fined  10/. 

(vi.)  If  a  horse  which,  or  the  owner  of  which,  is  in  any 
Forfeit  List  be  entered  for  any  race,  the  owner  of  such  horse 
shall  be  fined  50/. 


MISCELLANEOUS.  561 

Part  Yl.—The  Race. 
Weighing  out  and  starting. 

31.  (i.)  A  horse  sliall  not  be  qualified  to  run  in  a  race  Weighing- out 
unless  Ms  name  has  been  notified,  as  a  starter  to  the  clerk  of  ^'^^  starting, 
the  scales  on  the  day  of  the  race,  and  his  number  exhibited 
one  quarter  of  an  hour  before  the  time  appointed  for  the  race. 
If  any  alteration  be  made  in  a  number  after  it  has  been  ex- 
hibited, the  stewards  may  call  upon  the  owner,  trainer,  or 
jockey,  for  an  explanation,  and  if  no  satisfactory  explanation 
be  given,  the  owner,  trainer,  or  jockey,  may  be  fined,  and  the 
horse  shall  not  be  allowed  to  start  nor  the  jockey  to  ride  again 
until  the  fine  is  paid. 

(ii.)  Every  jockey  who  is  to  ride  in  the  race  shall  weigh  at 
the  appointed  or  usual  place,  unless  especially  excused  by  the 
Stewards. 

(iii.)  No  person  shall,  without  special  leave  from  the 
Stewards  in  writing,  be  admitted  to  the  weighing-room  except 
the  owner,  trainer  and  jockey,  or  other  person  having  the  care 
of  a  horse  engaged  in  the  race. 

(iv.)  If  a  jockey  intend  to  carry  overweight  exceeding  by 
more  than  two  pounds  the  weight  at  which  his  horse  is  to  run, 
he  must  declare  the  amount  of  such  overweight.  The  declara- 
tion must  be  made  to  the  clerk  of  the  scales  not  later  than 
twenty  minutes  before  the  time  appointed  for  the  start ;  and 
the  clerk  shall  exhibit  the  amount  of  such  extra  weight  with 
the  number  of  the  horse. 

(v.)  If  a  horse  carry  more  than  two  pounds  overweight, 
which  has  not  been  duly  declared,  he  is  disqualified,  unless  the 
Steivards  he  satisfied  that  such  excess  of  iceight  has  been  caused 
hy  ivet  weather. 

(vi.)  Any  overweight  exceeding  two  pounds  which  has  been 
carried,  whether  it  has  been  duly  declared  or  the  horse  has 
been  disqualified,  shall  be  published  in  the  "Racing  Calen- 
dar," and  the  clerk  of  the  scales  shall  send  a  return  thereof  to 
the  Registry  Office. 

(vii.)  Every  trainer  shall  have  his  horse  at  the  post,  ready 
to  start,  at  the  time  appointed  by  the  Stewards ;  and  every 
jockey  is  to  be  there,  ready  to  start  at  the  same  time.  Every 
trainer  or  jockey  making  default  herein  shall  be  fined. 

(viii.)  The  horses  must  be  started  by  the  official  starter  or 
his  authorized  deputy  or  substitute.  No  horse  when  once 
under  the  starter's  hands  shall  be  allowed  to  go  back  and 
correct  his  weight,  unless  some  accident  has  occurred  to  him. 

(ix.)  The  starter  may  give  all  such  orders  and  take  all  such 
measures  as  are  necessary  for  securing  a  fair  start ;  and  in 
particular  he  may,  if  he  think  it  necessary,  order  the  horses 
to  be  drawn  up  in  a  line  as  far  behind  the  starting  post  as  he 
thinks  necessary. 

0.  0  0 


562 


APPENDIX. 


Crossing, 
jostling,  &c. 
in  the  race. 


Running  over 
again. 


Weighing  in. 


(x.)  The  horses  must  be  started  from  a  walk.  If  the  starter 
allow  a  start  to  take  place  in  front  of  the  starting  post,  the 
start  is  void,  and  the  horses  must  be  started  again,  and  the 
starter  shall  forfeit  a  sum  not  exceeding  50/. 

(xi.)  The  horses  shall  (so  far  as  is  practicable)  be  drawn  up 
before  the  start  in  an  order  (reckoned  from  the  whip  hand)  to 
be  determined,  when  the  Stewards  think  fit,  by  lots  to  be 
drawn  by  the  jockeys  at  the  time  of  weighing  out. 

(xii.)  The  person  appointed  to  start  the  horses  shall  mark  in 
his  list  the  time  when  the  horses  in  each  race  actually  started  ; 
and  if  there  have  been  any  false  starts,  the  first  of  them  shall 
be  considered  as  the  time  of  starting  for  that  race,  and  he  ' 
shall  make  a  report  thereof  to  the  Stewards  in  the  afternoon 
of  the  day  the  races  are  run.  And  if  any  delay  shall  have 
taken  place,  he  shall  state  by  whom,  or  by  what  cause,  the 
delay  was  occasioned. 

(xiii.)  Everj^  horse  which  comes  uj)  to  the  post  in  time  to 
start  shall  be  liable  for  his  whole  stake. 

'  Rtmninrj. 

32.  (i.)  A  horse  which  crosses  another  is  disqualified,  unless 
it  be  proved  that  he  was  two  clear  lengths  ahead  of  the  other 
when  he  crossed. 

(ii.)  If  a  horse  or  his  jockey  jostle  another  horse,  or  the 
jockey  of  another  horse,  the  jockey  which  jostles  the  other  is 
disqualified,  unless  it  be  proved  that  the  jostle  was  wholly 
caused  by  the  fault  of  some  other  jockey,  or  that  the  other 
horse  or  his  jockey  was  partly  in  fault. 

(iii.)  If  a  horse  run  the  wrong  side  of  a  post  he  must  turn 
back  and  run  the  course  from  the  post  at  which  he  left  it. 

33.  If  a  race  has  been  run  by  all  the  horses  at  wrong 
weights,  or  a  wrong  distance,  or  when  the  Judge  is  not  in  the 
box,  the  Stewards  shall  order  it  to  be  run  after  the  advertised 
time  of  the  last  race  of  the  same  day. 

Weigh'mg  in. 

34.  (i.)  Every  jockey  must,  immediately  after  pulling  up, 
ride  his  horse  to  the  place  of  weighing,  and  there  immediately 
dismount  and  be  weighed  by  the  clerk  of  the  scales  :  Provided 
that,  if  a  jockey  be  prevented  from  riding  to  the  place  of 
weighing  by  reason  of  accident  or  illness,  by  which  he  or  his 
horse  is  disabled,  he  may  walk  or  be  carried  to  the  scales. 

(ii.)  If  a  jockey  do  not  weight  in,  or  be  short  of  weight,  or 
be  guilty  of  any  fraudulent  practice  with  respect  to  weight  or 
weighing,  or  dismount  before  reaching  the  scales,  or  touch 
(except  accidentally)  any  person  or  thing  other  than  his  own 
ec[uipments  before  weighing  in,  his  horse  is  disqualified,  un- 
less he  can  satisfy  the  Stewards  that  he  was  justified  by  extra- 
ordinary circumstances. 


MISCELLANEOUS.  563 

(iii.)  It  is  optional  for  the  jockey  to  weigh  out  or  in  with 
his  bridle,  and  the  clerk  of  the  scales  shall  allow  one  pound 
for  a  curb  or  double  bridle ;  but  no  weight  shall  be  allowed 
for  a  snaffle  bridle  unless  it  is  put  into  the  scales  before  the 
horse  is  led  away,  and  no  whip  or  substitute  for  a  whip  shall 
be  allowed  in  the  scales. 

If  a  horse  run  in  a  hood  or  clothing  it  must  be  put  into  the 
scale  and  included  in  the  jockey's  weight. 

The  clerk  of  the  scales  shall  always  put  21b.  extra  into  the 
scale  to  j)rove  that  the  horse  has  not  carried  too  much  weight 
under  Eule  31  (v.). 

Dead  Heats. 

35.  (i.)  A  dead  heat  for  the  first  place  shall  be  run  off  after  Dead  heats, 
the  last  race  on  the  same  day  (except  by  special  permission  of 
the  Stewards)  unless  the  owners  agree  to  divide.  The  other 
horses  shall  be  deemed  to  have  been  beaten,  but  they  shall  be 
entitled  to  their  places  (if  any)  as  if  the  race  had  been  finally 
determined  the  first  time. 

(ii.)  If  a  dead  heat  be  run  by  two  or  more  horses  for  second 
or  any  lower  place  in  a  race,  the  OY\'ners  shall  divide,  subject 
to  the  provisions  of  Part  VII.,  where  the  winner  is  objected 
to,  and  if  they  cannot  agree  as  to  which  of  them  is  to  h-ave  a 
cup  or  other  prize  which  cannot  be  divided,  the  question  shall 
be  determined  by  lot  by  the  Stewards. 

(iii.)  When  owners  divide  they  shall  divide  equally  all  the 
moneys  or  other  prizes  which  any  of  them  could  take  if  the 
dead  heat  were  ruu  off. 

(iv.)  Horses  running  a  dead  heat  for  a  race  or  place  shall  be 
deemed  winners  of  the  race  or  place  until  the  dead  heat  is  run 
off  or  the  owners  agree  to  divide,  and  if  the  owners  agree  to 
divide,  each  horse  which  divides  shall  be  deemed  a  winner  of 
the  race  or  place  for  which  he  divides. 

Second  Money. 

3G.  Any  money  or  prize  which  by  the  conditions  is  to  go  to  Second 
the  horse  placed  second,  or  in  any  lower  place  in  the  race,  money, 
shall,  if  the  winner  has  Avalked  over  or  no  horse  has  been  so 
placed,  bo  dealt  with  as  follows,  namely  : — 

(i.)  If  it  be  part  of  the  stakes  or  plate,  it  shall  go  to  the 
•v\T.nner  ;  or 

(ii.)  If  it  was  to  be  given  as  a  separate  donation  from  the 
race  fund,  or  any  other  source,  it  shall  not  be  given  at  all ;  or 

(iii.)  If  it  is  entrance  money  for  the  race,  it  shall  go  to  the 
race  fund  of  the  meeting. 

Part  YII. —  Objections  and  Cotnplaints.  -r  -,    ,    ,    . 

Judge  s  deci- 

37.  The  determination  of  a  judge,  declaring  a  horse  to  have  sion  final, 

won  or  to  be  entitled  to  a  place  shall  be  final,  unless  an  snbject  to 

Q  objections. 


564  APPENDIX, 

objection  is  made  and  allowed  on  the  ground  of  disqualifi- 
cation :    Provided  that  this  Eule  shall  not  prevent  a  judge 
from  correcting  any  mistake. 
Objections.  (i.)  Every  objection  must  be  made  by  the  owner,  jockey  or 

groom  of  some  other  horse  engaged  in  the  same  race  [or  by 
the  starter],  or  by  a  Steward,  and  must  be  made  to  one  of  the 
Stewards,  or  to  the  Judge,  clerk  of  the  course  or  clerk  of  the 
scales.  The  person  to  whom  it  is  made  may  require  it  to  be 
put  in  writing  and  signed. 

(ii.)  If  an  objection  to  a  horse  engaged  in  a  race  be  made 
not  later  than  half -past  ten  in  the  morning  of  the  day  for  the 
race,  the  Stewards  may  require  his  qualihcatiou  to  be  proved 
before  the  race  ;  and  in  default  of  such  proof  being  given  to 
their  satisfaction,  they  may  declare  him  disqualified. 

(iii.),An  objection  to  a  horse,  on  the  ground  of  a  cross  or 
jostle,  or  of  his  not  having  run  the  proper  course,  or  of  any 
other  matter  occurring  in  the  race,  must  be  made  within  a 
quarter  of  an  hour  after  the  finish. 

(iv.)  An  objection  on  the  ground  of  fraudulent,  or  wilful 
mis-statement  or  omission  in  the  entry  under  which  a  horse 
has  run,  or  on  the  ground  that  the  horse  which  ran  was  not 
the  horse  which  he  was  represented  to  be  in  the  entry  or  at 
the  time  of  the  race,  or  was  not  of  the  age  which  he  was 
represented  to  be,  or  on  the  ground  that  he  is  disqualified  by 
reason  of  any  default  entered  in  tlie  Unpaid  Forfeit  List,  may 
be  received  at  any  time  within  twelve  months  after  the  race. 

(v.)  In  any  other  case  an  objection  shall  be  made  before  the 
conclusion  of  the  meeting. 

(vi.)  Every  objection  shall  be  determined  by  the  Stewards, 
and  their  determination  shall  (if  they  are  not  the  Stewards  of 
the  Jockey  Club)  be  subject  to  appeal  to  the  Stewards  of  the 
Jockey  Club,  through  the  Stewards  of  the  meeting  and  with 
their  consent  and  that  of  the  Stewards  of  the  Jockey  Club, 
and  not  otherwise. 

(vii.)  If  an  objection  to  a  horse  which  has  won  or  been 
placed  in  a  race  be  declared  valid,  the  horse  shaU  be  regarded 
as  having  been  last  in  the  race,  and  the  other  horses  shall 
take  positions  accordingly. 

(viii.)  AVhen  a  dead  heat  is  run  for  second  place,  and  an 
objection  is  made  to  the  winner  of  the  race,  if  such  objection 
be  declared  valid  in  time  for  the  dead  heat  to  be  run  off  on 
the  day  of  the  race,  the  Stewards  may  direct  it  to  be  run  off 
accordingly.  Otherwise  the  horses  which  ran  the  dead  heat 
shall  divide. 

(ix.)  Every  objection  which  cannot  be  decided  by  the 
Stewards  during  a  meeting  must  be  made  in  writing  and 
lodged  with  the  clerk  of  the  course. 

(x.)  An  objection  made  in  writing  cannot  be  withdi-awn 
without  leave  of  the  Stewards. 


MISCELLANEOUS.  565 

(xl.)  All  costs  and  expenses  in  relation  to  determining  an 
objection  shall  be  paid  by  the  person  decided  against. 

(xii.)  If  the  Stewards  decide  an  objection  to  be  frivolous 
they  may  order  the  person  making  it  to  pay  a  fine  not  ex- 
ceeding 201.  to  the  Bentinck  Benevolent  Fund. 

38.  Pending  the  determination  of  an  objection,  any  money  Effect  of 
or  prize  which  the  horse  objected  to  may  have  won  or  may  pending 
win  in  the  race  shall  be  withheld  until  the  objection  is  deter-  objection, 
mined,  and  any  forfeit  payable  by  the  owner  of  any  other 

horse  shall  be  paid  to  and  held  by  the  clerk  of  the  course  for 
the  person  who  may  be  determined  to  be  entitled  to  it. 

When  any  race  is  in  dispute  both  the  horse  that  came  in 
first  and  any  horse  claiming  the  race  shall  be  liable  to  all  the 
penalties  attaching  to  the  winner  of  that  race  till  the  matter  is 
decided. 

39.  (i.)  The  Stewards  shall  have  power  at  any  time,  and  Stewards  may 
either  upon  or  without  objection  made,  to  order  an  examina-  order  ex- 
tion  by  such  person  or  persons  as  they  think  fit,  of  the  mouth  '^^i^ation 

of  any  horse  entered  for  a  race,  or  who  has  run  in  a  race.  proofs. 

If  a  horse  be  declared  to  be  of  the  wrong  age,  the  expense 
of  such  examination  shall  be  paid  by  his  owner.  Otherwise, 
it  shall  be  paid  by  the  person  (if  any)  at  whose  request  the 
examination  is  ordered,  or  out  of  the  race  fund  of  the  meeting, 
as  the  Stewards  direct. 

(ii.)  The  Stewards  shall  also  have  power  to  call  on  any 
person  in  whose  name  a  horse  is  entered  to  produce  proof  that 
the  horse  entered  is  not  the  property  either  wholly  or  in  part 
of  any  person  whose  name  is  in  the  Unpaid  Forfeit  List  or 
otherwise  disqualified,  or  to  produce  proof  of  the  extent  of  his 
interest  or  property  in  the  horse,  and  in  default  of  such  proof 
being  given  to  their  satisfaction  they  may  declare  the  horse 
disqualified. 

Pabt  VIII. — Special  Conditions  {claiming  and  selling  Races  : 
Produce  Races :  Post  Races :  Hanclicajys  :  Sale  tvith  E71- 
gagements). 

Horses  entered  to  he  sold. 

40.  Any  horse  running  for  any  race  "to  be  sold,"  shall,  if 
the  winner,  be  liable  to  be  claimed  for  the  selling  price,  and 
if  it  be  a  condition  of  the  race  that  the  winner  is  to  be  sold  by 
auction  the  sale  shall  take  place  immediately  after  the  race, 
and  the  surplus  over  the  selling  price  shall  be  divided  between 
the  owner  of  the  second  horse  and  the  race  fund  of  the  meet- 
ing. If  sold  the  horse  shall  not  leave  the  place  of  sale  until 
authorized  by  the  clerk  of  the  course  to  do  so ;  and  if  the 
horse  be  not  paid  for,  or  the  clerk  of  the  course  satisfied  with 
the  security,  within  a  quarter  of  an  hour,  he  may  order  the 
horse  to  be  put  up  a  second  time,  and  the  purchaser  at  the 


566 


APPENDIX. 


Si^ecial  Rule 
where  horse 
objected  to. 


Special  Rule 
where  dead 
heat. 


first  sale  shall  be  resjionsible  for  any  deficiency  arising  from 
the  second  sale,  and  shall  be  declared  a  defaulter  untU  it  is 
paid. 

All  other  horses  running  to  be  sold  may  be  claimed  for  the 
selling  price  and  the  amount  of  the  stakes  or  plate  by  the 
owners  of  horses  running  in  the  race. 

In  no  selling  race  shall  the  lowest  selling  price  be  less  than 
50  sov. 

Owners  of  horses  placed  shall  have  priority  in  the  order  of 
their  places,  and  if  the  owners  of  two  or  more  horses  having 
equal  rights  claim,  they  are  to  draw  lots.  The  owner  of  the 
winner  has  the  last  claim. 

No  person  can  claim  more  than  one  horse. 

Every  claim  must  be  made  to  the  clerk  of  the  scales  within 
a  quarter  of  an  hour  after  the  race. 

The  price  of  every  horse  claimed  or  sold,  or  bought  in,  must 
be  paid  to  the  clerk  of  the  course,  and  an  order  given  by  him 
for  the  delivery  of  the  horse. 

In  the  case  of  a  horse  being  claimed,  if  the  price  be  not 
paid  before  seven  o'clock  in  the  evening  of  the  day  of  the 
race,  the  claimant  forfeits  his  right.  If  none  of  the  other 
persons  entitled  accept  the  horse,  the  owner  may  insist  on  the 
first  claimant  taking  and  paying  for  it,  and  if  he  refuse  or 
neglect  to  do  so,  he  shall  bo  declared  a  defaulter  in  respect  of 
the  price.  If  a  horse  walk  over  for  a  selling  race  he  shall 
not  be  liable  to  be  sold  unless  the  added  money  be  given. 

Provision  in  case  of  Objection  or  Dead  Heat. 

41.  The  foregoing  Rules  relating  to  claiming  and  selling 
races  shall  be  subject  to  the  following  provisions  in  cases 
^^here  a  horse  is  objected  to  under  the  provisions  of  Part  VII. 
of  these  Eules  : — 

(i.)  If  the  objection  has  not  been  made  until  after  the  horse 
has  been  claimed  or  bought,  the  person  who  claimed  or  bought 
him  shall,  if  the  objection  be  declared  valid,  have  the  option 
of  returning  him  or  retaining  him  at  the  price  of  a  beaten 
horse. 

(ii.)  If  the  objection  be  made  before  the  horse  has  been 
claimed  or  bought,  the  time  for  delivering  him  is  thereby 
postponed  until  such  time  after  the  determination  of  the 
objection  as  the  Stewards  appoint,  and  if  the  objection  be 
declared  valid,  the  person  who  has  claimed  or  bought  him 
shall  have  the  same  option  as  in  the  last-mentioned  case. 

42.  If  a  dead  heat  be  declared  for  the  first  or  any  other 
place  in  a  race,  the  time  for  claiming  or  selling  the  horses 
running  the  dead  heat  is  thereby  postponed  until  the  dead 
heat  is  run  off,  as  the  Stewards  appoint.  In  case  of  a  divi- 
sion, each  of  the  horses  dividing  is  a  winner  for  the  j)urposes 
of   these  Eules   relating  to  claiming  and   selling,   and  any 


MISCELLANEOUS.  567 

surplus  (in  the  case  of  a  selling  race)  shall  be  divided  between 
those  horses  and  the  Eace  Fund. 

Produce  Races. 

43.  (i.)  A  produce  race  is  one  for  which  horses  are  named  Produce 
by  whose  produce  the  race  is  to  be  run.  Races. 

(ii.)  The  produce  is  entered  by  entering  the  dam  and  sire, 
or  sires; 

(iii.)  If  the  produce  of  a  mare  be  dropped  before  the  1st  of 
January,  or  if  there  be  no  produce,  or  if  the  produce  be  dead 
when  dropped,  the  entry  of  such  mare  is  void,  and  the 
entrance  money  (if  any)  shall  be  returned. 

(iv.)  Conditions  of  a  produce  race  referring  to  allowances 
to  the  produce  of  untried  horses,  extend  only  to  the  produce 
of  horses  whose  produce  never  won-  a  recognized  race  in  any 
country  up  to  the  day  previous  to  that  fixed  for  claiming 
allowances,  and  any  such  allowance  must  be  claimed  before 
the  expiration  of  the  time  for  naming. 

Post  Races. 

44.  A  post  race  is  a  race  for  which  a  subscriber  must  enter  Post  Races. 
two  or  more  horses,  and  may  run  any  one  or  more  of  them, 

as  the  conditions  prescribe. 

Handicaps. 

45.  (i.)  A  "handicap"    is   a   race   in  which  the  weights  Handicarps. 
which  the  horses  are  to  carry  are  to  be  adjusted  after  the 

time  limited  for  entering  or  naming  according  to  the  handi- 
capper's  judgment  of  the  merits  of  the  horses,  for  the  purpose 
of  equalizing  their  chances  of  winning. 

(ii.)  In  a  handicap  (other  than  a  free  handicap)  the  horses 
must  be  entered  in  the  usual  way,  and  the  person  entering  a 
horse  becomes  liable  for  the  stake  or  forfeit  whether  he 
accepts  or  not. 

(iii.)  A  free  handicap  is  one  in  which  no  liability  for  stake 
or  forfeit  is  incurred  until  acceptance,  and  no  entry  need  be 
made  ;  and  acceptance  shall  be  considered  as  equivalent  to  an 
entry  and  as  a  representation  that  the  horse  is  of  the  age  and 
description  stated  in  the  list  of  weights ;  and  if  the  horse  be 
not  in  fact  of  that  age  and  description  he  shall  be  disqualified. 

There  shall  not  be  a  greater  difference  than  4st.  71b.  between 
the  highest  and  lowest  weight  in  a  handicap  to  which  there  is 
a  second  forfeit. 

Sale  with  Engagements. 

46.  "When  a  horse  is  sold  with  his  engagements,  or  any  Liability  for 
part  of  them,  the  seller  cannot  strike  the  horse  out  of  any  of  engagements 
such  engagements,  and  he  remaiils  liable  for  the  amount  of  ^'^  liorses  sold. 
the  forfeits  in   each   of  the   engagements,  but  he  may,   if 


668  APPENDIX. 

compelled  to  pay  tliem  by  tlie  purchaser's  default,  place  the 
forfeit  on  the  Forfeit  List,  as  due  from  the  purchaser  to 
himself. 

In  all  cases  of  sale  hy  private  treaty,  the  written  acknow- 
ledgment of  both  parties  that  the  horse  was  sold  with  the 
engagement  is  necessary  to  entitle  the  seller  or  buyer  to  the 
benefit  of  this  E,ule,  and  if  certain  engagements  be  specified 
it  is  to  be  understood  that  those  only  are  sold  with  the  horse  ; 
but  when  the  horse  is  sold  by  public  auction  the  advertised 
conditions  of  the  sale  are  sufiicient  evidence,  and  if  certain 
engagements  only  be  specified,  it  is  to  be  understood  these 
only  are  sold  with  the  horse,  and  if  he  has  been  claimed  as 
the  winner  of  a  race  of  which  it  was  a  condition  that  the 
winner  was  to  be  sold  with  his  engagements,  this  also  is 
sufficient. 

"When  a  person  is  entitled  by  purchase  or  otherwise  to  start 
for  any  engagement  a  horse  which  was  entered  by  another 
person,  and  he  is  prevented  by  these  Rules  from  starting  the 
horse  without  paying  forfeits  or  fees  to  which  he  would 
not  otherwise  be  liable,  he  may,  if  he  pay  such  forfeits  and 
fees,  start  the  horse  and  place  the  forfeits  or  fees  on  the 
Forfeit  List,  with  the  names  of  the  horses  in  respect  of  which 
they  are  due  as  due  to  himself. 

Paet  IX. — Miscellatieous. 

Foreign  Horses. 

Foreign  cer-         47.  A  horse  foaled  out  of  the  United  Kingdom  shall  not  be 

titicates,  &c.     qualified  to  start  for  any  race  imtil  there  have  been  deposited 

at   the   Registry    Office    (1)  such   a   foreign   certificate,    and 

(2)  such  a  certificate  of  age  as  are  next  mentioned,  that  is  to 

say:— 

(i.)  The  foreign  certificate  must  state  the  age,  pedigree  and 
colour  of  the  horse,  and  any  mark  by  which  it  may  be  distin- 
guished, and  must  be  signed  by  the  secretary  or  other  officer 
of  some  approved  racing  club  of  the  country  in  which  the 
horse  was  foaled,  or  by  some  magistrate,  mayor  or  public 
officer  of  that  country. 

The  Stewards  of  the  Jockey  Club  may  from  time  to  time 
approve  any  racing  club  for  the  purposes  of  this  Rule,  and 
prescribe  the  magistrate,  mayor  or  public  officer  by  whom  a 
foreign  certificate  must  be  signed.  They  may  also  require 
any  further  proof  or  confirmation  in  any  particular  case,  and 
may  declare  any  horse  disqualified  in  default  thereof. 

(ii.)  The  certificate  of  age  must  be  signed  by  a  veterinary 
surgeon  in  the  United  Kingdom,  approved  for  this  purpose 
by  the  Stewards  of  the  Jockey  Club  either  by  general  order  or 
in  the  particular  case. 

Note. — The  Stewards  of  the  Jockey  Club  have  approved 


MISCELLANEOUS.  569 

generally  of  certificates  given  by  the  Eoyal  College  of 
Veterinary  Surgeons,  and  by  persons  holding  the  Highland 
and  Agriculture  Society's  dij)loma. 

A  horse  which  has  been  out  of  the  United  Kingdom  (other- 
■wise  than  as  a  foal  at  the  foot  of  his  dam)  before  having  run 
for  any  public  plate  or  sweej)stakes  in  Great  Britain,  shall  not 
be  qualified  to  start  for  any  public  race  until  a  certificate  of 
age  signed  as  in  the  last  Eule  mentioned  has  been  deposited 
at  the  Eegistry  Office. 

Corrupt  Practices  and  Disqualifications. 

48.  (i.)  If  any  person  corruptly  give  or  offer  any  money,  Penalties 
share  in  a  bet,  or  other  benefit  to  any  person  having  official  for  corrupt 
duties  in  relation  to  a  race  or  to  any  jockey  ;  or  ?/^^°r!^^*^*^f  °" 

(ii.)  If  any  person  having  official  duties  in  relation  to  a 
race,  or  any  jockey,  corruptly  accept  or  offer  to  accept  any 
money,  share  in  a  bet,  or  other  benefit ;  or 

(iii.)  Wilfully  enter  or  cause  to  be  entered  or  to  start  for 
any  race  a  horse  which  he  knows  to  be  discj^ualified ;  or 

(iv.)  If  any  person  be  detected  watching  a  trial,  or  proved 
to  the  satisfaction  of  the  Stewards  of  the  Jockey  Club  to  have 
emploj'ed  any  person  to  watch  a  trial,  or  to  have  obtained 
surreptitiously  information  respecting  a  trial  from  any  person 
or  persons  engaged  in  it,  or  in  the  service  of  the  owner  or 
trainer  of  the  horses  tried,  or  respecting  any  horse  in  training 
from  any  person  in  such  service ;  or 

(v.)  If  any  person  be  guilty  of  any  other  corrupt  or  fraudu- 
lent practices  on  the  Turf  in  this  or  any  other  country  ; 

Every  person  so  offending  shall  be  warned  off  Newmarket 
Heath  and  other  places  where  these  Eules  are  in  force. 

49.  When  a  person  is  warned  off  Newmarket  Heath  and  so  Disqualifi- 
long  as  his   exclusion  continues,  he   shall  not  be  qualified,  cation  for 
whether  acting  as  an  agent  or  otherwise,  to  subscribe  for  or  to  corrupt  prac- 
enter  or  run  any  horse  for  any  race  either  in  his  own  name  or    ^^^' 

in  that  of  any  other  person,  and  any  horse  of  which  he  is 
wholly  or  partly  the  owner,  or  which  after  the  fact  of  his  being 
warned  off  has  been  twice  published  in  the  Eacing  Calendar, 
shall  be  proved  to  the  satisfaction  of  the  Stewards  to  be  under 
his  care,  training,  management,  or  superintendence,  shall  be 
disqualified. 

If  a  person  be  so  excluded  for  any  fraudulent  practice  in 
relation  to  a  particular  horse  wholly  or  partly  belonging  to 
him,  such  horse  shall  be  perpetually  disqualified  for  all  races, 
and  such  person  shall  return  all  money  or  prizes  which  such 
horse  has  won  in  any  race  at  any  meeting. 

50.  If  any  person  be  reported  by  the   Committee  of  the  Disqualifi- 
Subscription  Eooms  at  Newmarket  or  at  Tattersall's  as  being  cation  for 
a  defaulter  in  bets,  he  shall  be  disqualified  as  in  the  last  Eule  ^^^^^t  in 
mentioned  until  his  default  is  cleared.  ®   ' 


570 


APPENDIX. 


Fines,  51.  All  fines  shall  be  paid  to  the  Bentinck  Benevolent 

Fund. 

Omission  of  Conditions. 

Omissions,  52.  (f.)  When  any  match  or  sweepstakes  is  made,  and  no 

how  supplied,  weight  mentioned,  the  horses  shall  carry  8st.  lOlb.  each,  and  if 
of  weight;        any  weight  be  given  the  highest  weight  shall  be  8st.  121b. 
of  course  •  (ii-)  When   any  match  or  sweepstakes   is  made,   and   no 

course  mentioned,  the  course  shall  be  as  follows : — 

If  at  Newmarket. 

If  two  years  old,  six  furlongs T.Y.C. 

If  three  years  old,  one  mile     E.M. 

If  four  years  old,  two  miles    D.I. 

If  five  years  old,  or  upwards,  four  miles  ....     B.C. 

And  if  the  horses  be  of  different  age,  the  course  shall  be  fixed 
by  the  age  of  the  youngest, 
of  day.  (iii.)  If  no  day  be  mentioned  for  a  race,  it  shall  be  run  on 

the  last  day  of  the  meeting,  unless  otherwise  agreed  by  aU  the 
parties  engaged. 

JocTicys'  Fees. 

Jockeys'  fees.  53.  In  the  absence  of  special  agreement  the  fee  to  a  winning 
jockey  shall  be  five  guineas,  and  to  a  losing  jockey  three 
guineas,  and  no  further  charge  except  for  expenses  shall  be 
allowed. 

All  jockeys'  fees  shall  be  paid  to  the  stakeholder  or  clerk 
of  the  course  at  the  same  time  as  the  stakes,  as  by  Rule  28. 

In  the  absence  of  special  agreement,  a  jockey  who  accepts 
a  retainer  cannot  terminate  it  otherwise  than  by  three  months' 
notice  in  writing,  ending  at  the  close  of  a  season ;  and  failing 
such  notice,  his  retainer  continues  for  the  next  season,  and  so 
on  from  season  to  season  until  duly  terminated  by  such  notice 
as  above  mentioned,  provided  the  same  or  any  agreed  retain- 
ing fee  is  paid  in  advance  in  respect  of  each  season  before  the 
commencement  thereof. 

Employers  retaining  the  same  jockey  have  precedence  ac- 
cording to  the  priority  of  their  retainers.  A  retainer  which 
is  continued  as  above  mentioned  has  priority  as  from  the  date 
of  its  first  commencement. 

If  a  jockey  be  prevented  from  riding  by  susj)ension  for 
fraudulent  practices  or  other  misconduct,  any  person  who  has 
retained  him  may  cancel  the  retainer. 

The  Stewards  of  the  Jockey  Club  shall  have  power  to 
release  a  jockey  from  his  retainer  for  any  cause  aj)pearing 
to  them  sufficient. 

No  jockey  shall  ride  in  races  on  Newmarket  Heath,  or 
elsewhere  where  these  Rules  are  in  force,  until  he  shall  have 
obtained  a  licence  from  the  Stewards  of  the  Jockey  Club,  on 


MISCELLANEOUS.  571 

application  at  tlio  Eegistry  Office,  but  no  ridor  will  bo  required 
to  take  out  a  licence  until  the  last  day  of  the  week  in  which 
he  shall  have  ridden  a  winner  for  the  first  time. 

Every  jockey  shall,  on  application  for  a  licence,  furnish 
Messrs.  Weatherby  with  his  full  name  and  address.  A  list 
of  the  licensed  jockeys  shall  be  published  annually 'in  the 
Eacing  Calendar. 

Any  rider  who  shall  infringe  these  Eules  will  be  reported 
to  the  Stewards  of  the  Jockey  Club,  who  may  suspend  him 
from  riding. 

Any  owner,  or  trainer,  or  both,  who  shall  knowingly  employ 
an  unlicensed  jockey,  shall  be  fined  not  less  than  25/.  each. 

54.  No  trainer  shall  engage  any  lad  or  other  stable  servant 
without  previously  referring  to  his  last  employer  in  England, 
France,  Ausb-ia  or  Hungary,  and  receiving  a  satisfactory  reply 
in  writing. 

Any  trainer  infringing  this  Eule  and  continuing  to  employ 
such  boy  after  notice  has  been  served  on  him,  shall  not  be 
allowed  to  train  or  run  horses  where  these  Rules  are  in  force ; 
and  any  lad  leaving  his  master  before  the  terms  of  his  en- 
gagement are  complete  shall  be  disqualified  from  riding  in 
any  race. 

Any  boy  prevented  from  obtaining  employment  by  this  Kulo 
shall  have  the  right  of  appeal  to  the  Stewards  of  the  Jockey 
Club. 

Every  jockey  at  the  termination  of  his  apprenticeship  is 
free  to  form  engagements  for  himself,  irrespective  of  any 
which  may  have  been  made  for  him  during  such  apprentice- 
ship. 

Calculation  of  Time. 

55.  "When  the  last  day  for  doing  anything  in  relation  to  a  Sundays 
race  falls  on  a  Sunday,  it  may  be  done  on  the  following  Monday,  omitted, 
unless  the  race  to  which  such  act  relates  is  appointed  for  that 

day,  in  which  case  it  must  be  done  on  the  previous  Saturday. 

Foreign  Meetings. 

56.  The  Stewards  of  the  Jockey  Club  shall  cause  a  list  to  Foreign 
be  from  time  to  time  published  and  kept,  as  they  think  fit,  of  mceting-s. 
meetings  and  races  in  countries  other  than  Great  Britain, 

which  are  to  be  deemed  recognized  meetings  and  races  for 
the  purposes  of  these  Rules. 

Neiv  Rules. 

57.  No  new  Eule  of  Eacing  can  be  passed,   nor  can  any  New  Rules, 
existing  Eule  be  rescinded  or  altered  without  being  previously 
advertised  three  times  in  the  "Sheet  Calendar,"  and  notice 

given  of  the  meeting  of  the  Jockey  Club  at  which  it  is  to  be 
proposed ;  and  no  now  Eule,  or  repeal  or  alteration  of  a  Eule, 
shall  take  effect  until  it  has  been  confirmed  at  the  meeting 


o<: 


APPENDIX. 


ensuing  that  at  "which  it  was  passed,  and  until  it  has  been 
twice  published  in  the  Sheet  Calendar.  Any  owner  of  race- 
horses or  persons  affected  by  such  new  Rule,  rescission  or 
alteration,  may,  before  it  is  made,  petition  the  Jockey  Club 
through  the  Secretary.  All  such  petitions  shall  be  laid  before 
the  meeting  before  the  question  is  put. 


Mode  of 
annual  elec- 
tion. 


In  case  of 
death  or 
resignation. 


Substitute 
for  absent 
Stewards. 


The  Stewards 
have  power 
— to  appoint 
officers : 


to  fix  time  of 
startinj? : 


to  manage 
the  Course 
and  Exercise 
ground : 

to  settle  dis- 
putes at 
Newmarket : 


RULES  AND  ORDERS  OF  THE  JOCKEY  CLUB. 

[These  are  only  applicable  to  races  run  at  Newmarket."] 

Respecting  the  Steivards. 

1 .  The  three  Stewards  uf  the  Jockey  Club  shall  be  con- 
tinued in  their  office  till  the  next  annual  financial  meeting 
(which  takes  place  in  the  Craven)  when  the  senior  Steward 
shall  vacate  after  settling  the  accounts  made  uj)  to  the  31st  of 
December  preceding,  and  shall  then  name  a  member  of  the 
Jockey  Club  to  succeed  him,  subject  to  the  approbation  of  the 
Members  of  the  Jockey  Club  then  present,  and  at  every  sub- 
sequent financial  meeting  the  senior  Steward  shall,  in  like 
manner,  retire  and  propose  his  successor. 

2.  If  any  of  the  Stewards  shall  die  or  resign,  the  remaining 
Stewards  may  appoint  a  member  of  the  Club  to  succeed  the 
deceased  or  declining  Steward,  but  such  nomination  shall  be 
notified  to  the  Club  at  the  first  general  meeting,  and  if 
the  appointment  meet  their  approval,  the  said  member  shall 
remain  in  office  until  the  expiration  of  his  predecessor's  time. 

3.  AVhen  only  one  Steward  is  present,  and  neither  of  the 
absent  Stewards  shall  have  appointed  a  substitute,  the  member 
of  the  Jockey  Club  present  who  has  last  served  the  office  shall 
act  ex  officio. 

4.  The  three  Stewards  shall  have  the  power  of  appointing  all 
the  public  officers  and  the  servants  of  the  Club ;  the  Keeper  of 
the  Match-book  to  receive  the  stakes  and  collect  the  entrance- 
money,  and  all  other  funds  belonging  to  the  Jockey  Club  ; 
and  the  Stewards  shall  produce  an  account  of  the  funds  and 
disbursements  of  the  Club  at  the  annual  financial  meeting, 
and  they  shall  be  responsible  to  the  Club  for  the  correctness 
of  the  annual  accounts,  and  for  all  the  money  collected  as 
belonging  to  the  Jockey  Club. 

5.  The  Stewards  shall  fix  the  hour  of  starting  for  each  race 
at  or  before  nine  o'clock  in  the  evening  preceding  the  day  of 
running,  and  notice  of  the  time  of  starting  is  to  be  fixed  up  in 
the  Coffee-room  immediately  afterwards. 

6.  The  Stewards  have  full  power  to  make  such  regulations 
as  they  may  think  proper  in  regard  to  the  Course  and  Exer- 
cising-ground. 

7.  All  disputes  relating  to  racing  at  Newmarket  shall  be 
determined  by  the  three  Stewards ;  if  only  two  Stewards  be 


MISCELLANEOUS.  573 

present  they  shall  fix  upon  a  third  person,  being  a  member  of 
the  Club,  in  lieu  of  the  absent  Steward,  but  the  Stewards,  if 
they  think  fit,  may  call  in  any  other  members  of  the  Jockey 
Club  to  their  assistance,  or  may  refer  the  case  to  a  general 
meeting,  if  the  importance  or  difficulty  of  the  matter  in  dis- 
pute shall  aj)pear  to  them  to  require  it.  The  witnesses  ex- 
amined shall  be  required  to  sign  their  evidence,  and  if  either 
party  desire  to  have  a  short-hand  writer  engaged  to  take  down 
the  evidence,  the  Stewards  may  (if  they  think  proper)  engage 
a  writer  at  the  exj)ense  of  the  person  making  the  request. 

8.  If  any  dispute  arising  elsewhere  shall  be  referred  to  the  may  decide 
Stewards  of  the  Jockey  Club,  and  they  shall  think  fit  to  take  cases  referred 
it  into  consideration,  the  matter  must  relate  to  horse-racing,  to  ^"ein  from 
and  be  sent  by  the  Stewards  of  the  Meeting  where  the  matter  °    ^^  ^  ^^^^ ' 
in  question  occurred. 

9.  The  Jockey  Club  and  the  Stewards  thereof  take  no  cog-  not  to  decide 
nizance  of  any  disputes  or  claims  with  respect  to  bets.  betting  cases : 

10.  The  Stewards  have  a  discretionary  power  to  warn  any  may  warn  off 
person  off  the  Eace-course  at  Newmarket,  or  any  premises  t^'^  Course : 
belonging  to  the  Jockey  Club,  and  in  case  of  such  notice  being 
disregarded,  to  take  legal  proceedings  against  the  offenders. 

1 1 .  All  meetings  of  the  Club  shaU  be  called  by  the  Stewards  to  call  Meet- 
at  their  discretion.     Notice  of  Meetings  at  Newmarket  for  the  ^^S^  of  t^e 
transaction  of  general  business,  and  the  days  upon  which  they  Club. 

are  to  be  held,  must  be  given  in  the  Sheet  Calendar  published 
during  the  previous  week. 

Meetings  for  the  election  of  candidates  for  the  New  Rooms 
and  Coffee  Eoom  may  be  called  by  a  notice  in  writing,  which 
must  be  put  up  in  the  Coffee  Eoom  the  day  preceding  such 
meeting. 

All  meetings  at  Newmarket  shall  be  held  about  an  hour 
after  the  last  race  of  the  day.  Special  meetings  for  the  elec- 
tion of  Honorary  Members  of  the  New  Eooms,  may  be  held, 
without  notice,  at  any  time  during  a  Newmarket  week. 

12.  If  a  member  of  the  Jockey  Club  shall  impugn  or  object 
to  any  act  or  decision  of  the  Stewards,  he  shall  give  notice  of 
it  in  writing  to  the  Keeper  of  the  Match-book,  who  will  im- 
mediately request  the  Stewards  to  fix  an  early  day  to  assemble 
the  members  for  the  purpose  of  hearing  the  objection. 

Upon  the  request  of  not  less  than  twenty  members  given  in 
writing  to  the  Keeper  of  the  Match-book,  the  Stewards  shall 
call  a  General  Meeting  of  the  Jockey  Club  in  London,  within 
twenty-eight  days  of  such  requisition  being  jDresented. 

13.  The  Stewards  of  the  Jockey  Club  are  ex  officio  Stewards  Act  atEpsom, 
of  Epsom,  Ascot,  and  Goodwood.  Ascot,  and 

Goodwood. 

Respecting  the  Admission  of  New  Members. 

14.  The  election  of  Members  for  the  Jockey  Club,  New  To  be  by 
Eooms,  and  Coffee  Eoom  shall  be  by  ballot.  Ballot. 


574 


APPENDIX. 


Ballots  may  take  place  during  any  of  the  Newmarket  Meet- 
ings, and  must  be  lield  at  a  Greueral  Meeting  of  tke  Club. 
Nine  Members  at  least  shall  ballot,  and  two  black  balls  shall 
exclude  ;  but  for  the  New  Kooms  and  Coffee  Room,  when 
eighteen  Members  vote,  there  must  bo  three  black  balls  to  ex- 
clude. 

The  number  of  Members  for  the  New  Eooms  are  limited  to 
280,  the  Stewards  having  the  power  to  propose  special  names 
for  election  to  exceed  that  number. 
For  the  15.  For  the  Jockey  Club,  each  candidate  must  be  proposed 

Jockey  Club,  jm^i  seconded  by  two  Members  of  the  Club.  Notice  of  his 
being  a  candidate  must  be  given  at  a  meeting  previous  to 
that  in  which  the  ballot  is  to  take  place,  or  in  the  Calendar 
published  during  the  week  preceding  the  ballot.  The  name 
of  the  candidate,  as  well  as  the  day  of  the  meeting,  must  be 
put  up  in  the  Coffee  Room  on  the  Monday  preceding  the  ballot. 
Members  of  the  Jockey  Club  being  abroad  for  two  or  more 
whole  years  from  the  1st  of  January,  shall  not  be  liable  for 
their  subscription  during  their  absence.  Honorary  Members 
have  not  the  power  of  voting  at  meetings  of  the  Club. 

16.  A  member  of  the  Jockey  Club  may  be  admitted  a 
Member  of  the  New  Eooms  without  ballot,  by  applying  to 
Mr.  AVeatherby,  Keeper  of  the  Match-book,  and  paying  the 
same  sum  for  his  admission,  and  the  same  subscrijption,  as 
are  required  of  Members  chosen  by  ballot. 

17.  For  the  New  Eooms  and  Coffee  Eoom  each  candidate 
must  be  proposed  and  seconded  by  a  Member  of  the  Jockey 
Club,  and  the  name  of  the  candidate,  with  his  usual  place  of 
abode,  as  well  as  the  name  of  the  Member  proposing  him, 
must  be  x^iit  up  in  the  Coffee  Eoom  on  the  dav  preceding  the 
Ballot. 

Honorary  Members  of  the  New  Eooms  are  elected  for  the 
current  year  only,  and  shall  not  he  liahle  for  amj  admission  fee, 
hut  for  tlic  suhscription  only  for  that  year. 

]\Ienihers   ahroad  from  the  1st  of  January   to  the  end  of  the 
year,    on  giving  notice,    shall  continue  to   he  Memhers  icithout 
paying  suhscription. 
Arrears  of  18.  A  person,  though  chosen,  shall  not  be  considered  as  a 

subscription.  Member  of  any  of  these  Clubs  until  he  shall  have  paid  the 
usual  sums  for  the  admission  and  subscription  of  a  new 
Member.  And  the  name  of  every  Member  whose  subscrij^tion 
shall  be  in  arrear  for  one  year  shall  be  placed  over  the 
chimney-piece  in  the  New  Eooms  and  in  the  Coffee  Eoom  at 
Newmarket,  in  the  Craven  Meeting  in  each  year.  And  if 
such  arrear  be  not  paid  at  the  end  of  the  following  Spring 
Meetings,  he  shall  cease  to  be  a  Member,  and  shall  not  be 
again  admitted  as  a  Member  until  his  arrears  bo  paid,  and 
until  he  be  again  chosen  by  ballot. 

If  any  Member  of  the  Eooms  or  Stands   at  Newmarket 


For  the  New 
Eooms  aud 
Coffee -room. 


MISCELLANEOUS.  575 

sliall  leave  his  bill  for  liouseliold  expenses  unpaid  two  months 
after  tlie  same  sliall  have  been  delivered  to  him,  the  Keeper 
of  the  Rooms  is  to  report  his  default  to  the  Stewards,  who 
will  cause  notice  to  be  sent  to  him,  that  if  it  be  not  cleared  by 
a  time  to  bo  mentioned  in  the  said  notice  (not  to  exceed  three 
months),  his  name  will  bo  erased  from  the  list  of  Members, 
and  he  will  be  warned  off  the  Heath. 

19.  Gentlemen  not  Members  of  the  New  Eooms  or  Coffee  Admission  to 
Room  may  be  admitted  to  the  Stands  on  Newmarket  Heath,  the  Stands. 
for  any  one  meeting  on  the  nomination  of  the  Stewards,  pro- 
vided that  they  be  ballotted  for  in  the  same  manner  as  the 
Members  of  the  New  Eooms  at  the  next  ensuing  meeting  of 

the  Club. 

20.  If  any  Member  of  the  Jockey  Club,  or  of  the  New 
Kooms  or  Coffee  Eoom  at  Newmarket,  should  appear  in  the 
published  Forfeit  List  as  a  defaulter  for  stakes  or  forfeits,  or 
be  reported  by  the  Committee  of  the  Subscription  Eooms  at 
Newmarket  or  at  Messrs.  Tattersall's,  as  being  a  defaulter  for 
bets  lost  on  horse  racing,  the  Stewards  shall  cause  notice  to 
be  sent  to  him  that  if  his  default  be  not  cleared  by  a  time  to 
be  stated  in  the  said  notice  (not  to  exceed  three  months)  his 
name  will  be  erased  from  the  list  of  Members  ;  and  if  a  Member 
of  any  of  these  Clubs  should  be  convicted  of  fraudulent  prac- 
tices on  the  Turf,  or  should  compound  with  his  creditors,  ho 
shall  cease  to  be  a  Member. 

Trials. 

21.  The  day,  with  respect  to  the  engaging  of  the  ground  How  to  en - 
for  trials,  is  divided  into  five  periods,  from  the  first  day  of  S^°^  ^^^ 
the  Craven  Meeting  to  the  last  day  of  the  Houghton  Meet-  S"^^"^"^' 
ing,  viz.,  from  five  to  seven  o'clock,  and  from  seven  to  eight 

in  the  morning  ;  from  one  to  half-past  two,  from  half-past 
two  till  four,  and  from  four  till  five  in  the  afternoon.  During 
the  rest  of  the  year  it  is  divided  into  three  periods — viz., 
previous  to  nine  in  the  morning,  from  one  to  half -past  three, 
and  after  half -past  three  in  the  afternoon. 

No  trainer  shall  have  the  ground  for  trying  horses  more 
than  one  portion  of  the  morning  and  one  portion  of  the  after- 
noon in  the  same  week,  and  trainers  having  less  than  ten 
horses  shall  be  allowed  to  have  the  ground  only  for  one  period 
of  time.  A  trainer  not  having  more  than  five  horses  in  train- 
ing can  only  have  his  name  down  once  at  the  same  time ; 
a  trainer  not  having  more  than  ten  horses  only  twice ;  and  a 
trainer  with  more  than  ten  only  three  times. 

Notice  for  engaging  the  ground  shall,  at  least  one  day 
before  the  day  it  is  used,  be  entered  in  a  book  to  be  kept  for 
that  purpose  at  the  Keeper  of  the  Match-book's  Ofiice  in  New- 
market. And  no  notice  or  warning  shall  be  deemed  sufficient 
unless  given  as  before  directed. 


676  APPENDIX. 

For  the  future  tlie  ground  will  be  kept  clear  during  trials  by 
a  person  appointed  by  the  Stewards,  unless  he  is  requested  to 
retire  by  the  owner  or  trainer  of  the  horses  being  tried. 

The  Challenge  Cup  and  Whiji. 

The  Cup.  22.  The  Cup  may  be  challenged   for  on   the  Tuesday  or 

AVednesday  in  the  July  Meeting  in  each  year,  to  be  run  for 
over  the  B.C.  on  Thursday  in  the  Houghton  Meeting  follow- 
ing, by  horses,  &c.,  the  property  of  Members  of  the  Jockey 
Club  or  of  the  rooms  at  Newmarket ;  four  years  old  carrying 
8st.  71b.  five  years  old,  9st.  1  lb.  six  years  old  and  aged,  9st.  41b. 
Each  person,  at  the  time  of  challenging,  is  to  subscribe  his 
name  to  a  paper  to  be  hung  up  in  the  Coffee-room  at  New- 
market, and  deliver  to  the  Keeper  of  the  Match-book  the 
name  or  description  of  the  horse,  &c.  sealed  up,  which  shall 
be  kept  till  six  o'clock  on  the  Saturday  evening  of  that  week ; 
and  if  not  accepted,  or  only  one  challenger,  to  be  returned 
unopened  ;  but  if  accepted,  or  if  more  than  one  challenger,  to 
be  then  opened  and  declared  a  match,  or  sweepstakes  of  200 
sov.  each,  play  or  pay.  If  the  challenge  be  not  accepted,  the 
Cup  to  be  delivered  to  the  Keeper  of  the  Match-book  in  the 
Meeting  ensuing  the  challenge,  for  the  person  who  may 
become  entitled  to  the  same. 

The  Whip.  23.  The  Whip  maybe  challenged  for  twice  in  each  year, 

viz.  :  on  the  Tuesday  after  the  July  Meeting,  when  the  ac- 
ceptance must  be  signified  or  the  Whip  resigned  on  the 
Tuesday  following,  or  challenged  for  on  Monday  or  Tuesday 
in  the  Second  October  Meeting,  when  the  acceptance  must  be 
signified,  or  the  Whip  resigned,  before  the  end  of  the  same 
meeting.  If  challenged  for  and  accepted  in  July,  to  be  run 
for  on  the  Friday  in  the  Second  October  Meeting  following ; 
and  if  in  the  October,  on  the  Thursday  in  the  First  Spring 
Meeting  following;  B.C.  weight  lOst.,  and  to  stake  200  sov. 
each,  play  or  pay. 

Charges  at  Newmarket. 

Discount  on  24.  Five  poixnds  per  cent,  shall  be  allowed  on  all  forfeits 

Forfeits.  under  100^.  and  not  less  than  20/.  declared  to  the  Keeper  of 

the  Match-book,  at  or  before  ten  o'clock  the  evening  before 
running;  and  if  the  forfeit  amount  to  lOOZ.  and  upwards, 
10/.  per  cent,  shall  be  allowed.  All  forfeits  shall  be  paid  before 
twelve  o'clock  at  night  of  the  day  fixed  for  the  race,  and  on 
those  forfeits  which  shall  not  be  so  paid,  the  deduction  for  the 
timely  declaration  of  such  forfeit  shall  not  be  allowed. 

No  horse  shall  be  considered  as  struck  out  of  his  engage- 
ment, unless  the  owner,  or  some  person  authorized  by  him, 
shall  give  notice  to  the  Keeper  of  the  Match-book,  or  to  his 
clerk,  or  to  one  of  the  Stewards  present. 


MISCELLANEOUS.  O/i 

2o.  The  Stakeholder  at  Newmarket  is  allowed  to  retain,  out  TheStake- 
of  the  stakes  in  his  hands,  the  following  fees  for  his  trouble,  bolder. 
viz. — 

For  every  match  one  pound. 

For  every  plate  one  pound. 
,  For  every  subscription  or  sweepstakes   where  the   lowest 
forfeit  amounts  to  20  sov.  i-  per  cent,  on  the  whole  stake,  and 
on  all  other  races  1  per  cent. 

[The  charges  for  stake-holding  at  Ascot  and  Groodwood  are 
the  same  as  at  Newmarket.] 

26.  The  Keeper  of  the  Match-book  is  entitled  to  charge  a  Fees  for 
fee  of  2s.  6f/.  on  all  nominations  at  Newmarket,  if  published  nominations. 
in  the  Racing  Calendar  before  running,  but  not  on  the  entries 

which  are  made  at  Newmarket  during  the  week  of  running. 

27.  Towards  defraying  the  expense  of  repairing  the  Course  Heath  tax. 
and  Exercise-ground,  five  guineas  annually  shall  be  paid  in 

respect  of  every  horse  that  shall  be  trained  at  Newmarket. 
Any  horse  remaining  at  Newmarket  more  than  a  week  before 
or  after  any  Race  meeting  there,  shall  be  considered  as  trained 
at  Newmarket,  and  his  trainer  shall  apply  for  a  licence  under 
Rule  28.  All  yearlings  broken  on  the  Heath  and  Exercise- 
ground  to  be  charged  two  guineas.  And  the  same  shall  be 
paid  by  the  stable-keeper  or  servant  ha\T.ng  the  care  of  such 
horse,  and  be  charged  by  hina  to  the  owner  of  such  horse.  The 
Stewards  shall  make  such  orders  as  they  think  fit  relative  to 
the  returns  to  be  made  by  the  stable-keepers  or  servants  of 
horses  under  their  care,  and  if  any  stable-keeper  or  servant 
shall  fail  to  make  a  true  return  according  to  this  order,  he 
will  be  surcharged  one  guinea  for  each  horse  omitted  in  his  list. 
N.B. — At  present  all  trainers  are  required  to  send  in  on  the 
1st  of  February,  a  list  of  the  horses  which  have  been  under 
their  charge  from  the  1st  of  January,  and  on  the  1st  of  every 
succeeding  month  a  list  of  any  additional  horses  that  have 
been  under  their  care  since  the  preceding  return. 

28.  Every  trainer  who  wishes  to  train  horses  on  the  lands  Licence  to 
belonging  to,  or  in  the  occupation  of,  the  Jockey  Club,  must  train  at  New- 
apply  annually  to  the  Stewards  for  a  licence,  and  on  making  '^'''•''^^*- 
such  application  must  specify  the  horses  then  under  his  charge, 

and  the  names  of  their  owners. 

A  trainer  shall  be  liable  to  have  his  licence  withdrawn  for 
breaking  the  rules  laid  down  by  the  Stewards  for  the  manage- 
ment of  the  ground,  or  for  any  misconduct  on  the  Turf, 
or  in  matters  connected  with  it,  and  the  prohibition  to  use 
the  lands  of  the  Jockey  Club  attached  to  the  refusal  or  with- 
drawal of  a  licence  shall  extend  to  the  Race  meetings. 

The  payment  of  Heath  Tax  shall  not  be  taken  to  confer  on 
the  person  paying  the  same  any  legal  rights  which  shall 
interfere  or  be  inconsistent  with  the  absolute  control  the  Club 
now  has  over  all  persons  using  or  going  on  to  their  grounds. 

o.  p  p 


578 


APPENDIX. 


Plates  and 
Sweepstakes 
walked  over 
for. 


Races  for 

Gentlemen 

Riders. 


Raising 
weights  in 
handicaps. 


Should  the  Stewards  find  it  necessary  to  refuse  or  withdraw 
a  licence  from  any  trainer,  they  will  report  that  they  have 
done  so  at  the  next  General  Meeting  of  the  Club. 

29.  When  fewer  than  three  horses,  the  property  of  persons 
having  different  interests,  start  for  any  plate  or  race  in  which 
money  is  advertised  to  be  given  by  the  Club,  only  half  the 
amount  shall  be  paid,  and  in  case  of  a  walk-over  for  a  Sweep- 
stakes, no  money  shall  be  given. 

Relating  to  other  matters  not  before  specified. 

30.  No  races  for  gentlemen  riders  are  allowed  at  New- 
market during  the  regular  meetings  without  the  sanction  of 
the  Stewards,  and,  that  accorded,  such  races  must  be  the  first 
or  last  of  the  day. 

31.  Any  member  of  a  Racing  Club  riding  in  with  the  lead- 
ing horses  in  a  race  shall  be  fined  to  the  amount  of  25/.,  and 
all  other  persons  to  the  amount  of  bl. 

32.  Rule  10  (ii.)  of  the  Rules  of  Racing,  extends  at  New- 
market to  the  highest  weight  left  in  at  ten  o'clock  the  pre- 
ceding evening  in  liandicaps  for  plates  and  stakes,  where 
there  is  no  declaration  of  forfeit,  and  where  the  weights  are 
fi:sed  the  night  before  running. 

33.  No  rule  or  alteration  of  a  rule  of  the  Jockey  Club  takes 
effect  until  it  has  been  published  in  the  Racing  Calendar, 
unless  specially  ordered  to  the  contrary  at  the  time  the  said 
rule  or  alteration  is  adopted ;  and  no  new  rule  of  the  Jockey 
Club  can  be  passed,  and  no  rule  be  rescinded  without  previous 
notice  being  given  in  the  Sheet  Racing  Calendar,  except  ichen 
it  relates  to  the  private  business  of  the  Club,  ivhen  notice  shall  be 
sent  by  circular  to  all  the  meinbers  in  the  iveek  pireceding  the 
meeting^  nor  at  any  meeting  at  which  less  than  nine  members 
are  present. 


POST  HORSES. 

The  acts  of  parliament  as  to  Stage  Coaches  and  Post 
Horses  are  2  &  3  WiU.  4,  c.  120 ;  3  &  4  Will.  4.  c.  48  ;  5  &  6 
Vict.  0.  79  ;  and  32  &  33  Yict.  c.  14.  The  acts  of  parliament 
regulating  Hackney  Coaches,  Omnibuses,  Carts,  Waggons, 
Drays,  and  Public  Carriages  in  or  near  London,  are  1  &  2 
Will.  4,  c.  22  ;  6  &  7  Yict.  c.  86 ;  13  &  14  Vict.  c.  7  ;  16  &  17 
Vict.  c.  33 ;  16  &  17  Vict.  c.  127  ;  30  &  31  Vict.  c.  134  ;  32  & 
33  Vict.  c.  115  ;  and  the  Police  of  Towns  Clauses  Act  (10  &  11 
Vict.  c.  89).  The  32  &  33  Viet.  c.  14,  s.  17,  repeals  the 
Excise  duties  upon  licences  to  let  Horses  for  hire  and  to  keep 
Haoknev  and  Stas-e  Can-iases. 


MISCELLANEOUS,  0  / 1 

SLAUGHTEEING  HOESES. 

Eegulations  as  to  tlie  Sluugliteriug-  of  Horses,  &c.,  are  con- 
tained in  26  Geo.  3,  c.  71 ;  and  7  &  8  Yict.  c.  87  ;  and  are  to 
be  found  in  Burn's  Justice  (a),  under  tlie  head  "  Horses  and 
Horse  Eacing." 

— ♦ — 


Aldeidge's,  Uppeb  St.  Maeti>''s  Lane,  London,  Public  Sales 
BY  Auction  of  Horses  and  Careiages,  &c. 

CONDITIONS  OE  SALE. 

1 .  The  highest  bidder  to  be  the  buyer,  and  if  any  disjmte 
arise  between  two  or  more  bidders  respecting  any  Lot,  before 
the  same  is  returned  into  the  Stable,  or  place  of  such  Lot,  it 
may  be  immediately  put  up  again  for  sale,  or  the  Auctioneer 
may  declare  which  bidder  he  thinks  proper  to  be  the  Pur- 
chaser. 

2.  No  person  to  advance  less  than  Five  Shillings  above  One 
Pound ;  Ten  Shillings  and  Sixpence  above  Ten  Pounds ;  and 
One  Guinea  after  Twenty  Guineas,  and  so  on  in  proportion. 

3.  Buyers  are  to  state  their  names  and  places  of  abode,  and 
pay  a  deposit  of  25  per  cent,  on  each  Lot  at  the  time  of 
purchase,  and  the  remainder  of  the  purchase-money  on  the 
day  of  sale  and  before  delivery  of  the  Lot ;  and  in  case  of 
non-payment  the  Seller  may  either  rescind  the  contract,  in 
which  case  the  deposit  will  be  forfeited,  or  resell  the  Lot  by 
Public  Auction  on  the  Buyer's  behalf  with  or  without  notice 
to  him,  in  which  case  the  Buyer  will  be  liable  to  pay  to  the 
Seller  the  difference  (if  any)  between  the  sum  agreed  to  be 
paid  by  him  for  the  Lot  and  the  amount  realized  by  such 
resale,  also  the  commission  on  the  resale,  the  keep  of  the  Lot, 
and  all  other  charges  whatever,  deducting  the  deposit. 

4.  Any  Horse  sold  at  this  Establishment  with  a  warranty, 
must,  in  case  the  Buyer  contend  that  it  does  not  correspond 
with  such  warranty,  be  retiu-ned  before  Five  o'clock  p.m.  on 
the  second  day  after  the  Sale  (Sunday  excluded),  otherwise  it 
shall  be  deemed  and  taken  to  be  in  all  respects  as  warranted 
as  between  all  persons,  and  the  non-return  within  the  time 
limited  shall  be  a  bar  to  any  claim  on  account  of  any  breach 
of  warranty,  and  the  Buyer  shall  be  bound  to  keep  and  pa}'' 
for  the  Horse  whether  it  be  or  be  not  according  to  the  warranty. 

5.  Should  a  horse,  warranted  quiet  in  harness  or  to  ride,  bo 
returned,  it  shall  be  tried  by  an  impartial  person  to  be  named 
by  the  Proprietors  of  this  Establishment,  whose  decision  shall 
be  final  and  conclusive  upon  all  persons,  and  a  fee  of  Ten 
Shillings  for  the  ti-ial  shall  be  paid  by  the  party  in  error. 

6.  Should  any  horse,  sold  here,  warranted  to  ride  or  draw, 
be  considered  by  the  Buyer  to  be  incapable  of  working,  from 

(17)  Bum's  .Tustice,  vol.  ii.  p.  lool. 

V  r  2 


580  APPENDIX. 

any  infirmity  or  disease,  it  may  be  returned  here  before  Five 
o'clock  on  the  second  day  after  the  Sale,  with  a  certificate 
from  a  Veterinary  Surgeon  to  that  effect ;  if  not  so  returned 
with  such  certificate  it  shall  be  taken  not  to  have  been  retiu'ned 
within  the  meaning  of  the  4th  Condition  ;  and  if  such  certifi- 
cate be  not  confirmed  by  another,  to  be  furnished  by  the 
Yendor  within  two  days,  or  in  case  the  Vendor  shall  neglect 
or  refuse  to  furnish  such  certificate,  the  Auctioneer  shall  im- 
mediately appoint  a  Veterinary  Surgeon,  whose  decision  shall 
be  final  and  binding,  and  the  whole  expense  must  be  paid  by 
the  party  in  error. 

7.  No  horse  considered  to  be  aft'ected  with  Glanders,  Mange, 
or  other  infectious  or  contagious  disorder,  must,  under  any 
circumstances,  be  returned  in  accordance  with  the  4th  Condi- 
tion, but  in  lieu  of  such  return  a  notice  in  writing  of  the  fact 
of  the  Horse  being  so  affected,  and  of  the  place  where  it 
stands,  must  be  given  at  this  establishment  within  the  time 
mentioned  in  that  condition,  accompanied  with  the  certificate 
of  a  Vetei-inary  Surgeon  that  the  Horse  is  so  affected ;  and  in 
case  of  omission  to  give  such  notice,  accompanied  by  such 
certificate  within  such  time,  the  said  Horse  shall  be  deemed 
and  taken  to  be  as  between  all  persons  not  affected  with  any 
such  disorder,  and  such  omission  shall  be  a  bar  to  any  claim 
on  account  of  the  said  Horse  being  so  affected,  and  the  Buyer 
shall  be  bound  to  keep  and  pay  for  the  same  whether  it  be  or 
be  not  so  affected. 

8.  If  such  notice  from  the  Buyer,  accompanied  by  a  certifi- 
cate be  given,  the  Vendor  will  immediately  be  required  to 
procure  a  certificate  from  his  Veterinary  Surgeon  ;  and  in  case 
of  non-agreement  of  these  two  opinions,  or  in  case  the  Vendor 
neglect  or  refuse  to  furnish  a  certificate  within  two  days  after 
his  receiving  the  notice,  then  the  Auctioneer  shall  appoint  a 
Veterinary  Surgeon,  whose  decision  shall  be  final  and  binding 
upon  all  parties,  and  all  expenses  must  be  paid  by  the  party 
in  error. 

9.  The  seller  shall  in  no  case  be  entitled  to  receive  payment 
of  any  money  before  it  has  been  received  from  the  Buyer ; 
but  if  received  he  shall  be  entitled  to  the  net  proceeds  of  the 
property  sold  at  the  Wednesday's  sale,  on  the  following  Mon- 
day, and  on  property  sold  on  Saturdays,  on  the  following 
Thursday,  between  Ten  and  Four  o'clock. 

10.  A  right  is  reserved  to  the  Vendor  of  any  Horse,  Car- 
riage, or  other  property  sent  to  or  left  at  this  Establishment, 
to  bid  by  or  through  the  Auctioneer,  and  unless  such  property 
is  protected  by  a  written  reserve,  it  shall  be  considered  to  have 
been  sent  or  left  for  the  purpose  of  Sale  by  Auction,  and  may 
be  sold  by  Public  Auction  without  reserve,  at  the  next  Sale 
day  after  it  shall  have  been  sent  in,  or  if  any  Horse,  Carriage, 
or  other  property,  protected  by  a  written  reserve,  be  not  sold 
or  removed  within  one  month  from  the  date  of  such  reserve, 


MISCELLANEOUS.  581 

the  same  may  be  sold  by  Public  Auction  witbout  reserve,  at 
the  next  Sale  clay,  with  or  without  notice  to  the  owner,  who 
may  receive  the  net  proceeds  of  such  Sale  on  either  of  the 
days  as  above. 

11.  The  Commission  on  all  Sales  is  five  percent.,  except 
for  Dogs  which  is  ten  per  cent.,  and  the  same  will  be  charged 
on  any  Lots  returned  as  not  answering  warranty,  but  there 
shall  not  be  a  less  charge  than  Five  Shillings  for  any  Horse 
or  Carriage  sold.  An  Auction  fee  of  Pive  Shillings  is  charged 
on  each  Horse,  Five  Shillings  on  each  Carriage,  Two  Shillings 
and  Sixpence  on  Harness  or  Saddle  and  Bridle,  and  Ten 
Shillings  on  each  Dog  entered  on  the  Books,  whether  the  Lots 
be  put  up  for  Sale  or  not. 

3s.  6d.  is  charged  for  the  keep  of  each  Horse  per  Day  and 
Night,  6d.  for  Ostlers,  and  if  sold  Is.  6d.  for  Halter, 
Dog's  keep,  6r/.  each  per  Day  and  Night,  Collar  and 
Chain  Is.  6d.  each,  unless  supplied  by  Vendor. 

5s.  is  charged  per  Week  for  the  standing  of  four-wheel 
Carriages  ;  and  3s.  per  Week  for  the  standing  of  two- 
wheel  Carriages,  and  Is.  for  washing. 

12.  The  above  Conditions  apply  to  all  Horses,  Carriages, 
&c.,  brought  to  this  Eepository  for  Sale,  whether  they  be  sold 
by  Auction,  or  privately  by  the  owner,  or  by  any  person 
employed  by  him. 

13.  No  Horses,  Carriages,  &c.,  shall  be  taken  away  until 
all  expenses  are  paid. 

Lastly.  The  name,  description  and  addi-ess  given  by  the 
Vendor  will  in  all  cases  be  furnished  to  a  Purchaser  if  requested; 
and  in  case  of  dispute  the  remedy  of  the  Buyer  shall  be 
against  such  Vendor  only,  and  in  no  case  or  imder  any  cir- 
cumstances against  the  Auctioneer  or  Proprietors  of  this 
Establishment,  who  are  to  be  regarded  to  all  intents  and 
purposes  as  agents  for  a  disclosed  principal. 

Willia:m  &  Stewart  Freeman,  Proprietors. 


Albert  Gate,  Hyde  Park,  October  23rd,  1780. 

CONDITIONS  OF  EVEEY  SALE  BY  AUCTION  AND 
PEIVATE  CONTEACT  AT  THIS  PLACE. 

1st.  The  highest  Bidder  to  be  the  Buyer  ;  and  if  any  Dispute 
arise  between  any  Two  or  more  Bidders,  the  Lot  so  disputed 
shall  be  immediately  put  up  again  and  re-sold. 

2nd.  No  person  to  advance  less  than  Five  Shillings  ; 
above  Ten  Pounds,  Ten  Shillings,  and  so  on  in  proportion. 

3rd.  The  Purchasers  to  give  in  their  Names  and  Places  of 
Abode  (if  required)  and  to  pay  down  Five  Shillings  in  the 
Pound  (if  required)  as  Earnest  and  in  part  of  Payment ;  in 
Default  of  which,  the  Lot  so  purchased  may  be  immediately 
put  up  again  and  re-sold  if  the  Auctioneer  shall  think  fit. 


582  APPENDIX. 

4tli.  The  Lots  to  be  taken  away  within  One  Bay  after  tlie 
Sale  is  ended,  at  the  Buyer's  Expense,  and  the  remainder  of 
the  Purchase-money  to  be  absolutely  paid  before  the  delivery 
of  the  Lot. 

5th.  Upon  failure  of  complying  with  the  above  Conditions, 
the  Money  deposited  in  part  of  Payment  shall  be  forfeited  to 
the  Owner  of  the  Lot,  he  paying  thereout  all  just  Expenses, 
and  the  Lot  shall  be  re-sold  by  public  or  private  Sale,  and  the 
Deficiency  (if  any)  attending  such  Re-sale  shall  be  imme- 
diately made  good  by  the  Defaulter  at  this  Sale. 

6th.  If  any  Person  shall  purchase  a  Lot,  and  not  pay  for  it 
within  the  Time  limited  by  the  4th  Condition,  nothing  con- 
tained in  the  oth  Condition  shall  prevent  the  Auctioneer,  or 
Owner  of  the  Lot,  from  compelling  the  Purchaser  to  pay  for 
it,  if  the  Auctioneer  or  Seller  shall  so  think  fit. 

7th.  The  Vendor  shall  be  entitled  to  receive  the  Purchase- 
money  of  each  Lot  not  warranted  on  the  third  Day  from  the 
Sale  Day ;  and  all  Horses  sold  with  a  warranty  of  any  descrip- 
tion on  Monday  will  be  paid  for  on  Friday :  and  all  Horses 
sold  with  a  warranty  of  any  description  on  Thursday  will  be 
paid  for  on  Tuesday,  provided  that  the  Auctioneer  shall  then 
have  received  the  Purchase-money,  or  delivered  the  Lot  out  of 
his  Custodj^  but  not  before. 

8tli.  The  Purchaser  of  any  Lot  warranted  in  any  way,  and 
not  answering  the  warranty  given,  must  return  the  same  on 
or  before  the  Evening  of  the  second  Day  from  the  Sale,  other- 
wise the  Purchaser  shall  be  obliged  to  keep  the  Lot  with  all 
faults. 

Oth.  All  Horses,  Carriages,  &c.,  brought  to  this  Repository 
for  Sale,  and  sold  or  advertised  to  be  sold  by  Private  Contract, 
either  by  Messrs.  Tattersall,  the  Owner,  or  any  one  acting  as 
Agent  for  the  Owner  of  such  Horses,  Carriages,  &c.,  shall  pay 
the  usual  Commission ;  and  no  Person  shall  take  away  his 
Horses,  Carriages,  &c.,  until  the  Commission,  Keej)  and  other 
Expenses  are  paid,  whether  the  same  have  been  sold  by 
Public  Auction  or  Private  Contract,  &c.,  or  are  not  sold. 

10th.  All  Horses,  Carriages,  &c.,  advertised  by  Messrs. 
Tattersall  (though  not  upon  the  Premises  at  the  time  of  Sale, 
either  by  Private  Contract  or  Public  Auction)  shall  pay  the 
usual  Commission. 

Lastly.  The  Conditions  of  Sale  are  : 

K  sold  by  Public  Auction,  One  Shilling  in  the  Pound ; 
If  by  Private  Contract,  One  Shilling  in  the  Pound ;  and 
If  not  sold,  2h  per  cent,  on  the  reserve  price  up  to  200 

guineas. 
No  Lot  will  be  offered  for  less  than  Five  Shillings. 

The  Days  of  Pajonent  are,  for  UnAvarranted  Horses  sold  ou 
Mondays,  Wednesdays ;  for  Warranted  Horses,  Fridays  only, 
between  the  Hours  of  Ten  and  Four  o'clock. 

N.B. — Xo  Money  paid  without  a  written  Order. 


INDEX. 


ACCEPTANCE  AND  RECEIPT. 

In  what  they  consist,  7. 

Must  be  of  the  goods  "so  sold,"  id. 

General  Eule,  id. 

Acceptance  and  actual  receipt  before  delivery,  8,  10. 

Where  an  article  is  selected,  8. 

Question  for  the  Jviry,  9. 

What  should  be  left  to  them,  id. 

Constructive  possession  by  vendee,  id. 

Must  divest  vendor  of  his  lien,  10. 

Seller  may  become  agent  for  buyer,  id. 

Question  for  Jury  in  such  case,  id. 

What  has  been  held  sufficient  as  an  acceptance  and  re- 
ceipt, id. 

Buyer  directing  expense  to  be  incurred,  11. 

^Vhat  has  been  held  insufficient,  id. 

Various  acts  of  ownership,  12. 

A  ready-money  transaction,  id. 

Criterion  for  determining  whether  goods  are  accepted  or 
not,  13. 

Conduct  of  buyer,  id. 

If  more  used  than  necessary  to  test  them,  id. 

"Where  buyer  offers  to  resell,  id. 

Where  goods  are  agreed  to  be  resold,  id. 

Goods  bought  out  of  a  larger  bulk,  id. 

Purchaser  must  have  exercised  his  option,  14. 

He  must  object  within  a  reasonable  time,  id. 

Goods  sold  by  sample,  id. 

More  articles  sent  than  ordered,  id. 

Acts  must  be  unequivocal,  15. 

Acceptance  of  delivery  order  insufficient  without  attorn- 
ment, id. 

ACCIDENT. 

Unsoundness  caused  by  it,  73. 
To  Hired  Horse  or  Carriage,  251. 
To  Horse  in  Eailway  Yard,  284. 
Pony  and  carriage  running  away,  322. 
Horse  running  away,  324. 
From  the  sudden  fright  of  a  Horse,  323,  324. 
Collision  in  the  dark,  322. 

Accident  itself  sometimes  prima  facie  proof  of  negligence, 
327. 


584:  INDEX. 

ACCIDENTAL  DEATH.     See  Negligent  Drivikg. 

ACCOUNT  STATED. 
Proof  of,  186. 

ACE  OF  HEAETS. 

An  illegal  gam.e,  434. 
Penalty  for  setting  up,  458. 

ACTS  OF  OWNEESHIP. 

Not  necessarily  proof  of  acceptance,  12. 
Which  destroy  the  right  to  return  goods  delivered  on  exe- 
cutory contracts,  107. 

ACUTE  DISEASES,  74. 

ADDRESS. 

Giving  one  after  an  accident,  340. 
Promising  to  pay  for  damage,  ul. 
Giving  false  address  or  name  in  Gaming  House,  462. 

ADVERTISING. 

Effect  of,  by  auctioneer,  48. 

Lotteries,  385. 

Betting  Houses,  386,  454. 

AFFIRMATION. 

When  it  amounts  to  a  warranty,  138. 

AGENT. 

Signature  by  Agent  under  Statute  of  Frauds,  26. 

who  may  be  an  Agent,  27. 

How  constituted,  'id. 

Need  not  be  authorized  in  writing,  id. 

Auctioneer,  Agent  of  both  jiarties,  27,  39. 

Except  when  he  sues  as  a  contracting  party,  27,  43. 

Auctioneer's  Clerk,  Agent  at  an  Auction,  id. 

Writing  off  debt  duo  from  Agent  by  Agent,  34. 

Money  coming  to  Agent  by  fraud  of  Princijjal,  53. 

Agent  not  declaring  himself  to  be  so,  54. 

Cannot  delegate  his  authority,  123. 

Nor  exceed  it,  124. 

Agency  determines  by  Principal's  death,  id. 

Difference  between  remunerated  and  unremunerated  Agent, 

id. 
Acting  without  proper  authority,  id. 
His  personal  responsibility,  id. 
Where  he  cannot  be  sued  on  the  contract,  id. 
But  is  liable  in  damages,  125. 
Principal  answerable  for  his  fraud,  id. 
Misrepresentation  by,  collateral  to  contract,  id. 
Damage  caused  by  his  negligence,  id. 
Undisclosed  principal,  id. 

Person  described  as  Agent  maybe  proved  to  be  Principal,  126. 
Principal  cannot  be  proved  to  be  Agent,  127. 
Their  respective  rights  of  action  on  a  contract,  id. 
Warranty  by  Servant  as  special  Agent,  id. 
Does  a\ithority  to  sell  imply  authority  to  warrant,  128. 


INDEX.  585 

AGE1<!T— (continued). 

Warranty  by  a  Servant  as  general  Agent,  128. 
Warranty  by  a  Servant  after  sale,  130. 
Warranty  by  a  Servant  forbid  to  give  one,  id. 
Warranty  by  a  Stranger  forbid  to  give  one,  131. 
Master  unwilUng  to  stand  by  his  Servant's  Warranty,  id. 
Rule  as  to  Servant  binding  his  Master,  132. 
Warranty  by  a  person  entrusted  to  deliver,  id. 
Agent  employed  to  take  a  Warranty,  id. 
Action  against  a  pretended  Agent,  id. 
Effect  of  signature  by,  273. 
Betting  Agent,  422,  427. 
And  see  Servakt. 

AGISTEE. 

His  possession,  240. 

Does  not  insure  a  Horse's  safety,  id. 

He  is  answerable  for  negligence,  id. 

If  he  leaves  his  gates  open,  241. 

Fences  out  of  order,  &c.,  id. 
Injury  by  another  Horse,  id. 
The  Horse's  condition,  242. 
Eatage  let  for  a  certain  time,  id. 
Agister  has  no  lien,  id. 
May  have  a  lien  by  agreement,  243. 
Horses  and  cattle  being  agisted  are  distrainable,  244. 

But  not  when  taken  in  to  rest  for  a  night,  id. 

Decision  of  the  Irish  Court  of  Queen's  Bench,  id. 

Distinction  where  cattle  enter  by  breaking  fences,  id. 

AGEEEMENT.    See  Note  or  Memorandum. 
Unstamped,  admissible  to  prove  fraud,  160. 
By  a  jobmaster,  254. 
By  a  hirer,  257. 

AGREEMENT  STAMP. 

Written  warranty  does  not  require,  189. 

ALDRIDGE'S. 

Proprietor  of,  a  Horse-dealer,  39. 
Conditions  of  sale  used  there,  579. 

ALTERNATIVE  RATES,  281.    See  Carrying  Horses. 

AMENDI^IENT. 

In  statement  of  consideration,  181. 

Power  of,  extended,  181,  n. 

In  statement  of  fraudulent  representation,  183. 

ANNE. 

Reign  of,  377. 

Statutes.    See  Table  of  Statutes. 

ANNUITY. 

To  keep  a  favourite  Mare,  465. 

ANTICOE,  80. 


58()  INDEX. 

APPRENTICE. 
Gaining,  430. 

ARBITEATION. 

Of  the  Jockey  Club,  410. 

AEEOWS. 

Penalty  for  lacking,  repealed,  384. 

ARTICLES. 

For  Queen's  Plate,  548. 

ARTIFICE. 

To  conceal  faults,  156 — 158. 

ART  UNIONS. 

Acts  to  legalize,  385. 
May  obtain  charters,  438. 

ASSISTANCE. 

To  enter  a  Betting-bouse,  455. 
Or  Gaming-bouse,  459. 

ATHELSTAN. 
Reign  of,  369. 

ATTORNMENT. 

Necessary  to  make  receipt  of  deHvory  order  an  acceptance, 
15. 

AUCTIONS  AND  REPOSITORIES. 

Deposit  at  an  auction  is  part  payment,  16.  • 

An  auctioneer,  39. 

Liable  to  an  action  for  negligence,  id. 

Or  for  conversion,  40. 

Selling  Horses  comprised  in  bill  of  sale,  41. 

Horse  sent  to  a  Repository,  id. 

Auctioneer's  possession,  id. 

An  auctioneer  can  set  up  Jus  tertii,  42. 

Interpleader  by  auctioneer,  id. 

Goods  privileged  from  distress,  id. 

His  right  to  remain  on  the  premises,  43. 

Auctioneer  or  clerk  agent  of  both  parties,  id. 

Purchaser's  name  signed  to  a  catalogue,  18,  43. 

Printed  particulars  of  sale,  44. 

An  incorrect  catalogue,  id. 

A  limited  warranty,  id. 

Where  it  applies  only  to  soundness,  45. 

Trial  of  a  Horse  warranted  quiet  in  harness,  46. 

Notice  of  the  conditions  of  sale,  id. 

Notice  of  particulars,  47. 

Where  a  bidder  may  retract,  id. 

Sale  "  without  reserve,"  id. 

Effect  of  advertisement,  48, 

Warranty  of  ownership,  id. 

Auctioneer  not  disclosing  his  principal,  49. 

Liability  for  non- delivery,  id. 

Puffing,  id. 


I 


INDEX.  587 

AUCTIONS  AND  REPOSITOEIES— (coH^inMccZ). 
Person  employed  to  bid,  50. 
Effect  of  previous  private  warranty,  51. 
Agreement  not  to  bid  against  each  other,  id. 
Mock  auctions,  id. 

Purchaser  may  transfer  his  bargain,  id. 
Where  party  refuses  to  take  goods,  id. 
Goods  resold  without  communicating  with  purchaser,  52. 
Auctioneer  proper  party  to  receive  the  price,  id. 
Has  no  authority  to  receive  a  bill  of  exchange,  id. . 
He  is  stakeholder  for  both  parties,  id. 
Effect  of  this  attribute,  id. 
As  to  interest,  53. 
Auctioneer's  lien,  id. 
When  the  Price  vests  in  the  vendor,  id. 
Price  obtained  by  principal's  fraud,  id. 
Agent  not  declaring  himself  to  be  so,  54. 
Auctioneei''s  commission,  id. 

Entitled  to  commission  though  no  sale  by  auction,  id. 
Misrepresentation  made  before  sale  by  auction,  153. 

B. 
BACK-GAMMON. 

A  lawful  game,  433. 

BACK  SINEWS.    See  Splint  and  Thickening  of  the  Back 

Sinews. 

BACKING  AND  GIBBING,  75. 
BAGATELLE.    See  Billiards. 

BAILEE. 

Vendor  may  become,  8. 

Setting  up  title  of  bailor,  evidence  of  conversion,  66. 

Innkeeper  may  become,  220. 

Fraudulent  appropriation  by,  Larceny,  251. 

A  gratuitous  Bailee,  260. 

Negligence  of  a  Bailee,  id. 

Of  a  gratuitous  Bailee,  id. 

BAILIFFS,  459. 

BAILMENT.    See  Borrowing  Horses  and  Bailee. 

BALLOT  IN  LAND  SOCIETIES,  439,  and  sec  Lotteries. 

BALLS. 

Evidence  of  a  Gaming-house,  461. 
May  be  taken,  460. 
May  be  destroyed,  id. 

BANK  NOTES.    And  see  Wagers. 
Forged,  34. 

Single  Halves  of,  no  payment,  id. 
Taking  stolen  notes,  in  jDayment,  426. 
Taking  stopped  note,  id. 
What  invalidates  holder's  right,  id. 
Mala  fides  must  be  proved,  id. 


588  INDEX. 

BANKEK, 

At  a    Gaming-liouse,    460,  462.     And    see    Games    and 
Gaming. 

BANKRUPT, 

Where  goods  are  sold  on  credit,  32. 
Gaming  losses,  431. 

BARGAIN. 

Implied  in  contract  of  Sale,  3. 

Striking  a  Bargain,  5. 

Bargain  wlien  struck,  id. 

Where  neither  party  can  be  off,  id. 

Striking  off  a  Bargain,  16. 

Bound  by  an  Earnest,  17. 

Loss  of  a  good  Bargain,  210. 

BARGAIN  AND  SALE. 
Definition  of,  3. 
Proof  of,  187. 

BASSET, 

An  illegal  game,  434. 
Penalty  for  setting  up,  458. 

BEAR. 

Injury  from  a  bear  chained  in  a  yard,  348. 

BEHN  V.  BURNESS,  Mr.  Justice  Williams'  Judgment  in,  143, 
145. 
As  to  distinction  between  Warranty  and  Representation,  id. 

BETTING.    See  Wagers. 

BETTING  AGENT. 

Decision  in  Equity  as  to,  422. 

May  recover  disbursements  from  principal,  427. 

Agreement  to  pay  over  winnings  by,  id. 

BETTING  HOUSES. 

A  common  Betting  House,  448. 

Act  for  the  Suppression  of  Betting  Houses,  449. 

"  Using  "  under  this  Act,  id. 

"  Place"  within  this  Act,  id. 

Moveable  Desk,  450. 

Cricket  Ground,  id. 

Pigeon  Shooting,  id. 

Umbrella  on  Race-Course,  451. 

Moveable  box  within  Ring,  452. 
Betting  at  a  Club,  id. 

Purposes  for  which  houses  or  places  are  not  to  be  used,  id. 
Penalty  for  using  them  for  such  purposes,  453. 
Penalty  for  receiving  money,  &c.  on  certain  conditions,  id. 
Money,  &c.  so  received  may  be  recovered  from  the  Holder, 

id. 
Act  does  not  extend  to  stakes  in  a  Race,  &c.,  id. 
Penalty  for  advertising,  »&c.,  453,  454. 


INDEX.  589 

BETTING  llOVfiBS—icontmued). 

Power  to  search  suspected  houses,  454. 
Power  of  Commissioners  of  Police,  455. 
The  levy  and  application  of  penalties,  id. 
Where  party  neglects  to  prosecute,  id. 
No  objection  allowed  on  matter  of  form,  -id. 
No  ajDpeal  from  High  Court,  456. 
The  remaining  provisions,  id. 
Extension  to  Scotland,  id. 

BIDDING  AT  AN  AUCTION. 
Bidding  up  a  Horse,  49. 
Person  emj^loyed  to  bid,  50. 
Agreement  by  persons  not  to  bid  against  each  other,  51. 

BILL  OF  EXCHANGE.     See  Promissory  Note. 

Dishonoured,  effect  of,  when  goods  are  in  transitu,  34. 

Payment  for  goods,  35. 

Agent  receiving  one,  52. 

Breach  of  warranty  no  defence  to  action,  172. 

Unless  there  be  a  total  failure  of  consideration,  id. 

Given  for  a  Gaming  consideration,  420,  425,  443. 

In  paj'ment  of  a  bet,  425. 

As  security,  id.,  444. 

When  avoided,  id. 

Where  a  note  or  bill  is  a  gift,  id. 

Bill  not  void  in  the  hands  of  a  bond  fide  holder,  id. 

Effect  of  such  payment,  444,  446. 

Bill  accepted  with  notice  of  illegal  consideration,  446. 

BILL  OF  SALE. 

Auctioneer  selling  horse  comprised  in,  41. 

BILLIAEDS. 

A  lawful  Game,  434. 

A  licence  required,  463. 

Also  for  Bagatelle,  id. 

By  whom  licensed,  id. 

Fees  payable,  id. 

The  words  '^Licensed  for  Billiards,^'  id. 

Non-compliance  with  these  regulations,  id. 

What  amount  of  fine,  464. 

Enforced  by  distress,  id. 

Billiard  table  may  be  rateable,  463,  n. 

Offences  against  the  tenor  of  the  Licence,  id. 

First,  second,  or  third  offence,  id. 

When  Billiard  playing  is  not  allowed,  id. 

Constables  may  visit  licensed  Houses,  id. 

BITING,  75. 

BLACKSMITH.     See  Farrier. 

BLINDNESS. 

Cataract,  75,  76,  79. 

Eemittent  inflammation,  76. 

Opacity  of  the  lens  held  to  be  an  unsoundness,  id. 


1 


590  INDEX. 

BLOOD  AND  BOG-SPAVIN,  77. 

BOAT  EACE,  406,  408,  433. 

BOND,  given  in  payment  of  a  bet,  425,  444. 

BONE-SPAVIN. 

Held  to  be  an  nnsoundncss,  77,  78. 

BOEEOWING  IIOESES. 

Eemedy  against  borrower  for  detaining,  176. 

Lending  for  use,  258. 

Duties  of  Borrower  and  Lender,  id. 

Lender  of  a  Horse,  id. 

Must  not  conceal  defects,  id. 

What  care  is  required,  id. 

As  much,  as  the  borrower  is  capable  of  bestowing,  259. 

Showing  a  Horse  for  sale,  id. 

A  gratuitous  bailee,  200. 

Negligence  of  a  bailee,  id. 

Eule  as  to  negligence  of  gratuitous  bailee,  id. 

Use  strictly  personal,  id. 

Cannot  be  used  by  a  servant,  261. 
Must  be  iTsed  according  to  the  lending,  id. 

Or  else  the  borrower  is  answerable,  id. 
Where  no  tinie  is  fixed  for  return,  id. 
EedeUverj'  on  reqiiest,  id. 
Borrower  bound  to  feed  the  Horse,  id. 
Where  the  Horse  is  exhausted,  262. 
Where  the  Horse  is  killed,  id. 
Vfhere  the  Horse  dies  from  disease,  id. 
Where  borrower  is  answerable  for  damage,  id. 
Bailment  ended  by  misuser,  /(/. 

BOWLS,  434. 

BOWS. 

Penalty  for  lacking,  repealed,  384. 

BEEACH  OF  WAEEANTY. 

Eequisites  to  action  on,  152. 

Buyer  neither  bound  to  tender  the  Horse  nor  give  Notice, 

163. 
Seller  not  bound  to  take  back  tbe  Horse,  id. 
Unless  the  contract  was  executory,  164. 
Sired  v.  Bhiy,  id. 
Judgment  of  the  Court  of  King's  Bench,  id. 

Lord  Eldon's  opinion  discussed,  id. 

Evidence  in  mitigation  of  damages,  166. 

Unfitness  for  a  i:)articular  purj)oso,  id. 

An  intermediate  i:)rofit,  id. 

Acts  of  ownership  inconsistent  with  trial,  167. 

Confirmed  by  a  later  case,  id. 
Goods  are  returnable  where  there  is  fraud,  168. 
But  not  for  non-correspondence  with  sample,  id. 
Agreement  that  a  Horse  is  to  be  returned  if  Unsound,  id. 
Or  unsuitable,  1G9. 


INDEX. 


i91 


BEEACH  OF  ^Y ARBANTY— {continued). 
Or  unfit  for  a  particular  purpose,  170. 
Verbal  offer  after  sale  to  take  back  the  Horse,  id. 
Where  goods  should  be  returned  immediately,  id. 
Or  the  contract  becomes  complete,  id. 
Where  Buyer  should  tender  the  Horse,  id. 
Sale  after  tender,  171. 
Notice  instead  of  tender,  id. 
Length  of  time  before  Notice,  id. 
Seller  should  have  the  Horse  examined,  172. 
Breach  of  Warranty  no  defence  to  an  action  on  a  Bill  of 

Exchange,  id. 
Unless  there  be  a  total  failure  of  consideration,  id. 
Sale  by  order  of  court,  id. 
Pleading  in  action  on,  179. 
Warranty  must  be  stated  to  have  been  made  at  time  of  sale, 

id. 
Statement  of  Claim,  how  framed  for,  182. 
When  any  one  substantive  part  is  untrue,  id. 
When  condition  is  annexed  to  the  Warranty,  id. 
When  Warranty  is  qualified,  id. 
Payment  in  action  on,  183. 
Proof  of  Breach  of  Warranty,  191. 
Plea  of,  in  reduction  of  damages,  195. 
Defence  to  action  on,  id. 
And  see  Warrajstty. 

BEEAiaNG  HOESES. 
In  a  pubUc  place,  254. 

BEIGHT  EYE,  134. 

BEOKEN-BACKED,  78. 

BEOKEN-DOWN,  78. 

BEOKEN-KNEES,  78. 

BEOKEN-WIND,  78. 

BEOKEES. 

Wagering  contracts  by,  421. 

BEONCHITIS,  79. 

BULL. 

Where  a  mad  bull  wounds  a  person,  354. 
Where  a  bull  singled  out  a  person  wearing  red,  id. 
Injury  occasioned  by  a  vicious  bull,  355. 
Bull-baiting,  440. 

BUTTS. 

Penalty  for  not  making  or  continuing,  repealed,  384. 

BUYING,  SELLING  AND  EXCHANGING. 
Bargain,  3. 
Sale  and  exchange,  id. 


592  INDEX. 

BUYING,  SELLING  AND  EXCHANGING— (co^.^v/aie J). 
Eargaiii  and  Sale,  3. 
Executed  and  executory  contract,  id. 
Entire  contract,  id. 
Severable  contract,  id. 
Verbal  contract,  id. 
Written  contract,  id. 
Eight  of  rescission,  4. 
Eight  of  trial,  id. 
Buying  a  Horse  under  lOZ.,  id. 
Where  neither  party  can  be  off,  5. 
Striking  a  bargain,  id. 

Contract  not  to  be  performed  within  a  year,  id. 
Statute  of  Frauds,  s.  4,  id. 
Eequisites  under  s.  4,  id. 
Buying  a  Horse  at  10^.  or  upwards,  6. 
Statute  of  Frauds,  s.  17,  id. 
Extended  by  9  Geo.  4,  c.  14,  id. 
Effect  of  extension,  id. 
Eequisites  under  s.  17 . .  7. 


C. 

CAB. 

Liability  of  Cab  Proprietor,  334. 

For  loss  of  luggage,  335. 

Or  personal  injury,  id. 

Eelationship  between  Proprietor  and  Driver,  id. 

Liability  of  Proprietor  to  Driver,  341. 

CANKEE,  79. 

CAPPED  HOCKS,  79. 

CAEDS. 

Lawful  play,  429,  434. 

Unlawful  games,  id. 

Used  as  instruments  of  gaming,  436. 

Evidence  of  a  Gaming  house,  461. 

May  be  taken,  460. 

May  be  destroyed,  id. 

CAEEIAGE. 

Horse  suitable  for,  121,  137. 

Defects  in  Eailway  Carriages,  268,  274,  275. 

Carriages  racing,  297. 

Defect  in,  presumption  from,  307. 

Maybe  removed,  if  obstructing  tradesman's  door,  331. 

CAEEYING  HOESES. 

A  common  Carrier,  264. 

Eailway  Companies  common  Carriers,  id. 

Duty  of  common  Carriers,  id. 

Bound  to  carry  within  reasonable  time,  id. 

And  to  deliver  safelv,  ('(7. 


INDEX.  593 

CAERYING  HORSES— {continued). 
Exceptions,  264. 

Meaning  of  "Act  of  God,"  id.,  265. 
Eule  as  to  Inherent  Vice,  265. 
Blower  v.  Great  Western  Railiuay  Company,  id. 
Proof  of,  266. 

Eule  applies  to  common  Carriers  by  Sea,  267. 
When  Carrier  may  refuse  to  carry  animals,  268. 
Onus  of  pi'oof  of  non-liability,  id. 
Must  carry  for  reasonable  charges,  id. 
Defects  in  Carriages,  id. 
A  special  contract  to  carry,  id. 
Binding  at  Common  Law,  269. 
Hardship  thus  occasioned,  id. 
Eemedy  17  &  18  Vict.  c.  31,  id. 

Sections  1 — 6,  id. 

Section  7,  id. 
Application  of  Section  7.  .  270. 
Construction  of  Section  7 . .  271. 
Peek  V.  North  Staffordshire  Railway  Company,  id. 
General  Notices  invalid,  272. 
Condition  limiting  liability,  id. 

"Condition"  and  "Special  Contract"  sj'nonymous  terms,  id. 
Special  Contract  binding  on  company  without  signature,  273. 
Effect  of  signature  by  agent,  id. 
As  to  reasonableness  Court  to  decide,  id. 
General  effect  of  these  decisions,  274. 
What  conditions  just  and  reasonable,  and  what  not,  id. 
"To  be  free  from  all  risks" — Cattle  suffocated,  id. 
"  To  be  free  from  all  risks  of  conveyance" — Unsound  truck, 

275. 
Owner's  risk  at  lower  rate,  276. 
Condition  as  to  time  within  which  loss  should  be  declared, 

to  create  claim,  id. 
Condition  as  to  special  rate,  id. 
As  to  package  insufficiently  packed,  id. 
As  to  non-liability  for  loss  of  market  as  to  fish,  id. 
As  to  cheese,  id. 

As  to  loss  of  market  coupled  with  "  injury"  to  cattle,  277. 
Condition  as  to  value  coupled  with  unreasonable  rate,  278. 
Where  value  untruly  declared,  279. 
Condition  as  to  general  non-liability,  id. 
As  to  non-liability  beyond  their  own  limits,  280. 
If  part  of  special  contract  is  reasonable,  such  part  may  be 

relied  on,  281. 
Alternative  rates,  id. 
What  is  wilful  misconduct,  282. 

Plaintiff  must  prove  more  than  culpable  negligence,  id. 
Onus  of  proof,  283. 

General  effect  of  the  decisions  as  to  conditions,  id. 
Delivery  by  Carrier,  id. 

Notice  of  consignee's  refusal  to  consignor,  id. 
Effect  of  consignee's  refusal,  id. 

Compensation  paid  in  error  to  consignor  no  answer  to  action 
by  consignee,  28J. 
O.  Q  Q 


594  INDEX. 

CAEEYING  HOUSES— {contlmiecl). 

Liability  of   company  when   accident  happens   to   Horse 

■within  yard,  284. 
Opinion  of  Cockburn,  0.  J.,  id. 

Of  Mellor,  J.,  285. 

Of  Blackburn,  J.,  id. 
Declaration  of  value  under  17  &  18  Vict.  c.  31,  s.  7,  id. 
Non-compliance  Avith  a  rule  as  to  receipt,  id. 
Through  carriage  on  railways,  id. 
What  company  liable,  id. 

Through  carriage,  partly  by  railway  and  partly  by  sea,  287. 
Eegulation  of  Eailways  Act,  1868,  id. 

Company  to  furnish  particulars  of  charges,  288. 
Eegulation  of  Eailways  Act,  1871,  id. 

Effect  of  section  12  . .  289. 

DooJan  v.  Midland  Rail.  Co.,  id. 
Steamboat  and  railway  companies  to   disinfect   carriages, 
boats,  &c.,  290. 

Contagious  Diseases  (Animals)  Act,  1878,  id. 
"  Eeasonable  time,"  id. 
A  Ferryman,  291. 
Damages,  292. 

Injury  must  not  be  too  remote,  id. 
Failing  to  provide  Horse-boxes,  id. 

CAET. 

Carter  in,  killing  child,  guilty  of  manslaughter,  296. 
Left  in  the  street,  306,  310. 
Tackle  breaking,  307. 
Shafts  breaking,  id. 
Name  on  the  Cart,  340. 

CATALOGUE. 

At  a  sale,  18. 

Purchaser's  name  signed,  18,  43. 

Conditions  sejDarated,  id. 

Terms  of,  must  not  be  varied  from,  44. 

Incorrect,  may  be  explained,  id. 

DescriiDtion  amounting  to  a  warranty,  142. 

CATAEACT,  75,  79. 

CATAEEH,  82. 

CATTLEGATE  OWNEES,  rights  of,  360. 

CAYEAT  EMPTOE.     See  Warranty. 

Eule  in  buying  and  exchanging,  113,  133,  136,  137,  155. 

Exceptions  well  nigh  eaten  up  rule,  113. 

Still  however  rule  of  law,  114. 

Dictum  of  Mr.  Baron  Martin,  id. 

When  it  does  not  apply,  137,  153. 

Possession  of  the  means  of  knowledge,  153. 

CEETIOEAEI. 

Taken  away  in  16  &  17  Yict.  c.  119  .  .  456. 
In  25  Geo.  2,  c.  36  . .  457,  n. 
In  17  &  18  Yict.  c.  38  . .  463. 


INDEX.  595 

CHARIOT  EACES,  433. 

CHAELES  THE  FIEST. 
Eeign  of,  376. 

CHAELES  THE  SECOND. 
Eeign  of,  376. 
Statutes.    See  Table  of  Statutes. 

CHAETEE. 

For  Art  Union,  438. 

CHEATING. 

Where  several  persons  combine  to  cheat,  147. 
Conspiracy  to  cheat  indictable,  id. 
Miist  be  evidence  of  concert,  id. 
What  evidence  sufficient,  id. 
Where  only  one  person  cheats  an  action  lies,  148. 
In  a  wager,  428. 
Eunning  booty  indictable,  id. 
By  using  False  Dice,  430. 
In  a  game,  431. 
At  play,  id. 

Deemed  a  False  Pretence,  id. 
CHEQUE. 

Payment  by,  34. 

Dishonoured,  no  payment,  31,  n.,  34,  161. 

Defence  to  action  on,  194. 

Stakeholder  cashing  one,  393. 

CHESS. 

Lawful  Game,  434. 

CHEST-FOUNDEE,  79. 

CHILD. 

Horse  to  carry,  120. 

Injury  to,  by  negligence,  310 — 315. 

Ordinary  care  in,  309. 

Identification  of,  with  person  in  charge  of,  321. 

Effect  of  such  identification,  id, 

CHINEIID  IN  THE  CHINE,  80. 

CHEONIC  OPACITY  OF  THE  LENS,  76. 

CLEEGYMAN. 
Gaming,  430. 

CLEEK  OF  THE  COUESE. 
Stakeholder,  392. 
Steward,  40. 
Cannot  waive  any  condition  of  a  race,  409. 

CLICKING,  80. 

CLOUDINESS,  80. 

CLUB. 

Jockey  Club,  410. 
Betting  at,  452. 
Subscription  Club,  458. 

Q  Q  2 


596 


INDEX, 


COACHMAN. 

A  hired  carriage,  253. 
Wearing  hirer's  livery,  id. 
And  see  Hieixg  Horses  and  Negligent  DEivma  by 
Servant. 

COCKFIGHTING. 
Illegal,  440. 
Keeping  a  place  for,  id. 
Penalty  for,  440,  441. 

COIN. 

Tossing  with,  a  sport,  431. 

Using  as  instrument  of  gaming,  436. 

Betting  odds  and  paying,  437. 

COMMENDATIO  SIMPLEX  NON  OBLIGAT,  138. 

COMMISSION. 

Aixctioneer's,  54.    See  Auctioneer,  Lien,  S^ile. 

COMMITTEE  OF  A  RACE.     See  Stewards. 

COMMON. 

Turning  a  vicious  Horse  upon  a  common,  355. 

CONDITIONS. 

Annexed  to  Warranty,  when  to  be  specially  pleaded,  192. 
Of  carrying.     See  Carrying  Horses. 

CONDITIONS  OP  SALE. 

Catalogue  mtist  refer  to  them,  43. 

Separation  from  Catalogue,  id. 

Printed  j^articulars,  44. 

Warranty  limited  as  to  time  may  be  one  of  them,  id. 

Notice  of  conditions,  46. 

Annexed  to  the  Warranty,  182,  192. 

Form  used  at  Aldridge's,  579. 

At  Tattersall's,  581. 

CONJUNCTIVA. 
Inflamed,  75. 

CONSIDERATION. 

Under  sect.  4  of  the  Statute  of  Frauds,  5. 

Failure  of  it  in  the  case  of  Sunday  dealing,  36. 

Where  a  good  title  is  a  condition  of  the  contract,  114. 

Grossly  inadequate,  162. 

Statement  of,  177,  181. 

Executed  or  executory,  181,  182. 

Certainty  required  in  statement  of  executory,  181. 

If  the  Horse  turn  out  "  lucky,"  id. 

Conditions  jjrecedent  must  be  performed  when  consideration 

executory,  183. 
Proof  of,  187. 
Where  promissory  note  has  been  given  in  paj^ment  of  a  bet, 

420. 
Notice  of  illegal  consideration,  444,  446. 
Security  for  money  lent  for  gaming,  443. 


INDEX.  597 

CONSIGNEE. 

Effect  of  consignee's  refusal,  283. 

CONSIGNOE  OF  GOODS. 

Notice  by  carrier  to,  of  refusal  of  goods  by  consignee,  283. 
Compensation  paid  erroneously  to,  no  answer  to  action  by 
consignee,  284. 

CONSPIEACY  TO   CHEAT.     See  Cheating,  Fraudulent 
Eepresentation,  Indictment. 
To  obtain  money  by  false  pretences,  148. 
To  induce  a  creditor  to  forego  bis  claim,  id. 

CONSTABLES. 

May  be  autborized  to  enter  a  Betting  House,  454,  455. 
May  be  autborized  to  enter  Gaming  Houses,  459,  460. 
And  take  into  custody  all  persons  tbere  found,  454,  455, 

460. 
Bond  to  prosecute,  457. 
Persons  obstructing,  punishable,  462. 
May  visit  licensed  BiUiard  Eooms,  464. 

CONTAGIOUS  DISEASES  (ANIMALS)  ACT. 
Application  of  provisions  of,  to  Horses,  90. 
Glanders  and  farcy  "  diseases"  under,  id. 
Unlawful  to  expose  diseased  Horse  for  sale  under,  id. 
Disinfecting  carriages  and  boats  under,  290. 

CONTEACT. 
Executed,  3. 
Executory,  id. 

Entire,  and  price  indivisible,  id. 
Entire,  and  warranty  several,  119. 
Severable,  3. 
Verbal,  id. 
"Written,  id. 

Eight  of  rescission  of,  4. 
Not  to  be  performed  witbin  a  year,  5. 
Not  invalidated  by  unreasonable  condition,  29. 
Time  not  the  essence  of,  30. 
Eeduced  to  writing,  119. 
To  carry.    See  Carrying  Horses. 
A  fooUsb  bargain,  153,  203. 
Affected  by  a  delusion,  154. 
An  impossible  contract,  203. 
Action  against  Livery  Stable  Keeper  for  not  taking  due 

care  of  Horse,  founded  on  contract,  240. 
Injury  by  Hirer  of  Horse  founded  on  contract,  248. 
ForEacing,  391,  393. 

Money  staked  on  illegal  contract,  396 — 398. 
Contract  void,  but  not  illegal,  421. 
Illegal,  but  not  void,  id. 

Money  paid  on  void  contract  for  winner  or  loser,  id. 
Gaming  contract  for  shares,  423. 
Contracts  for  gaming,  432. 
Security  for  money  lost  at  play,  444,  445. 


598  INDEX. 

CONTEACTION,  80. 

"When  held  to  be  an  Unsoundness,  81. 

CONTEACTOR. 

Liability  of,  for  negligence,  317,  318. 

CONTEIBUTOEY   NEGLIGENCE.      And    see   Negligent 
Deivi^'G. 
No  defence  to  a  criminal  charge,  298. 

CONVEESION. 

Damages  for  wrongful,  201. 

Setting  up  title  of  bailor,  evidence  of,  66. 

Auctioneer  liable  to  action  for,  40. 

CONVEXITY. 
Of  eye,  134. 
Of  sole,  110. 

CON^^CTION. 

For  furious  driving,  no  bar  to  action  of  trespass,  300. 
But  it  is  for  subsequent  action  for  damage,  343. 

COENS,  81. 

COUGH,  82. 

Held  to  be  an  Unsoundness,  tbougb  temporary,  82,  83. 

COUNTEES. 

Evidence  of  a  Gaming  House,  461. 
May  be  taken,  id. 
May  be  destroyed,  id. 

COUESING  MATCH,  383. 

Eor  a  particular  meeting,  411. 
A  lawful  game,  433. 

COWHOCKED,  86. 

CEACEIID  HEELS,  90. 

CEIB-BITING,  84,  135. 

When  not  an  Unsoundness,  84. 
Held  to  be  a  vice,  85. 

CEICKET  GEOUND. 

Held  to  be  a  "  place"  within  Betting  Acts,  450. 

CEICKET  MATCH,  383. 
Eecovery  of  stakes,  399. 
A  lawful  game,  434. 

CEOSSING. 

Eailway,  305. 
Street,  331. 

CEOUPIEE. 

At  a  Gaming  House,  460,  462. 

CEYSTALLINE  LENS.    See  Blindness. 


INDEX.  599 


CUEB,  85,  191. 

CUEBY  HOCKS. 

Not  an  Unsoundness,  86. 

CUELINa,  384,  434. 

CUSTOM  TO  EACE,  389. 
To  resort  to  races,  ul. 
Not  an  easement,  390. 

CUTTING. 

Held  not  to  be  an  Unsoundness,  87. 


D. 

DAI^IAGES. 

General  Damages,  198. 

Special  Damages,  id. 

Legal  and  natural  consequences  of  breach  of  contract,  199. 

Judge  to  direct  Jury  as  to  Eules  of,  id. 

Damages  arising  from  special  circumstances,  id. 

Effect  of  notice  of,  200. 

Eor  wrongful  conversion,  201. 

In  tort,  id. 

In  actions  for  a  sum  certain,  id. 

Interest,  202. 

Effect  of  3  &  4  Will.  4,  c.  42,  s.  28,  id. 

17  &  18  Vict.  c.  90,  id. 

In  actions  which  sound  in  damages,  id. 

A  foolish  Bargain,  203. 

An  impossible  Contract,  id. 

Cannot  be  higher  than  the  amount  laid,  204. 

In  goods  bargained  and  sold,  id. 

In  an  action  for  not  accepting,  id. 

In  an  action  for  not  delivering,  id. 

Nominal,  205. 

In  Goods  sold  and  delivered,  id. 

In  Money  had  and  received,  id. 

On  Breach  of  Warranty,  id. 

General  rule,  id. 

AVhere  the  Horse  has  been  returned,  id. 

Where  the  Horse  has  not  been  returned,  206. 

Where  the  Horse  has  been  tendered,  id. 

Expense  of  Keep,  id. 

Seller  liable  for  reasonable  Keep,  207. 

What  is  reasonable,  id. 

Keejiing  the  Horse  till  a  Pair,  208. 

Expense  consequent  on  the  Warranty,  id. 

Expense  in  selling,  209. 

Expense  in  advancing  the  Horse's  value,  id. 

Horse  tendered  and  then  sold  by  Auction,  id. 

Expense  of  Veterinary  Certificate  and  Counsel's  opinion,  id. 

Travelling  expenses,  210. 

Loss  of  a  good  Bargain,  id. 

Ee-selling  with  a  Warranty,  id. 


600  INDEX. 

D  AM  A.QEQ— (continued). 

Damages  for  misrepresentation,  210,  211. 

Where  the  damages  are  very  small,  212. 

For  loss  of  or  injury  to  Horse,  by  Carrier,  292. 

For  failing  to  provide  Horse-boxes,  id. 

Deodands  abolished,  342. 

Lord  Campbell's  Act,  id. 

Damages  through  negligent  driving,  344. 

Where  the  party  is  killed,  345. 

How  limited,  id. 

Cannot  be  given  for  funeral  expenses,  346. 

Not  given  to  a  class,  but  to  individuals,  id. 

So  individuals  may  recover,  when  class  do  not  suffer,  id. 

Wrongdoer  not  res23onsible  for  all  possible  consequences,  344. 

Not  given  where  injury  too  remote,  id. 

Injury  done  to  a  Carriage,  345. 

Measure  of,  when  Horse  has  been  injured,  id. 

DAEK. 

Wrong  side  of  Eoad,  328. 

DEALING-TALK,  152. 

DEATH. 

Of  Principal,  124. 

DEED. 

Substituted  for  one  tainted  with  illegality,  447. 

DEFECTS. 

Latent,  115.    See  Latent  Defects. 

Buyer  protected  against,  by  warranty,  116. 

Concealment,  157. 

Patent,  133.    See  Patent  Defects. 

Su.spected,  137. 

Visible,  152. 

Lender  of  Horse  must  not  conceal,  258. 

DEFENCE.    See  Pleading  and  Evidence  for  the  Defen- 
dant. 

DELIVEEY  AND  PAYMENT. 

Delivery  implied  in  receipt,  7. 

Actual  or  constructive,  7,  9,  10. 

Eights  of  property  and  possession,  28. 

Executed  and  executory  contracts,  id. 

Property  may  pass  without  delivery,  id. 

What  immediately  passes  the  property,  id. 

Condition  as  to  price  ascertainable,  id. 

Effect  where  not  ascertainable,  29. 

Unreasonable  condition,  id. 

Eisk  after  sale,  id. 

Goods  to  be  made  to  order,  30. 

Goods  to  be  delivered  on  a  future  day,  id. 

Delivery  and  pajTuent  contemjioraneous  acts,  id. 

Time  not  the  essence  of  a  contract,  id. 

When  nothing  is  said  about  the  time  of  delivery,  31. 


INDEX.  601 

DELIVEEY  AND  -pAYME^T— {continued). 
Eelative  position  of  the  parties,  31. 
Seller's  lieu  for  tlie  price,  id. 
Lien  in  case  of  an  exchange,  id. 
Conditional  possession,  id. 
Buyer's  right  of  possession  where  goods  are  sold  on  credit, 

32. 
How  it  may  be  defeated,  id. 
Seller's  lien  dui'ing  possession,  id. 
His  right  of  stoppage  in  transitu,  id. 
Where  goods  are  held  to  be  in  transitu,  id. 
"When  anything  remains  to  be  done  by  seller,  id. 
Effect  of  stojipage  in  transitu,  33. 
Goods  to  be  delivered  before  payment,  id. 
When  time  of  delivery  is  not  fixed  to  a  day,  id. 
Goods  to  be  paid  for  before  delivery,  id. 
Renunciation  of  Contract,  id. 
Price  directed  to  be  sent  by  post,  34. 
Post-office  order,  id. 
Forged  bank  note,  id. 
Dishonoured  bill,  id. 
Halves  of  bank  notes,  id. 
Writing  ofi  debt  from  Agent  by  Agent,  id. 
Banker's  cheque,  id. 
Bill  of  exchange,  35. 
Debt  paid  to  a  third  party,  id. 

DELIVEEY  OEDEE.    See  Attornment. 

DELUSION. 

Affecting  the  contract,  154. 

DEODANDS. 

Abolished,  342. 

DEPOSIT. 

At  an  auction  is  a  part  payment,  16. 

With  a  Stakeholder  recoverable  before  the  event,  415,  432. 

And  see  Stakeholdees. 
Betting  House-keeper  receiving  deposits  on  bets,  453. 

DEEBY  SWEEPS. 
Unlawful,  437. 

DETINUE. 

By  whom  maintainable,  175. 
Defence  in  action  of,  193. 

DICE. 

Unlawful,  434. 

Except  Back-gammon,  id. 

Evidence  of  a  Gaming-house,  461. 

May  be  taken,  460. 

May  be  destroyed,  461. 

Using  false  Dice,  430. 

DIGGING. 

For  a  Fox,  &c.,  358.    See  Hunting  and  Trespassing. 


602  INDEX. 

DISEASES. 

Congenital,  or  otherwise,  71. 
Alterations  in  structure,  id. 
Temporary,  73. 
Acute,  74. 
Hereditary,  91. 

DISTANCES. 

For  Queen's  Plate,  550. 

DISTEAINOE. 

His  power  of  Sale,  228. 

DISTEESS. 

Auctioneer  selling  goods  taken  by  illegal  distress,  42. 

Goods  privileged  from  distress,  id. 

Horse  bringing  goods  to  market  exempt,  59. 

Guest's  Horse  at  an  Inn  exempt,  223. 

Horse  at  a  Farrier's  exempt,  232. 

Horse  at  Livery  not  exemj)t,  237. 

Nor  Horses  during  agistment,  244. 

Except  wben  taken  in  to  rest  for  a  nigbt,  id. 

Distinction  as  to  distress,  where  cattle  enter  by  breaking 
fences,  id. 

Horse  with  a  rider  on  him  damage  feasant,  cannot  be  dis- 
trained, 364. 

DOG. 

Where  a  dog  bites  a  jDerson,  350. 

Not  enough  to  show  that  it  was  of  a  fierce  disposition,  id. 

Eeport  that  dog  had  been  bitten  by  mad  dog,  id. 

Where  it  has  bitten  a  child,  id. 

Not  necessaiy  to  show  that  dog  had  bitten  another  man,  351. 

Stray  dog  on  defendant's  premises,  id. 

Evidence  of  scienter,  id. 

Damage  done  by  dog  to  game,  ground  of  action,  id. 

Horse  frightened  by  dogs,  and  thereby  damaged,  id. 

Where  a  dog  worries  sheep,  350,  352. 

Dictum  of  Mr.  Justice  Maule,  352. 

Evidence  of  mischievous  propensity  unnecessary  under  28  & 

29  Vict.  c.  60,  id. 
In  case  of  inJLuy  to  Horses,  id. 
Proof  of  ownership,  id. 

Scienter  mav  be  found  against  a  corporation,  id. 
Dogs  Act,  1871.  .353. 
Dangerous  dogs  straying,  id. 

Court  may  order  confinement  or  destruction  of,  id. 
And  impose  fine  for  noncompliance  with  order,  id. 
General  restrictions  on  dogs  being  at  large,  354. 
Shooting  a  dog  for  worrying  sheep,  or  fowls,  355,  356. 
Dog  jumping  into  a  field,  364. 
Dog-fighting,  399,  440. 

DOMINOES. 

A  lawful  game,  434. 


INDEX.  603 

DEAUGHTS. 

A  lawful  game,  434. 

DEAY.    See  Waggon. 

DEIVEES. 

Of  public  and  private  vehicles,  respective  duties  of,  300. 

DEIVINGr.    See  Negligent  Driving. 

DEOPSY. 

Of  the  Skin,  87. 
Of  the  Heart,  id. 

DEUGGING. 
Horses,  63. 

DEUNKENNESS. 

Of  contracting  party,  162. 

DUTY  ON  EACE-HOESES. 
Abolished,  385. 


E. 

EAENEST  AND  PAET  PAYMENT. 

A  requisite  under  Statute  of  Frauds,  6. 

Two  kinds  of  Earnest,  16. 

Symbolical,  id. 

Pecuniary,  id. 

Is  a  part  payment,  id. 

Should  be  retained  by  vendor,  id. 

The  old  Eule,  id. 

Effect  of  earnest  under  Statute  of  Frauds,  17. 

Effect  of  part  payment,  id. 

EAETH. 

Eunning  a  Fox,  &c.,  357 — 359. 
Wager  as  to  rotundity  of,  418. 

EDWAED  THE  SECOND. 
Eeign  of,  370. 

EDWAED  THE  THIED. 
Eeign  of,  370. 

EDWAED  THE  SIXTH. 
Eeign  of,  374. 

ELECTION. 

Wager  on  result,  415. 

ELIZABETH. 
Eeign  of,  374. 
Statutes.    See  Table  of  Statutes. 

ENLAEGED  GLANDS,  88. 


604  INDEX. 

ENLARGED  HOCK,  88. 

ENTIEE  CONTEACT. 
What  is,  3. 

ENTRY. 

For  a  race,  391. 

Into  a  Betting-house,  454. 

Into  a  Gaming-house,  459,  460,  461. 

Into  a  public  Billiard-room,  464. 

EVIDENCE.    See  Pleading  aa^d  Evidence. 

EWE  NECK,  88,  105. 

EXCHANGE.    See  Buying,  Selling  and  Exchanging. 
What  is,  3. 

EXECUTED  CONTEACT. 
What  is,  3. 

EXECUTOEY  CONTEACT. 
What  is,  3. 

EXPENSE.    See  Damages,  Keep. 
Of  Keep,  206. 

In  Selling,  damages  for,  209. 
In  advancing  Horse's  value,  damages  for,  id. 
Veterinary  certificate  and  counsel's  opinion,  damages  for,  id. 
Travelling  expenses,  damages  for,  210. 

EXPEESSUM  FACIT  CESSAEE  TACITUM. 
Applies  to  Warranties,  119. 

EYE. 

How  far  loss  of,  patent,  133. 
Convexity  of,  134. 


F. 

FAIES  AND  MAEKETS  OVEET. 

Sales  at  Fairs  and  Markets  overt,  bo. 
The  general  rule  of  law,  56. 
When  Mai-ket  overt  is  held,  id. 
Where  Market  overt  is  held,  id. 
What  held  to  be  Market  overt,  id. 

What  held  to  be  Market  overt  without  the  city  of  London,  id. 
What  within  the  City  of  London,  id. 
Markets  and  Fairs  Clauses  Act,  57. 
Setting  up  private  market,  id. 
Horse  "  an  article"  within  Act,  id. 

Sale  by  auctioneer  in  yard  not  belonging  to  his  own  dwelling- 
house,  id. 
Where  sj^ecial  Act  enlarges  exception,  id. 
Building  let  for  two  days,  id. 
Temporary  shed  in  front  of  shoji,  id. 


INDEX.  605 

FAIES  AND  MAEKETS  OYBBT— {continued). 

Building   separated   from   auctioneer's  dwelling-liouse  by 

3'ard,  58. 
Horse-dealer's  premises  "a  shop,"  id. 
Where  a  Horse  at  a  fair  is  exempt  from  distress,  59. 
Sale  of  diseased  animals  in,  id. 
Purchaser  of  stolen  Horses  in  Market  overt,  63. 
Eestitution  of  stolen  goods,  notwithstanding  sale  in  Market 

overt,  66. 

FALSE  PEETENCES,  60,  61,  148. 

FALSE  QUAETEE,  88. 

FALSE    EEPEESENTATION.    See    Feaud,    Fraudulent 
Contracts,    Eepresentation,     and    Fraudulent 
Eepresentation. 
Of  the  profits  of  a  business,  199. 

FAECY,  88. 

Water  Farcy,  89. 

FAEEIEE. 

Cannot  refuse  to  shoe  a  Horse,  228. 
'        When  brought  at  a  reasonable  time,  229. 
Answerable  for  his  own  want  of  skill,  id. 
Where  a  third  person  is  affected,  id. 
When  answerable  for  his  servant,  id. 
Action  against  a  farrier  for  pricking  a  Horse,  id. 
Collins  V.  Rodway,  id. 

Eule  as  to  farriers,  230. 

No  insurance  against  injury,  231. 

Peculiar  difficulties  should  be  mentioned,  id. 

Coming  at  an  unseasonable  hour,  id. 
Farrying,  &c.  in  the  street,  232. 
Horses  standing  to  be  shod  not  distrainable,  id. 
Horse  may  be  detained  for  the  price  of  his  shoeing,  id. 

Such  lien  is  favoured  by  law,  id. 

Extends  only  to  each  particular  time,  id.,  233. 

Liability  to  feed  a  Horse  detained,  233. 

FAULTS,  SALE  OF  GOODS  WITH  ALL,  156. 

Excludes  latent  defects,  id. 

Unless  there  be  an  express  warranty,  id. 

Or  fraud  is  used  to  conceal  them,  id.,  157. 

For  instance,  the  practice  of  j)lugging,  158. 
No  difference  whether  sale  takes  place  in  market  or  pri- 
vately, id. 

FAVOUEITE  MAEE. 

Annuity  for  her  keep,  465. 

FENCES. 

Maintenance  of,  365. 

Obligations  of  Eailway  Companies  in  respect  of,  id.,  366. 

Fence  within  Station-yard,  367. 

FENCma  MATCH,  383. 


606  INDEX. 

FEE^  NATURE,  347. 

PEROCIOUS  AND  YICIOUS  ANIMALS. 
"Wild  and  tame  animals,  347. 

As  to  animals /tree  naturw  only,  scienter  unnecessary,  348. 
What  oiiglit  to  be  the  liability  of  the  person  keeping  them, 

ul. 
The  Athenian  and  Eoman  Laws,  id. 
The  French  Code,  349. 
Argument  in  Mason  v.  Keeling,  id. 
Decision  in  Scotland,  id. 
Reversed  in  the  House  of  Lords,  id. 
In  England  a  scienter  is  held  necessary,  350. 
Where  a  dog  bites  a  person,  id. 
Not  enough  to  show  that  the  dog  was  of  a  fierce  disposition, 

id. 
Eeport  that  dog  had  been  bitten  by  a  mad  dog,  id. 
Whore  dog  had  bitten  a  child,  id. 

Not  necessary  to  show  that  dog  has  bitten  another  man,  351. 
Stray  dog  on  defendant's  premises,  id. 
Evidence  of  scienter,  id. 

Damage  done  by  dog  to  game,  ground  of  action,  id. 
Horse  frightened  by  dogs,  and  thereby  damaged,  id.  * 

Where  a  dog  worries  sheep,  352. 
Dictum  of  Mr.  Justice  Maule,  id. 
Evidence  of    mischievous    propensity  unnecessary  under 

28  &  29  Vict.  c.  60,  id. 
"  Cattle"  includes  Horses  and  Mares,  id. 
Proof  of  ownership,  id. 

Scienter  may  be  proved  against  a  corporation,  id. 
The  Dogs  Act,  1871  . .  353. 

Dangerous  dogs  straying,  id. 

Coiu't  may  order  destruction  or  confinement  of,  id. 

And  impose  fine  for  non-compliance  with  order,  id. 

General  restrictions  on  dogs  being  at  large,  354. 
Where  a  Horse  bit  some  other  Horses,  id. 
Breaking  Horses  in  a  public  place,  id. 
Where  a  mad  bull  wounds  a  person,  id. 
Where  a  bull  singled  out  a  person  wearing  red,  id. 
Where  a  ram  injui-ed  a  person,  id. 
Where  a  vicious  beast  kills  a  person,  id. 
Owner  bound  to  secure  a  vicioiis  animal  at  all  events,  355. 
He  is  liable  to  an  action  for  damage,  id. 
The  gist  of  the  action,  id. 
Not  necessary  to  prove  negligence,  id. 
An  unruly  Horse  escaping  from  a  stable,  id. 
Tui'ning  a  dangerous  animal  loose,  manslaughter,  id. 
Turning  a  vicious  Horse  upon  a  common,  id. 
Inj  ury  occasioned  by  a  vicious  bull,  id. 
Shooting  a  dog  for  worrying  sheep,  id. 
Shooting  a  dog  for  worrying  fowls,  356. 

FEEEY. 

Carrying  Horses,  291. 

FISTULOUS  WITHEES,  100. 


INDEX.  607 


FIVES,  383,  434. 


FOOD. 

Liability  to  feed  a  Horse  detained,  226,  228. 
Hired  Horse  refusing  kis  feed,  249. 
Borrower  bound  to  feed  the  Horse,  262. 

FOOLISH  BAEGAIN,  153,  203. 

FOOT-BALL,  384,  434. 

Penalty  for  plajdng,  on  bigbway,  434. 

FOOT-PASSENGEE. 

Eule  of  tbe  Eoad  does  not  apply,  330,  33L 
His  rigbt  to  cross  a  road,  331. 

FOOT-EACE,  383,  393,  433. 

FOECE. 

May  be  used  in  entering  a  Betting-bouse,  454,  455. 
May  be  used  in  entering  a  Gaming-bouse,  459,  460. 

FOEM  OF  WAEEANTY,  118. 

FOULING,  409. 

FOUNDEE,  89. 

FOX.    See  Hunting  and  Trespassing,  357. 

FEAUD. 

Avoids  Sale,  123. 

Unless  party  defrauded  wisbes  otberwise,  158. 
And  unless  injustice  results,  159. 
Or  be  continues  to  deal  witb  tbe  article,  id. 
In  wbat  it  consists,  150. 
Moral  fraud,  id. 
Must  concur  witb  damage,  id. 
Legal  fraud,  id. 
Principle  of  relief  for,  151. 

Not  fraud  to  suppress  wbat  tbere  is  no  duty  to  communi- 
cate, id. 
Collateral,  does  not  avoid  deed,  153. 
Implied  by  a  foolisb  bargain,  id. 
Practised  upon  tbe  buj'er,  159. 
Practised  iipon  tbe  seller,  id. 
Of  infant,  161. 
Of  a  married  woman,  id. 
On  a  weak-minded  person,  162. 
On  a  person  wben  drunk,  id. 
Goods  returnable,  wbere  tbere  is  fraud,  168. 
Must  be  specially  pleaded,  193. 
Fraud  or  unlawful  device  at  play,  431. 
Loser  may  recover  stake,  wbere  tbere  is  fraud,  399. 
Unless  be  bad,   witb  knowledge  of    fraud,   claimed    tbe 
money,  400. 


608  INDEX. 

FEAUDULENT  CONTEACTS. 

Where  the  law  does  not  interfere,  1-16. 

Where  several  persons  combine  to  cheat,  147. 

Conspiracy  to  cheat  indictable,  id. 

There  must  be  evidence  of  concert,  id. 

What  evidence  has  been  held  insufficient,  id. 

Conspiring  to  obtain  money  by  false  pretences,  148. 

Conspiring  to  induce  a  creditor  to  forego  his  claim,  id. 

Where  only  one  person  cheats  an  action  lies,  id. 

Chandelor  v.  Lopus,  id. 

Eemarks  on  that  case,  149. 

Form  of  action,  id. 

Foundation  of  the  action,  150. 

In  what  fraud  consists,  id. 

There  must  be  moral  fraud,  id. 

Effect  of  fraud,  id. 

How  the  question  of  fraud  is  to  be  decided,  id. 

Falsehood  must  be  followed  by  damage,  id. 

A  naked  lie  no  cause  of  action,  id. 

Presumption  that  person  defrauded  was  influenced  by  the 
misrepresentation,  151. 

Due  caution  must  always  be  observed,  id. 

Not  fraud  to  suppress  what  there  is  no  duty  to  communi- 
cate, id. 

Eeqmsites  to  an  action  on  false  representa,tion,  152. 

Or  on  breach  of  warranty,  id. 

Caveat  emptor,  id. 

A  visible  defect  and  a  nude  assertion,  id. 

Dealing  talk,  id. 

Collateral  fraud  does  not  avoid  a  Contract,  153. 

A  foolish  bargain,  id. 

Eepresentation  known  to  be  untrue,  id. 

Made  before  a  sale  by  auction,  id. 

Made  by  a  bidder  at  an  auction,  154. 

Eepresentation  not  known  to  be  true,  id. 

A  well-grounded  belief,  id. 

Delusion  affecting  the  contract,  id. 

Eepresentation  to  prevent  inquiries,  id. 

Eepresentation  through  a  third  party,  155. 

Eepresentation  by  a  third  party,  id, 

A  bond  fide  representation,  id. 

Eepresentation  as  to  credit,  id. 

Sale  of  goods  "  with  all  faults"  excludes  "  latent  defects," 
156. 

Unless  there  be  an  express  warranty,  id. 

Or  fraud  is  used  to  conceal  them,  id. 

Plugging,  &c.,  158. 

Exposure  in  public  market  not  evidence  of  fraud,  id. 

Contract  made  voidable  by  fraud,  id. 

Where  fraud  is  practised  upon  the  buyer,  159. 

He  may  recover  price,  id. 

Except  where  it  works  injustice,  id. 

Where  he  continues  to  deal  with  the  article,  id. 

Where  fraud  is  practised  upon  the  seller,  id. 

Eesale  by  the  buyer  to  an  innocent  vendee,  id. 


INDEX.  609 

FRAUDULENT  CONTRACTS— (cofti/«  unl) . 
Contract  with  intent  to  cheat  the  seller,  160. 
Preconceived  design  of  not  j)aying  for  goods,  id,  . 
Question  for  the  jury,  ul. 
Resale  at  a  reduced  price,  id. 

Unstami^ed  agreement  admissible  to  prove  fraud,  iJ. 
Payment  by  a  cheque  which  is  dishonoured,  101. 
Fraud  of  an  infant,  id. 
Of  a  married  woman,  id. 

Where  a  contracting  party  is  weak-minded,  162. 
Drunkenness  of  a  contracting  party,  id. 
Goods  kept  by  the  party  when  sober,  id. 

FRAUDULENT    REPRESENTATION.     See    Fraudulext 

Contracts. 
Action  for,  ISO. 
Statement  of,  in  Claim,  183. 
How  Claim  should  be  framed,  when  doubtful  if  it  can  be 

proved,  id. 
Proof  in  an  action  for.  187. 
Defence  to  an  action  for,  197. 

FRIGHTENING  A   HORSE.     See  Horse  and  Negligent 
Driving. 

FURIOUS  DRIVING,  300,  301,  320. 

Conviction  for,  no  bar  to  action  of  trespass,  300. 
But  it  is  for  subsequent  action  for  damage,  343. 

FURIOUS  RIDING,  300. 


G. 

GAME. 

Dead,  property  of  owner  of  land,  360. 
Owner  has  a  right  to  have  it  undisturbed,  id. 
Cattlegate  owners  have  not  right  of  shooting,  id. 
Reservation   of    Manorial   Rights    under    Enclosure   Acts 

includes  Shooting,  id. 
Two  persons  engaged  in  common  pursuit,  362. 
Trespass  in  search  of,  id. 
Shooting  from  the  highway,  263. 
Game  falling  on  another's  land,  id. 
Conviction  for  unlawfully  obtaining,  id. 

GAMES  AND  GAMING. 

Gaming  not  unlawful,  429. 

Where  a  London  apprentice  "  frequents  Gaming,"  430. 

Where  a  Clergyman  plays  at  unlawful  Games,  id. 

Unfair  or  excessive  Gaming,  id. 

Using  false  dice,  id. 

Winning  exorbitant  sums,  id. 

Losses  by  a  bankrupt,  431. 

Cheating  in  a  Game  or  at  Play,  id. 

The  fraud  or  unlawful  device,  id. 

O.  R  R 


610  l^^DEX. 

GAMES  AND  GAMING— (coni/nuecZ). 
Conspiracy  to  cheat  at  skittles,  432. 
Conspiracy  to  cheat  at  cards,  id. 
Where  a  criminal  information  was  refused,  id. 
Contracts  for  Gaming,  id. 
Money  deposited  for  Gaming,  id. 
French  Law  as  to  Games,  433. 
English  Law  as  to  Games,  id. 
The  word  Game,  id. 
Lawful  Games,  &c.,  id. 
Lawful  Gaming  or  Play,  434. 
"  Game  "  under  the  Highway  Act,  id. 
Unlawful  Games,  id. 
Instruments  of  Gaming,  43G. 

Money  paid  on  illegal  Game  by  third  party  not  recover- 
able, 422. 
Cock-fighting,  bull-baiting,  &c.,  440. 
Keeper  of  a  place  for  this  purpose,  id. 
Within  the  Metropolitan  District,  441. 
Gaming  in  a  public  house,  id. 
Where  money  is  staked,  id. 
By  private  friends  of  publican,  id. 
Evidence  to  suj^port  conviction,  442. 
Where  money  is  not  staked,  id. 
Money  lent  for  Gaming,  id. 
Money  lent  for  the  Stakes  of  a  Prize  Eight,  id. 
Test  where  the  transaction  is  illegal,  id. 
Securities  for  money  lent  for  Gaming,  443. 
Action  on  a  j^romissory  note,  id. 
Identification  of  j)romissory  note,  id. 
An  I  0  U,  id. 
Money  lost  at  Play,  id. 
Securities  for  money  so  lost,  444. 
General  effect  of  5  &  6  Will.  4,  c.  41,  id. 
Action  against  accejitor  of  bill  of  exchange,  446. 
Action  by  acceptor  of  bill  of  exchange,  447. 
Recovery  of  principal  and  interest,  id. 
Evidence  of  owner  of  a  Gaming  House,  id. 
Summons  to  set  aside  a  warrant  of  attorney,  id. 
A  |josf  ohit  security  held  good,  id. 
Deed  substituted  for  one  tainted  with  illegality,  id. 

GA5^nNG  HOUSES. 

A  Common  Gaming  House,  456. 
Indictment  for  keejjing  one,  457. 
Charge  in  the  indictment,  id. 
Any  person  may  go  on  with  it,  id. 
Statutory  provisions  for  an  indictment,  id. 
Notice  by  two  inhabitants,  id. 
Binding  over  the  party  accused,  id. 
Duty  of  overseers  of  the  poor,  458. 
Penalty  where  constable  neglects  his  dutj',  id. 
Setting  up  or  playing  at  Hazard,  &c.,  id. 
Evidence  that  Hazai'd  was  played,  id. 
Pent  of  a  Gaming  House,  id. 


INDEX.  611 

GAMING  HOUSES— (coH^t«?(e(0. 
A  subscription  club,  458. 
What  is  a  Common  Gaming  House  under  8  &  9  Vict.  c.  109, 

459. 
Evidence  on  an  information  for  playing  Hazard,  id. 
Power  of  Justices,  id. 

In  tbo  Metropolitan  District,  460. 
Penalties  on  Gaming  House  Keepers  under  8  &  9  Vict.  c.  109, 

id. 
Penalty  for  playing,  461. 
Evidence  of  Gaming,  id. 
Difficulty  of  obtaining  evidence,  id. 
17  &  18  Vict.  c.  38,  id. 

Persons  summarily  convicted  of  obstructing  officers,  461,  462. 
Persons  giving  false  names  or  addresses,  462. 
Owner  or  occupier  may  be  fined  500/.,  or  imprisoned,  id. 
Persons  apprehended  may  be  made  witnesses,  id. 
Penalties  and  costs,  id. 
On  neglect  to  prosecute  another  jjerson  may  be  authorized 

to  do  so,  463. 
Eemaining  jirovisions,  id, 

GATES. 

Left  open  by  agister,  241. 
Of  a  field,  365. 
Of  a  Railway  Crossing,  id. 
Of  a  Eailway  Station,  366. 

GEOEGE  THE  FIEST. 
Eeign  of,  379. 
Statutes.    See  Table  of  Statutes. 

GEOEGE  THE  SECOND. 
Eeign  of,  379. 
Statutes.    See  Table  of  Statutes. 

GEOEGE  THE  THIED. 

Eeign  of,  382. 

Statutes.    See  Table  of  Statutes. 

GEOEGE  THE  FOUETH. 
Eeign  of,  382. 
Statutes.    See  Table  of  Statutes. 

GIBBING. 

Backing  and,  75,  89. 

GIFT. 

Eequisites  of  transfer  of  property  by,  3. 
Where  a  note  or  bill  is  a  gift,  425. 

GLANDEES,  89. 

Infectious  to  mankind,  id. 
■  The  recent  act,  90. 

GLASS  EYE,  91,  134. 
GLAUCOMA,  90. 

R  R  2 


Gt2  INDEX. 

GOLF,  383,  433. 

GOODS.  .       . 

Buyer    entitled    to    goods    commercially    known    by   the 

name,  116. 
Shoixld  be  merchantable,  120. 
Eeturnable,  where  there  is  fraud,  168. 
But  not  for  non- correspondence  with  sample,  id. 
Eeturnable,  where  so  agreed,  168,  169. 
If  rejected  should  be  returned  immediately,  170. 
When  part  of,  have  been  delivered,  contract  rescinded,  177. 
Damage  to  goods  in  Carrier's  hands,  264. 

GOODS  BAEGAINED  AND  SOLD. 
For  payment  of  the  Price,  175. 
Proof  for  the  plaintiff,  184. 
Defence,  193. 
Damages,  204. 

GOODS  SOLD  AND  DELIVERED. 
For  pajTiient  of  the  Price,  177. 
Proof  for  the  plaintiff,  185. 
Defence,  194. 
Damages,  205. 

GRAND  STAND. 
Ordering  off,  412. 

GRASS.     See  Iis^^'keepek  and  Agister. 

GREASE,  90. 

GROGGINESS,  90. 

GRUNTING,  91. 

GUARD  OF  OMNIBUS. 

Using  tindue  violence  to  drunken  passenger,  336. 

GUEST.    See  Innkeeper. 
GUTTA  SERENA,  91,  134. 


H. 


HACKNEY  CARRIAGES. 
Statutes,  521,  530,  578. 

HARE.    See  Hunting  and  Trespassing. 

HARNESS. 

Quiet  in,  118,  121,  122. 

HAZARD. 

An  illegal  game,  434. 

Penalty  on  person  setting  up,  458. 

Evidence  that  it  has  been  played,  id. 


INDEX.  613 

HEATS. 

Eules  under  Quecu'a  Plate  Articles,  548. 

HENEY  THE  FIEST. 
Eeign  of,  369. 

HENEY  THE  SECOND. 
Eeign  of,  369. 

HENEY  THE  FOUETH. 
Eeign  of,  370. 
Statutes.    See  Table  of  Statutes. 

HENEY  THE  SEVENTH. 
Eeign  of,  370. 
Statutes.    See  Table  of  Statutes. 

HENEY  THE  EIGHTH. 
Eeign  of,  371. 
Statutes.    See  Table  of  Statutes. 

heeeditaey  disease,  91. 
highway;. 

Person  injured  bj'  falling  over  lieaji  on,  315. 

Opportunity  of  seeing  it,  id. 

Eunning  over  stones  by  nigbt  on,  id. 

Leaving  it,  and  sustaining  injury,  id. 

True  test  of  legal  liability,  316. 

Wbo  liable  for  injury  thus  caused,  317,  318,  319. 

Neglect  of  statutory  duty  by  Surveyor  of,  319. 

Nuisance  on,  316,  331. 

Trespass  in  jDursuit  of  Game  from,  363. 

"  A  Game"  under  Highway  Act,  434. 

HIEING  HOESES. 

Letting  for  Hire,  244. 

Warranty  of  fitness  for  a  journey,  id. 

Eeasonable  care  not  sufficient,  245. 

Person  letting,  insurer  against  all  defects  wliicli  care  and 

skill  can  guard  against,  id. 
Wbere  a  particular  Horse  is  selected,  247. 
Horse  sbould  not  be  used  for  a  purpose  other  than  that  for 

"which  it  was  hired,  id. 
What  care  is  required  on  part  of  Hirer,  id. 
Infancy  good  defence  to  an  action  on  contract,  id. 
Secus,  where  action  founded  on  tort,  248. 
Where  Hirer  is  answerable  at  all  events,  id. 
Unnecessary  deviation,  id. 
Where  Negligence  must  be  proved,  id. 
Where  the  Horse  falls  lame,  id. 
Where  the  Horse  is  exhausted,  id. 
Where  the  Horse  refuses  his  feed,  249. 
"Where  the  Horse  is  returned  in  worse  condition,  id. 
Expenses  of  curing  Sick  Horse,  id. 
Where  the  Horse  is  improperly  doctored,  id. 
Who  must  pay  for  shoeing,  id. 


614  INDEX, 

HIEING  HORSES— (co^th"H«e(/). 

Bailment  determined  by  selling  tlie  goods,  249. 

Where  the  Horse  is  stolen  from  the  Hirer,  250. 

Where  the  Horse  is  stolen  by  the  Hirer,  id. 

Must  have  been  originally  taken  with  a  felonious  intention 

at  common  law,  251. 
Now  Bailee  indictable  for  larceny  by  24  &  25  Vict.  c.  96,  s.  3,  id. 
Horse  hired  by  a  servant,  id. 
Owner's  liability  in  case  of  accident,  id. 
Horses  driven  by  the  owner's  servants,  252. 
Horses  driven  by  the  owner's  servants  to  a  certain  place,  id. 
Travelling  Post,  id. 

Horses  driven  about  town  by  the  owner's  servants,  id. 
Laucjlier  v.  Pointer,  id. 
Owner  held  liable  in  Quarman  v.  Burnett,  253. 

Wearing  the  Hirer's  Livery,  id. 
A  job-master's  agreement,  254. 
Where  the  Hirer  is  liable  for  damage,  id. 
Hirer  liable  through  his  own  conduct,  id. 
Hirer  liable  where  he  might  have  controlled  his  servant,  id. 
M'Lauf/Jilin  v.  Pryor,  255. 

Opinion  of  the  Court  of  Common  Pleas,  255,  256. 

The  general  rule,  256. 

Where  the  Hirer  would  not  be  liable,  id. 

Hirer  sitting  outside  liable,  id. 
The  Jury  must  decide  whether  the  servant  is  acting  for  the 

Hirer  or  owner,  257. 
A  Hirer's  agreement,  id. 

HOCK. 

Enlarged,  88. 

HOESE. 

An  "  article"  within  10  &  11  Vict.  c.  14  .  .  57. 

"WTiat  included  within  this  description,  59. 

lulling  or  maiming,  62. 

Drugging,  63. 

Exposure  for  sale,  when  diseased,  90. 

Sale  of,  by  order  of  Court,  172. 

Accident  to,  in  yard  of  Eailway  Company,  284. 

Damage  from  Horse  being  frightened  by  a  Eire-basket,  301. 

By  Van  left  on  roadside,  302. 

By  an  Engine  Driver  blowing  ofi  steam,  305. 
Eestive,  323,  324. 
Kicking  at  a  Sale,  327. 
Injury  to,  by  dog,  352. 
Where  a  Horse  bit  some  other  Horses,  354. 
Breaking  Horses  in  a  public  place,  id. 
Where  a  vicious  Horse  kills  a  person,  id. 
An  unruly  Horse  escaping  from  a  stable,  355. 
Turning  a  vicious  Horse  u2:)on  a  Common,  id. 
See  also  Eaceiiokse. 

HOESE-BEEAKEE. 

Liable  for  damage,  233. 
Has  a  lien,  id. 


INDEX.  615 

HOESEDEALER. 

Definition  of  a  Horsedealer,  38. 

A  Seller  on  Commission,  id. 

The  Proprietor  of  Aldridge's,  39. 

No  duty  payable  by  a  Horsedealer,  id. 

When  a  trader  •within  the  Bankruptcy  Act,  id. 

Giving  a  Warranty  on  a  Sunday,  36. 

Premises  of,  a  "  Shoj)"  within  Markets  Clauses  Act,  58. 

His  servant  forbid  to  warrant,  128,  130. 

General  Rule,  132. 

HOESE  PACE.    See  Pacing,  Pules  of  Pacing. 
What  is,  within  Racecourses  Licensing  Act,  387. 

HORSE  STEALING. 

Statute  of  24  &  25  Vict.  c.  96  . .  59. 

Description  in  an  Indictment,  id. 

When  the  Offence  is  complete,  60. 

Property  given  up,  id. 

Delivery  of  a  Horse  to  a  Stranger,  id. 

Delivery  on  Trial,  61. 

Goods  taken  without  consent,  id. 

Appropriation  of  a  hired  Horse,  id. 

Larceny  without  Proof  of  Sale,  id. 

Taking  with  an  Intent  to  use,  62. 

Possession  Six  Months  after  Loss,  id. 

Eilling  or  maiming  Horses,  id. 

Other  animals,  id. 

Pouring  Acid  into  a  Mare's  Ear,  id. 

"  Maiming  and  wounding,"  id. 

Use  of  instrument  need  not  be  proved,  63. 

MaHce,  id. 

Drugging  of  Animals  Act,  id. 

Where  the  Horse  is  stolen  by  the  Hirer,  250. 

Fraudulent  appropriation  by  Bailee  of  a  Horse,  251. 

HOSTLER.    See  Innkeeper,  214. 

Arrangement  with,  by  Innkeeper,  222. 

HOTEL-KEEPER.    See  Innkeepee. 

HUNTED. 

A  Horse  regularly,  411. 

HUNTING  AND  TRESPASSING. 

Fresh  pursuit  over  another's  land,  357. 
Pursuing  vermin,  id. 

No  unnecessary  damage,  358. 
Digging  for  a  fox,  &c.,  id. 
Hunting  for  amusement,  id. 

Earl  of  Essex  v.  Ccqiel,  id. 
Huntsman  liable  for  damage  done  by  the  field,  359. 
Master  of  hounds,  when  responsible  for  the  field,  id. 
Hunting  a  hare  on  another's  land,  360. 
Taking  a  stag  on  another's  land,  id. 
Hunting  a  stray  deer,  id. 
Dead  game  property  of  owner,  id. 


616  INDEX. 

HUNTING  AND  TRESPASSING— (co«^"«HeJ). 

He  lias  a  right  to  liave  his  game  undisturbed,  360. 
Cattlegate  owners  have  not  right  of  shooting,  id. 
Eeservation  of  rights  of  Lords  of  Manors  under  Enclosure 

Acts,  id. 
Who  may  kiU  hares  without  a  Game  certificate,  361. 
Ground  Game  Act,  1880,  id. 
Any  person  may  hunt  hares,  id. 
Continued  trespass,  id. 

Two  persons  engaged  in  a  common  purpose,  362. 
Trespass  in  search  of  game,  id. 
Hunting  with  hounds  or  greyhounds,  id. 
Jurisdiction  of  Justices  ousted,  id. 
Persons  employed  by  Tenant  to  kill  rabbits,  363. 
Trespass  from  the  Highway,  id. 
From  own  land  to  pick  uji  Game,  id. 
Under  25  &  26  Vict.  c.  114,  id. 
Laying  hands  on  a  tresjiasser,  id. 
Disposing  force  to  force,  364. 
Defence  to  an  action,  id. 
Horse  with  a  rider  cannot  be  distrained,  id. 
Action  of  trespass  lies  for  riding  over  land,  id. 
But  not  where  a  dog  jumps  into  a  field,  id. 
A  trespass  after  notice,  /(/. 
Notice  under  3  &  4  Yict.  c.  24,  s.  3,  id. 
Notice  transmitted  by  jjost,  id. 
Maintenance  of  fences,  365. 
Obligation  to  maintain,  id. 
At  common  law,  id. 
By  statute,  id. 
Gate  of  a  field  left  open,  id. 

Leaving  gate  open  where  there  is  statutable  obligation,  id. 
Leaving  gate  open  where  no  statutable  obligation,  366. 
Fence  -^dthin  station  yard,  367. 


IDENTIFICATION. 

Of  child  with  person  in  charge  of  it,  321. 
Of  i^assenger  \vith  driver,  id. 

IMPOSSIBLE  CONTRACT,  203. 

INDICT^IENT. 

For  Horse-stealing,  59. 

May  be  maintained  for  collusion  on  a  sale,  147. 

But  not  where  one  person  sells  an  unsound  Horse,  148. 

Innkeeper  refusing  to  receive  a  Traveller,  217. 

What  such  Indictment  must  state,  id. 

Stealing  a  hired  Horse,  251. 

Killing  a  person  by  negligent  driving,  296,  297. 

Cheating  in  a  Game  or  at  Play,  431. 

To  be  deemed  obtaining  money  by  false  pretences,  id. 

Excessive  and  unfair  Gaming,  430. 

Using  false  dice,  id. 


INDEX.  017 

INDICTMENT— (coi^<//z»ecZ). 

Keejiing  a  House  for  playing  Eoiige  et  Noir,  457. 
"What  the  Indictment  should  charge,  id. 
Bill  of,  for  keeping  Gambling-house,  presentable  on  certain 
conditions  only,  463,  n. 

INFANT. 

May  be  an  agent,  27. 

Fraud  of,  161. 

Liable  for  torts,  179. 

But  not  where  substantial  ground  of  action  is  contract,  180. 

When  liable  for  injury  to  hired  Horse,  247,  248. 

Indictment  against,  430. 

INITIALS.    See  Sigxatuee. 

INN.    See  Ixnkeeper. 

INNKEEPEE. 

His  Business,  214. 

Definition  of  an  Inn,  id. 

Derivation  of  Hostler,  id. 

"VMio  is  a  Guest,  id. 

What  an  Innkeeper  undertakes,  id. 

Hours  of  closing,  id. 

Within  metropolitan  district,  id. 

In  a  town  or  populous  place,  215. 

Elsewhere,  id. 

During  the  whole  of  Sunday  in  Wales,  id. 
Travellers  and  Lodgers,  216. 

Who  is  a  bona  fide  Traveller,  id.  '  ' 

Onus  of  proof,  id. 
Innkeeper  compellable  to  receive  a  Traveller,  id. 
May  be  indicted  for  refusing,  217. 
What  has  been  held  to  be  no  defence,  id. 
Sickness,  Drunkenness,  &c.,  id. 
Action  for  compensation,  id. 

Not  liable  for  refusing  to  supply  Post  Horses,  id. 
Traveller  not  entitled  to  select  particular  apartments,  id. 
Liability  of  Innkeeper  limited  by  26  &  27  Vict.  c.  41 . .  218. 
Horses  exempted  from  operation  of  this  Act,  id. 
"  Wilful,"  in  section  1,  must  be  read  with  "  act"  only,  id. 
Verbal  error  will  not  vitiate  notice,  id. 
Omission  of  word  "  act,"  material,  id. 
Salaried  manager  not  liable  as  Innkeeper,  id. 
Goods  to  which  his  liability  extends,  id. 
How  ousted,  219. 
Negligence  on  part  of  Guest,  id. 
Where  a  Guest's  Horse  is  stolen,  220. 
"Where  another  person's  Horse  is  stolen,  id. 
Principle  iipon  which  liabilitj'  depends,  id. 
Circumstances  under  which  he  becomes  merely  a  bailee,  id. 
Horse  out  at  Grass  by  the  Guest's  desire,  id. 
Horse  out  at  grass  without  the  Guest's  desire,  221. 
Where  a  Guest's  Horse  is  injured,  td. 

Presumption  of  negligence  against  the  Innkeeper,  id. 

Not  rebutted  by  Stables  being  out  of  his  control,  222. 


618  INDEX. 

INNKEEPER— (co/.i//.«e(/). 

A  Guest's  goods  not  distrainable,  223. 

Even  wliere  lie  is  accommodated  out  of  the  Inn, 

Or  uses  a  Stable  provided  for  the  occasion,  id. 
Innkeeper's  lien,  id. 
Innkeeper  has  a  lien  on  a  Horse  for  its  keep,  id. 

Whether  in  the  Stable  or  at  grass,  id. 
He  cannot  detain  a  Guest  for  his  Bill,  224. 

But  may  detain  his  Horse,  id. 
What  his  right  of  lien  depends  on,  id. 
Horses  and  carriages  sent  to  livery  at  an  Inn,  id. 
Cannot  sell  one  Horse  for  the  keep  of  others,  id. 
Has  a  lien  on  a  Horse  left  by  a  wrong-doer,  225. 
But  not  if  he  knew  it  at  the  time  it  was  left,  id, 

A  Horse  left  by  the  poKce,  id. 
Giving  a  Guest  credit,  id. 
A  third  party  when  answerable,  id. 
Horse  removed  to  defeat  the  lien,  225,  226. 
Keep  during  detention,  id. 
He  cannot  use  a  Horse  he  detains,  id. 
He  could  not  formerly  sell  a  Horse  he  detained,  226. 
But  may  now  sell  a  Horse  after  six  weeks,  227. 

Advertisement  of  sale,  id. 
Distrainor  may  sell  a  Horse  for  his  keep,  228. 

INNOCENT  VENDEE. 

Eesale  to,  by  buyer  under  fraudulent  sale,  159. 

INSPECTION. 

Purchase  without,  137. 

INSTRUMENTS  OF  GAMING. 
What  are,  436. 
May  be  taken,  460. 

And  destroyed,  461. 
Used  for  billiards,  463. 

INTEREST. 

When  recoverable,  202. 

INTERPLEADER. 

By  auctioneer,  when  allowed,  42. 
Claims  must  be  co-extensive,  id. 
Mode  of  trjing  disputed  title,  114,  115. 

INVOICE.    See  Bill  of  Parcels. 

I  O  U. 

For  money  borrowed  to  pay  bets,  427. 
Not  evidence  of  money  lent,  443. 
For  gaming  debt,  id. 


J. 

JAMES  THE  FIRST. 
Reign  of,  375. 
Statutes.    Sec  Table  of  Statutes. 


INDEX,  619 

JOBMASTEE. 

Letting  for  hire,  244. 

His  agi'eement,  254. 

Where  the  Hirer  is  liable  for  damage,  254 — 257. 

JOCKEY. 

Professional,  403. 
Eeceiving  his  expenses,  408. 

JOCKEY  CLUB. 

Courses  governed  by  theii-  Eules,  410. 
Arbitration  by  them,  id. 
Will  not  entertain  matter  of  fact,  id. 
Enles  and  orders  of,  572. 

JOHN. 

Eeign  of,  370. 

JUDGE  OF  A  EACE. 

Powers  of,  do  not  accrue  when  race  invalid,  403. 
Stewards  are  proper  parties  to  appoint,  405. 

JULIUS  C^SAE. 
His  time,  369. 

JUS  TEETH. 

May  be  set  up  by  Auctioneer,  42. 

JUSTICES. 

Jurisdiction  of,  when  ousted,  362. 


K. 

KEEP. 

Eecovering  the  cost  of,  206. 
Seller  liable  for  reasonable  keep,  207. 
What  is  reasonable,  id. 
Keeping  a  Horse  till  a  Fair,  id. 
Lien  on  a  Horse  for,  223—227. 
During  detention,  226. 
Lively- stable  keeper  has  no  lien  for,  238. 
Unless  by  agreement,  id. 

Money  received  but  returned  cannot  be  set  off  in  an  action 
by  Livery-Stable  Keeper  for,  239. 
And  see  Lien. 

KICKING,  92. 

Horse  kicked  at  an  Inn,  222,  n. 

KIDNEY-DEOPPING. 
An  Unsoundness,  92. 

KILLING  OE  MAIMING,  62. 

Killing  with  intent  to  steal  the  skin,  &c.,  59. 

KNUCKLING  OVEE,  90. 


620  IXDEX. 


LADY. 

Horse  to  cany,  120. 

LAMENESS. 

Temporary  lameness  an  Unsoundness,  92. 

LAMINITIS,  93. 

LAMPAS,  94. 

LAECENY.    See  Hoese  Stealing. 

LATENT  DEFECTS,  115. 

Buyer  j)rotected  against,  by  Warranty,  116. 

No   exception   as   to,  in   case   of  purchase   for  particular 

purjwse,  121,  123. 
Seller  not  bound  to  disclose,  151. 
Sale  "  witli  all  faults"  excludes,  156. 

LENDING  HOESES.     See  Boeeowing  Hoeses. 

LETTING  HOESES.    See  Hieing  Hoeses. 

LETTEE. 

Contract  by,  20,  21,  22,  23. 

Where  direction  torn  off,  20. 

Comj)leted  by  posting,  23. 

Though  it  never  arrives,  id. 

How  supplemented  by  parol  evidence,  24. 

Price  sent  by  post  letter,  34. 

AVarranty  may  be  gathered  from  letters,  119. 

LIABILITY. 

Of  Warrantor,  123. 

LICENCE. 

For  Eace-course,  387. 

For  Billiards,  463. 

Offence  by  publican  against  tenor  of,  441. 

LIE. 

When  cognizable  by  law,  151. 

LIEN. 

Loss  of,  by  vendor,  8. 

Seller's  lien,  31. 

In  case  of  exchange,  id. 

How  susj^ended,  32. 

Keeper  of  repository  has,  for  expense  of  trial,  46. 

Auctioneer  has,  for  commission,  &c.,  53. 

Innkeeper's  lien,  223,  227.     And  see  Innkeepee. 

Farrier's  lien,  232,  233. 

Horsebreaker's  lien,  233. 

Trainer's  lien,  233,  234. 

Stallion-master's  lien,  234. 

Livery-stable  keeper  has  no  lien  for  keep,  238. 


INDEX. 


G21 


Ijl'EN—{conti>tU€d). 

Except  by  agreement,  238. 

Horse  removed  to  defeat  his  lien,  id. 

Livery-stable  Keeper  lias  no  lien  for  money  expended  on 

Horse,  id. 
Agister  has  no  lien,  242. 
Except  by  agreement,  243. 

LISTS. 

Penalty  for  exhibiting,  for  betting,  454. 

LIVEE  DISEASE,  94. 

LIVEEY. 

Servant  wearing  a  Hirer's,  251,  253. 

LIVEEY-STABLE  KEEPEE. 

Constructive  delivery  by,  10. 
Eemedy  against,  for  detaining  a  Horse,  176. 
Has  no  privilege,  237. 
Liable  where  the  Horse  is  lost,  id. 
Horse  at  livery  distrainable,  id. 

But  not  where  he  is  merely  to  be  cleaned  and  fed,  id. 
Distinction  taken  in  Parsons  V.  Gingell,  238. 
Livery-stable  keeper  has  no  lien  for  keep,  10,  11,  238. 
May  have  a  lien  by  agreement,  238. 
Horse  removed  to  defeat  such  lien,  id. 
Has  no  lien  for  money  expended  on  Horse,  id. 
What  cannot  be  sot  off  in  an  action  for  keep,  239. 
He  must  take  reasonable  care  of  the  Horse,  id. 
And  see  that  stable  is  in  a  proper  state,  id. 
But  there  is  no  implied  warranty  on  his  part  that  it  is  safe, 

id. 
An  action  for  not  taking  due  care  of  a  Horse  founded  on 

contract,  240. 

LOED  CAMPBELL'S  ACT  (9  &  10  Vict.  c.  93). 
Action  by  representatives  of  person  killed,  342. 
By  persons  beneficially  interested,  id. 
Where  the  action  is  maintainable,  342,  343. 
Damages  under,  confined  to  injuries  of  which  pecuniary 
estimate  can  be  made,  345. 
Cannot  be  given  for  funeral  expenses,  346. 
Does  not  give  remedy  to  a  class  but  to  individuals,  id. 
And  see  Damages. 

LOED  TENTEEDEN'S  ACT  (9  Geo.  4,  c.  14). 

Sect.  7  to  be  taken  with  sect.  17  of  Statute  of  Frauds,  6. 
Effect  of  being  taken  together,  id.  ; 

LOSS  OE  ISIAEKET. 

Eailway  Company  not  liable  for,  276,  277,  278.  ^  - 

LOTTEEIES. 

Statutes  relating  to,  435. 
Lotteries  declared  nuisances,  id. 
Penalty  for  keeping  a  Lottery,  id. 


622  INDEX. 

LOTTERIES— (co«f/7n(ecZ). 

Penalty  for  drawing  at  a  Lottery,  435. 

Littlegoes  declared  nuisances,  id. 

Penalty  for  keeping  a  place  for  a  Lottery  or  Littlego,  id. 

Penalty  for  suffering  any  Lottery  to  be  di'awn,  436. 

Justices  have  summary  jiuisdiction,  id. 

5  Geo.  4,  c.  83,  s.  4,  "instruments  of  gaming,"  id. 

Pacing  Sweeps,  385,  437. 

Sale  of  property  by  lot,  437. 

Attempt  to  evade  the  law,  438.  ^ 

Art  Unions,  id. 

A  Lottery  of  Houses,  id. 

Ballot  in  Land  Societies,  439. 

Allotment  or  partition  by  lots,  id. 

Choice  of  allotments,  id. 

The  Conservative  Land  Society,  id. 

Periodical  drawings,  440. 

EejDayment  of  money,  id. 

LUNGS. 

Hepatized,  94. 


M. 

MAIMING. 

Maiming  Horses  felony,  62. 

Distinction  between  maiming  and  wounding,  id. 

Evidence  of  malicious,  63. 

MALLENDEES,  94. 

MANGE,  94. 

MANOEIAL  EIGHTS. 

Under  Inclosure  Acts,  360. 

I^IANSLAUGHTEE.    See  Negligent  Driving. 
"Where  killing  a  person  held  to  be,  297. 
Defence  of  contributory  negligence  in  case  of,  298. 
Evidence  identical  with  that  required  to  establish  actionable 

negligence,  328. 
Turning  a  dangerous  animal,  or  a  vicious  Horse,  on  a 

thoroughfare  or  common,  355. 

MANSUET^  NATUE^,  349. 

MAEKETS.    See  Fairs  and  [Markets  overt. 

MAEKETS  AND  FAIES  CLAUSES  ACT. 
Horse  "  an  article"  within  that  Act,  57. 

MAEEIED  WOMAN. 

May  be  an  agent,  27. 

Cannot  bind  herself  by  a  contract,  161,  162. 
Nor  her  husband  by  a  fraudulent  contract,  id. 
She  is  responsible  for  torts  committed  by  her,  162. 
Keeping  a  Gaminghouse,  457. 


INDEX.  623 

MAEY.    See  Philip  asb  Mary. 

MASTER  AND  SERVANT.    See  Servant. 

MASTER  OF  HOUNDS. 
Liable  for  damage,  359. 
When  done  by  the  field,  id. 

MASTER  OF  THE  HORSE. 

"What  disputes  he  may  decide,  549. 

MASTIFF. 

Injxiry  by,  350. 

MATCH. 

Between  Horses,  390. 
At  billiards,  418. 
"Walking  match,  419. 

]VIEMORAND"UM.    See  Note  or  Memorandum  in  Writing. 
MERCANTILE  LAW  AMENDMENT  ACT,  176. 

METROPOLITAN  DISTRICT. 
Cockfighting,  &c.,  441. 
Entering  Betting-houses  within,  455. 
Or  Gaming-houses  within,  460. 

MISCHIEVOUS  ANIMALS,  347. 

MISREPRESENTATION. 
Damages  for,  211. 

And  see  Fraudulent  Contracts. 

MISTAKE. 

Money  paid  under,  178. 

MOCK  AUCTIONS. 

An  offence  at  common  law,  51. 

MONEY. 

Paid  under  a  mistake,  178. 

Borrowed  to  pay  Bets,  427. 

Deposited  for  Gaming,  432. 

Sum  of,  to  be  awarded  to  winner,  433. 

Staked  in  a  Public-house,  441. 

Lent  for  Gaming,  442. 

Lent  for  Stakes  of  Prize-fight,  id. 

Lost  at  Play,  443.  _ 

Received  in  a  Betting-house,  453. 

Found  in  a  Gaming-house,  460. 

MONEY   FOUND    TO    BE    DUE    UPON   AN   ACCOUNT 
STATED.    See  Account  Stated. 

MONEY  HAD  AND  RECEIVED. 
For  repayment  of  the  price,  178. 
For  repayment  of  part  of  the  price,  id. 
For  price  of  Horse  wrongfully  sold,  179. 


(324:  INDEX. 

MONEY  HAD  AND  HECEIYED -{continued). 
Subject  to  certain  conditions,  179. 

Where  Conditions  of  Sale  have  not  been  comj^lied  with.,  188. 
Proof  for  the  plaintiff,  185. 
Defence,  195. 
Damages,  205. 

J^IOEAL  FEAUD,  150. 

MOETGAGE. 

Given  for  a  Gaming  consideration,  425,  444. 

Void  between  the  parties,  444. 

Good  in  the  hands  of  a  bond  fide  holder,  {d. 

MOVEABLE  BOX. 

Within  Eing,  a  "  place"  within  the  Betting  Acts,  152. 

MOVEABLE  DESK. 

A  "  place"  within  Betting  Acts,  450. 

MUEDEE.    See  Negligent  Driving. 

N. 

NAME. 

Giving  false,  or  address,  in  Gaming-house,  462. 

NASAL  GLEET,  95. 

NATUEAL  USEFULNESS,  72. 

NAVICULAE  JOINT  DISEASE,  94. 

NEGLIGENCE.    See  Hiring  Horses,  Borrowing  Horses. 

NEGLIGENT  DEIVING. 

Definition  of  negligence,  296. 

Negligent  driving,  id. 

Where  killing  a  person  is  held  to  be  Murder,  id. 

Where  killing  a  person  is  held  to  be  Manslaughter,  297. 

Burthen  of  proof,  id. 
Furious  driving,  id. 
Carriages  racing,  id. 
Driver  unable  to  pull  up,  id. 
Causing  death  of  passenger,  298. 
Defence  of  contributory  negligence,  id. 
"\Miere  killing  a  person  is  held  to  be  Accidental  Death,  id. 

And  the  driver  is  not  liable,  299. 
Trotting  a  waggon  along  a  road,  id. 
Trotting  a  waggon  along  a  street,  id. 
Eemarks  in  East's  Pleas  of  the  Crown,  id. 
Where  streets  are  unusually  crowded,  id. 
Where   driver  is  indictable  under   24  &  25  Vict.   c.   100, 

s.  35  .  .  300. 
Furious  driving  in  the  Metropolitan  Police  District,  id. 
Power  of  police  constables,  id. 
Conviction  no  bar  to  action  of  Tresjxiss,  id. 


INDEX.  625 

NEGLIGENT  -DBIVING— {continued). 

Where  party  injured  by  negligent  Driving  may  maintain 

an  action,  300. 
Duty  of  drivers  of  public  and  private  vehicles,  id. 
Action  lies  for  negligence  in  the  care  of  vicious  Horses, 

&c.,301. 
Where  another  person  strikes  a  Horse,  id. 
Damages  recovered  in  Trespass,  id. 
Driving  furiously  round  a  corner,  id. 
Mail  Cart  rapidly  entering  Post-Office  Yard,  id. 
Frightening  a  Horse  by  a  Fire-basket,  id. 

By  Van  left  on  Eoadside,  302. 

Judgment  in  Harris  v.  Mohbs,  303. 

By  blowing  off  Steam,  305. 
Rules  as  to  civil  liability,  305. 
Negligence  on  one  side  only,  id. 
Passenger  thrown  from  an  Omnibus,  306. 
Horse  and  cart  left  standing  in  the  street,  id. 
Damage  from  tackle  breaking,  307. 
Or  from  defect  in  the  carriage,  id. 
Negligence  on  both  sides,  id. 
Where  the  negligence  of  injured  party  did  not  contribute  to 

the  accident,  308. 
Where  such  negligence  occasioned  part  of  the  mischief,  id. 
A  Wrongdoer  not  without  the  pale  of  the  law,  id. 
Driving  against  an  ass  fettered  on  the  road,  id. 
Question  of  ordinary  care  on  the  part  of  Plaintiff,  309. 
On  the  part  of  the  Defendant,  id. 
Circumstances  of  the  case  must  be  left  to  the  Jury,  id. 
Horse  injured  in  being  led  out  of  the  stable,  id. 
Horse  and  cart  left  in  the  street,  310. 
Judgment  of  the  Court  of  Queen's  Bench,  id. 
Where  no  negligence  on  the  jjart  of  the  defendants,  314. 
Law  deducible  from  these  cases,  id. 
Remarks  on  Abbott  v.  Macfie,  id. 
A  heap  left  on  a  highway,  315. 
Opportunity  of  seeing  the  obstruction,  id. 
Running  over  stones  at  night,  id. 
Leaving  the  highway,  id. 
Excavation  a  public  nuisance,  316. 
Trespasser  may  maintain  an  action,  id. 
True  test  of  legal  liability,  id. 

Owners  of  private  ways  may  be  liable  for  negligence,  id. 
Even  where  injury  caused  by  intervening  act  of  third  party, 

317. 
Liability  of  a  Contractor,  id. 

Where  there  are  several  ways  of  doing  a  thing,  318. 
Liabilitj'^  of  an  employer,  id. 
What  is  the  question  in  such  cases,  id. 
Drain  repaired  by  an  ordinary  but  skilful  labourer,  id. 
Stones  left  by  a  Sub-Contractor,  319. 
Surveyor  of  Highways  guilty  of  neglect  of  Statutory  Duty, 

id. 
Performance  of  an  ordinary  domestic  duty,  id. 
Manure  left  on  a  road,  320. 

o.  s  s 


626  INDEX. 

NEGLIGENT  I)mYl^G—{cordinued). 

With  regard  to  works  executed  under  Local  Acts,  320. 

Both  parties  to  hiame,  id. 

Identification  of  child  with  person  in  charge  of  it,  321. 

Identification  of  passenger  with  driYcr,  id. 

Eemarks  in  Smith's  Leading  Cases,  id. 

Power  of  selection,  322. 

Altogether  an  Accident,  id. 

Eunning  over  a  person  at  night,  id. 

Where  it  is  the  result  of  the  sudden  fright  of  the  Horse, 

323. 
HarmnacJi  v.  White,  id. 
Driver  not  calling  out,  324. 
Horse  running  away,  id. 
Qualification  of  rule,  325. 

Where  defendant  knows  that  Horse  is  unmanageable,  id. 
Or  a  kicker,  id. 

Proof  of  neghgence  must  be  affirmative,  id. 
When  evidence  is  equally  consistent  with  negligence  and 

no  negligence,  326. 
Where  a  Horse   straying  in  a  Highway  kicked  a   child, 

327. 
Horse  kicking  at  a  sale,  id. 
Accident  itself  sometimes  affirmative  proof  of  negligence, 

id. 
Evidence  identical  with  that  required  for  manslaughter,  328. 
As  to  demand  of  jDarticulars  in  actions  for  negligent  diiving, 

id. 

NEGLIGENT  DEIVING  BY  A  SEEVANT. 

When  the  Master  was  liable  according  to  fonner  decisions, 

331. 
Liability  now  held  to  be  more  extensive,  332. 
Limpus  V.  General  Omnibus  Comjyany,  id. 
Acts  done  within  employment  and  for  master's  interest,  id. 
If  Servant  vindictively  strikes  Horse  with  his  whip,  333. 
Instructions  of  Master,  if  disregarded,  immaterial,  id. 
Master  liable,  if  acts  are  done  for  his  benefit,  id.,  334. 

Unless  done  out  of  the  Servant's  employment,  334. 
Liability  of  Cab  Proprietors,  id. 

Eor  loss  of  luggage,  335. 

Or  personal  injury,  id. 

Eelationship  between  Proj)rietor  and  Driver,  id. 
Master  and  Servant  driving  together,  id. 
Servant  entrusting  the  reins  to  a  stranger,  id. 
Servant  striking  the  Horse  of  another,  336. 
Servant  striking  jDassenger,  id. 

Guard  of  omnibus  using  undue  violence  to  passenger,  id. 
Servant  removing  an  obstruction,  337. 
Servant  acting  imj^roperly,  id. 
Making  a  detour  for  his  own  purposes,  id. 
Servant  acting  contrary  to  his  trust,  338. 
Taking  his  Master's  Horse  without  leave,  id. 
Ee-entering  on  duty,  339. 
Taking  the  Horse  of  another,  id. 


INDEX.  627 

NEGLIGENT  DEIVING  BY  A  SEEV ANT— {contimml). 
No  express  authority  of  Master  necessary,  34o. 
Question  for  the  jury,  id. 
Master's  name  on  the  cart,  id. 
Giving  an  address,  id. 
Action  for  bodily  hurt,  id. 

Liability  of  Master  and  Servant  respectively,  341. 
Negligence  of  fellow- servant,  id. 

Master  bound  to  use  due  care  in  selection  of  Servants,  id. 
Liability  of  Cab -proprietor  to  Driver,  id. 
Action  by  representatives  of  a  person  killed,  342. 
Within  what  time  it  may  be  brought,  id. 
By  whom  it  may  be  brought,  id. 
By  persons  beneficially  interested,  id. 
Construction  to  be  put  upon  the  condition  in  9  &  10  Yict. 

c.  93,  id. 
Plaintiff  must  prove  pecuniary  loss,  343. 
Plan  of  the  locality,  id. 

Conviction  for  furious  driving  a  bar  to  subseqiient  action,  id. 
Damages,  344. 

Eesponsibility  for  "all  possible  consequences,"  id. 
Damage  too  remote,  id. 
Injury  done  to  a  carriage,  345. 

Measure  of  damages  where  a  Horse  has  been  injured,  id. 
Damages  where  a  person  has  been  killed,  id. 
How  limited,  id. 

Cannot  be  given  for  funeral  expenses,  34G. 
Damages  not  given  to  a  class,  but  to  individuals,  id. 

NEEVED  HOESE,  94. 

Held  to  be  unsound,  95. 

NOMINAL  DAMAGES,  205. 

NOJ^nNATING  THE  WINNEE,  419. 


NOSE. 


Chronic  discharge,  95. 
Nasal  gleet,  id. 

NOT  LYING  DOWN,  96. 

NOTE.    See  Bank  Note,  Promissory  Note,  Sold  Note. 

NOTE  OE  I^IEMOEANDUM  IN  WEITING. 
Under  Statute  of  Frauds,  6. 
Written  agreement,  17. 
No  particular  form  required,  id. 
Names  of  the  contracting  Parties,  18. 
Terms  of  the  Contract  must  be  stated,  id. 
Terms  may  be  collected  from  more  than  one  document,  id. 
The  Stamp  Act,  id. 
Catalogue  at  a  Sale,  id. 
Price  where  agreed  upon,  19. 
Where  no  Price  is  agreed  upon,  20. 
Where  no  mode  or  time  is  stated,  id. 
Contract  by  letter,  id. 

ss2 


628  INDEX. 

NOTE  OE  MEMOEANDUM  IN  WETTING— (co?i««me(Z). 
Sufficient  between  the  parties,  20. 
Must  express  all  the  terms  of  the  Agreement,  id. 
Mutual  assent,  21. 
Introduction  of  new  term,  21,  22. 
When  the  Contract  is  complete,  23. 
Terms  cannot  be  varied  by  parol,  id. 
But  may  be  exj)lained,  24. 
Evidence  that  goods  are  supplied  on  credit,  id. 
As  to  matters  antecedent  to  the  writing,  id. 
As  to  condition  precedent,  id. 
Memorandum  made  after  action,  25. 
A  foreign  Contract,  id. 

Memorandum  drawn  up  by  Agent  of  both  parties,  27. 
Though  unsigned,  sufficient,  id. 

By  agent  of  seller,  at  request  of  buyer,  not  sufficient,  28. 
By  Auctioneer,  43. 
By  Auctioneer's  Clerk,  id. 

NOTICE. 

Of  conditions  of  sale,  46. 

Of  the  Breach  of  Warranty,  163. 

Of  the  Nature  of  the  Unsoundness,  191. 

Buyer  not  bound  to  give  it  in  either  case,  163,  171,  191. 

Length  of  time  before  it  is  given,  163,  171. 

By  Eailway  Companies  with  regard  to  carrying,  269,  272. 

And  see  Carrying  Horses. 
General,  invalid,  272. 

Of  consignee's  refusal  of  goods  to  consignor,  283. 
Not  to  trespass,  364. 

NUDE  ASSEETION,  152. 

O. 

OMNIBUS. 

Eacing,  297. 

Passenger  thrown  from  one,  306. 
Case  of  Thorocjood  v.  Bryan,  321. 
Case  of  Limpus  v.  General  Omnibus  Company,  332. 
Guard  of,  using  undue  violence  to  drunken  passenger,  336. 
Eegulations  in  London,  521,  578. 
And  see  Negligent  Drfv^ing. 

OPACITY  OF  THE  LENS. 

Held  to  be  an  Unsoundness,  96. 

OEDEE. 

Of  Court,  for  sale  of  Horse,  172. 

OSSIFICATION  OF  THE  CAETILAGES,  96. 

OTTEE.    See  Hunting  and  Trespassing,  357. 

OYEEEEACH,  96. 

OWNEESHIP. 

Warranty  of,  by  Auctioneer,  48. 
And  see  Acts  of  Ownership. 


ixDEX.  629 


PAEOL  EVIDENCE. 

Written  contract  cannot  be  varied  by,  18,  23. 
But  may  be  explained,  24. 

PAROTID  GLAND. 

Ulcerated,  97. 

PAETICULAES. 

In  actions  for  negligent  driving,  328. 

PAETICULAES  OF  SALE. 

Notice  of,  47. 

PAET  PAYMENT.    See  Earnest  and  Pakt  Payment. 

Only  a  part  performance  in  respect  of  contract  under  Statute 
of  Frauds,  17. 

PAETY  TO  BE  CHAEGED.    See  Signature. 

PASSAGE. 

Illegal  game,  380,  434. 

PATENT  DEFECTS. 

Not  covered  by  a  Warranty,  133. 

In  wbat  they  consist,  id. 

Loss  of  an  Eye  or  Tail,  id. 

How  far  the  loss  of  an  Eye  is  Patent,  id. 

"  Bright  Eye,"  134. 

Convexity  of  the  Eye,  id. 

Where  the  buyer  knows  the  Defect,  id. 

Where  Defects  are  discussed,  id. 

Conclusion  to  be  drawn  from  the  cases,  136. 

Suspected  Defects,  137. 

Where  seller  objects  to  examination,  id. 

Purchase  without  inspection,  id. 

Caveat  emptor  does  not  apply,  id. 

Purchase  after  inspection,  151. 

PAYMENT.    See  Delivery  and  Payment. 
Proof  of  Payment  of  Price,  187. 

PEDIGEEE. 

Selling  according  to,  141. 
When  first  attended  to,  377. 
Entry  for  the  Queen's  Plate,  548. 

PEEIODICAL  DEAWINGS.    See  Lotteries. 

PHAEAOH. 

An  illegal  game,  434. 
Penalty  for  setting  up,  458. 

PHAEAOHS. 

The  time  of  the,  368. 


630  INDEX. 

PHILIP  AND  MAEY. 
Reign  of,  374. 
Statutes.    See  Table  of  Statutes. 

PIGEON  SHOOTING. 

Ground  for,  held  to  be  a  "  place"  within  Betting  Acts,  450. 

PIMPLE  ON  THE  SKIN,  101. 

PLACE. 

"  Open  and  public  place"  under  o  Geo.  4,  c.  83,  s.  4 .  .  437. 
"  Using  a  place"  for  betting  purposes  under  16  &  17  Yict. 
c.  119.  .449—452. 
And  see  Betting  Hottses. 

PLAN  OF  THE  LOCALITY. 
Of  an  accident,  343. 
What  it  should  show,  id. 

PLATE. 

To  be  awarded  to  the  winner,  391. 
Queen's  Plate  Articles,  548. 

PLAY  OE  PAY. 

Evidence  admitted  to  explain,  410,  412. 

Its  effect  where  the  Horse  does  not  start,  411. 

PLEADING  AND  EVIDENCE  FOE  THE  PLAINTIFF. 
Executory  and  executed  contracts,  174. 
Action  for  price  of  Horse,  175. 
Action  for  not  accepting,  id. 
Eesale  of  the  goods,  id. 
Action  for  detention  of  goods,  id. 
Delivery  of  specific  goods,  176. 
Action  for  not  delivering,  id. 

Goods  sold  and  delivered  for  payment  of  the  price,  177. 
Action  maintainable  on  rescission  of  contract  by  one  of  the 

parties,  id. 
Horse  sold  and  delivered,  id. 

Money  had  and  received  for  repayment  of  the  price,  178. 
Under  a  mistake,  id. 
Money  had   and   received  for  repayment  of   jmrt  of    the 

price,  id. 
Money  had  and  received  for  price  of  Horse  wrongfully 

sold,  179. 
Money  received  subject  to  certain  conditions,  id. 
Action  on  a  breach  of  warranty,  id. 
Action  for  a  false  warranty,  id. 
Liability  of  an  infant,  id. 
Action  for  fraudulent  representation,  180. 
Statement  of  facts  in  action  for  breach  of  contract,  id. 
Statement  of  facts  in  action  for  deceit,  id. 
Statement  of  the  consideration,  id.,  181. 
If  the  Horse  turn  out  lucky,  181. 
Words  used  in  the  statement,  id. 
Statement  of  the  warranty,  182. 
Condition  annexed  to  the  warranty,  id. 


INDEX,  631 

PLEADING  AND  EVIDENCE  FOR  PLAINTIFF— (conicZ.).. 
Qualification  of  the  warranty,  182. 
The  i^urcliase  and  the  payment,  id. 

Statement  of  the  false  warranty  or  fraudulent  representa- 
tion, 183. 
Statement  of  the  breach,  id. 
Statement  of  the  damage,  184. 
Proof  in  goods  bargained  and  sold,  id. 
Proof  in  an  action  for  not  accepting,  id. 
Meaning  of  readiness  and  willingness,  id. 
Proof  in  an  action  for  not  delivering,  185. 
Proof  in  goods  sold  and  delivered,  id. 
Proof  in  money  had  and  received,  id. 
Proof  of  an  account  stated,  186. 
Proof  in  an  action  on  a  Breach  of  warranty,  id. 
Proof  in  an  action  for  a  false  warranty,  id. 
Where  it  is  doubtful  whether  false  warranty  is  proveable,  id. 
Proof  in  an  action  for  fraudulent  representation,  187. 
Proof  of  the  bargain  and  sale,  id. 
Proof  of  the  consideration,  id. 
Proof  of  payment  of  the  price,  id. 
Appropriation  of  the  money  tendered,  188. 
Proof  of  the  promise  or  warranty,  id. 
A  warranty  not  contained  in  the  receipt,  189. 
"Warranty  in  a  receipt  not  always  conclusive,  id. 
Written  warranty  requires  no  agreement  stamp,  id. 
Where  authority  to  warrant  need  not  be  proved,  190. 
Where  authority  to  warrant  must  be  proved,  id. 
Proof  of  power  to  rescind,  id. 
Proof  of  fraudulent  representation,  id. 
Proof  of  the  breach  of  warranty,  191. 
Notice  of  the  nature  of  the  unsoundness,  id. 
Evidence  as  to  unsoundness,  id. 
Matter  of  fact  alone,  id. 
Either  fact  or  veterinary  opinion,  id. 
Both  fact  and  veterinary  opinion,  id. 
Veterinary  opinion  alone,  192. 
Evidence  as  to  vice,  id. 
Evidence  as  to  unfitness,  &c.,  id. 
Proof  of  rescission,  id. 
Proof  of  tender,  id. 

PLEADING  AND  EVIDENCE  FOE  THE  DEFENDANT. 
Admissions  by  pleading,  192. 
What  must  be  specially  pleaded,  id. 
Specific  denials,  193. 
Denial  of  contract,  id. 
Allegation  of  malice,  &c.,  id. 
Defence  for  detention  of  goods,  id. 
Defence  for  goods  bargained  and  sold,  and  for  not  accepting, 

id. 
Defence  in  an  action  for  not  delivering,  194. 
Where  Evidence  of  usage  of  trade  is  not  admissible,  id. 
Defence  for  goods  sold  and  delivered,  id. 
Defence  to  action  on  a  cheque  for  the  price,  id. 


632  INDEX. 

PLEADING  AND  EVIDENCE  FOE  DEFENDANT— (co»fd.)- 
Evidence  in  reduction  of  damages,  195. 
Defence  for  residue  of  tlie  price,  id. 
Defence  for  money  had  and  received,  id. 
Defence  to  an  action  on  a  breach  of  warranty,  id. 
A  surreptitious  warranty,  id. 
Condition  annexed  to  a  warranty,  196. 
Evidence  in  reduction  of  damages,  197. 
Defence  to  an  action  for  a  false  warranty,  id. 
Defence  to  an  action  for  fraudulent  representation,  id. 
Disputing  the  warranty,  id. 
Disputing  the  unsoundness,  &c.,  id. 
Subsequent  recovery,  198. 
Competency  of  witnesses,  id. 

PLUGGING,  158. 

POLICE.   See  Coxstables,  Betting  Houses,  Gaming  Houses. 

POLICE  MAGISTEATE. 

Powers  equal  to  that  of  two  justices,  454,  n. 

POLICY. 

Wagering,  424. 

POLL-EVIL,  97. 

POSSESSION. 

Constructive,  by  vendee,  9. 

Only  presumptive  proof  of  ownership,  28. 

POST.    See  Letter,  Price. 

POST-HOESES. 

Innkeeper  not  liable  for  refusing  to  supply,  217. 
Statutes,  578. 

POST  OBIT. 

When  security  for  a  bet  may  be  set  off  against  subsequent 

losses,  410. 
Assigned,  held  good,  447. 

POST-OFFICE  OEDEE. 
Payment  of  debt,  34. 

POSTING. 

Damage  done  when,  252. 

P.  P.,  meaning  of,  411,  412. 

PEESCEIPTION. 

Prescriptive  right  to  kill  game,  362. 

To  resort  to  races,  a  good  custom,  but  not  an  easement 
within  Prescription  Act,  390. 

PEICE. 

Under  10?.,  4. 

Day  agreed  upon  for  payment,  id. 

\01.  or  upwards,  6. 


I 


INDEX.  633 

F'RlCE—{co7itinued). 

When  agreed  upon,  material  part  of  bargain,  19. 

*'  On  moderate  terms,"  held  sufficient  statement,  id. 

A  reasonable  price  is  to  be  inferred,  when  none  stated,  20. 

But  price  should  be  ascertained,  or  ascertainable,  28. 

Condition  as  to,  ascertainable,  id. 

Effect  where  not  ascertainable,  29. 

When  sent  by  post  and  lost,  34, 

Who  entitled  to  receive  it  at  an  auction,  52. 

When  price  vests  in  vendor  at  an  auction,  53. 

Where  auctioneer  is  innocent  agent  of  principal's  fraud,  id. 

A  sound  price  not  tantamount  to  a  warranty,  117. 

Action  for  price  of  Horse,  175. 

Goods  sold  and  delivered  for  payment  of,  177. 

Money  had  and  received  for  payment  of,  178. 

For  repayment  of  part  of  the  price,  id. 

For  price  of  Horse  wrongfully  sold,  179. 
Trooi  oi  paymejit  of  price,  187. 
Defence  to  action  for  residue  of,  195. 

PEICKINGr,  when  shoeing.     See  Fareiers. 

PEINCTPAL. 

Effect  of,  not  being  disclosed  by  auctioneer,  49. 

PEINOIPAL  AND  AGENT,  123.    See  Agent. 

FEINTED  PAETICULAES  OF  SALE. 

Auctioneer  not  to  vary  from  terms  of,  44. 

PEIVATE  WAYS.    See  Ways. 

PEIZE. 

Chance  of  obtaining,  too  remote  ground  for  damages,  292. 
To  be  awarded  to  the  winner,  391. 

PEIZE  FIGHT. 

Money  lent  for  stakes  of,  442. 

PEOFESSIONAL  JOCKEY,  403,  408,  411. 

PEOMISSOEY  NOTE.    See  Bill  of  Exchange. 
Breach  of  warranty  no  defence  in  action  on,  172. 
Unless  there  be  a  total  failure  of  consideration,  id. 
Given  for  a  Gaming  consideration,  420,  425,  444. 
Void  between  the  parties,  444,  445,  446. 
Good  in  the  hands  of  a  bond  fide  holder,  420,  444. 
Effect  of  payment,  420,  444. 
Identification  of,  443. 

PEOOFS.    See  Pleading  and  Evidence. 

PUBLIC  WAYS.    See  Highways. 

PUBLICAN. 

AUoTving  gaming,  441,  442. 

Lending  money  for  unlawful  gaming,  442. 


634  INDEX. 

PUFPING. 

At  an  Auction,  49. 
Sale  void,  50. 

PUMICED  FEET,  97. 

PUNCTUEE. 

In  nailing,  229. 

PUECHASE. 

Without  inspection,  137. 

Of  goods,  with,  preconceived  design  of  not  pajing  for  them, 
160. 

PUTTINa  STONE,  384,  434. 

Q. 

QUALITY. 

"Warranty  of,  113,  114.     And  see  "Waerais^ty. 

QUEEN'S  PLATE. 
Ai-ticles,  548. 

QUIDDING,  97. 

QUIET. 

In  harness,  118,  120,  121,  122. 

QUITTOE,  97. 

QUOITS,  384,  434. 

E. 

EACE-CqUESE. 

In  neighbourhood  of  metropolis  to  be  licensed,  387. 

EACE-HOESE. 

Eepeal  of  Duty  payable  on,  385. 
Eights  of  part-owners  of,  389. 
Scratching  a  Eace-Horse,  391. 

EACING,  WAGEES  AND  GAMING. 
History  of,  368. 
Eacing  lawful  game,  433. 
The  Law  as  to  Eacing,  389. 
Eights  of  part-owners  of  a  Eace-Horse,  id. 
Custom  to  race,  id. 
To  resort  to  races,  id. 

Though  a  good  custom,  not  an  easement  within  the  Pre- 
scription Act,  390. 
Stakeholders,  id. 
Sweepstakes,  id. 
Matches,  id. 

The  Act  for  the  Suppression  of  Betting  Houses,  id. 
Entry  for  a  Eace,  391. 
Eace  not  to  be  run  within  a  year,  id. 
"  Scratching  "  a  Eace-Horse,  id. 


INDEX.  635 

EACING,  WAGEES  AND  GAMlt=^G— (continued). 
Terms  of  a  Eace,  408. 
Eules  of  a  regatta,  id. 

Stewards,  &c.,  cannot  waive  any  Condition  of  a  Eace,  409. 
Eules  of  the  Jockey  Club,  410, 
Arbitration  of  the  Jockey  Club,  id. 
Sporting  Phraseology,  id, 
A  "Selling"  Eace,  411. 
A  professional  Jockey,  id. 
Horse  regularly  hunted  with  Hounds,  id. 
Match  for  a  particular  meeting,  id. 
Betting  on  a  Eace  not  illegal,  415. 

EACKETS,  383,  434. 

EAILWAY.    See  Oaebying  Hoeses,  Hunting  and  Tees- 
passing. 

EAM. 

Scienter  in  case  of  injury  by,  354. 

EATE. 

Increased,  for  Carriage,  under  17  &  18  Vict.  c.  31,  s.  7. 
See  Caeeying  Hoeses. 

EAT-TAILS,  98. 

EEADINESS  AND  WILLINGNESS. 
Averment  of,  to  deliver,  175. 

Not  sufficient  in  a  case  of  condition  precedent,  175. 
To  accept,  177. 
Meaning  of,  185. 
Defence  that  plaintiff  was  not  ready  and  willing,  194. 

EEAEING,  98. 

EECEIPT.    See  Acceptance  and  Eeceipt,  Stamp,  Deliveey, 
Pleading. 

EECOYEEY. 

Subsequent,  no  defence  to  action  on  breach  of  Warranty, 
198. 

EECOYEEY  OF  STOLEN  HOESES.    See  Stolen  Horses. 

EEGATTA,  383,  433. 
Eules  of,  408. 

EEGULATION  OF  EAILWAYS  ACTS,  287,  288.    And  see 
Caeeying  Hoeses. 

EEINS. 

Breaking,  307. 

No  defence,  id.  * 

Entrusted  to  a  Stranger,  335. 

EEMITTENT  INFLAI^fMATION,  76. 

EEPLEVIN. 

Maintainable  for  any  unlawful  taking  of  goods,  68. 


636  INDEX. 

EEPOSITOEIES.    See  Auctions  and  Eepositories. 
Eea's  Eepository  in  Soutli-wark  not  market  overt,  56. 

EEPEESENTATION.    See  Warranty  distinguished  from 
Eepresentation  and  Fraudulent  Contracts. 
Does  not  affect  a  written  Warranty,  118,  119. 
Untrue,  if  immaterial,  does  not  avoid  sale,  123. 
Distinguished  from  Warranty,  138. 
The  Correct  Eule,  141. 
False,  requisites  of  action  for,  152. 
Known  to  be  untrue,  153. 
Made  before  sale  by  auction,  id. 
Made  by  a  bidder  at,  154. 
Not  known  to  be  true,  id. 
Not  founded  upon  a  well-grounded  belief,  id. 
To  prevent  inquiries,  id. 
Through  a  third  party,  155. 
By  a  third  party,  id. 
Bond  fide,  id. 

As  to  the  character  of  another,  id. 
Influence  of,  need  not  be  proved,  151. 

EESCISSION. 
Eight  of,  4. 

Action  maintainable  on,  177. 
Money  had  and  received  lies,  178. 
Proof  of  Eescission,  186,  190,  192. 

EE-SELLING. 

Damage  on,  with  false  warranty,  210. 

EESEEVE. 

Sale  without,  47. 

EESTITUTION. 

Order  for,  of  stolen  goods,  66. 

If  comj)lied  with  at  once,  no  special  damages  claimable,  id. 

EETUEN.    See  Breach  of  Warranty. 
Condition  as  to,  53,  168,  169. 
If  unsound,  168. 
If  unsuitable,  169. 
If  disapproval  capricious,  170. 

EHEUMATISM,  98. 

EICHAED  THE  FIEST. 
Eeign  of,  370. 

EICHAED  THE  SECOND. 
Eeign  of,  370. 
Statutes.    See  Table  of  Statutes. 

EINGBONE,  98. 


INDEX.  637 

EISK. 

After  sale,  31. 

Condition  as  to,  in  contract  for  carriage  of  Horse,  274. 

Owner's  risk,  276.    And  see  Cabeying  Horses. 

EOAD.    See  Eule  of  the  Eoad. 

EOAEING. 

Decisions  on  the  subject,  99. 

EOLLING,  100. 

EOUGE  ET  NOIE,  457. 

EOULET,  OR  EOLY-POLY. 
Prohibited,  435. 

EOWING  MATCH,  383,  406,  408. 

EULE. 

As  to  Acceptance  and  Eeceipt,  7. 

As  to  Earnest,  the  old  rule,  16. 

As  to  Sales  in  Market  Overt,  55. 

As  to  Unsoundness,  71. 

As  to  Vice,  74. 

As  to  Warranty  of  title,  or  quality,  113,  114. 

As  to  "Warranty  of  fitness  for  a  purpose,  120 — 122. 

As  to  Undisclosed  Principal,  125. 

As  to  a  Servant  binding  his  Master,  132. 

As  to  Warranty  and  Eepresentation,  141. 

As  to  measure  of  Damages  for  Breach  of  Warranty,  205. 

As  to  Farriers,  230. 

In  trespass,  256. 

As  to  civil  liability  in  negligent  driving,  305,  308. 

EULE  OF  THE  EOAD. 

Eight  side  of  the  road,  328. 

Driving  on  the  wrong  side  in  the  dark,  id. 

Seeing  a  person  coming  on  his  wrong  side,  id. 

Does  not  justify  a  wanton  Injury,  329. 

Eule  of  the  Road  not  inflexible,  id. 

Light  load  meeting  heavy,  id. 

Parties  meeting  on  a  sudden,  330. 

Eule  of  the  Eoad  applies  to  Saddle  Horses,  id. 

Ordinary  vehicles  meeting  Tramcars,  id. 

Foot  Passengers,  id. 

Eule  of  the  Eoad  does  not  apply,  331. 

Going  over  a  crossing,  id. 

Nuisance  on  Public  Highway,  id. 

Horse  and  Carriage  before  Tradesman's  door,  id. 

EULES  OF  THE  JOCKEY  CLUB. 
Admitted  as  evidence,  410. 
Submission  to  arbitration  of,  id. 

EULES  OF  EACING,  551. 


638  INDEX. 

EUNNING  AWAY,  100. 

EUNNING  HOESES. 
Meaning  of,  370. 

S. 
SADDLE  GALLS,  100. 

SADDLE  HOESES. 

Eule  of  the  Eoad  applies,  330. 

SAILING  MATCH,  383,  433. 

SALE. 

What  is,  3. 

Of  goods  under  107.,  4. 

Hand  sale,  5. 

Of  specific  chattel,  28. 

"Without  reserve,"  47. 

Auctioneer  entitled  to  commission  on  sale,  not  bj'  auction, 

54. 
Avoided  by  fraud,  123. 
By  an  agent,  id. 
With  all  faults,  156. 
Fraudulent,  159. 

Effect  of,  on  resale  to  innocent  vendee,  id. 
Of  goods  bought  by  person  when  drunk,  162. 
By  order  of  Court,  172. 
Of  property  by  lot,  437. 
Conditions  at  Aldridge's,  579. 
Conditions  at  Tattersall's,  581. 

SALE  OE  EETUEN,  170,  177. 

SALLENDEES,  101. 

SANDCEACK,  101. 

SCAB,  102. 

SCHEDULE. 

Of  Weights,  Queen's  Plates,  550. 
Of  Distances,  id. 

SCIATIC  NEEVE,  106. 

SCEENTEE.  _ 

Where  injury  has  been  done  by  animals,  347. 
And  see  Ferocious  and  Vicious  Animals. 

SCOTLAND. 

Extension  of  Betting  Act  to,  456. 

SECUEITIES.    See  Gaming,  Gaming  Houses. 

SELLEE. 

Effect  of  his  becoming  bailee,  8. 
When  he  may  disaffirm  sale,  id. 


INDEX.  639 

Q'EL'LE'R— {continued) . 

May  become  agent  of  buyer,  10. 

Seller's  lien  for  the  price,  31. 

His  right  of  stoppage  in  transitu,  32. 

Not  entitled  to  notice  of  unsoundness,  163. 

Not  bound  to  take  back  unsound  Horse,,  id. 

Unless  tbe  contract  was  executory,  164. 

Or  there  is  fraud,  168. 
Where  he  refuses  to  take  back  the  Horse,  171. 

SEEYANT.    See  Warranty  and  Sale  by  an  Agent,  HraiNa 

Horses. 
May  set  up  title  of  master,  66. 
Damage  caused  by  servant's  negligence,  125. 
Warranty  by  servant  as  special  agent,  127. 
As  general  agent,  128. 

Does  authority  to  sell  imply  authority  to  warrant,  id. 
Warranty  by  a  servant  after  sale,  130. 
By  a  servant  forbid  to  give  one,  id. 

Master  unwilling  to  stand  by  his  servant's  warranty,  131. 
Eule  as  to  servant  binding  his  master,  132. 
When  farrier  is  answerable  for  his  servant,  229. 
Horse  hired  by  a  servant,  251. 
Horses  driven  by  the  owner's  servants,  252. 
Horses  driven  about  town  by  the  owner's  servants,  id. 
Hirer  liable  where  he  might  have  controlled  his  servant,  254. 
Jury  must  decide  whether  servant  is  acting  for  hirer  or 

owner,  257. 
Borrowed  Horse  cannot  be  used  by  a  servant,  261. 
Test  whether  person  employed  is  a  contractor  or  a  servant, 

318. 
Negligent  driving  by  a  servant,  331.    And  see  Negligent 

Driving  by  a  Servant. 
Striking  another's  Horse,  333,  336. 
Striking  a  Passenger,  336. 

Negligence  of  fellow-Servant,  or  stranger  volunteering,  341. 
Master  bound  to  use  care  in  selection  of  servants,  id. 

SEVEEABLE  CONTEACT. 
What  is,  3. 

SHAETS. 

Breaking,  307. 

SHEEP. 

Dog  worrying,  252.    See  Ferocious  and  Vicious  Animals. 

SHIVEEING,  102. 

SHOULDEE,  BEUISED,  101,  n. 

SHOULDEE-TIED,  137. 

SHYING. 

A  vice,  102. 

An  unsoundness,  id. 


640  INDEX. 

SIDEBONES,  103. 

SIGNATURE. 

By  the  Party  to  be  cliarged,  25. 

What  is  necessary,  id. 

May  be  in  the  beginning  or  middle  of  the  instrument,  id. 

It  is  then  open  to  the  Jury  whether  the  Party  meant  to 

bind  himself,  id. 
What  is  sufficient,  as  to  initials,  id. 
By  a  printed  name,  id. 
By  filling  up  a  printed  invoice,  id. 
Of  other  party  unnecessary,  26. 
In  order  book,  on  fly-leaf,  sufficient,  id. 
Of  instructions  to  telegraj^h  clerk,  id. 
By  Seller  insufficient,  id. 
Sufficient  when  made  for  another  purpose,  id. 
By  an  Agent,  id. 

What  equivalent  to,  under  Statute  of  Frauds,  27. 
Authority  may  be  conferred  by  word  of  mouth,  id. 
Auctioneer,  Agent  and  Witness  of  both  Parties,  id. 
Auctioneer's  Clerk,  id. 

SKITTLES. 

Conspiracy  to  cheat  at,  432. 
A  lawful  Game,  434. 

SLAUGHTERING  HORSES. 
Statutes,  579. 

SLIPPING  THE  COLLAR,  103. 

SMITH.    See  Farrier. 

SOLD  NOTE. 

Memorandum  within  Statute  of  Frauds,  17. 
May  amount  to  a  Warranty,  116. 

SOUNDNESS. 

Definition  of,  71. 

Important  decision  as  to,  72,  73. 

SPAVIN,  103,  191. 

SPECIAL  CONTRACTS  TO  CARRY.    See  Carrying  Horses. 

SPECIFIC  GOODS,  DELIVERY  OF. 
How  enforceable,  176. 

SPEEDY-CUT,  103. 

SPLINT,  103. 

Decision  on  the  subject,  104,  191. 
Not  a  patent  defect,  134 — 137. 

SPORTING  PHRASEOLOGY. 
Across  country,  410. 
A  Selling  Race,  411. 
P.  P.,  id. 

SPRAIN  AND  THICKENING  OF  THE  BACK  SINEWS,  104. 


INDEX.  .     641 

STAG.    See  Hunting  and  Tkespassing,  357. 
STAGGEES,  91. 

STAKE. 

Clerk  of  tlie  Course  usually  Stakeholder,  392. 

Has  no  right  to  the  Stakes,  id. 

Ground  of  action  against  Stakeholder,  id. 

Position  of  Stakeholder  towards  Parties,  if  the  Eace  cannot 

be,  or  is  not  to  be  run,  id. 
Cannot  set  oif  an  unpaid  Stake,  393. 
Where  he  may  cash  a  cheque,  id. 
Stake  must  abide  the  event  of  a  legal  contract,  id. 
A  Foot  Eace,  id. 
A  recent  decision,  394. 
Batty  V.  Marriott  overruled,  id. 
Judgment  of  Lord  Cairns,  L.  C,  id. 
Eecovery  of  Money  paid  on  an  illegal  contract,  396. 
"What  the  Party  should  do,  id. 
Demand  before  the  Money  is  paid  over,  id. 
French  law  as  to  the  recovery  of  Stakes  dej)0sited,  433. 
English  law,  id. 

Distinction  between  Stake  and  Bet,  id. 
16  &  17  Vict.  c.  119,  does  not  apply  to  Stakes,  453. 
Bringing  an  action  not  sufficient,  397. 
Where  the  Money  is  paid  over  without  dispute,  id. 
Where  a  Horse  is  disqualified,  398. 
Where  owner  knows  the  disqualification,  id. 
Proper  Party  to  receive  the  Stakes,  id. 
Winner  may  maintain  an  action,  398,  399. 
Under  what  circumstances,  id. 
A  Cricket  Match,  id. 
A  Wrestling  Match,  id. 
A  Dog  Fight,  id. 

Loser  may  recover  his  Stake  where  there  has  been  Fraud,  id. 
How  he  may  waive  his  claim,  400. 
Where  a  Stakeholder  may  recover  from  the  winner,  id. 
Money  in  the  hands  of  Stakeholder  does  not  pass  as  ' '  my 

monies  "  under  the  Depositor's  will,  id. 
Notice  to  Stakeholder  to  withdraw  Stake,  415. 

STAKEHOLDEE.    See  Stake. 
Auctioneer  a  Stakeholder,  52. 

STALLION-MASTEE. 
Has  a  lien,  234. 

For  work  done  on  a  Sunday,  235. 

STAMP. 

Agreement  admissible  to  prove  fraud  without,  160. 
Agreement  Stamj)  not  necessary  to  Warranty,  189. 

STAND. 

When  Steward  of  Eace-course  may  order  off,  412. 

STAE-GAZEE,  105. 

O.  T  T 


642  INDEX. 

STATUTE  OF  FEAUDS. 
The  4tli  Section,  5. 

Requisites  under  sect.  4,  id. 

Whole  contract  must  bo  in  writing,  id. 
The  17th  Section,  6. 

Extended  by  9  Geo.  4,  c.  14,  id. 

AcceiDtance  and  Eeceii^t,  7. 

Earnest,  15. 

Part  Payment,  16. 

Note  or  Memorandum  in  writing,  17. 

Bill  of  Parcels,  id. 

Catalogue  at  a  Sale,  18. 

Contract  by  Letter,  20. 

Signature  by  Party  to  be  charged,  25. 

Signature  by  an  Agent,  26. 

Need  not  be  authorized  in  writing,  27. 

Clear  recognition  of  Contract  bj^  Parties  sufficient,  id. 

Delivery  and  Payment,  28. 

STEEPLE  CHASES. 
Lawful  Grames,  433. 

STEWAEDS. 

Their  duties,  401. 

Disputes  to  be  settled  by  them,  id. 

Award  should  be  made  by  all,  id. 

Custody  of  the  Stakes  in  the  meantime,  402. 

Legal  position  of  Stewards,  id. 

Decision  not  necessarily  invalidated  by  one  of  them  being 

interested,  id. 
Decision  of  two  out  of  three  Stewards  held  binding,  id. 
Stewards  differ  from  legal  arbitrators,  403. 
Judge's  powers  do  not  accrue,  when  Eace  is  invalid,  id. 
Stewards'  decision  maintained  by  the  Court  of  Exchequer,  id. 
Provisional  decision,  404. 
Appointment  of  a  Judge,  405. 
Negligence  in  not  appointing,  406. 
Decision  of  the  L^mpii'e  or  Committee,  id. 
When  jurisdiction  has  not  attached,  id. 
Cannot  waive  any  condition  of  a  Eace,  409. 
Where  Course  governed  by  rules  of  Jockey  Club,  410. 
Ordering  off  the  grand  stand,  412. 
Ordering  goods,  413. 

STOCK  JOBBING  ACT. 
Eepealedinl860..423. 

STOLEN  HOESES. 

Eecovery  of  them,  63. 
Sale  in  market  overt,  id. 
Statutory  regulations,  64. 

Eecovery  when  sold  under  these  regulations,  id. 
Owner  must  prove  the  Horse  was  stolen,  id. 
Sale  out  of  market  overt,  id. 

Eecovery  when  not  sold  under  these  regulations,  id. 
Proof  of  compliance  with  statute,  65. 

Eule  that  owner  must  first  endeavour  to  bring  the  thief  to 
justice,  id. 


INDEX.  643 

STOLEN  llOnHEH—icordiuued). 

To  be  taken  witli  modifications,  65. 
Where  the  action  is  against  a  third  partjr,  66. 
Evidence  of  conversion,  id. 
Order  for  restitution,  id. 
Or  action  of  'Trover,  id. 
Applies  to  false  pretences,  67. 
And  receiving  stolen  goods,  id. 
May  be  made  ■where  second  bond  fide  purchase,  id. 
Order  of  police  magistrate,  id. 
Where  no  special  damages  can  be  awarded,  id. 
Replevin  for  unlawful  taking,  68. 

Wrongful  sale  by  Agent  of  Horse  entrusted  to  him,  id. 
And  see  Hirixg  Horses,  Horse  Stealing,  and  Fairs 
AND  Markets  Overt. 

STOPPAGE  IN"  TEANSITU. 
Seller's  right  of,  32. 
"When  goods  are  held  to  be  in,  id. 
When  anything  remains  to  be  done  by  seller,  id. 
Effect  of,  33. 

STEANGLES,  105. 

STEIKING. 

Another's  Horse,  301. 

Servant  striking  another's  Horse,  333,  336. 

Servant  striking  Passenger,  336. 

STEINGHALT. 

Held  to  be  an  unsoundness,  105. 

SUBSOEIPTION. 

Agreement  to  subscribe  to  a  Eace,  391. 

SUNDAY. 

Market  overt  in  London  on  all  days  but  Sunday,  56. 
AVhen  Inns  may  be  open  in  England  on,  214,  215. 
Inns  to  be  closed  in  Wales  on,  215. 
Billiard  plajdng  not  allowed  on,  464. 

SUNDAY  DEALING. 

Law  of  King  Athelstan,  35. 

Statute  of  Charles  2,  id. 

Institution  of  proceedings  under,  id. 

Farmers  not  within  this  Statute,  36. 

Sale  by  a  Horsedealer,  id. 

By  an  ordinary  Person,  id. 

A  subsequent  ratification,  id. 

Breach  of  Warranty  given  on  Sunday,  37. 

Work  done  by  a  Stallion-master,  235. 

SUEVEYOE.    See  Highway. 

SWEEPS. 

On  Eaces,  illegal,  437. 

SWEEPSTAKES,  390. 

tt2 


641  INDEX. 


TABLES. 

For  Gaming,  460,  461. 

May  be  taken,  460. 

Evidence  of  a  Gaming-liouse,  461. 

May  be  destroyed,  id. 

TACKLE, 

Breaking,  307. 
No  defence,  id. 

TAIL. 

Loss  of,  133. 

TATTEESALL'S. 

Conditions  of  Sale  used  there,  581. 

TEMPOEARY  DISEASE. 
Unsoundness,  73. 

TENDEE. 

By  buyer  of  Horse,  170. 

Sale  after,  171. 

Notice  instead  of,  id. 

Length  of  time  before  notice  of,  id. 

Api^ropriation  of  it,  188. 

Proof  of  it,  192. 

Necessary  to  recover  keep,  206,  207,  208. 

TENNIS,  383,  434. 

THICIvENING  OF  THE  BACK  SINEWS,  107. 

THICK-WIND,  107. 

THINNESS  OF  SOLE. 

Held  not  to  be  an  Unsoundness,  107. 

THOEOUGH-PIN,  108. 

THEOUGH  CAEEIAGE,  285,  287.   And  see  Carryixg  Houses. 

THEUSH,  108. 

TIME. 

Eeasonable,  as  to  delivery  of  goods  by  Carriers,  290. 
Wager  as  to  trotting  against,  418. 

TIME  BAEGAIN,  423. 

TIPSTEE. 

Agreement  with,  void,  419. 

TITLE. 

Warranty  of,  113,  114. 

Dispute  respecting,  decided  bj^  interpleader,  114. 


INDEX.  645 

TORTS. 

Married  wouaan  responsible  for,  162. 

Infants  liable  for,  179. 

But  not  where  substantial  ground  of  action  is  contract,  180. 

Damages  in,  201. 

TRADE  MARKS,  145. 

TRAINER. 

Remedy  against,  for  detaining  a  Horse,  176. 
Has  a  Lien,  233. 

TRAM  CARS.    See  Rule  of  the  Road. 

TRAVELLER. 

Innkeeper  may  serve  bona  fide  traveller  at  any  time,  216. 

Onus  of  proof,  id. 

Innkeeper  compellable  to  receive,  id. 

TRAVELLING  EXPENSES. 

In  case  of  breach  of  warranty,  210. 

TRESPASS.    See  Negligent  DRivmG,  Hunting  and  Tres- 
passing. 
May  be  maintained  by  agister,  240. 
Hirer  may  be  liable  in,  254 — 257. 
Master  driving  with  servant  liable  in,  335. 
Continued  tresjjass,  361. 

Two  persons  engaged  in  common  j)ursuit,  362. 
Trespass  in  search  of  Game,  id. 
Trespass  from  the  Highway,  363. 
Laying  hands  on  a  trespasser,  id. 
Defence  to  an  action  for,  364. 
Lies  for  riding  over  land,  id. 
But  not  where  a  dog  jumps  into  a  field,  id. 
Notice  not  to  trespass,  id. 

TRIAL  OF  A  HORSE. 
Right  of,  4. 

By  rule  of  a  Repository,  46. 
Objected  to,  to  conceal  a  defect,  137. 

TRIPPING,  108. 

TROTTING. 

Against  time,  418. 

TROTTING  MATCH,  433. 

TROVER. 

Damages  in,  201. 

Against  a  Farrier,  232. 

By  Agister,  240. 

By  Lender  of  goods  against  Borrower,  262. 


G46  INDEX. 

u. 

UMBRELLA. 

On  Eace-course,  a  "place"  -witliin  Betting  Acts,  loL 

TJMPIEE.    See  Stakeholders,  Stewards. 

UNSOUNDNESS. 

What  constitutes  it,  70. 

Present  state  of  the  Law,  id, 

Eule  regarding  it,  71. 

Imijortant  decision,  72. 

How  it  should  be  left  to  a  Jury,  74. 

Proof  of,  191. 

Notice  of  nature  of,  id. 

Matter  of  fact  alone,  id. 

Either  fact  or  veterinary  opinion,  id. 

Both  fact  and  veterinary  opinion,  id. 

Veterinary  opinion  alone,  192. 

USAGE. 

Of  trade  when  admissible  to  explain  written  contract,  24. 

When  not,  194. 

Evidence  of  usage  not  to  warrant,  130. 

V. 

VALUE,  declaration  of.    See  Carrying  Horses  and  Eate. 

VENDOE.    See  Seller. 

VEEBAL  CONTEACT,  3. 

VEEBAL  OFFEE  to  take  back  Horse,  170. 

VEEMIN.    See  Htjnting  and  Trespassing,  357. 

VETEEINAEY  SUEGEONS.     See  Farriers. 
Eoyal  College  of,  228,  n. 
No  law  peculiar  to  them,  228. 
Eemedy  against,  for  detaining  a  Horse,  176. 
Evidence  of,  191,  192. 

VICE. 

What  constitutes  it,  70. 

Present  state  of  the  Law,  70,  71. 

Eule  regarding  it,  74. 

How  it  should  be  left  to  a  Jury,  id. 

Proof  of,  191,  192. 

Inherent  Vice,  265.    And  see  Carrying  Horses. 

VICIOUS. 

To  clean,  109. 
To  shoe,  id. 


INDEX.  647 

VICIOUS  ANIMALS,  301,  309,  347.    And  see  Ferocious  and 
Vicious  Animals. 

VICTOEIA. 

Eeign  of,  382. 

Statutes.    See  Table  of  Statutes. 

VISIBLE  DEFECT,  152. 

W. 

WAGEEING  POLICIES,  424. 

WAGEES. 

Wagers  at  Common  Law,  414. 

Wager  on  the  life  of  Napoleon,  415. 

Wager  on  the  result  of  an  election,  id. 

Betting  on  a  race  no  longer  illegal,  id. 

Bets  not  recoverable,  id. 

Deposit  recoverable  before  tbe  event,  id. 

Decision  of  tlie  Court  of  Common  Pleas,  416. 

What  is  a  wagering  contract,  417. 

Money  advanced  with  stipulation,  id. 

Price  of  Mare  to  be  increased,  if  she  won,  by  her  winnings, 
418. 

Billiard  Match,  id. 

Eotundity  of  earth,  id. 

Trotting  against  time,  id. 

Agreement  with  Tipster,  id. 

Walking  Match,  419. 

Contribution  to  person  nominating  winner  not  within  pro- 
viso, id. 

Second  Horse  may  receive  part  of  the  Stakes  within  the 
proviso,  420. 

Effect  of  wagers  being  void  on  note  given  in  payment,  id. 

Wagering  contracts  by  brokers  void  but  not  illegal,  421. 

Contracts  may  be  illegal  which  are  not  void,  id. 

Money  paid  on  void  contract,  id. 

Decision  in  Equity,  422. 

Money  paid  on  illegal  game  not  recoverable,  id. 

The  Act  for  the  Suppression  of  Betting  Houses,  id. 

The  Stock-Jobbing  Act,  423. 

Gaming  on  Stock  Exchange,  id. 

Where  each  Party  means  to  break  the  contract,  id. 

As  in  a  time  bargain,  id. 

Question  to  be  left  to  the  Jury,  id. 

Statute  only  affects  contract  which  makes  the  Wager,  id. 

Statute  against  wagering  policies,  424. 

What  held  to  be  such  a  policy,  id. 

Wager  as  to  a  declaration  of  war,  id. 

What  was  held  not  to  be  such  a  policy,  id. 

Paying  a  bet,  425. 

Giving  a  security,  id. 

Where  a  note  or  bill  is  a  gift,  id. 

Taking  a  stolen  bank  note  in  payment,  426. 

Taking  stopped  note  in  payment,  id. 


648  INDEX. 

^YAGERS—{cordinued). 

What  invalidates  the  holder's  right,  426. 

Mala  fides  must  be  distinctly  proved,  id. 

Money  borrowed  to  pay  bets,  427. 

A  betting  agent,  id. 

May  recover  disbursements  from  principal,  id. 

Agreement  to  pay  winnings  to  principal  not  within  Act,  id, 

A  betting  partner,  id. 

Cheating  Wager,  428. 

WAGGON. 

Trotting  along  a  road,  299. 
Trotting  along  a  street,  id. 

WALL-EYED,  109. 

WAEBLES,  109. 

WAERANT  OF  ATTOENEY. 

Given  for  a  gambling  debt,  447. 

WAEEANT  OE  DELIVEEY  OEDEE. 

Mere  acceptance  of,  bj'  purchaser  will  not  bind  bargain,  15. 

WAEEANTY. 

Of  soundness  limited  as  to  time  by  Conditions  of  Sale,  45. 

Of  ownership  by  Auctioneer,  48. 

Effect  of  jirivate  warranty  of  soundness  before  Sale,  51. 

Warranty  required  in  buying  a  Horse,  113. 

Warranty  of  title,  id. 

Not  implied  by  law  of  England,  id. 

How  it  may  be  inferred,  id. 

Eule  of  Law,  114. 

When  the  consideration  fails,  id. 

Mode  of  trj'ing  a  disputed  title,  id. 

Interpleader  order  not  granted  unless  claims  co-extensive, 

115. 
Eeason  for  requiring  a  Warranty,  id. 
Buyer  should  protect  himself  by  one,  116. 
What  constitutes  a  Warranty,  id. 
No  particular  words  necessary,  id. 
Eepresentation  of  vendor  at  time  of  Sale,  id. 
Where  article  is  described,  id. 
Words  of  expectation  do  not  amount  to,  id. 
Article  named  in  a  sold  note,  id. 
Buyer   entitled    to    Article    commercially    known    by    the 

name,  id. 
A  sound  price  not  tantamount  to  a  Warranty,  117. 
A  general  Warranty,  id. 
A  qualified  Warranty,  id. 
A  limited  Warranty,  44,  117. 

Complaint  of  breach  must  be  made  within  time  limited,  id. 
A  special  Warranty,  118. 
A  wi'itten  Warranty,  id. 
A  special  Agreement,  id. 
Form  of  Warranty,  i<l. 


INDEX.  649 

'SVA'RRA.'NTY—iconimued). 

Effect  of  a  written  "Warranty,  118. 

Warranty  may  be  gathered  from  Letters,  119. 

The  Parties  arc  bound  by  it  alone,  id. 

Unless  fraud  is  shown,  id. 

Eepresentation  does  not  avail,  id. 

It  cannot  be  extended  by  implication,  id. 

A  "Warranty  is  several  though,  the  contract  be  entire,  id. 

A  Warranty  applies  to  the  time  of  Sale,  id. 

Warranting  a  future  event,  120. 

Buying  for  a  particular  purpose,  id. 

Must  be  reasonably  fit  for  the  purpose,  id, 

A  Horse  to  carry  a  Lady,  id. 

A  carriage  Horse,  121. 

No  exception  as  to  latent  undiscoverable  defects,  id. 

Quiet  in  harness,  id. 

Unfitness  must  be  clearly  proved,  122. 

Must  have  existed  at  time  of  Sale,  id. 

"Where  there  is  presumption  that  Horse  answers  Warranty, 

id. 
General  rule,  id. 
Warrantor's  liability,  123. 
Sale  avoided  by  fraud,  id. 
But  not  by  immaterial  representation,  id. 
Proof  of  Warranty  not  contained  in  the  Eeceipt,  189. 
Proof  of,  when  to  be  gathered  from  Letters,  id. 

"When  formally  made  in  writing,  id. 
Warranty  in  a  Eeceipt  not  always  conclusive,  id. 
Warranty  need  not  have  Agreement  Stamp,  id. 
Defence  to  breach  of  Warranty,  195. 
Proof  of  surreptitious  Warranty,  id. 

Condition  annexed  to,  when  it  should  be  specially  pleaded, 
196. 

And  see  Breach  of  Warranty. 

WAEEANTY  AND  SALE  BY  AN  AGENT. 

An  agent  cannot  delegate  his  authority,  123. 

Nor  exceed  it,  124. 
Agency  determines  by  principal's  death,  id. 
Difference  between  a  remunerated  and  an  unremunerated 

Agent,  id. 
Agent  acting  without  proper  authority,  id. 
His  personal  responsibility,  id. 
"Where  he  cannot  be  sued  on  the  contract,  id. 
But  is  liable  in  damages,  125. 
Principal  answerable  for  his  fraud,  id. 
Misrepresentation  collateral  to  the  contract,  id. 
Damage  caused  by  his  negligence,  id. 

Servant  putting  up  glandered  Horse  in  stable  of  another,  id. 
Undisclosed  principal,  id. 

"Where  vendor  does  not  know  that  there  is  a  principal,  id. 

Alteration  of  account  between  principal  and  agent,  126. 

"Where  vendor  knows  name  of  principal,  id. 

"Vendor's  election,  id. 

Where  vendor  does  not  know  name  of  principal,  id. 

0.  u  u 


G50  INDEX. 

WAEEANTY  AND  SALE  BY  AN  AGE'^T—icorMnned). 

Person  described  as  agent  may  be  proved  to  be  principal,  12G. 
Principal  cannot  bo  proved  to  be  an  agent,  127. 
Their  respective  riglits  of  action  on  a  contract,  id. 
Warranty  by  a  servant  as   special  agent,  ul. 

When  entrusted  to  sell  Horse  privatelj',  128. 

When  entrusted  to  sell  Horse  at  a  fair,  id. 
Warranty  by  a  servant  as  generab  agent,  id. 
Servant  "of  Horse-dealer  has  implied  authoritv  to  warrant, 

id. 
Illustration  of  rule,  129. 
Evidence  of  custom  not  to  warrant,  130. 
Warranty  by  a  servant  after  sale,  id. 
Warranty  by  a  servant  forbid  to  give  one,  id. 
Warrant}'  by  a  stranger  forbid  to  give  one,  131. 
Master  unwilling  to  stand  by  his  servant's  Warranty,  id. 
Eule  as  to  a  servant  binding  his  master,  132. 
Warranty  by  a  person  entrusted  to  deliver,  id. 
Agent  employed  to  take  a  Warranty,  id. 
Action  against  a  pretended  Agent,  id. 
Proof  in  Warranty  by  a  servant,  190. 

WAEEANTY   DISTINGUISHED    FEOM    EEPEESENTA- 
TION. 
Eepresentation  intended  as  a  Warranty,  138. 
Eecommendation  of  the  seller,  id. 
Affirmation  as  to  value,  id. 

Distinction  between  a  Warranty  and  a  Eepresentation,  id. 
Where  a  Eepresentation  amounts  to  a  Warranty,  139. 
It  must  form  part  of  the  contract,  id. 
And  be  made  pending  contract,  id. 
Description  of  a  class  of  goods,  140. 
Question  to  be  put  to  Jury,  id. 
Eule  as  to  Warranty  and  Eepresentation,  id. 
Mere  expression  of  opinion,  141, 
Selling  according  to  a  pedigree,  id. 
Partly  a  Warranty  and  partly  a  Eepresentation,  id. 
Jury  must  decide  between  a  Warranty  and  a  Eepresentation, 

l4l. 
Judgment  in  BeJin  v.  Burness,  143. 
Counterfeit  trade  marks,  145. 

WAETS,  109. 

WATEE  FAECY,  88,  109. 

WAYS. 

Owners  of  private  ways  liable  for  negligence,  31G. 
Even  where  injury  caused  by   intervening  act  of  third 
party,  317. 

WEAK-FOOT,  109. 

WEAVING,  110. 


INDEX.  651 

WEIGHTS. 

Under  13  Geo.  2,  c.  19  .  .  379. 
For  Queen's  Plate,  550. 

WHEEZIXG,  110. 

WHIST. 

Lawful,  434. 

WHISTLING,  110. 

WILFUL  MISCONDUCT,  282.    See  CARRYixa  Horses. 

WILLIAM  THE  CONQUEEOR. 
Eeign  of,  369. 

WILLIAM  THE  THIRD. 
Reign  of,  377. 
Statutes.    See  Table  of  Statutes. 

WILLIAM  THE  FOURTH. 
Reign  of,  382. 
Statutes.    See  Table  of  Statutes. 

WILREMHAUNCH,  110. 

WIND-GALLS,  110. 

WIND-SUCKING,  111. 

WITNESS. 

Competency,  198. 

Person  found  in  Gaming  House  may  be  made  a  witness,  4G2. 

And  freed  from  all  penalties,  id, 

WOLF'S-TOOTH,  111. 

AVOUNDING. 

Wounding  a  Horse,  felonj',  62. 

WRESTLING  I^IATCH,  383,  399,  433. 

WRITTEN  CONTRACT,  3. 

Y. 

YACHTING,  383,  433.    And  see  Regattas. 
YELLOWS,  HI. 


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Municipal  Corporations.— The  Muni- 

rip;d  Corporations  Act,  1882,  and  the 
General  Rules  made  in  pursuance  thereof. 
By  T.  Geary.     8th  Edit.    1/.  18s.    1884. 


3,  CHANCERY  LANE,  LONDON. 


Nisi  Prius. — Roscoe's  (H.)  Digest  of  tlie 

Law  of  Nisi  Prius  Evidence.   16tli  Edition. 
By  M.  Powell.  .  2  vols.    21.  10«.     189L 

Partnership. — A  Treatise  on  tlie  Law  of 
Partnership.  By  the  Riglit  Hon.  Sir 
Nathaniel  Lindley,  Knt.,  one  of  the 
Lords  Justices  of  Her  Majesty's  Court  of 
Appeal.  Sixth  Edition.  By  W.  B.  Lind- 
ley, M.A.  35.9.  18'.);j. 
FowKE  &  HENnERSON's  Partnership  be- 
tween Solicitors.  A  Collection  of  Prece- 
dents. By  V.  i)R  S.  FowKE  and  E.  B. 
Henderson.  With  an  Appendix  on  Soli- 
citors' Accounts,  by  James  FiTZPATUiCK, 
Fellow  of  the  Society  of  Accountants  and 
Auditors.     Price  6.s.  1894. 

Patents.— Goodeve's  (T.M.)  Abstract  of 
Keported  Cases  relating  to  Letters-Patent 
for  Inventions.  Vol.1.  lloy.Svo.  PriceSO.v. 
Vol.  2.  By  11.  GiiiFFiN,  in  continuation, 
bringing  cases  from  1883-1886.  25s.  1887. 
Practice  before  the  Comptroller  and  the  Law 
Officers,  with  an  Abstract  of  Reported 
Cases,  and  an  Appendix  bringing  the  cases 
down  to  the  end  of  the  year  1892.  By 
T.  M.  GooDEVE.     6.f.  1893. 

Appendix  separately.     2.y.  6f/. 

Personal  Property.— Goodeve's  Mo- 
dern Law  of  Personal  Property.  Royal 
8vo.  2nd  Ed.  BySirH.  VV.  Elphi.nstone 
and  J.  W.  Clark.     18.s.  1892. 

Williams'  (Joshua)  Principles  of  the  Law 
of  Personal  Property,  intended  for  Stu- 
dents.   14th  Edit.     21. V.  1894. 

Probate. — Powles  and  Oakley.— a 
Treatise  on  the  Principles  and  Practice  of 
the  Court  of  Probate  in  Contentious  and 
Non-Contentious  Business ;  being  the  3rd 
Edition  of  Browne  on  Probate.  In  1  vol. 
30«.  1892. 

Railway  and  Canal  Cases.— 7  vols. 

ly.  5.S'.  1874  to  1891. 

Railways.— Hodges'  (Sir  wl)  Law  of 
Railways,  Railway  Companies  and  Railway 
lnve:^tnients;  with  Statutes,  Precedents, 
&c.  7th  Ed.  By  J.  M.  Lely.  Iu  2  vols. 
'U.  12.S.  1889. 

Real  Property. — Principles  of  the  Law 
of  Real  Property.  Intended  us  a  First  Book 
for  the  Use  of  Students  in  Conveyancing. 
By  the  late  Joshua  Williams,  Esq. 
The  17th  Edition  by  T.  C.  Williams, 
LL.B.     21.?.  1892. 

Goodeve's  Modern  Law  of  Real  Property, 
with  an  Introduction  for  the  use  of  Stu- 
dents. 3rd  Edition.  By  Sir  H.  W.  El- 
PHiNSTONE,  Professor  of  the  Law  of  Real 
and  Personal  Property  in  the  Inns  of  Court, 
and  J.  W.  Clark.    21s.  1891. 

Kelke's  Real  Property  Law.  An  Ejiitome 
of  Real  Property  Law,  for  the  Use  of 
Students.  By  W.  H.  Hastings  Kelke, 
M.A.     6.S.  1892. 

Shelforu's  Real  Property  Statutes.  9th 
Ed.  by  Thomas  H.  Carson,  assisted  bv 
Harold  B.  Bompas.    30s.  1892. 

Receivers. — A  Treatise  on  tlie  Law  and 
Practice  as  to  Receivers  appointed  by  the 
Court  of  Chancery.  By  AV.  W.  Kerr. 
3rd  Edition.     10s.  '  1891. 


Restraint    of    Trade.  — Matthews' 

Covenants  in  Restraint  of  Trade.  By  J.  15. 
Matthews,  Solicitor,  Worcester.  Author 
of  "A  Manual  of  the  Law  relating  to 
Married  Women."     9s.  1893. 

Sale,  Contract  of.— Ben.tamin's(J.  r.) 

Treatise  on  the  Law  of  Sale  of  Personal 
Property,  with  reference  to  the  American 
Decisions  and  the  French  Code  and  Civil 
Law.    4th  Edit.    35s.  1888. 

Sale  of  Goods.  — Newijolt.  Tlie  Sale 
of  Goods  Act,  1893,  with  Notes  by  Frank 
Newrolt,  M.A.,  Fellow  of  the  Chemical 
Society.     6s.  1894. 

Ker  (W.  C.  a.)  and  Pearson  Gee's  (A. 
B.)  Cotnmentary  on  the  Sale  of  Goods 
Act,  1893  ;  forming  a  supplement  to  Ben- 
jamin on  Sale.     18s.  1894. 

Settled   Land   Acts.— The   L.aw   and 

Practice  under  the  Settled  Land  Acts, 
1882  to  1890.  Bv  Aukrey  St.  John 
Clerke,  R.A.     2nd"  Ed.     9s.  1891. 

Settlements. — VaizI'.y'.s  (J.  S.  )  Treatise 

on  Settlements  upon  marriage  and  other 

occasions.     In  2  vols.     3/.  3s.  1887. 

Precedents  of  Settlements,  by  J.  S.  Vaizey. 

15s.  1888. 

Sheriff  Law. — A  Coini)endiuin  of  the 
Law  relating  to  the  Office  and  Duties  of 
Sheriff.     ]5y  P.  E.  Mather.     25s.     1894. 

Statutes. — Ciiitty's  Statutes  of  Prac- 
tical Utility.  New  Edit.  By  J.  M.  Lely, 
Magna  Chiirta  to  1894.  In  about  12  vols. 
12i;."l2s.  hi  Course  of  I'nhiicaf  ion. 

The  Interpretation  of  Statutes.  By  Sir 
P.  B.  Maxwell.     2nd  Edition.      1/.  Is. 

1883. 

Stock  Exchange.— Melsheimer    (R. 

E.)  and  Gardner  (S.)  The  Law  and 
Customs,  with  an  Appendix  containing  the 
Official  Rules  and  Regulations.  3rd  Ed. 
7s.  &d.  1891. 

Support.— Banks.  A  T-'eatise  on  the 
Law  of  Support  for  Land,  Buildings  and 
Public  Works.    By  G.  Banks,  m.a.    12.s-. 

1894. 

Title. — Hints  as  to  advising  on  Title. 
2nd  Edit.     By  W.  H.  Goyer.    8s.     1892. 

Torts.— The  Law  of  Torts,  by  J.  F.  Clerk 
and  W.  II.  B.  Lindsell.     25s.        1889. 

Trade  Marks.  — An  Abstract  of  Reported 
Cases  relating  to  Trade  Marks,  between 
the  years  1876  and  1892  inclusive  ;  with 
the  Statutes  and  Rules.  By  James  .\usten 
Cartmell.     25s.  1893. 

Kerly.  a  Treatise  on  the  Law  of  Trade 
]\larks.  By  D.  M.  KerlY,  m.a.  25s.  1894. 

Trusts.  —  Lewin's  (Thomas)  Practical 
Treatise  on  the  Law  of  Trusts.  9th  Edit. 
42s.  1891. 

Vaizey.  The  Law  relating  to  the  Invest- 
ment of  Trust  Money,  includitig  the  Trust 
Investment  Act,  1889,  and  the  List  of 
Authorised  Investments.  By  J.  S.  Vaizey. 
9s.  1890. 

Waste.— BE^VEs.  A  Treatise  on  the  Law 
of  Waste.     By  W.  A.  Bewes.    18s.  1S'.)4. 

Wills.— Jarman's  (T.)  Treatise  on  Wills. 

5th  Edition.     2  vols.     3^.  10s.  1893. 

Hayes  (W.)   and  Jarman's  (T.)  Concise 

Form  of  Wills ;  with  Practical  Notes.  10th 

Ed.     ByW.  B.  Megone.     21s.  1893.